IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10551

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICKY J. KEELE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.

CARL E. STEWART, Chief Judge:

Defendant-Appellant Ricky J. Keele pled guilty to a superseding 

information that charged him with removing property to prevent seizure and 

aiding and abetting in violation of 18 U.S.C. §§ 2232(a) and 2. The district 

court sentenced Keele and ordered restitution. Despite the general appeal 

waiver provision contained in his plea agreement, Keele now challenges the 

district court’s restitution order, arguing that it was not encompassed by his 

appeal waiver. We dismiss. 

FACTS

Keele was charged in a superseding bill of information with helping 

Matthew Simpson dispose of, transfer and conceal a $1,500,000 cashier’s check 

from Citizens Bank of Texas in order to prevent the funds from being seized by 

United States Court of Appeals

Fifth Circuit

FILED

January 7, 2014

Lyle W. Cayce

Clerk

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the Government. Keele waived his right to an indictment and entered into a 

written agreement to plead guilty to the superseding information. The plea 

agreement set maximum sentencing exposure at 24 months and included 

restitution to the victims arising from “all relevant conduct” and was not 

limited to the conduct arising from the offense of conviction alone. The plea 

agreement also contained an appeal waiver which stated that Keele waived the

right to appeal his conviction and sentence except in the case of a sentence in 

excess of the statutory maximum, an involuntary plea or appeal waiver, or 

ineffective assistance affecting the voluntariness of the plea or appeal waiver. 

The presentence report (“PSR”) described a long term, complex 

conspiracy, perpetrated by Keele, Simpson, Michael Faulkner and sixteen

other co-defendants, to defraud telecommunication companies of property and 

services and to defraud individual victims of money, property, and services. 

Five victim impact statements referenced in Keele’s PSR contained losses 

totaling $3,691,102.70. However, according to the second, third and fourth 

superseding information, the aggregate loss of all victims of the conspiracy was 

estimated to be between $15,000,000 and $20,000,000. 

The district court sentenced Keele to twenty-four months’ imprisonment 

and ordered him to pay $3,691,102.70 in restitution to the victims under the 

Mandatory Victim Restitution Act (“MVRA”).1 Keele filed the instant appeal.

DISCUSSION

A. Whether the Appeal Waiver Precludes Appeal of the Restitution 

Order

Keele maintains that the appeal waiver in his plea agreement does not 

encompass restitution. Keele argues that the waiver did not specifically 

1 The order specified that Keele would be held jointly and severally liable with the 

other co-defendants for the total amount of restitution set forth in the order.

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mention restitution and further claims that the district court, in discussing the 

appeal waiver at rearraignment, did not specify that he was waiving his right 

to appeal any restitution order. On this basis, Keele asserts that the 

restitution order is reviewable despite the appeal waiver contained in his plea 

agreement. We disagree.

This court reviews de novo whether an appeal waiver bars an appeal. 

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

To determine the validity of an appeal waiver, this court conducts “a twostep inquiry.” United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). 

Specifically, this court considers whether the waiver was knowing and 

voluntary and whether, under the plain language of the plea agreement, the 

waiver applies to the circumstances at issue. Id. In determining whether a 

waiver applies, this court employs ordinary principles of contract 

interpretation, construing waivers narrowly and against the Government. 

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

A defendant may waive his right to appeal as part of a valid plea 

agreement if the waiver is knowing and voluntary. United States v. McKinney, 

406 F.3d 744, 746 (5th Cir. 2005). “A defendant must know that he had a right 

to appeal his sentence and that he was giving up that right.” United States v. 

Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation 

omitted). A waiver is both knowing and voluntary if the defendant indicates 

that he read and understood the agreement and the agreement contains an 

“explicit, unambiguous waiver of appeal.” McKinney, 406 F.3d at 746. District 

courts must ascertain that defendants understand provisions in plea 

agreements waiving the right to appeal. Fed. R. Crim. P. 11(b)(1)(N).

The written appeal waiver in Keele’s plea agreement stated that he

waived the right to appeal his conviction and sentence on direct appeal or on 

collateral review except in the case of a sentence in excess of the statutory 

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maximum, an involuntary plea or appeal waiver, or ineffective assistance 

affecting the voluntariness of the plea or appeal waiver. Keele also signed a 

written provision at the end of the agreement affirming that he fully 

understood the plea agreement and entered into it knowingly and voluntarily. 

At rearraignment, the district court asked Keele whether he understood the 

plea agreement and the appeal waiver provision, and Keele answered 

affirmatively. Keele stated that his plea was voluntary and that he had 

voluntarily waived his right to appeal. Thus, we conclude that Keele’s appeal 

waiver was knowing and voluntary. See McKinney, 406 F.3d at 746.

