### 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 Di strict 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 Case: 12-10551 Document: 00512491820 Page: 1 Date Filed: 01/07/2014No. 12

- 10551 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 a nd 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 appe al 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”) de scribed a long term, complex conspiracy, perpetrated by Keele, Simpson, Michae l Faulkner and sixteen other co

- defendants, to defraud telecommunication companies of property and services and to defraud individual victims of money, property, and services.
F ive 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 d id 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

. 2 Case: 12-10551 Document: 00512491820 Page: 2 Date Filed: 01/07/2014No. 12

- 10551
mention restitution and further c laims 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 two

ste p 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 wa ive 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 un derstand 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 3 Case: 12-10551 Document: 00512491820 Page: 3 Date Filed: 01/07/2014No. 12

- 10551 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 a greement 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 aff irmatively. 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 ch allenge 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

- 2 5 (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 th at 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

re solve whether restitution was part of the agreement. Id . However, because the appeal could easily be resolved on the merits, the Smith court declined to 4 Case: 12-10551 Document: 00512491820 Page: 4 Date Filed: 01/07/2014No. 12

- 10551 address “whether a general appeal waiver bars review of a restitution order when the plea agreement d oes 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 . I n 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
senten ce “includes restitution” arising from all “relevant conduct” and would not be limited to that arising from the offense of conviction. T he district court admonished Keele that he “will be required to make full restitution . . . because restitution is by s tatute 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.
T he written plea agreement also stated t hat 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 5 Case: 12-10551 Document: 00512491820 Page: 5 Date Filed: 01/07/2014No. 12

- 10551 of which he was convicted. Further, as t he Government points out , Keele expressly waived his ri ght 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 th e whole of th is factual scenario greatly differ s from th at which took place in Lam , the two cases are clearly distinguishable. W e 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 sentencin g 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 disproportion ate to his role in the offense and, therefore, his Eighth A mendment rights were violated. For the reasons stated herein, w e hold that Keele’s Eighth Amendment claims are also waived

. Th e right to appeal is statutory, not c onstitutional. United States v. Melancon , 972 F.2d 566 , 567 (5th Cir. 1992) (citations omitted)

. Generally,

c onstitutional 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) (citation s omit ted)

. This court noted in U nited 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 6 Case: 12-10551 Document: 00512491820 Page: 6 Date Filed: 01/07/2014No. 12

- 10551 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

agreem ent 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 i d

. 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 voluntarine ss of the plea or appeal waiver. 7 Case: 12-10551 Document: 00512491820 Page: 7 Date Filed: 01/07/2014