# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 10350

**United States of America,**

Plaintiff

— Appellee **,**

versus
**Chapman Rogers Mays,**

Defendant

— Appellant

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19

- CR

- 350

Before **King** , **Elrod** , and **Willett** , Circuit Judges

**. Per Curiam**  **:** *

Defendant

- A ppellant Chapman Rogers Mays was sentenced to an above

- Guidelines sentence of sixty

- months’ imprisonment and ordered to pay $1,675,669.44 in restitution after pleading guilty to false bankruptcy declaration. On appeal, Mays argues that the factual basis was insufficient to support his guilty plea. Alternatively, he argues that his plea ag reement is not

* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 21, 2021 Lyle W. Cayce Clerk Case: 20-10350 Document: 00515830442 Page: 1 Date Filed: 04/21/2021No. 20

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2 binding because the Government breached it; that in the absence of a valid plea agreement, the restitution amount was illegal; and that the district court’s upward variance was substantively unreasonable. For the reasons that follow, we **AFFI RM** 

. I.

Defendant

- Appellant Chapman Roger Mays was appointed under the Texas Uniform Transfers to Minors Act ( “ TUTMA ” ) , **Tex. Prop.**
**Code** § 141.004 , as the custodian of his daughter’s royalty

- producing oil, gas, and mineral interests. Mays set up two bank a ccounts to facilitate the receipt of royalty payments. Over time, Mays misappropriated these funds by, inter alia , building a personal home and spending over $180,000 on travel. In total, Mays misappropriated over $1.8 million of his daughter’s royalty

pay ments. During his appointment as custodian of his daughter’s interests , Mays filed a voluntary bankruptcy petition in the U.S. Bankruptcy Court for the Northern District of Texas

. Throughout the se bankruptcy proceedings, Mays failed to disclose the exist ence of the two bank accounts where the royalty payments were deposited; he did not tell his daughter that he was using the funds; and he failed to disclose to the bankruptcy court that he had used funds in those accounts for his personal benefit.
Subseq uently, a s a result of his conduct, Mays was charged by information in the Northern District of Texas with one count of false bankruptcy declaration, in violation of 18 U.S.C. § 152(3). Mays waived indictment and pleaded guilty pursuant to a plea agreement . Therein, Mays agreed to pay restitution to his daughter for all losses resulting from his criminal conduct, and the Government agreed to sell the property seized in connection with these proceedings and to use the profits from the liquidation Case: 20-10350 Document: 00515830442 Page: 2 Date Filed: 04/21/2021No. 20

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3 toward the restitution amount. Mays also agreed “not to contest, challenge, or appeal in any way the g overnment’s disposal of the seized property.” At sentencing, t he district court calculated Mays’s advisory sentencing range under the Sentencing Guidelines as ten

- to sixteen

- months’ imprisonment. But, after explaining its reasoning for doing so , t he court varied upward s from the Guidelines range and impose d a statut ory maximum sentence of sixty

- months’ imprisonment. The court also imposed three years of supervised release and ordered the payment of $1,675,669.44 in restitution. Mays timely appealed. Mays argues on appeal that his guilty plea was unsupported by the proffered factual basis. In the alternative, he asserts that his plea agreement is not binding because the Government breached the agreement and that, in the absence of a valid plea agreement, the restitution amount was illegal. And, finally, Mays argues t hat the district court’s upward variance was substantively unreasonable. We address each of these arguments in turn.

II.

A. Proffered Factual Basis We turn first to Mays’s argument that the factual basis for his guilty plea was insufficient. As Mays did n ot raise this argument before the district court , our review is for plain error. United States v. Ortiz , 927 F.3d 868, 872 (5th Cir. 2019)

. To succeed on plain

- error review, Mays must show (1) that the district court made an error (2) that is clear and obv ious, and (3) affected his substantial rights. United States v. Avalos

- Sanchez , 975 F.3d 436, 439 (5th Cir. 2020). Once he has shown as much , we still then have “discretion to correct the error and will do so only if ‘the error seriously affects the fairne ss, Case: 20-10350 Document: 00515830442 Page: 3 Date Filed: 04/21/2021No. 20

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4 integrity, or public reputation of judicial proceedings.’” Id. at 439

- 40 (quoting United States v. Marek , 238 F.3d 310, 315 (5th Cir. 2001)).

