Defendant's Waiver of Appeal Rights Included Amount of Restitution Issue

U.S. v. Cooper, --- F.3d ----, 2007 WL 2372382(10th Cir. August 21, 2007)

D’s appeal waiver barred his appeal of the restitution award and conditions of supervised release. D broadly waived his right to challenge his “guilty plea and any other aspect of his conviction,” and the “sentence as imposed by the Court and the manner in which the sentence is determined.”Although a majority of circuits have concluded that such language does not include a general waiver of the right to appeal a restitution award, in this case the plea agreement makes clear that the parties considered restitution as part of his sentence: “[T]he parties further agree that, as part of the sentence resulting from the defendant's plea, the Court will enter an order of restitution....” Likewise, D’s challenge to the condition of supervised release is also clearly part of his “sentence” and is thus barred by his waiver of the right to appeal. The 10th’s earlier decision in Gordon is extremely narrow and applies only in cases where there is no factual dispute as to the amount of restitution, and in this case D’s is a factual challenge to the amount of restitution, not a challenge to the legality of the restitution.