United States Court of Appeals

for the Fifth Circuit ____________

No. 22-10103 

____________

United States of America, 

Plaintiff—Appellee, 

versus

Steven Anthony Reinhart, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 2:21-CR-6-1 

______________________________

Before Higginbotham, Graves, and Douglas, Circuit Judges.

Per Curiam: 

Steven Anthony Reinhart (“Reinhart”) pleaded guilty, with a plea 

agreement, to one count of misprision of a felony, 18 U.S.C. § 4, to wit: wire 

fraud, 18 U.S.C. § 1343. Because of the substantial assistance that he 

provided the government, the district court sentenced him below the 

guidelines range to six months of imprisonment. The district court also 

ordered Reinhart to pay $40,254,297.72 in restitution, jointly and severally 

with other defendants, pursuant to the Mandatory Victims Restitution Act 

(“MVRA”). 

United States Court of Appeals

Fifth Circuit

FILED

August 16, 2023

Lyle W. Cayce

Clerk

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Reinhart now appeals the district court’s restitution order. The 

government moved to dismiss the appeal as barred by Reinhart’s appeal 

waiver; that motion was carried with the case, and the case was fully briefed 

on the merits. We hold that Reinhart’s appeal fits within an exception to his 

appeal waiver and, on the merits, we VACATE the restitution order and 

REMAND for the district court to conduct further fact finding and to adjust 

the award, if necessary. 

I.

Reagor Dykes Auto Group (“RDAG”) owned multiple automobile 

dealerships in West Texas. In 2014, Reinhart was hired as RDAG’s Legal 

and Compliance Director. RDAG financed its inventory through a “floor 

plan,” which is the industry term used to describe a loan taken out by a 

dealership to purchase its vehicle inventory. Ford Motor Credit Company 

(“FMCC”) was the floor plan lender for six RDAG dealerships. FMCC 

became the lender for one dealership beginning in 2008—prior to when 

Reinhart’s employment began—and became the lender for the other five 

dealerships in 2014 and 2015, during Reinhart’s period of employment. 

RDAG was undercapitalized and had financial problems. Under the 

terms of the floor plan agreement, RDAG had seven days to pay FMCC after 

a consumer purchased a vehicle financed through the floor plan. At some 

point, RDAG began to regularly violate the terms of the floor plan agreement 

by intentionally not paying FMCC within the required seven days, which was 

referred to as “selling vehicles out of trust.” To cover up the out-of-trust 

sales, RDAG employees—including Reinhart—created falsified paperwork, 

referred to as “dummy shucks,” prior to being audited to make it appear that 

vehicles had only recently been sold and were therefore not “out of trust.” 

The falsified paperwork was given to auditors hired by FMCC. Providing 

falsified paperwork to the auditors created a new problem for RDAG, 

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however, because the dates on the falsified paperwork represented to FMCC 

that RDAG owed large payments in the days after floor plan audits—

payments that RDAG did not have the capital on hand to cover. 

Reinhart helped with audits four times a year at one of RDAG’s 

dealerships and witnesses told investigators that he dealt with the auditors. 

Reinhart admitted that he knew RDAG was “selling vehicles out of trust” 

and that he helped conceal this fraud by falsifying paperwork and providing 

auditors with falsified sales dates. In addition, witnesses confirmed with

investigators that Reinhart was aware of the fraud and knew that false 

information was being provided to FMCC. 

Apart from selling vehicles out of trust, RDAG employees also

submitted false information to FMCC to acquire new floor plan funding. For 

example, RDAG submitted information for vehicles that had already been 

sold months or years before, a practice referred to as “re-flooring,” “fake 

flooring,” or “dummy flooring.” At one dealership, RDAG ran out of 

vehicles to re-floor, so it submitted another dealership’s inventory—which 

was already floored with another company—to FMCC, a practice referred to 

as “double flooring.” Reinhart did not participate in these additional floor 

plan fraud schemes. 