Our first task under this framework is to determine whether the district court erred in accepting Mays’s guilty plea , and, based on this record, we conclude that it did not

. Under Federal Rule of Criminal Procedure 11(b)(3), a district court taking a guilty plea must “make certain that the f actual conduct admitted by the defendant is sufficient as a matter of law to establish a violation of the statute to which he entered his plea.” United States v. Trejo , 610 F.3d 308 , 313 (5th Cir. 2010) (emphasis omitted)

. The factual basis must satisfy ea ch element of the crime of conviction. Id. ; see also Avalos

- Sanchez , 975 F.3d at

440. In reviewing the factual basis for plain error, we “may look beyond those facts admitted by the defendant during the plea colloquy and scan the entire record for facts su pporting his conviction.” Ortiz , 927 F.3d at 872

- 73 (quoting Trejo , 610 F.3d at 313). Here, Mays pleaded guilty to false bankruptcy declaration under

18 U.S.C. § 152(3), which prohibits “knowingly and fraudulently mak[ing] a false declaration, certificate , verification, or statement under penalty of perjury

. . 

### . in or in relation to any case under title 11.” The elements of the
offense are as follows : “(1) there was a bankruptcy proceeding; (2) defendant made a declaration or statement under penalty of pe rjury in relation to the proceeding; (3) the declaration concerned a material fact; (4) the declaration was false; and (5) defendant made the declaration knowingly and fraudulently.” United States v. Grant , 850 F.3d 209 , 214 (5th Cir. 2017) (quoting United States v. Spurlin , 664 F.3d 954, 962 (5th Cir. 2011))

. At issue in this case is only whether the factual basis proffered was sufficient to establish that Mays made a false declaration for purposes of

18 U.S.C. § 152(3)

. Mays admitted before the district court that he failed to Case: 20-10350 Document: 00515830442 Page: 4 Date Filed: 04/21/2021No. 20

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5 disclose the two accounts and royalty payments in connection with the bankruptcy proceeding, 1 and that he did so knowingly and fraudulently. Nevertheless, Mays contends that the royalty payments he received as custodian of his daughter’s property interests were not part of the bankruptcy
estate, and so his failure to disclose them did not amount to a false declaration
under the law

.
18 U.S.C. § 152(3) , the provision under which Mays was charged, b roadly prohibits false statements in connection with a bankruptcy proceeding; the false statements need not concern the bankruptcy estate.
This stands in stark contrast to other criminal bankruptcy statutes that explicitly refer to “the estate” or “the est ate of a debtor.” 2

The focus of our inquiry, then, contrary to Mays’s assertions, is not whether the royalty payments were ultimately part of the bankruptcy estate, but whether omitting them or any other information in connection with the bankruptcy proc eeding amounted to a false statement. It did. A debtor in a bankruptcy proceeding must file, among other things, “a schedule of assets and liabilities” and “a statement of the debtor’s financial affairs” using the official forms prescribed by the Judicia l Conference of the
United States. 11 U.S.C. § 521( a )(1)( B )(i), (iii); **Fed. R. Bankr. P.** 1007(b)(1)(A), (D), 9009(a). Mays did not list the royalty payments on either filing. He did this even though his receipt and use of the funds was directly

1 Specifically, Mays admitted not only that he failed to list his daughter’s royalti es “as an asset on his bankruptcy schedules,” but also , broadly , that he “did not disclose that he was continuing to collect and use [his daughter ’s ] royalties for his own benefit.”

