2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-4-2008

USA v. Perez

Precedential or Non-Precedential: Precedential

Docket No. 06-2036

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Recommended Citation

"USA v. Perez" (2008). 2008 Decisions. Paper 1505.

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*

 Honorable Paul S. Diamond, District Judge for the United

States District Court for the Eastern District of Pennsylvania,

sitting by designation. 

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 06-2036

___________

UNITED STATES OF AMERICA

 

 v.

JUAN MANUEL PEREZ,

 Appellant.

___________

On Appeal from the United States District Court 

for the District of New Jersey

(D.C. Criminal No. 05-cr-00409)

District Judge: Honorable William G. Bassler

___________

Submitted Under Third Circuit L.A.R. 34.1(a),

November 29, 2007

Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,*

District Judge. 

(Filed: December 10, 2007)

George S. Leone

Christopher J. Kelly

Office of the United States Attorney

970 Broad Street
2

Room 700

Newark, NJ 07102

Counsel for Appellee

Kevin F. Carlucci

Office of Federal Public Defender

972 Broad Street

Newark, NJ 07102

Counsel for Appellant

 

OPINION

 

FUENTES, Circuit Judge.

Juan Manuel Perez appeals the District Court’s final

judgment imposing, in part, restitution in the amount of $73,476.

He asserts that the waiver of appeal provision contained in his plea

agreement does not bar his challenge of the validity of the

restitution order. For the reasons that follow, we conclude that the

appellate waiver contained in Perez’s plea agreement applies to the

restitution order. Therefore, we will affirm the judgment of the

District Court. 

I.

The restitution issue in this case stems from a bogus scheme,

whereby a stolen credit card machine was used to direct

unauthorized refunds to credit card accounts that the defendant

created for that purpose. Like other modern merchants, Levitz

Furniture Inc., (“Levitz”) used point-of-sale terminals to refund

money for returned merchandise that was purchased with a credit

card. In 2005, Levitz informed government officials that an

unauthorized individual electronically contacted Alliance Data

Systems, Inc. (“Alliance”), the company Levitz used to process

point-of-sale credit card transactions. That individual, defendant

Perez, used the stolen point-of-sale terminal to process and receive

“refunds” on personal credit cards that were unrelated to the return

of Levitz merchandise. 
3

The telephone numbers Perez used to contact Alliance were

registered to his address in Elizabeth, New Jersey. Government

surveillance disclosed Perez made electronic purchases with the

credit cards that had received the fraudulent credits. Ultimately,

Perez was arrested and he confessed to his bogus scheme. Levitz

suffered approximately $73,476 in losses associated with these

fraudulent credits. 

After the federal investigation, a federal grand jury returned

an indictment against Perez charging him with one count of wire

fraud in violation of 18 U.S.C. § 1343 and one count of credit card

fraud in violation of 18 U.S.C. § 1029(a)(2). A few months later,

Perez entered into a plea agreement that included a waiver of his

right to appeal his sentence except in limited circumstances.

Specifically, the plea agreement provided:

Juan Manuel Perez knows that he has and, except as

noted below in this paragraph, voluntarily waives,

the right to file any appeal, any collateral attack, or

any other writ or motion, including but not limited to

an appeal under 18 U.S.C. § 3742 or a motion under

28 U.S.C. § 2255, which challenges the sentence

imposed by the sentencing court if that sentence falls

within or below the Guidelines range that results

from the agreed total Guidelines offense level of 13.

(App. 42-43.) The plea agreement also stipulated that the offense

involved losses of at least $70,000 but not more than $120,000. 

At the sentencing hearing, Perez asserted that there were

credit balances on the credit cards he used that Levitz had not

attempted to retrieve and thus the loss amount was overstated. The

District Court said it would postpone sentencing if there was “an

issue of restitution,” so that an evidentiary hearing could be held.

(App. 10.) Rather than postponing sentencing for an evidentiary

hearing to determine Levitz’s outstanding loss, as suggested by the

District Court, Perez stipulated to the loss amount of $73,476. The

District Court sentenced Perez to a term of 41 months’

imprisonment followed by a term of three years of supervised

release. The District Court also ordered Perez to pay restitution in
1

 We have appellate jurisdiction under 18 U.S.C. § 3742(a) and 28

U.S.C. § 1291. See United States v. Cooper, 437 F.3d 324, 327-28

(3d Cir. 2006). This Court retains subject matter jurisdiction over

an appeal by a defendant who has signed an appellate waiver. See

United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). 

4

the amount of $73,476. Despite the fact that Perez waived his right

to appeal, he filed this appeal challenging the District Court’s order

of restitution.1

 

II.

On appeal, Perez argues that the waiver of appeal provision

does not bar his challenge to the restitution order, which he asserts

is not part of his “sentence.” Perez also argues that the factual

determinations underlying the restitution order were made by the

District Court on a preponderance of the evidence and that, under

United States v. Booker, 543 U.S. 220 (2005), those facts must be

determined by a jury. 

