NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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______________ U N I T E D S T A T E S O F A M E R I C A

v
. P H I L I P J O H N M U C H I S K Y , A p p e l l a n t

___________ ___ On Appeal from the United States District Co urt for the M i d d l e District of P e n n s y l v a n i a (D.C . C r i m . No. 3

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- 0 0 1 ) District Judge: Honorable M a l a c h y E

. M a n n i o n

______________ Submitted under Third Circuit L

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. 34.1(a)

M a r c h 2 4 , 2 0 2 0
BEFORE: J O R D A N , R E S T R E P O and GREENBERG, Circuit J udges

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(Filed: March 25, 2020 )

______________ OPINION *

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____________________ *This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not c onst itut e binding precedent.2

GREENBERG, Circuit Judge

. I. INTROD U CTION Philip Muchisky was charged with a criminal offense for production of child
p ornography, in violation of 18 U.S.C. § 2 251(a), and another for possession of child

p ornography, in violation of 18 U.S.C. § 2252(a). As part of a plea agreement with th e government, Muchisky p l ed guilty to the prod uction charge, and the government agr eed to drop the possession charg e. A t sen tencing o n J u l y 1 0 , 2 0 1 9 , the District Court imp osed a restitution order th at comp ensated the victims of the possession offense

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M uchisky argues th at the order was illegal , because he was not convicted of the
possess ion offense . For the re a sons stated below, we will aff irm the o r d e r o f r e s t i t u t i o n
.

II. DISCUSSION
Because we write fo r the parties, we do not recite the facts of th is cas e

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reg ardless , most of th e facts , beyond what w e h a v e recited above, are irrelevant for the
pu rposes of th is opi nion. We review the legality of the Dis t rict Court ’ s restitution order
de novo. United States v. Kolodesh , 787 F.3d 224, 242 n. 24 (3d Cir. 201 5 )

. While we a gree with Muchisky that ordinar ily courts cannot i mpose restit ution beyond the s cope of the conviction, see United States v. Akande , 200 F.3d 136, 141 (3d
Cir. 1999), Congress expressly permit s courts to “ order restitution in any criminal cas e to the extent agreed to by the parties in a plea agreement. ” 18 U.S.C. § 3663(a)(3).

1 The Court di d no t impose restitution for the victim of the prod uction offense bec ause he or she did no t seek restitution

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Congre ss also a l l o w s court s to “ order, i f agreed to by th e pa rties in a plea agreement,

res titution to persons other than the victim of the offense. ” 18 U.S.C. §§ 36 63 ( a)( 1)(A) , 3663A (a)(3). To that end, the go vernment points out that , as part of the plea agreement, Muchisky “ agrees t hat the G overn ment will se e k an d the court may impose an order of
restitution as to the victims of the defendant ’ s relevant conduct. ” S u p p . App. 17. As such, the single issue in th is case is whether Muchisky ’ s conduct charg ed u nder the possession offense was “ relevant conduct ” as spec ified in that se ction of the plea agreement.
We c o n c l u d e that it was . As stated ab ove, Congress authorize s a d i str ict c ourt to

or der restit ution in any cr iminal case to the exte nt the parties a g r e e , including to person s who were not the victim of the off ense. H e r e , Muchisky ’ s condu ct in relation to the possession charge was relev ant to th e c r i minal case

. A f t e r a l l , allegations of such
conduct formed a part of the c riminal complaint , s ee App. 18 , a n d the pr e
- sente n c e report
described s a i d c o n d u c t

. Th ere was no language in the pl ea agreement limiting the scope
of restit utio n t h e government w ou l d seek and Much isky explicit ly was notified that he
would be s ubject to restitution under § 3663A . We find it emin ently re asonabl e that the government , while exercising its prosecutorial dis cre tion n ot to charge Muchis ky w ith the
posse ssion offense , n e ve r th eless c o u l d s eek to o b t a i n co mpensat i o n f o r the victi ms of t h e

c rime

. I t i s u n d e r s t o o d t h a t w h e n t h e g o v e r n m e n t a g r e e s t o t h e d i s m i s s a l o f a c h a r g e i n a plea agreement , i t is not ad m i t t i n g that i t cannot prove beyond a reasonab le d oubt t h a t t h e d e f e n d a n t d i d n o t c o m m i t t h e d i s m i s s e d o f f e n s e
. Indeed, Congress may have had a4

situation like that here in mind when allowing court s to impose restitution beyond the scope of crimes admitted in a plea agreement.
Mo st tell ingly, despite this i ss u e being esse n tial ly one of contr act construction, Muchisky makes no argument that the g ov e rnment ’ s i n terpretation of the plea agreement

w as not one he understood and t o w h i c h h e agreed when the agre e m ent was executed. In
fact , he mak es no effort to re bu t th e gov e rnme n t ’ s co nten tion that the restitution order was agreed upon , or that the D i s t r i c t Court had the aut hority to issue a restitut ion orde r beyond the scope of the conviction per the plea agreement. A c cor dingly , we w ill affirm
th e District Court ’ s J u l y 1 0 , 2 0 1 9 restitution order.