IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50703

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOE ALBERT SMITH,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:10-CR-59-1

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Joe Albert Smith pled guilty pursuant to a written plea agreement to

evasion of payroll taxes in violation of 26 U.S.C. § 7201. The district court

imposed a sentence of 60 months in prison to be followed by three years of

supervised release, and also ordered Smith to make restitution in the amount

of $27,784,112.35.

On appeal, Smith argues that his conviction and sentence should be

vacated because the district court failed to inform him that it was rejecting the

plea agreement and did not provide the appropriate Federal Rule of Criminal

Procedure 11 colloquy when it imposed a restitution amount greater than the

United States Court of Appeals

Fifth Circuit

F I L E D

June 23, 2011

Lyle W. Cayce

Clerk

 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.

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No. 10-50703

amount specified in the plea agreement. He further argues (1) that he is entitled

to sentencing before a different judge because the Government breached the plea

agreement and (2) that the district court erred in imposing restitution as part

of his sentence and in ordering payment of a sum based, in part, on conduct for

which he was not convicted.

Smith did not object on these bases in the district court. Accordingly,

review is for plain error only. See United States v. Self, 596 F.3d 245, 248 (5th

Cir. 2010). Because an illegal sentence always constitutes plain error, we review

de novo Smith’s assertion that the district court erred in ordering that he pay

restitution as a component of his sentence. See United States v. Nolen, 472 F.3d

362, 382 & n.52 (5th Cir. 2006). Although Smith’s plea agreement contained a

provision wherein Smith agreed to waive his right to appeal his conviction or

sentence, the Government has evidenced its intention not to enforce the

appellate waiver as it pertains to Smith’s sentence and has waived the issue

regarding Smith’s conviction. See United States v. Rhodes, 253 F.3d 800, 804

(5th Cir. 2001).

Because Smith’s plea agreement did not contain a sentencing agreement

of the type binding on the district court, Smith cannot demonstrate that the

district court’s rejection of the stated restitution amount triggered its obligation

to give the Rule 11 admonishments and offer him an opportunity to withdraw

his guilty plea. See id. at 804; Fed. R. Crim. P. 11(c)(1)(C). Accordingly, the

district court did not commit plain error, and the provision of the plea agreement

waiving Smith’s right to appeal his conviction is still valid. See Self, 596 F.3d

at 248; Rhodes, 253 F.3d at 804-05.

The plea agreement stated that Smith agreed to pay $5,057,119 in

restitution; however, the Government made no promises regarding Smith’s final

sentence and did not promise to advocate for any specific sentence. Because the

Government did not breach any terms of the plea agreement, Smith is not

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No. 10-50703

entitled to resentencing. See United States v. Brown, 328 F.3d. 787, 790 (5th

Cir. 2003); United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993).

In federal tax evasion cases, the district court is not permitted to order

restitution as part of the sentence under 18 U.S.C. § 3663. Nolen, 472 F.3d at

382. However, restitution may be imposed as a condition of supervised release

under 18 U.S.C. § 3583, “but only if ‘the specified sum of taxes . . . has [] been

acknowledged, conclusively established in the criminal proceeding, or finally

determined in civil proceedings.’” Id. (citations omitted). In addition, restitution

may be imposed as a condition of supervised release, even absent a final

determination or adjudication of the exact amount owed, if the losses are limited

solely to the underlying offense of conviction. United States v. Nolen, 523 F.3d

331, 332 (5th Cir. 2008).

As the Government concedes, it was error for the district court to impose

restitution as a separate component of Smith’s sentence. See Nolen, 472 F.3d at

382. Furthermore, even if the district court had imposed restitution as a

condition of Smith’s supervised release, it plainly erred by relying on relevant

conduct to calculate the amount of restitution. See United States v. Inman, 411

F.3d 591, 595 (5th Cir. 2005). Accordingly, Smith’s conviction and sentence are

AFFIRMED. Smith’s restitution order is REMANDED for the limited purposes

of allowing the district court to determine whether it wishes to impose

restitution as a condition of supervised release, and if so, how much. See id. at

595-96; Nolen, 472 F.3d at 382.

If the district court decides not to impose restitution, the restitution order

should be vacated ipso facto. See Nolen, 472 F.3d at 383. Due to the limited

nature of this remand, we retain appellate cognizance over this case, and if the

district court decides to reimpose restitution, the case shall be returned to this

panel for further review of the new restitution order. See id.

CONVICTION AND SENTENCE AFFIRMED; RESTITUTION ORDER

REMANDED.

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