In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-2350

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CURTIS L. JOHNSON,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:16-cr-00053 — Michael J. Reagan, District Judge.

____________________

ARGUED APRIL 1, 2019 — DECIDED AUGUST 20, 2019

____________________

Before EASTERBROOK, SYKES, and BRENNAN, Circuit Judges.

BRENNAN, Circuit Judge. During an in-chambers conference among court and counsel, Curtis Johnson’s attorney 

withdrew an objection to the restitution amount to be paid to 

the victims of his client’s wire fraud. Johnson was not present. 

Then, in open court, Johnson confirmed he no longer disputed 

restitution, recognized the plea agreement included an appeal 

waiver, pleaded guilty, and was sentenced. Johnson now 

challenges his sentence, arguing he did not waive this appeal 
2 No. 18-2350

and his sentence is unconstitutional because he was not present when his attorney dropped the restitution objection. We 

uphold the appeal waiver and dismiss Johnson’s appeal. 

I

For almost three years, Johnson managed financial and 

production operations for a business that produces hand rails

in Fishers, Indiana owned by the Tuttle family.1 He kept the 

books, paid vendors, purchased equipment, and entered into 

loan agreements for the company, so he had access to and signature authority for the company’s bank accounts and the 

company’s credit. 

During that time Johnson defrauded the company by using its funds and credit card for personal expenses, including 

a hot tub and three “company” cars for his family members. 

He wired money directly from the company’s bank account 

into his personal bank account, and he obtained company 

loans from which he skimmed some proceeds.

The company discovered Johnson’s fraud and fired him, 

but the damage was done. The business had to pay back the 

loans, and the owners were forced to use personal retirement 

and college savings to ward off creditors. The Tuttle family 

ultimately lost its business.

Johnson was indicted on eight counts of wire and mail 

fraud. He eventually pleaded guilty to one count of wire 

fraud in violation of 18 U.S.C. § 1343. The plea agreement 

 1 Johnson’s titles were chief operating officer and chief financial officer 

of Tuttle Aluminum and Bronze Co., Inc. and of Tuttle Railing Systems, a 

division of Tuttle Aluminum, which we refer to collectively as “the company.”
No. 18-2350 3

contained an appeal waiver. It also stated the government’s 

position that Johnson owed restitution totaling $211,428.80, 

comprised of credit card purchases, vehicle payments, cash 

withdrawals, wire transfers, and diverted loan proceeds.

Johnson agreed he owed the victims restitution, but he disputed the amount. 

The presentence investigation report adopted the government’s restitution calculation. Johnson never submitted a sentencing memorandum, and he has never specified his own 

restitution figure. At one point he hypothesized that a loss

range between $40,000 and $95,000 would result in a lesser 

offense level, but ultimately provided no calculation detailing 

what he believed that figure should be. 

Johnson’s guilty plea and sentencing took place at the 

same hearing, during which the victims of Johnson’s crime 

addressed the court. Before the hearing, the district judge met 

with counsel for the government and the defendant in chambers and off the record. Then, on the record early in the 

hearing, the court reviewed the plea agreement with Johnson,

noting the in-chambers conference:

THE COURT: My understanding, in meeting 

with counsel off the record, is that the amount 

of restitution and loss is not in dispute now; is 

that correct?

[DEFENSE COUNSEL]: That’s correct, Your 

Honor.

THE COURT: ... So restitution in the amount of 

$211,428.80 plus interest will be ordered, ... Do 

you understand all of that?

THE DEFENDANT: Yes.
4 No. 18-2350

The court also reviewed with Johnson terms in the plea agreement, including his previous dispute with the restitution 

amount:

THE COURT: Next, over on page 6, there’s a 

sentence regarding restitution. This indicates 

that restitution is in dispute. It is no longer in 

dispute; correct?

THE DEFENDANT: Yeah, yes.

The district court also twice reviewed with Johnson the 

waiver of his right to appeal, which provided:

Direct Appeal:

... in exchange for the concessions made by the 

Government in this Plea Agreement, ... [t]he defendant further agrees that in the event the 

Court sentences the defendant to [a] sentence 

within the applicable Advisory Guidelines

Range as calculated by the Court at sentencing, 

... then the defendant expressly waives the defendant’s right to appeal the sentence imposed 

in this case on any ground, ...

The court accepted Johnson’s guilty plea and adopted the 

presentence report’s proposed guideline range of 21 to 27 

months. In his allocution, Johnson told the court, “I understand the restitution and, if given the opportunity, I will repay 

all of that.“ Since the company fired him, Johnson had bought 

into a small-town accounting practice and was earning some 

money. The district court noted in its sentencing remarks the 

tension between incarceration and securing restitution for the 

victims through Johnson’s private sector earnings. After a 

thorough and complete hearing, the district court sentenced 
No. 18-2350 5

Johnson to 21 months’ imprisonment and ordered $211,428.80 

in restitution, plus interest. 

Johnson appeals.2 According to him, the appeal waiver in 

the plea agreement should not preclude this challenge, as he 

was “sentenced unconstitutionally.” Johnson contends the 

off-the-record, in-chambers conference was an integral part of 

his sentencing hearing, so his absence violated his constitutional right to be present at sentencing. He also asserts he did 

not waive any arguments about the restitution, or his right to 

attend the in-chambers conference.

II

A defendant may waive the right to appeal his sentence. 

See FED. R. CRIM. P. 11(b)(1)(N). We review de novo the enforceability of an appeal waiver in a plea agreement. United 

States v. Alcala, 678 F.3d 574, 577 (7th Cir. 2012) (citation omitted). “A defendant may waive appellate rights through a plea 

agreement, assuming such waiver is voluntary and knowing.” United States v. Galloway, 917 F.3d 604, 606 (7th Cir. 2019) 

(citing United States v. Worthen, 842 F.3d 552, 554 (7th Cir. 

