United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2945

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UNITED STATES OF AMERICA, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

JOHN ELLIS CUPIT, IV, * 

* [PUBLISH]

Appellant. *

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Submitted: January 12, 1999

Filed: February 25, 1999 

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Before RICHARD S. ARNOLD, BRIGHT and WOLLMAN, Circuit Judges.

___________

PER CURIAM.

Defendant appellant John Ellis Cupit IV appeals his sentence after pleading

guilty to two counts of making a false statement in connection with a loan

application, in violation of 18 U.S.C. § 1014. We reject and dismiss the appeal on the

sentence of imprisonment, and affirm the order of restitution and the term of

supervised release. 
1The Capital Bank of Sikeston sustained a loss of $150,000 when it paid that

amount in satisfaction of a letter of credit initiated by Cupit. Ultimately, guarantors

Steve Holden and Jim Lincoln each sustained an actual loss of $75,000 in

reimbursing the Capital Bank for the lost funds under the terms of a personal guaranty

agreement executed by them in favor of the Bank. The district court’s decision to

order restitution in the amount of $150,000 reflects this loss to Holden and Lincoln.

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The Government indicted Cupit for his willful submission of false documents

in support of a $150,000 loan application to the Capital Bank of Sikeston, a federally

insured financial institution. Cupit pleaded guilty to the charges under a plea

agreement. Among other conditions of the plea agreement, the Government agreed

to remain silent as to the exact sentence to be imposed by the district court, and both

the Government and Cupit agreed to waive any right to appeal. 

Prior to the sentence, Cupit objected to the sentence calculations made by the

probation officer in the presentence report. As a result of the dispute between the

Government and Cupit on the amount of the loss sustained by the victims, the district

court held an evidentiary hearing to examine the guideline sentence and the amount

of restitution to be imposed. Rejecting Cupit's objections to the presentence report,

the district judge determined the total offense level to be 15, a criminal history

category of I, and a guideline sentencing range of 18-24 months. The district court

then sentenced Cupit to serve twenty-one months of incarceration concurrently on

both counts, followed by supervised release of five years, also to run concurrently on

both counts, and required Cupit to make restitution to the victims in the total amount

of $150,000.1 

Cupit brings this appeal from the sentence asserting the following:

 

1. The broad waiver of appeal in this case does not preclude Cupit from

appealing his sentence because he did not enter into the agreement knowingly,

intelligently and voluntarily. In essence, Cupit contends that a defendant cannot

make a voluntary plea agreement prior to knowing what sentence will be imposed.
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2. The broad waiver of appeal violates Rule 11 of the Federal Rules of

Criminal Procedure and the Due Process Clause of the United States Constitution.

3. Cupit’s execution of the waiver of the right to appeal did not foreclose his

appeal of the amount of restitution imposed by the district court where, as here, the

plea agreement did not specifically refer to restitution, only to the “conviction or

sentence.”

4. The five-year term of supervised release violated the plea agreement of the

parties, which called for a three-year term of supervised release.

We refuse to consider the merits of Cupit’s appeal on issues one and two; after

reviewing the merits on three and four, we affirm the district court’s ruling on those

issues. This court first turns to the appealability of the sentence itself. Cupit asserts

that the district court violated Fed.R.Crim.P. Rule 11 and that Cupit’s waiver was not

voluntary under the circumstances of this case, because Cupit did not know the

proposed sentence at the time of the plea agreement. Cupit’s arguments must fail.

Similar issues were determined in United States v. Michelsen, 141 F.3d 867 (8th Cir.

1998), and that case requires rejection of Cupit's appeal of his twenty-one-month

sentence on these grounds. See Michelsen, 141 F.3d at 871-873. 

We next turn to Cupit's claim seeking review of the amount of restitution

awarded by the district court. In United States v. Greger, 98 F.3d 1080 (8th Cir.

1996), this court disallowed an appeal from the award of restitution in which the court

stated, “[s]o long as the sentence is not in conflict with the negotiated agreement, a

knowing and voluntary waiver of the right to appeal . . . will be enforced.” Greger,

98 F.3d at 1081 (citation omitted). The waiver instrument in Greger excluded an

appeal of all issues but jurisdiction. Id. In contrast, the waiver of appeal here recites:

 
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The defendant has been fully apprised of his right to appeal by his

attorney and fully understands that he has a right to appeal his sentence

under 18 U.S.C. § 3742. Both the defendant and the Government hereby

mutually agree to waive all rights to appeal whatever sentence is

imposed, including any issues that relate to the establishment of the

Guideline range. The District Court's decision as to these issues shall

not be subject to appeal. However, the parties do specifically reserve

the right to appeal from an upward or downward departure from the

Guideline range that is established at sentencing.