2 For example, 18 U.S.C. § 152(1) criminalizes the knowing and fraudulent concealment of “any property belonging to the estate of a debtor.” Similarly, 18 U.S.C. § 152(4) prohibits the knowing and fraudulent presentation of false claims for proof against “the estate of a debtor.” Case: 20-10350 Document: 00515830442 Page: 5 Date Filed: 04/21/2021No. 20

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6 pertinent to answering certain questions posed by Official Form 7, the statement of financial affairs form , which he signed under penalty of perjury.
See Bankr. Petition at 3 4 , In re Mays , No. 14

- 44 898 (Bankr. N.D. Tex. Dec. 3, 2014 ). Specifically, q uestion 2 of Official Form 7 asked for income earned in the previous two years “other than from employment, trade, profession, or operation of the debtor’s business.” See Bankr. Petition at 34, In re Ma ys , No.

14

- 44898 (Bankr. N.D. Tex. Dec. 3, 2014) (listing as a response to the second question of Official Form 7, the “Statement of Financial Affairs,” a $24,000.00 gift from his father and $500.00 in mineral income); see also In re Crumley , 428 B.R. 349, 360 (Bankr. N.D. Tex. 2010) (describing this same form and question)

. As the bankruptcy court in In re Crumley recognized, withdrawals from accounts for which the debtor is the custodian under TUTMA “fall within the expansive definition of income required by Question 2.” 428 B.R. at 362. Like Mays was for his daughter, i n Crumley , the debtor was the custodian under TUTMA of two bank accounts for his minor children. Id

. The debtor in Crumley used $38,500 .00 from the accounts for living expenses and construction costs for a home he was building. Id . at 361

- 62. The bankruptcy court reasoned that to the extent the withdrawals were used for the benefit of the debtor’s children, as authorized by TUTMA, the
withdr awals were analogous to child support, which must be reported as income under Question 2. Id . at 362. And to the extent the withdrawals were not used for the benefit of the children, they were analogous to gifts, which also must be reported as income. Id

. at 360

- 62. Hence, under Question 2, Mays was obligated to disclose his use of funds from his daughter’s accounts
as income. He failed to do so , and this omission amounts to a false statement under § 152(3). See, e.g. , United States v. Theall , 525 F. App’x 256, 265 (5th Cir. 2013) (“To obtain a conviction, the G overnment had to show that the Case: 20-10350 Document: 00515830442 Page: 6 Date Filed: 04/21/2021No. 20

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7 [defendants] ‘knowingly and fraudulently’ failed to disclose that information.”) (citing to 18 U.S.C. § 152(3)). Further, in Mays’s amended Official Form 6D, particularly Schedule F inquiring about all creditors holding unsecured nonpriority claims, Mays stated that he was “custodian for [his] daughter’s mineral trust” and that he “took [a] loan from [her] trust to p ay for legal and household expenses.” He
stated that the loa n totaled $55,000.00. Mays declared, under penalty of perjury, that the information contained in this form was true and correct. But as part of the factual resume supporting his plea , Mays admitte d to having used his daughter’s royalties for personal expenses total ing over $1.8 million.
He admitted that he did not disclose that he controlled and used these funds in his creditor schedules. And his f ailure to list his daughter as an unsecured credito r as to the two accounts and the royalty payments he took had the effect of concealing from her the full extent of her claim against him

. This omission amounts to a false statement under § 152(3). See Theall , 525 F. App’x at 265

- 66

. Because Mays failed to disclose royalty payments in his statement of financial affairs and in his unsecured creditor schedule , a sufficient factual
basis existed to establish each element of the relevant offense, and the district court did not err in accep ting his guilty plea.

B. Validity of Plea Agreement Having established that Mays ’s guilty plea is valid, we turn to his argument that his plea agreement is not because the Government breached it by failing to make sure the proceeds from property it seized w ere deducted from the restitution amount in the judgment. Pursuant to a warrant, t he Government seized an airplane, funds from various bank accounts, and several pieces of jewelry from Mays. Rather than pursue forfeiture of the Case: 20-10350 Document: 00515830442 Page: 7 Date Filed: 04/21/2021No. 20

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8 property, the Government agr eed to apply the proceeds from its sale to Mays’s restitution obligations.

