In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 04-20990

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL MOTILAL MAHARAJ,

Defendant-Appellant,

_________________________

Appeals from the United States District Court

for the Southern District of Texas

m 4:04-CR-79-1

_________________________

Before SMITH, GARZA, and PRADO, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Michael Maharaj appeals his sentence imposed pursuant to a plea agreement in which

he pleaded guilty of conspiracy to defraud the

government under 18 U.S.C. § 286 by making

false, fictitious, or fraudulent claimsfor federal

income tax refunds. Maharaj argues that the

district court affected his substantial rights by

failing to notify him of its authority to order

restitution and by imposing a sentence above

the maximum indicated at his plea hearing.

* Pursuant to 5TH CIR.R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

F I L E D

April 14, 2006

Charles R. Fulbruge III

Clerk
2

Because the district court did not commit plain

error, we affirm.

I.

The plea agreement provided, inter alia, that

the maximum statutory penalty for violating

§ 286 is $250,000 and that any fine or restitution would be due immediately. The agreement

also contained an appeal waiver, which

provided that Maharaj surrendered his right to

appeal his sentence unless the court imposed

(1) a sentence above the statutory maximum or

(2) an upward departure from the sentencing

guidelines that was not requested by the government.

At rearraignment, the court advised Maharaj

that he was subject to a maximum of 10 years’

imprisonment and/or a fine of $250,000, a maximum of 3 years’ supervised release, and a

special assessment of $100. The court did not

advise that it had authority to order him to pay

restitution. The court read Maharaj the appeal

waiver. Maharaj represented that he had read

and that he understood the terms of the plea

agreement, and he signed the agreement on the

record.

The pre-sentence report indicated that Maharaj would be required, inter alia, to make

restitution. The court sentenced Maharaj to 78

months’ imprisonment, 3 years’ supervised release, a fine of $125,000.00, restitution jointly

and severally with his co-defendants of

$225,238.92, and a $100 special assessment.

II.

Adefendant maywaive hisright to an appeal

in a written plea agreement if the waiver is

informed and voluntary. United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). A

defendant is not bound by an appeal waiver

where the government does not seek

enforcement of the waiver provision.1In its

brief, the government states that it does not

seek enforcement of the waiver.

Maharaj argues he is entitled to a reduction

in his required payment from $350,338.92 to

$250,000.00, the maximum amount indicated

at hisrearraignment hearing, because the court

failed to advise him, in violation of Federal

Rule of Criminal Procedure 11(b)(1)(K), that

he might be required to pay restitution.

2 Because Maharaj raises this issue for the first

time on appeal, we review for plain error.3

Under plain error review, the defendant

must show that the district court (1) committed error (2) that was plain and (3) affected his

substantialrights. United States v. Olano, 507

U.S. 725, 732 (1993). Even if we find plain

error, we retain discretion whether to correct

it and generally will decline to do so unless it

“seriously affectsthe fairness, integrityor public reputation of judicial proceedings.”4

1

See United States v. Story, 439 F.3d 226, 231

(5th Cir. 2006) (“In the absence of the government’s objection to [the defendant’s] appeal based

on his appeal waiver, the waiver is not binding because the government has waived the issue.”).

2

See FED.R.CRIM. P. 11(b)(1)(K) (stating that

“the court must inform the defendant of, and

determine that the defendant understands . . . the

court’s authority to order restitution”).

3 United States v. Vonn, 535 U.S. 55, 59 (2002)

(holding that a defendant who fails to raise rule 11

error at trial “has the burden to satisfy the

plain-error rule”).

4 United States v. McIntosh, 280 F.3d 479, 482

(5th Cir. 2002) (quoting Olano, 507 U.S. at 736

(internal quotations omitted)).
3

Because the district court violated rule 11 by

not informing Maharaj of its authority to order

restitution, the court committed error that was

plain. See Olano, 507 U.S. at 732. Maharaj

relies on United States v. Glinsey, 209 F.3d 386

(5th Cir. 2000), and United States v. Powell,

354 F.3d 362 (5th Cir. 2003), to claim that the

error affected substantial rights because the total amount of liability imposed exceeded the

amount that the court advised him would follow as a result of his guilty plea.

We have stated, when conducting harmless

error review, that substantialrights are violated

under rule 11 if “the defendant’s knowledge

and comprehension ofthe full and correct information would have been likely to affect his

willingness to plead guilty.” United States v.

Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en

banc). In Glinsey, 209 F.3d at 396, in circumstances nearly identical to these, we adjusted

the sentence by the difference between the

amount the court imposed and the amount it

warned the defendant he could receive. We

stated that the defendant “is not prejudiced so

long as his liability does not exceed the maximum amount that the court informed himcould

be imposed as a fine.” Id. at 395.5

Even assuming that Glinsey controls as to

what affects substantial rights in the context of

plain-error review, we would not find plain error here. First, Maharaj’s written plea agreement, unlikeGlinsey’s,specificallymentionsthe

possibility of restitution. See id. at 394. Maharaj indicated he read and understood the

terms, and he signed the agreement on the record. He also received notice of the possibility

of restitution in his pre-sentence report.6

Second, Maharaj was held jointly and severally liable with his co-defendants for the full

amount of restitution, a fact that decreases the

likelihood that he would be held personally

responsible for payment in excess of $250,-

000.00. See id. at 392 (implying Glinsey was

solelyresponsible forrestitution). Third, Glinsey merely stands for the proposition that a

judgment equal to the amount announced at

the plea colloquy cannot, by definition, affect

a defendant’s substantial rights, because the

defendant received fair notice of that amount

under rule 11. See id. at 395. It does not follow that a judgment above the notified amount

necessarily affects substantial rights. Glinsey’s

sentence was substantially further above the

notified amount than is Maharaj’s. See id. at

395 (noting the additional imposition of

$266,317.06). Fourth, and most importantly

in the context of plain error review, because

Maharaj did not object to the rule 11 violation

at trial, we are not persuaded that he would

not have pleaded guilty but for the error.

Finally, even if Maharaj had established

plain error, this case does not present facts

that “seriouslyaffect[] the fairness, integrityor

public reputation of judicial proceedings.”

McIntosh, 280 F.3d at 482. In particular, the

fact that Maharaj received notice of the possi5

See also Powell, 354 F.3d at 370 (stating that

failure to disclose the possibility of restitution

“could be harmful error when the quantum of that

restitution exceeds the liability amount used by the

court in notifying the defendant as to the consequences of his guilty plea.”).

6 Maharaj notes that in Powell the defendant

had also received notice of restitution in his plea

agreement and pre-sentence report. See id. at 367.

But Powell does not control, because the court had

no occasion to modify the judgment, given that the

amount ultimately imposed was less than the

amount announced to the defendant during the plea

colloquy. See id. at 369.
4

bility of restitution in his pre-sentence report

and written plea agreement convinces us that

the district court afforded him adequate due

process. 

AFFIRMED.