Plea Agreement and Stipulation of Facts Relative to Sentencing at 7; App. at 17. We

recognize that the above statement constitutes a broad waiver of the parties’ rights to

appeal. But that language and the record as a whole do not clearly demonstrate

whether the parties ever agreed that the district court’s award of restitution should not

be subject to appellate review. We do not resolve the waiver of restitution issue in

this case, but instead turn to the merits. 

We review the district court’s factual finding of loss relating to restitution

under a clearly erroneous standard, see United States v. Morris, 18 F.3d 562, 570 (8th

Cir. 1994), and a challenge to the district court’s application or construction of the

Guidelines de novo. See United States v. Wells, 127 F.3d 739, 744 (8th Cir. 1997).

In cases like this one involving a fraudulent loan application, § 2F1.1 of the

Guidelines governs the determination of loss for sentencing purposes. See id. at 748

(citing U.S.S.G. § 2F1.1, comment. (n.7(b)); see also Morris, 18 F.3d at 570.

Application Note 7(b) to § 2F1.1 defines loss as the greater of, the actual loss

resulting from the fraudulent conduct or the amount of loss the defendant intended

to inflict. See U.S.S.G. § 2F1.1, comment. (n.7(b)). The restitution here represents

a documented actual loss to a bank and thereafter to the victims in the total sum of

$150,000. The record indicates that the victims, as guarantors of corporate loans,

were each required to pay the lending bank $75,000. The record, therefore, supports

the district court’s finding of loss. 

 
2Cupit’s claims against the corporation arise from a $55,000 loan made by

Cupit to the corporation, a judgment in favor of Cupit in unrelated litigation in Texas,

and a $10,000 payment Cupit made to the corporation in that same litigation. 

3Cupit still retains his claims against the corporation and may pursue those

claims in a separate proceeding. 

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Cupit asserts, however, that he has legitimate claims against the corporation.2

And further, that he is entitled to offset those claims, as to at least one of the victims,

a part owner of the corporation in question, against the amount awarded by the

district court in restitution. In support of this proposition, Cupit cites Wells, supra,

127 F.3d 739, in which this court upheld the district court’s loss calculation. The

district court had reduced the loss by the amount that the victim lender expected to

recover from a stream of lease payments that the defendants had sold to the bank in

exchange for financing. See Wells, 127 F.3d at 748-49 (quoting U.S.S.G. § 2F1.1,

comment. (n.7(b)) (a trial court should reduce the loss by the amount the victim

lender has “recovered, or can expect to recover, from any assets pledged to secure the

loan”). Cupit’s reliance is misplaced. Our decision in Wells hinged on the direct

benefit that the victim bank would receive from the stream of lease payments. In

contrast to Wells, there is no showing that Cupit’s claims will produce an actual

benefit to either of the victims. Rather, Cupit seeks to reduce the calculated loss by

the amount of monies allegedly owed to him by the corporation on entirely unrelated

claims. Under these circumstances, the district court did not err in its award of

restitution.3

Next, we consider the terms of Cupit’s supervised release. The plea agreement

set forth a term of supervised release extending for a three-year period. The

Government represents that this was an unintentional error in the writing of the

agreement which neither the district court, nor the parties to the agreement discovered

in the proceedings before the district court. The applicable term of supervised release

for a Class B felony under 18 U.S.C. § 3583(b)(1) is not more than five years. See
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18 U.S.C. § 3583(b)(1). In § 5D1.2 of the Guidelines, the length of the term of

supervised release for a Class B felony is required to be at least three years, but not

more than five years. See U.S.S.G. § 5D1.2(a). As such, according to the

government, the plea agreement should have provided a term of supervised release

of not less than three years but not more than five years. 

We agree that the plea agreement misstated the maximum term of the

supervised release. Nevertheless, we remain unpersuaded by Cupit’s argument that

this misstatement provides Cupit with grounds for appeal of his sentence. See United

States v. Rutan, 956 F.2d 827, 829-30 (8th Cir. 1992) (stating that a waiver of appeal

does not preclude appeal of a sentence imposed not in accordance with the plea

agreement). The plea agreement referred to the Code and Guidelines in relating the

likelihood that the district court would impose a term of supervised release. The plea

agreement further recited that “[d]efendant understands that the sentencing court may

in appropriate circumstances extend the term of supervised release and/or modify or

enlarge its conditions.” Plea Agreement and Stipulation of Facts Relative to

Sentencing at 4; App. at 14. It is apparent from reading the plea agreement that the

term of supervised release represented a recitation and not an agreement. Thus, in

view of the specific language of the plea agreement at issue in this case, we conclude

that no breach of the agreement exists on this issue.

Accordingly, we reject Cupit’s appeal except as to restitution and the term of

supervised release. As to these issues, we affirm the sentence on the merits.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.