The government argues that the plea agreement waiver bars

Perez’s appeal of the District Court’s restitution order because this

Court held in United States v. Leahy, 438 F.3d 328 (3d Cir. 2006)

(en banc), that restitution is a component of a criminal sentence.

In addition, the government argues that, even if Perez did not waive

his right to appeal, Perez’s argument that the District Court’s

judicial fact-finding violated his Sixth Amendment rights is barred

by our decision in Leahy. 

III.

The issue on appeal is limited. Perez does not contest that

he knowingly and voluntarily waived his right to appeal. He does

not assert that he misunderstood the waiver of appeal rights

contained in the plea agreement. The District Court engaged Perez

in a lengthy colloquy during his plea hearing and determined that

Perez’s “plea of guilty is a knowing and voluntary plea.” (App.

35.) Specifically, the District Court questioned Perez about the

appeal waiver and ascertained that Perez discussed the waiver with

his attorney, that he understood he was waiving his right to appeal
5

and that he did so knowingly and voluntarily. 

Rather, Perez argues that restitution is not, technically, a

component of his sentence, and therefore he is not precluded from

appealing the order of restitution. Perez asserts that the waiver he

agreed to only bars challenges to his conviction and duration of

confinement. We find this contention to be without merit. We

have previously stated that restitution, ordered as part of a criminal

sentence, is a criminal penalty. See Leahy, 438 F.3d at 333-35. It

is clear that, at the sentencing hearing, Perez understood that he

would be ordered to pay restitution. The government noted at the

hearing that the plea agreement included several stipulations.

Perez stipulated to a loss amount “of at least $70,000 but not more

than $120,000” in the plea agreement. (App. 42.) Lastly, the

government stated that “[t]he Plea Agreement to which Mr. Perez

has entered into also contains a waiver of appeal.” (App. 23.) 

Following the government’s summary of the plea agreement, the

District Court asked Perez: 

Q: Mr. Perez, did you hear the Assistant U.S.

Attorney go over those? Did you hear her

summarize the Plea Agreement? 

A: Yes.

Q: And you understand the possible

consequences of your plea? 

A: Yes.

(App. 23.) The plea colloquy further included a lengthy discussion

specifically regarding the waiver of appellate rights contained in

the agreement. 

In imposing the sentence, the District Court ordered that

Perez pay restitution and set forth the restitution in the judgment.

We conclude that the appellate waiver, included in Perez’s plea

agreement, applies to the District Court’s restitution order, a

component of his sentence. See Leahy, 438 F.3d at 333. By

waiving his right to appeal his criminal sentence, Perez waived his

right to appeal the restitution order. 

Other courts have held that a defendant who knowingly and

voluntarily waives his right to appeal his sentence, has waived the
2 We note that other circuits have held that appellate waiver

provisions in a plea agreement do not include the waiver of the

right to appeal a restitution order. See United States v. Sistrunk,

432 F.3d 917, 918 (8th Cir. 2006) (finding restitution order was

beyond scope of waiver of appeal where provision provided that

defendant waived his rights to appeal if sentence was above

specific offense level); United States v. Zink, 107 F.3d 716, 718

(9th Cir. 1997) (plea agreement’s waiver of right to appeal any

sentence within statutory maximum which lacked any reference to

restitution only referred to sentences calculated under the

Sentencing Guidelines); United States v. Ready, 82 F.3d 551, 560

(2d Cir. 1996) (finding defendant did not waive right to appeal

restitution order where plea agreement contained ambiguity as to

whether term “sentence” included restitution penalty). 

6

right to appeal a restitution order. See, e.g., United States v.

Cooper, 498 F.3d 1156 (10th Cir. 2007) (dismissing appeal of

restitution order where defendant had signed an appeal waiver

because the plea agreement made clear that restitution award was

part of his sentence); United States v. Cohen, 459 F.3d 490, 497

(4th Cir. 2006) (“In sum, we conclude that, as a general rule, a

defendant who has agreed ‘[t]o waive knowingly and expressly all

rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence

is imposed,’ . . . has waived his right to appeal a restitution

order.”); United States v. Sharp, 442 F.3d 946, 948, 952 (6th Cir.

2006) (finding that defendant waived right to appeal restitution

order where defendant waived right “to appeal the conviction or

sentence in this case, including the appeal right conferred by 18

U.S.C. § 3742, and to challenge the conviction or sentence

collaterally,” but reserved right to appeal punishment in excess of

statutory maximum and upward departure from applicable

sentencing guidelines range).2

Finally, we conclude that Perez’s Sixth Amendment

argument, that the District Court’s restitution order was

unconstitutional because of judicial fact-finding, is meritless. In

Leahy, we held that “restitution . . . is not the type of criminal

punishment that evokes Sixth Amendment protection under Booker

. . . [and] the amount a defendant must restore to his or her victim
7

need not be admitted by the defendant or proved to a jury beyond

a reasonable doubt.” 438 F.3d at 331. 

For the foregoing reasons, we will affirm the District

Court’s judgment.