In June and July 2018, FMCC discovered the fraud. At a surprise 

audit, RDAG was unable to produce approximately $40.4 million worth of 

collateralized inventory. In August 2018, the RDAG dealerships filed for 

bankruptcy. Criminal charges followed. As of February 2021, after limited 

recovery and liquidation of assets, the total loss to FMCC was $40.2 million 

across six RDAG dealerships. 

After the scheme was exposed, Reinhart cooperated with the 

government in the investigation and prosecution of other RDAG employees. 

In return, the government agreed to allow Reinhart to plead guilty to 

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misprision of wire fraud and to not prosecute him for any other offense. In 

his plea agreement, Reinhart acknowledged that his sentence could include 

“restitution to victims . . . which is mandatory under the law, and which the 

defendant agrees may include restitution arising from all relevant conduct, 

not limited to that arising from the offense of conviction alone.” Relevant 

here, he also agreed to waive the right to appeal an “order of restitution . . . 

in an amount to be determined by the district court,” but reserved the right

to “to bring a direct appeal of . . . a sentence exceeding the statutory 

maximum punishment.” 

According to Reinhart’s Presentence Report (“PSR”), RDAG’s floor 

plan fraud—including sales out of trust, fake flooring, re-flooring, and double 

flooring—caused a $40.2 million total loss to FMCC. Based on that loss 

amount, plus Reinhart’s acceptance of responsibility and lack of criminal 

history, his guidelines range was 21 to 27 months of imprisonment. The PSR 

also recommended that Reinhart be ordered to pay restitution to FMCC in 

the amount of the loss, jointly and severally with other RDAG defendants,

pursuant to the MVRA, 18 U.S.C. § 3663A. 

Reinhart objected to the loss amount and the restitution amount. He 

contended that (1) he only pleaded guilty, as reflected in his factual resume, 

to participating in the out-of-trust scheme by falsifying sales paperwork and 

submitting it to auditors, and he did not know, nor could have foreseen, that 

other RDAG employees were engaging in fake flooring, re-flooring, and 

double flooring, and (2) to the extent any of the losses occurred before he 

began working at RDAG in March 2014, they were not caused by him. 

Therefore, he argued, he should only be held accountable for losses caused 

by “selling vehicles out of trust” after March 2014 and not for the full array

of floor plan-related fraud. 

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The district court overruled Reinhart’s objections and adopted the 

PSR’s loss amount and restitution recommendation. The district court then 

sentenced Reinhart below the guidelines range to six months of

imprisonment and ordered him to pay $40,254,297.72 in restitution to 

FMCC, jointly and severally with his RDAG co-defendants, pursuant to the 

MVRA. Reinhart filed a timely notice of appeal.1

 

II.

Before proceeding to the merits, we must first consider Reinhart’s 

appeal waiver. We review de novo whether an appeal waiver bars an appeal. 

United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). “The right to 

appeal a conviction and sentence is a statutory right, not a constitutional one, 

and a defendant may waive it as part of a plea agreement.” Id. “To 

determine whether an appeal of a sentence is barred by an appeal waiver,”

we analyze “(1) whether the waiver was knowing and voluntary and 

(2) whether the waiver applies to the circumstances at hand, based on the 

plain language of the agreement.” United States v. Bond, 414 F.3d 542, 544

(5th Cir. 2005) (citations omitted). “We must interpret the plea agreement 

like a contract, in accord with what the parties intended.” Id. at 545. “In 

determining whether a waiver applies, this court employs ordinary principles 

of contract interpretation, construing waivers narrowly and against the 

Government.” United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014)

(citing United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006)). Reinhart 

does not dispute that his waiver was knowing and voluntary but asserts that 

his challenge fits within the exception to his appeal waiver reserving the right 

_____________________

1 Reinhart was released September 24, 2022. In his opening brief, he abandoned 

his challenge to the loss amount insofar as it impacted his guidelines range as moot, while 

continuing to challenge his restitution order. 

