United States v. Williams, __F.4th__, 2021 WL 3716402 (10th. Cir. 2021)

Mr. Williams pleaded guilty to a single count of bank fraud under § 1344 and stipulated to restitution under the MVRA associated with that count. He survives an appellate waiver and then things take a turn for the worst. He gets hammered by the Tenth for appealing the amount he stipulated to (invited error and/or plain error for not objecting) while wanting to keep other terms of plea (that benefitted him) in place. One interesting argument was an attempt at a categorical approach analysis for the MVRA, stating that the “scheme or artifice” in § 1344 is broader than the MVRA’s use of “scheme.” Within this, it appears that the Tenth is still hanging on to its restitution-isn’t-punishment reasoning, even though this was called into question in United States v. Ferdman, 779 F.3d 1129, 1132 n.1 (10th Cir. 2015) (acknowledging language of Paroline, 572 U.S. 434, 456 (2014) “calls into question [the Tenth Circuit’s] view that the MVRA lacks a penal element”). Mr. Williams also loses a challenge to the substantive reasonableness of his sentence.