Thursday, March 29, 2007

Restitution Claim Not Barred by Appeal Waiver; District Court Ordered Too Much

U.S. v. Gordon, --- F.3d ----, 2007 WL 915074 (10th Cir. March 28, 2007)

Defendant did not waive her right to appeal a restitution order that she claimed was unlawful under the Mandatory Victim Restitution Act (MVRA). Applying contract principles that ambiguities in a plea agreement are construed against the drafter, that one reads the agreement as a whole, and “if the principal purpose of the parties is ascertainable, it is given great weight,” the 10th determined that in her plea agreement, Defendant waived her right to appeal only those “aspects of her sentence and restitution that were imposed within the authority granted to the district court by the relevant statutes.” She did not waive her right to appeal an unlawful order.

In potentially useful language, the 10th stated that “we question whether [the Defendant] could have waived her right to appeal an unlawful restitution order, even if she wanted to do so.” (Unlawful because beyond statutory authorization).

In more useful language: “Furthermore, we must construe the plea agreement against a general backdrop of legality. ...This means that we should presume that ‘all promises made were legal, and that the non-contracting ‘party’ who implements the agreement (the district judge) will act legally in executing the agreement.’ Surely then, [the Defendant] was also entitled to presume, when she entered the plea agreement, that the judge would order restitution in a legal manner.”

On the merits: The maximum amount of restitution under the Mandatory Victim Restitution Act is the amount causally linked to the offense of conviction. The district court unlawfully ordered restitution to victims of credit card frauds for which the Defendant did not plead guilty.
Timkovitch dissented on grounds that in interpreting the plea agreement, Defendant did agree to pay all victims under the terms of the agreement and thus waived her appeal rights.