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to appeal a sentence exceeding the statutory maximum punishment. We 

agree.

“A defendant who has waived his right to appeal may still challenge a 

restitution order that exceeds what is authorized by statute.” See United 

States v. Chem. & Metal Indus., Inc., 677 F.3d 750, 752 (5th Cir. 2012) 

(“C&MI”) (no bar to challenge where defendant’s appeal waiver expressly 

reserved the right to appeal a sentence in excess of the statutory maximum); 

United States v. Kim, 988 F.3d 803, 809 (5th Cir. 2021) (no bar to challenge 

where defendant’s appeal waiver did not expressly reserve his right to appeal 

a sentence in excess of the statutory maximum), cert. denied, 142 S. Ct. 225 

(2021).” A district court can order restitution only “when authorized by 

statute.” United States v. Penn, 969 F.3d 450, 458 (5th Cir. 2020) (quoting 

United States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012)). “[T]he term 

‘statutory maximum’ in an appeal waiver means ‘the upper limit of 

punishment that Congress has legislatively specified for violations of a 

statute.’” Bond, 414 F.3d at 546 (quoting United States v. Cortez, 413 F.3d 

502, 503 (5th Cir. 2005)). We, therefore, begin our analysis by considering 

the relevant statute.

In this case, the district court awarded restitution pursuant to the 

MVRA, which requires restitution for certain offenses—including offenses 

against property committed by fraud or deceit, like Reinhart’s—“in which 

an identifiable victim or victims has suffered a physical injury or pecuniary

loss.” 18 U.S.C. §§ 3663A(a)(1), (c)(1)(A)(ii), (c)(1)(B). The MVRA 

defines a “victim” as “a person directly and proximately harmed as a result 

of the commission of an offense for which restitution may be ordered.” Id. 

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§ 3663A(a)(2). Thus, the statute “limits restitution to the actual loss directly 

and proximately caused by the defendant’s offense of conviction.” United 

States v. Sharma, 703 F.3d 318, 323 (5th Cir. 2012); see also id. (“An award of 

restitution cannot compensate a victim for losses caused by conduct not 

charged in the indictment or specified in a guilty plea, or for losses caused by 

conduct that falls outside the temporal scope of the acts of conviction.”

(citations omitted)). In other words, the “actual loss directly and 

proximately caused by the defendant’s offense of conviction,” id., is “the 

upper limit of punishment that Congress has legislatively specified” in the 

MVRA. Bond, 414 F.3d at 546 (quotation and citation omitted). 

Reinhart’s claim that the district court ordered restitution for losses 

that were not caused by his “offense of conviction” is an argument that the 

district court awarded restitution in excess of that authorized by the MVRA 

and is therefore not barred by his appeal waiver. Sharma, 703 F.3d at 323; see 

also United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005) (“A defendant 

sentenced under the [MVRA] is only responsible for paying restitution for 

the conduct underlying the offense for which he was convicted.”). 

The government counters that Reinhart waived his right to appeal the 

district court’s exercise of discretion in ordering restitution. According to 

the government, the MVRA “vests the district court with discretion to 

determine the value of any property lost as a result of the offense,” see 18 

U.S.C. § 3663A(b)(1)(B), and Reinhart, in his plea agreement, waived his 

right to appeal an “order of restitution . . . in an amount to be determined by 

the district court”; therefore, in this case “the ‘upper level of punishment’ 

under the MVRA is the lost ‘value’ as determined by the district court.” This 

argument relies on a misunderstanding of the MVRA.

The MVRA grants district courts discretion in calculating the value of 

a victim’s lost property to ensure that the victim is properly compensated for 

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actual loss. See 18 U.S.C. § 3663A(b)(1)(B). But the district court does not 

have authority to order restitution at all unless the loss was “directly and 

proximately caused by the defendant’s offense of conviction.” Sharma, 703 

F.3d at 323; see 18 U.S.C. § 3663A(a)(1)-(2) (authorizing “restitution to the 

victim of the offense,” meaning “a person directly and proximately harmed as 

a result of the commission of an offense” (emphasis added)); see also § 3664(e) 

(“The burden of demonstrating the amount of the loss sustained by a victim 

as a result of the offense shall be on the attorney for the Government.” 

