Court Declines to Decide Whether General Appeal Waiver Bars Review of Restitution Order

United States v. Smith, No. 07-60385 (5th Cir. May 16, 2008) (King, DeMoss, Benavides)

Smith pleaded guilty pursuant to a plea agreement providing that she "expressly waives her rights to appeal the conviction or sentence imposed in this case, and the manner in which the sentence was imposed, on any ground whatsoever." She nonetheless appealed, arguing that there was insufficient evidence to support the district court's restitution order.

The court began by noting that, "[i]n two unpublished cases, we have held that an appeal waiver barred review of a restitution order, but both of those cases involved plea agreements that explicitly stated that the defendant agreed to pay restitution in an amount determined by the district court." Unlike those cases, Smith's plea agreement did not address restitution. The district court also failed to tell Smith that any restitution order would be convered by the appeal waiver, although the matter came up briefly at the plea colloquy.

Nevertheless, the court "decline[d] to address the issue of whether a general appeal waiver bars review of a restitution order when the plea agreement does not discuss restitution"---although it cited several circuits that have held such a waiver does not bar the appeal---because it found that there was adequate evidence to support the restitution order: the PSR's loss amount calculation was based on an interview with an employee of the victim, and although Smith offered a different calculation, she offered no evidence to explain her calculation or to rebut the PSR's calculation. Thus, the court affirmed the restitution order, citing the familiar---and questionable---precedents holding that "[t]he district court may adopt the facts contained in a presentence report without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable," and that "[t]he defendant bears the burden of showing that the information in the PSR relied on by the district court is materially untrue."