## In the



# United States Court of Appeals for the Fifth Circuit

_______________ 

### m 04-20990 Summary Calendar

_______________



### UNITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee ,
VERSUS



### M ICHAEL 

### M OTILAL 

### M AHARAJ 

### , Defendant-Appellant,

_________________________ Appeals from the United States District Court fo r the Southern District of Texas 

### m 4:04-CR-79-1

_________________________

Before S MITH , G ARZA , and P RADO , Circuit Judges.

JERRY E. S MITH , Circuit Judge: * Michael Maharaj a p peals his sentence imposed pur suant to a plea agreement in which he pleaded guilt y of conspiracy to defraud the government under 18 U.S.C. § 286 by making false, fict it io us, or fraudulent claims fo r federal inco me tax refunds. Maharaj argues that the district court affected his substantial rights by failing to n oti fy him o f it s authori ty to order resti tution and by impo sing a sentence above the maximum indicated at his plea hearing. * Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

## F I L E D April 14, 2006 Charles R. Fulbruge III Clerk2

Because th e district court did not com mit plain error, we affirm.

I. The plea agreement provided, inter alia , that th e maximum statutory penalty fo r vio lating § 286 is $250,000 and that any fine or restitution would be due immediat ely. The agreement also contai

ned an appeal waiver, which provided that Maharaj surrendered his right to appea l his sentence unless the court imposed (1) a sentence above th e statutory maximum or (2) an upward departure from th e sentencing guidelines that was not requested by th e government.
At rearraignment, th e 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 authori

ty to order him to pay resti tution. The court read Maharaj the appeal waiver. Maharaj represent ed that he had read and that he understood th e terms of the plea agreement, and he signed th e agreement on the record.
The pre-sentence report indicated that Maharaj would be required, i n ter alia , to make resti tution. The court sentenced Maharaj to 78
mo nt hs’ imprisonment, 3 years’ supervised release, a fine of $125,000.00, resti tution jo int ly and severally wit h his co-defendants of $225,238.92, and a $100 special assessment.

II. A defendant may waive his right to an appeal in a wri tten plea agreement i f t he waiver is info rmed and voluntary. U nited States v. Baymon , 312 F.3d 725, 727 (5 th Cir. 2002). A defendant is not bound by an appeal waiver where th e government does not seek enforcement of th e waiver provision. 1 In its bri ef, the government states that it does not seek enforcement of the waiver. Maharaj argues he is entitled to a reduction in his require d payment from $350,338.92 to $250,000.00, the maximum amount indicated at his rearraignment hearing, because th e court failed to advi se him, in vio lat io n of Federal Rule of Criminal Procedure 11(b)(1)(K), that he might be required to pay resti tuti on
. 2 Because Maharaj raises this issue for the first ti me o n appeal, we review for plain error. 3
Under plain error review, t h e defendant must show that the district court (1) com mit

ted error (2) that was plain and (3) affected his substantial rights. U

nited States v. Olano , 507 U.S. 725, 732 (1993). Even if we find plain error, we retai

n discretion whether to correct it and generally will decline to do so unless it “seriously affects the fairness, int egrity or 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 F ED

. R. C RIM

. 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 th e district court vio lat ed rule 11 by not info rm

ing Maharaj of it s authori

ty to order resti tution, the court com

mit ted error that was plain. S ee Olano , 507 U.S. at 7 32. Maharaj relies on United States v. Glinsey , 209 F.3d 386 ( 5th Cir. 2000), and United States v. Pow e ll , 354 F.3d 362 (5th Cir. 2003), to claim that the error affected substantial rights because the total amo unt of liabilit y impo sed exceeded the
amo unt that th e court advised him woul d f ol

lo w as a result of his guilty plea.

We have stated, when conducting harmless
error review, that substantial rights are vio lat ed under rule 11 if “t he defendant’s knowledge and com prehension of th e full and correct info rmat io n would have been likely to affect his willi ngness to plead guilty.” U nited States v. Johnson , 1 F.3d 296, 298 (5th Cir. 19 93) (en banc). In Glinsey , 209 F.3d at 396, in circumstances nearly identical to th ese , we adj usted th e sentence by th e difference between the amo unt th e co urt i

mposed and the amount it warned th e defendant he could receive. We stated that th e defendant “is not prejudic ed so lo ng as his liabilit y does not exceed the maximum amo unt that th e court info rmed him could be imposed as a fine.” Id. at 395. 5

Even assuming that Gl i nsey control s as to what affects substantial rights in th e context of plain-error review, we would not find plain error here. First, Maharaj’s written plea agreement , unlike Glinsey’s, specifically ment io ns the possibilit y o f restitution. S ee id. at 394. Maharaj indicated he read and understood the terms, and he signed th e agreement on the record. He also received notice of the possibility of resti tution in his pre-sentence report. 6 Second, Maharaj was held jointly and severally liable wit h his co-defendants fo r the full
amo unt of resti

tution, a fact that decreases the lik e liho od that he would be held personally responsible fo r pay

ment i n excess of $250,- 000.00. See id. at 392 (i

mplying Glinsey was solely responsible fo r resti

tution). Third, G linsey merely stands f

or the proposi

tion that a judgment equal to the amo un t announced at the plea collo quy cannot, by definit io n, affect
a d efendant’s substantial rights, because the defendant receive d fair notice of that amount under rule 11. S

ee id. at 395. It does not fol

lo w that a judgment above th e noti fied amo unt necessari ly affect s substantial rights. Glinsey’s sentence was substantially further above the noti fied amo unt than is M aharaj ’s. S ee id. at 395 (noti

ng the addi

tional imposition of $266,317.06). Fourth, and mo st i mportantly in th e context of plain error review, b ecause Maharaj did not object to the rule 11 vio lat io n at t ri al, 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 p resent f acts that “seriously affect[] th e fairness, int egrity or public reputation of judicial proceedings.” McIntosh , 280 F.3d at 482. In particular, the fact that Maharaj received notice of th e possi5 See also Powell , 354 F.3d at 370 (stating that failure to dis close the possibility of restitution “could be harmful error when the quantum of that
re stitution 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 P owell the defendant had also re ceived notice of re stitution in his plea agreement and pre-sentence re port. S ee 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

bilit y of resti

tution i n his pre-sentence report
and wri tten plea agreement convinces us that th e district court af

forded him adequate due process.
AFFIRMED.