(emphasis added)). Here, Reinhart is not challenging the district court’s 

valuation of the loss but its authority to award restitution for that loss in the 

first place.

Additionally, the government contends that Reinhart agreed to 

“expand [his] restitution obligations” because Paragraph 3 of his plea 

agreement stated that his sentence could include “restitution to victims . . . 

which is mandatory under the law, and which the defendant agrees may 

include restitution arising from all relevant conduct, not limited to that 

arising from the offense of conviction alone.” See § 3663(a)(3) (providing 

that “[t]he court may also order restitution in any criminal case to the extent 

agreed to by the parties in a plea agreement”). 

For support, the government cites United States v. Meredith, 52 F.4th 

984 (5th Cir. 2022), but that case is distinguishable for at least two reasons. 

First, as the court in Meredith noted, restitution in that case was not awarded 

pursuant to the MVRA because the defendant was not convicted of an 

MVRA-covered offense. Id. at 987 n.1. Second, and perhaps more 

importantly, the defendant in Meredith contended that the statutorymaximum exception “authorizes an appeal whenever the defendant thinks 

the district court erred in its restitution calculation.” Id. at 987. We rejected 

this argument and enforced the appeal wavier because “the statutorymaximum carveout authorizes an appeal only when the district court exceeds 

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‘the upper limit of punishment that Congress has legislatively specified for 

violations of a statute’—not when the sentencing judge commits any error 

under the sentencing statute.” Id. (quoting Bond, 414 F.3d at 546). Unlike 

the defendant in Meredith, Reinhart is challenging the district court’s 

restitution order as exceeding that upper limit, rather than asserting a mere 

error in restitution calculation within that limit. Id.

In sum, Reinhart’s argument that the district court awarded 

restitution for losses caused by conduct not encompassed by his offense of 

conviction or by conduct specified in his guilty plea, and for losses that predate his involvement with RDAG, is a statutory-maximum challenge.

III.

Turning to the merits, typically “[w]e review the quantum of an award 

of restitution for abuse of discretion.” Sharma, 703 F.3d at 322. “A trial 

court abuses its discretion when its ruling is based on an erroneous view of 

the law or a clearly erroneous assessment of the evidence.” United States v. 

Crawley, 533 F.3d 349, 358 (5th Cir. 2008) (quotations marks and citation 

omitted). “A district court’s fact-finding as to the amount of restitution 

under the MVRA is reviewed for clear error.” United States v. Beydoun, 469 

F.3d 102, 107 (5th Cir. 2006). “There is no clear error if the district court’s 

finding is plausible in light of the record as a whole.” United States v. Mathew, 

916 F.3d 510, 516 (5th Cir. 2019) (quoting United States v. Harris, 597 F.3d 

242, 250 (5th Cir. 2010)). However, “[w]e review de novo whether a sentence 

exceeded the statutory maximum.” C&MI, 677 F.3d at 752.

As recited above, the MVRA “limits restitution to the actual loss 

directly and proximately caused by the defendant’s offense of conviction.” 

Sharma, 703 F.3d at 323. “An award of restitution cannot compensate a 

victim for losses caused by conduct not charged in the indictment or specified 

in a guilty plea, or for losses caused by conduct that falls outside the temporal 

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scope of the acts of conviction,” and “every dollar must be supported by 

record evidence.” Id. (citation omitted). “A person is directly harmed by 

the commission of a[n] . . . offense where that offense is a but-for cause of the 

harm.” Mathew, 916 F.3d at 519 (quoting In re Fisher, 640 F.3d 645, 648 (5th 

Cir. 2011)) (alteration in original). “A person is proximately harmed when 

the harm is a reasonably foreseeable consequence of the criminal conduct.” 