2016). “A written appellate waiver signed by the defendant 

will typically be voluntary and knowing, and thus enforceable through dismissal of a subsequent appeal.” Id. (citation 

omitted).

 2 Johnson’s notice of appeal challenges the judgment of conviction in 

this case, and the conclusion of Johnson’s principal brief asks this court to 

reverse and vacate his conviction and remand for further proceedings. But 

the arguments in Johnson’s briefs challenge only his sentence, not the voluntariness of his guilty plea or any other aspect of his conviction. This discrepancy is not material given our conclusion that Johnson waived this 

appeal.
6 No. 18-2350

We interpret the terms of a plea agreement ‘‘according to 

the parties’ reasonable expectations and construe any ambiguities in the light most favorable to the defendant.’’ United 

States v. Shah, 665 F.3d 827, 837 (7th Cir. 2011) (citing United 

States v. Quintero, 618 F.3d 746, 750 (7th Cir. 2010)). We also 

consider the plea colloquy, evaluating whether the district 

court ‘‘properly informed the defendant that the waiver may 

bar the right to appeal.’’ Id. (with same citation).

The written plea agreement signed by Johnson included 

the appeal waiver. He was sentenced within the guidelines 

range to 21 months, so per the plea agreement he “expressly 

waive[d his] right to appeal the sentence imposed in this case 

on any ground.” “[R]estitution is part of a sentence,” United 

States v. Perillo, 897 F.3d 878, 883 (7th Cir. 2018) (citations 

omitted), so the waiver language includes Johnson’s challenge to that figure. See United States v. Worden, 646 F.3d 499, 

502 (7th Cir. 2011) (“Because restitution is part of a criminal 

sentence, and [the defendant] agreed not to challenge the sentence, he may not appeal the restitution order.”) (citation 

omitted).

Johnson argues his circumstances fall into a due process 

exception to the appeal waiver. A defendant’s presence “is a 

condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent 

only.” United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). 

Because restitution was the only issue remaining in the case 

when he pleaded guilty and was sentenced—as evidenced by 

him not stipulating to the government’s restitution figure in 

the plea agreement—to uphold the waiver on that question,

he submits, would depart from the “minimum of civilized 
No. 18-2350 7

procedure.” See United States v. Adkins, 743 F.3d 176, 192–93 

(7th Cir. 2014) (holding an appeal waiver will not prevent a 

defendant from challenging “some minimum of civilized procedure”).

Johnson also contends he focused his energies and defense 

on the restitution debate, so that issue must be of a constitutional magnitude. But due process violations do not turn on a 

defendant’s subjective valuation of the alleged error. Rather, 

to resurrect a right to an appeal this court has recognized 

“fundamental errors,” United States v. Kratz, 179 F.3d 1039, 

1042 (7th Cir. 1999). But this case does not present any of the 

recognized examples of procedural defects marring a sentence with fundamental error, such as a sentence based on the 

defendant’s race, or which exceeds the statutory maximum

for the defendant’s particular crime. See Adkins, 743 F.3d at 

192–93 (citing United States v. Bownes, 405 F.3d 634, 637 (7th 

Cir. 2005)). For example, in Adkins the defendant’s sentence 

included a special condition that prohibited “view[ing] or listen[ing] to” certain materials “or patroniz[ing] locations 

where such material is available,” which this court invalidated as unconstitutionally vague and overbroad. 743 F.3d at 

194. That is far afield from the detailed and substantiated restitution figure Johnson opposes.

There is no fundamental error here. At the plea and sentencing hearing, the district court reviewed with Johnson in 

detail what the appeal waiver meant. The court also gave examples of reasons that Johnson could still appeal despite the 

waiver, such as prosecutorial misconduct or a retroactive beneficial amendment to the sentencing guidelines. Johnson said 

he understood it would be difficult to pursue such an appeal

and acknowledged the slim chances of success. And in 
8 No. 18-2350

exchange for his promises in the plea agreement—including 

the appeal waiver—Johnson obtained dismissal of seven of 

the eight counts in the indictment. See United States v. Wenger, 

58 F.3d 280, 282 (7th Cir. 1995) (“[Defendant] exchanged the 

right to appeal for prosecutorial concessions; he cannot have 

his cake and eat it too.”)

Next, Johnson claims he did not intentionally relinquish 

any arguments about the restitution amount. We construe 

waiver principles liberally in favor of defendants. United 

States v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005) (citations omitted). But the topic of restitution arose approximately twenty times during the plea and sentencing hearing. 

Though Johnson spoke numerous times during the nearly 

one-hour hearing, he did not object to his absence from the inchambers meeting, or to the court’s statement that the dispute 

about the restitution amount had been resolved. Despite numerous opportunities to dispute the amount of restitution 

owed, Johnson never spoke up to contest that figure.

Indeed, shortly after Johnson was placed under oath, he 

expressly agreed to the precise restitution amount of 

$211,428.80. So even if the appeal waiver did not preclude this 

argument, the record of the plea and sentencing hearing 

shows Johnson deliberately abandoned his position that the 

restitution figure should be less. See United States v. Hathaway, 

882 F.3d 638, 642 (7th Cir. 2018) (holding defendant waived 

and did not just forfeit any objections to calculation of restitution amount).

In sum, Johnson’s circumstances do not present a due process exception to the rule that most written appeal waivers are 

effective. Although there are limits to an appeal waiver, see

Bownes, 405 F.3d at 637, Johnson does not fall outside them.
No. 18-2350 9

Johnson’s appeal waiver resolves this case. For the reasons 

discussed, we DISMISS this appeal.