IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50029

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

ADRIAN EDWARDO PENA, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 3:13-CR-324-1 

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Adrian Edwardo Pena pleaded guilty, pursuant to a plea agreement 

containing an appeal waiver, to having made a false, fictitious, and fraudulent 

claim to the Government, and he was sentenced to 26 months of imprisonment

(time served) and three years of supervised release. He also was ordered to 

pay $804,765.85 in restitution to the United States Property and Fiscal Office 

for the State of Arizona-Phoenix (USPFO-AZ), which consisted of $230,987.30 

 

* Pursuant to 5TH CIR. R. 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 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 28, 2017

Lyle W. Cayce

Clerk

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No. 16-50029

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in actual losses due to Pena’s overstatement of insurance and bonding costs in 

a December 2009 payment application, and $573,778.55 in actual losses 

resulting from the June 2010 disbursement of an erroneous bank deposit. 

Pena now appeals the restitution order. He first argues that the 

Mandatory Victim Restitution Act did not authorize the award of restitution 

based on unadjudicated conduct (the June 2010 disbursement) and further 

that, to the extent the plea agreement exception under the Victim and Witness 

Protection Act applies, the district court failed to consider that Act’s mandatory 

factors and thus abused its discretion in awarding restitution for the 

unadjudicated conduct. Pena also challenges both portions of the restitution 

order, arguing that the award exceeded the actual loss to the USPFO-AZ 

resulting from Pena’s proven conduct. 

The Government argues that these arguments are barred by Pena’s valid 

appeal waiver. Pena presents no argument that the appeal waiver does not 

apply to a restitution order in his case, and the record as a whole reflects that 

his guilty plea and appeal waiver were knowing and voluntary and that the 

waiver applies to the restitution order. See United States v. Keele, 755 F.3d 

752, 755-56 (5th Cir. 2014); United States v. Bond, 414 F.3d 542, 544 (5th Cir. 

2005). Pena instead argues that the appeal waiver does not bar his challenges 

to the restitution order because one of two exceptions apply, namely, the 

restitution award is inconsistent with the parties’ agreement and/or the award 

exceeds the statutory maximum. 

Pena is mistaken. Affording the language of the plea agreement its plain 

meaning, the waiver applies to the circumstances at issue in this case, and the 

exception to the waiver for an “inconsistent” sentence does not apply. See 

Bond, 414 F.3d at 545; United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 

2005). The plea agreement provides, inter alia, that the amount of restitution 

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would “not be limited to the amount of loss attributable to the precise conduct 

set forth in Count Two but will encompass the conduct charged in the 

indictment.” See also 18 U.S.C. § 3663(a)(3). Accordingly, Pena and the 

Government expressly agreed that the restitution award could include any 

losses caused by the conduct charged in Count Three (theft of public money 

beginning on December 4, 2009, and continuing until June 21, 2010) and Count 

Four (conspiracy to launder monetary instruments beginning on June 18, 

2010, and continuing until June 21, 2010). Additionally, Pena did not 

specifically reserve the right to appeal a sentence exceeding the statutory 

maximum. Issues waived in a valid and enforceable waiver need not be 

considered on direct appeal. Bond, 414 F.3d at 546. Finally, even if, as Pena 

urges, we were to apply an exception to his appeal waiver to allow a challenge 

to a sentence exceeding the statutory maximum, his arguments do not fall 

within such an exception. 

Because the plain language of the waiver provision applies to Pena’s 

appellate challenges, and because the record reflects that Pena understood the 

rights that he was waiving, we will enforce the waiver and DISMISS the 

appeal. See Bond, 414 F.3d at 544, 546. Pena’s motion requesting that this 

court stay further proceedings on the instant appeal until his appeal in 

No. 16-51351 is resolved is DENIED. 

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