But the Marshals Service did not conduct the sale of the property before Mays was sentenced , and at sentencing, the district court ordered Mays to pay $1,675,669.44 in restitution to his daughter, without making any
concession s based on the value of the seized property. On appeal, Mays contends that the Government was obligated to ensure that the value of the seized property was reflected in the judgment. As with his previous argument, Mays failed to object to the Government’s breach before the district court , and so our review is again for plain error. See United States v. Cluff , 857 F.3d 292, 297 (5th Cir. 2017). 3 Plea agreements are interpreted according to general principles of
contract law. Id . at 298. In determining whether the Government breached the plea agreement, the inquiry is “whether the government’s conduct is consistent with the defendant’s reasonable understanding of the agreement.” Id. (quoting United States v. Pizzolato , 655 F.3d 403, 409 (5th Cir. 2011)). Under the plea agreement’s plain terms, the parties merely ag reed to apply the proceeds from the seized property to Mays’s restitution obligation. The Government did not promise that the property would be sold before sentencing n or did it promise that the judgment would reflect the value of the
property. The plea ag reement cites United States v. Messervey , 182 F. App’x 318, 319 (5th Cir. 2006) , and summarizes the opinion ’ s holding as “affirming

3 Although Mays “agree[d] not to contest, chal lenge, or appeal in any way the government’s disposal of the seized property,” appeal waivers do not bar claims that the Government breached a plea agreement. United States v. Purser , 747 F.3d 284, 289 (5th Cir. 2014). Mays ’ s argument is thus properly befo re us. Case: 20-10350 Document: 00515830442 Page: 8 Date Filed: 04/21/2021No. 20

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9 order for property seized but not forfeit [ed] to be applied to judgment debt.”
In Messervey , the seized property was not sch eduled to be sold until after the appeal became final. Id. at 320. On appeal, we rejected the petitioner’s argument that the seized property should be returned due to the absence of a written agreement concerning restitution where the parties had agreed in
open court to a post

- judgment sale of the seized property to satisfy
restitution. Id

. With the cite to Messervey , then, the plea agreement in this case reasonably contemplated that the seized property would be sold after t he judgment was entered

. Based on th is and the plain terms of the plea
agreement, “t he government’s conduct is consistent with the defendant’s reasonable understanding of the agreement.” Pizzolato , 655 F.3d at 409 (quoting United States v. Elashyi , 554 F.3 d 480, 501 (5th Cir. 2008))

. That is to say, Mays could not have reasonably understood the plea agreement as providing that the seized property would be applied to the restitution pre

judgment. Cf. id. at 409

- 10 (concluding that the reasonable understandin g of a plea agreement was that the Government agreed only to a particular sentencing range and not a particular sentence and that the defendant “could not have reasonably understood the plea agreement as providing otherwise”). W e can identify no “error or defect

— [nor any] sort of

‘ [ d ] eviation from a legal rule.’” Puckett v. United States , 556 U.S. 129, 135 (2009) (quoting United States v. Olano , 507 U.S. 725, 732

- 33 (1993)). All property that was seized can still be sold and the proceeds of that sale can st ill be applied in accordance with the plea agreement’s terms

. Therefore, the Government has not breached the plea agreement, and Mays’ s challenge to the district court’s order of restitution , predicated on this alleged breach, fails. Case: 20-10350 Document: 00515830442 Page: 9 Date Filed: 04/21/2021No. 20

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10 C. Upward Variance At last, we turn to Mays’s challenge of his sixty

- month sentence as substantively unreasonable. Mays preserved this claim by arguing for a shorter sentence below, so review is for abuse of discretion. 4 Holguin

Hernandez v. United States , 140 S. Ct. 762, 766 (2020) ; see also Gall v. United
States , 552 U.S. 38, 56 (2007)

. We must first ensure that the district court’s actions below did not amount to a “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence

— including an explanation for any deviation fr om the Guidelines range.” Gall , 552 U.S. at 51