Id. (quoting In re Fisher, 640 F.3d at 648). 

On appeal, Reinhart asserts that the restitution award exceeds the 

statutory maximum because the district court did not determine whether the 

award included amounts for losses that occurred before he began working for 

RDAG. We agree. “An award of restitution cannot compensate a victim . . .

for losses caused by conduct that falls outside the temporal scope of the acts 

of conviction,” and “every dollar must be supported by record evidence.” 

Sharma, 703 F.3d at 323; see also 18 U.S.C. § 3664(e) (“The burden of 

demonstrating the amount of the loss sustained by a victim as a result of the 

offense shall be on the attorney for the Government.”). Those exacting 

standards were not satisfied on this record.

FMCC became the floor plan lender for one RDAG dealership in 2008 

and for another five dealerships in 2014 and 2015. Reinhart began working 

for RDAG in March 2014. But it is not clear when the fraud at RDAG began 

or when Reinhart began participating in the fraud. The PSR is silent as to 

both questions, while the information and Reinhart’s factual resume merely 

recite that the offense began “on or about a date unknown.” The PSR 

included a total purported loss amount for each dealership, but without 

specifying when the conduct causing the losses occurred. The PSR then 

subtracted approximately $5 million from the loss amount to account for 

asset recovery and liquidation sales to come to a “total loss” of $40.2 million, 

but without specifying what losses were recouped. Thus, we cannot discern 

from the record evidence if the restitution order impermissibly included 

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amounts for losses that were caused by conduct that occurred prior to 

Reinhart’s offense, the amount of any such losses, and whether such losses 

were recouped or not. 

Pursuant either to the MVRA’s limitations or United States 

Sentencing Guidelines’ (U.S.S.G.) principles of relevant conduct, Reinhart 

cannot be ordered to pay restitution for losses caused by the conduct of others 

that occurred prior to the commencement of his offense. Therefore, we must 

vacate and remand for the district court to conduct further fact finding on the 

temporal scope issue and to adjust the restitution award accordingly, if 

necessary.2

Reinhart also asserts that the restitution award exceeds the statutory 

maximum because it includes losses caused by conduct outside the scope of 

his guilty plea and offense of conviction, for losses that he did not cause and 

could not have foreseen. The district court noted that there were “multiple 

schema” at play (including sales out of trust, dummy shucks, re-flooring, fake 

flooring, and double flooring) under the broader umbrella of floor plan fraud 

but determined that “the concepts intersect and intertwine” and that the 

plea agreement and the Sentencing Guidelines’ principles of “relevant 

conduct” applicable to “jointly-undertaken criminal activity” supported a 

restitution award for the full amount. 

According to Reinhart, his offense of conviction was limited to 

concealment of selling of vehicles out of trust and did not include

concealment of the additional floor plan fraud schemes. Therefore, he argues 

that he should only be held responsible for losses caused by concealing the 

_____________________

2 Even applying the broader concept of “relevant conduct” contained in the 

Sentencing Guidelines, a defendant in a “jointly undertaken criminal activity” is not liable 

for the conduct of others that occurred prior to when he joined in the activity. U.S.S.G. § 

1B1.3 cmt. n.3(B).

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sale of vehicles out of trust. The government maintains that Reinhart’s

offense directly and proximately caused the full floor plan loss. Further, 

according to the government, Reinhart admitted in his factual resume that he 

participated in a broader “scheme” to defraud, not limited to selling vehicles 

out of trust, and agreed in his plea to pay restitution for all “relevant 

conduct,” which includes the full scope of floor plan fraud. 

We disagree with the government’s reading of the plea agreement and

factual resume. Reinhart pleaded guilty to one count, contained in an 

information, of misprision of a felony—wire fraud—in violation of 18 U.S.C. 

§ 4. The information stated that Reinhart, “having knowledge of the actual 

commission of a felony . . . wire fraud, a violation of 18 U.S.C. § 1343, did 

conceal the same by providing auditors with false sale dates on buyer orders.” 