Whether a general appeal waiver bars a challenge to a restitution order 

is unsettled in this circuit, and other circuits have reached differing results, at 

least where restitution was not mentioned in the plea agreement. See Smith, 

528 F.3d at 424-25 (declining to reach issue and comparing cases from other 

circuits); United States v. Lam, 233 F.3d 575, at *1 & n.2 (5th Cir. 2000) (per 

curiam) (unpublished). In Smith, the defendant appealed an order of 

restitution on the basis that it was not supported by sufficient evidence. Smith, 

528 F.3d at 423-24. The Government asserted that the defendant’s challenge 

was barred by her appeal waiver. Id. at 424. This court noted that restitution 

is ordinarily considered a component of a sentence and that, in two 

unpublished opinions, the court had held that a general appeal waiver barred 

review of a restitution order. Id. at 424-25 (citing United States v. Hemler, 169 

F. App’x 897, 898 (5th Cir. 2006); United States v. Glynn, 149 F. App’x 322, 323 

(5th Cir. 2005)). However, in those prior cases, the plea agreements expressly 

stated that the defendant had agreed to pay restitution as determined by the 

district court. See Smith, 528 F.3d at 424. In Smith, by contrast, the plea 

agreement was silent regarding restitution, and the Rule 11 colloquy did not 

resolve whether restitution was part of the agreement. Id. However, because 

the appeal could easily be resolved on the merits, the Smith court declined to 

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address “whether a general appeal waiver bars review of a restitution order 

when the plea agreement does not discuss restitution.” Id.

In Lam, this court held that an appeal waiver did not bar a challenge to 

restitution. Lam, 233 F.3d 575, at *1. There, the plea agreement stated that 

the defendant agreed to pay restitution and agreed to waive his right to appeal 

his sentence except for an upward departure. Id. However, the waiver did not 

mention restitution, the defendant was not admonished regarding the 

provisions of the MRVA, and the Government conceded that restitution was 

not contemplated as being included in the waiver. Id.

Keele’s case, however, is distinguishable from Lam. In addition to 

restitution’s being mentioned in Keele’s plea agreement, the district court also 

informed Keele multiple times at sentencing and rearraignment that his 

sentence “includes restitution” arising from all “relevant conduct” and would 

not be limited to that arising from the offense of conviction. The district court 

admonished Keele that he “will be required to make full restitution . . . because 

restitution is by statute mandatory in this case.” Moreover, Keele stated at 

sentencing, “[t]he restitution, I know you have the right to do that. You have 

said that. The only thing I ask you to consider is that at 58 years old it will be 

a burden that I cannot accomplish, and I know that. I ask you to think about 

that before you sentence me.” Keele also agreed that he understood that he 

was waiving his right to appeal his conviction and sentence with certain 

limited exceptions. 

The written plea agreement also stated that restitution was mandatory 

under the law and that the extent of restitution ordered by the court may

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

arising from the offense of conviction alone[.]” Additionally, Keele’s factual 

resume contains fourteen paragraphs of “relevant conduct,” which Keele 

admitted to be true, that exceeded the scope of the 18 U.S.C. § 2232(a) offense 

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of which he was convicted. Further, as the Government points out, Keele 

expressly waived his right to appeal his “sentence” or “seek any future 

reduction in his sentence” in his plea agreement. That same plea agreement 

defines “sentence” to include mandatory “restitution to victims.” Because the 

whole of this factual scenario greatly differs from that which took place in Lam, 

the two cases are clearly distinguishable. 

We therefore conclude after reviewing the whole of the record –

specifically, the plea agreement and the appeal waiver, the PSR, the district 

court’s statements to Keele at sentencing and rearraignment, and Keele’s 

statements at sentencing – that Keele’s valid appeal waiver did in fact bar his 

right to appeal the restitution order. Accordingly, Keele’s appeal of the 

restitution order is dismissed.

B. Whether the Restitution Order Violates Keele’s Eighth Amendment 

Rights

Keele argues that the amount of restitution ordered by the district court 

was disproportionate to his role in the offense and, therefore, his Eighth 

Amendment rights were violated. For the reasons stated herein, we hold that 

Keele’s Eighth Amendment claims are also waived.

The right to appeal is statutory, not constitutional. United States v. 

Melancon, 972 F.2d 566, 567 (5th Cir. 1992) (citations omitted). Generally, 

constitutional rights can be waived as part of a plea agreement. Id. (citation 

omitted). “[I]t is well settled that plea bargaining does not violate the 

Constitution even though a guilty plea waives important constitutional rights.” 

Town of Newton v. Rumery, 480 U.S. 386, 393 (1987) (citations omitted).

This court noted in United States v. Walton, --- F. App’x ---, 2013 WL 

3855550, at *6 (5th Cir. 2013) (per curiam) (unpublished), that “[w]hether an 

appeal waiver may bar a prisoner from arguing on direct appeal that . . . his 

sentence exceeds Eighth Amendment limitations appears to be an open 

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question in this circuit. . . [.] Assuming arguendo that the appeal waiver does 

not bar us from considering [the defendant’s] Eighth Amendment arguments, 

those arguments, unpreserved before the sentencing court, fail under plain 

error review.” (citations omitted). In United States v. Lytle, 90 F. App’x 453, 

454 (5th Cir. 2004) (per curiam) (unpublished), however, this court held that 

the waiver-of-appeal provision in the defendant’s signed, written plea 

agreement barred the defendant from raising his Eighth Amendment claims 

on appeal. Here, because the appeal waiver in Keele’s signed, written plea 

agreement waived his right to appeal his sentence with only three specific 

exceptions,2 none of which apply here, we conclude that his Eighth Amendment 

claims are also waived. See id. 

CONCLUSION

In light of the foregoing, the appeal of Defendant Ricky J. Keele is 

DISMISSED.

2 A sentence in excess of the statutory maximum, an involuntary plea or appeal 

waiver, or ineffective assistance affecting the voluntariness of the plea or appeal waiver.

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