. If we conclude that the district court’s determinations below were procedurally sound, we then consider the substantive reasonableness of the sentence imposed. In imposing a sentence, a district court must consider the factors listed in 18 U.S.C. § 3553(a). “A sentence is unreasonable when it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sent encing factors.” United States
v. Gutierrez , 635 F.3d 148, 154 (5th Cir. 2011). Whether a sentence is reasonable depends on “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall , 552 U.S. at 51

. “The fart her a sentence varies from the applicable Guideline sentence, the more

4 Because we conclude that the district court did not abuse its discretion in imposing a sixty

- month sentence, we need not decide whether some of Mays’s specific arguments might be subject to plain

- error review. See United States v. Holguin

- Hernande z , 955 F.3d 519, 520 n.1 (5th Cir. 2020). Case: 20-10350 Document: 00515830442 Page: 10 Date Filed: 04/21/2021No. 20

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11 compelling the justification based on factors in section 3553(a) must be.” United States v. McElwee , 646 F.3d 328, 343 (5th Cir. 2011) (quoting United States v. Smith , 440 F.3d 704, 707 (5th Cir. 2006)). But, nevertheless, the district court’s sentence, including its decision to vary, is owed significant deference. Id. ; Gutierrez , 635 F.3d at 154. To begin, it is clear that the district court’s determinations below were procedurally sound. Mays argues, however, that his sentence was substantively unreasonable because the district court improperly considered uncharged conduct in varying upward “to provide just punishment for the

o ffense” under § 3553(a). Specifically , Mays contends that his misappropriation of royalty payments from his daughter was not part of the false bankruptcy declaration “offense” as that term is used in § 3553(a) and therefore should not have factored into hi s sentence. Even accepting Mays’s characterization of the misappropriation of his child’s funds as “uncharged conduct” as accurate

— and we do not suggest that it is

— the district court may consider uncharged conduct at sentencing, so long as there is a suff icient connection between said conduct and the charged offense. See United States v. Newsom , 508 F.3d 731, 735 (5th Cir. 2007) (discussing that the Guidelines allow a court to consider uncharged conduct that is at least “remote[ly ] connect[ed]” with the of fense of conviction for an “upward departure”) ; see also U.S. Sent’g Guidelines Manual § 1B1.1 cmt. n.1(I) (U.S. Sent’g Comm’n 2018) (defining “offense” as “the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context”) (emphasis added). The papers accompanying the charging instrument in this case indicate that the charges were filed because Mays did
not disc lose the two accounts and royalty payments on his bankruptcy schedules and “ did not disclose that he was continuing to collect and use [his daughter’s ] royalties for his own benefit.” The connection between Mays’s Case: 20-10350 Document: 00515830442 Page: 11 Date Filed: 04/21/2021No. 20

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12 misappropriation of funds and the offense to which he pleaded guilty

— false bankruptcy declaration under 18 U.S.C. § 152(3)

— is sufficient. The district court therefore did not abuse its discretion in considering Mays’s misappropriation of funds from his daughter at sentencing. Mays also argues tha t the district court abused its discretion by varying upward based on the need “to afford adequate deterrence to criminal conduct” under § 3553(a). Mays emphasizes that he has already been removed as custodian of his daughter’s accounts and will be unable to misappropriate funds from her in the future. But Mays neglects to mention that after he was removed as custodian , he cashed an $8,900 check that
should have been turned over to the new custodian

— a fact that the district court specifically relied on as a reason to vary upward. Further, § 3553(a) considers general deterrence directed to the public at large, not just specific deterrence directed to the particular defendant. United States v. Stafford , 983 F.2d 25, 28 (5th Cir. 1993) (discussing the goals of sentencing); see also U.S. Sent’g Guidelines Manual c h. 4, p t. A , introductory cmt. (U.S. Sent’g Comm’n 2018) (“General deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will aggravate the need for punishment with each recurrence.”). Therefore, t he district court did not abuse its discretion in varying upward to achieve adequate deterrence.

III. For the foregoing reasons, we **AFFIRM**

. Case: 20-10350 Document: 00515830442 Page: 12 Date Filed: 04/21/2021