The information did not otherwise define what constituted the underlying

“wire fraud.” 

In his factual resume, Reinhart admitted that he participated with 

others in a wire-fraud “scheme” to deceive FMCC and unlawfully enrich 

RDAG, himself, and others. The factual resume, however, also repeatedly 

described the underlying wire fraud scheme as “selling vehicles out of trust.” 

In pertinent part, the factual resume stated that “selling vehicles out of trust 

constituted a violation of the wire fraud statute, 18 U.S.C. § 1343”; that 

“Reinhart knew that RDAG was selling vehicles out of trust”; that “[t]o 

conceal the fact that RDAG was selling vehicles out of trust, in violation of 

18 U.S.C. § 1343, Reinhart provided auditors . . . with false sales date on 

buyer orders to make FMCC and its auditors believes that such vehicles were 

not being sold out of trust”; that “[s]uch active concealment constituted a 

violation of the misprision statute, 18 U.S.C. § 4”; and that “[n]ot only did 

Reinhart have knowledge of the wire fraud described above (i.e. selling 

vehicles out of trust), but he also failed to notify an authority as soon as 

possible of the fact that RDAG was selling vehicles out of trust.” 

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Aside from selling vehicles out of trust, the information and factual 

resume do not refer to any other fraudulent floor plan scheme, yet the district 

court appeared to give the factual resume and plea agreement the same 

expansive reading as the government and concluded that Reinhart was a 

participant in a jointly undertaken criminal activity constituting the entire 

floor plan fraud. That was error. See United States v. Evbuomwan, 992 F.2d 

70, 74 (5th Cir. 1993) (explaining that “mere knowledge that criminal activity 

is taking place is not enough” for a finding of jointly undertaken criminal 

activity; instead, “the government must establish that the defendant agreed 

to jointly undertake criminal activities with the third person, and that the 

particular crime was within the scope of that agreement”). As the 

commentary to the Sentencing Guidelines explain:

[T]he scope of the “jointly undertaken criminal activity” is not 

necessarily the same as the scope of the entire conspiracy, and 

hence relevant conduct is not necessarily the same for every 

participant. In order to determine the defendant’s 

accountability for the conduct of others . . . the court must first 

determine the scope of the criminal activity the particular 

defendant agreed to jointly undertake (i.e., the scope of the 

specific conduct and objectives embraced by the defendant’s 

agreement). In doing so, the court may consider any explicit 

agreement or implicit agreement fairly inferred from the 

conduct of the defendant and others. Accordingly, the 

accountability of the defendant for the acts of others is limited 

by the scope of his or her agreement to jointly undertake the 

particular criminal activity. Acts of others that were not within 

the scope of the defendant’s agreement, even if those acts were 

known or reasonably foreseeable to the defendant, are not 

relevant conduct[.]

U.S.S.G. § 1B1.3 cmt. n.3(B). 

Here, as it was described in the factual resume, Reinhart agreed to 

jointly undertake the concealment of sales out of trust by providing false sales 

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dates to auditors; therefore, the subsequent floor plan fraud carried out by

other RDAG employees (i.e. fake flooring, re-flooring, and double flooring) 

is not relevant conduct because those schema do not fall within the scope of 

concealment of sales out of trust. The upshot is that the factual resume and

the plea agreement’s reference to “relevant conduct” cannot support a

restitution order for the full amount of the floor plan fraud. Rather, pursuant 

to the MVRA, Reinhart can only be held responsible for the “actual loss 

directly and proximately caused by [his] offense of conviction.” Sharma, 703 

F.3d at 323. We leave it to the district court on remand to make any additional 

factual findings necessary to determine the amount of restitution statutorily 

authorized by the MVRA and to enter a new restitution order in that amount.

* * *

For the foregoing reasons, we VACATE the restitution order and

REMAND for recalculation of restitution consistent with this opinion.

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