FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 28, 2008

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10029

Non-Argument Calendar

________________________

D. C. Docket No. 04-00295-CR-1-JTC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MARCUS AURELIUS JOHNSON, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

WILSON, Circuit Judge:

Marcus Aurelius Johnson (“Johnson”) appeals the district court’s order of
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restitution on the sole ground that it was imposed 39 months after his sentence was

imposed, well past the 90-day period required by 18 U.S.C. § 3664(d)(5). The

government moves to dismiss because Johnson knowingly and voluntarily

executed an appeal waiver as part of his plea agreement. For the reasons set forth

below, we grant the government’s motion to dismiss.

I. BACKGROUND

On May 21, 2004, Johnson was charged in an information with conspiracy

to commit identification document fraud in violation of 18 U.S.C. § 1028(f). 

Shortly thereafter, on May 26, Johnson entered into a negotiated plea agreement,

the terms of which included an appeal waiver:

LIMITED WAIVER OF APPEAL: To the maximum extent permitted by

federal law, the defendant voluntarily and expressly waives the right to

appeal sentence and the right to collaterally attack sentence in any postconviction proceeding on any ground, except that the defendant may file a

direct appeal of (1) an upward departure from the otherwise applicable

sentencing guideline range; and/or (2) the sentencing court’s finding as to

the application of § 2b1.1(B)(1) of the Sentencing Guidelines in the event

the loss amount is determined to exceed $30,000.

(Plea Agreement, Government’s Motion to Dismiss, Ex. B at 5.)

The plea agreement further provided, above Johnson’s signature:

I have also discussed with my attorney the rights I may have to appeal or

challenge my sentence, and I understand that the appeal waiver contained

in the Plea Agreement will prevent me, with the narrow exceptions stated,

from appealing my sentence or challenging my sentence in any post-
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conviction proceeding.

(Id. at 6.)

During the plea colloquy, Johnson advised the court that he understood that

the plea agreement contained a waiver of his right to appeal except in the limited

instances of an upward departure from the sentencing guidelines or in the event

the restitution amount exceeded $30,000:

Court: What are the circumstances in which Mr. Johnson would be able to

appeal?

Johnson’s Attorney: Yes, your Honor. We will have the ability to appeal

any upward departure [or if] the loss amount is determined to exceed

$30,000 . . . .

Court: Okay. But do you understand you would not have any right to

appeal? —

Johnson: Yes.

Court: — Or to file a later lawsuit challenging your sentence on any other

grounds?

Johnson: Yes.

(Tr. Plea Hearing, Government’s Motion to Dismiss, Ex. C at 10-11.)

On September 10, 2004, Johnson was sentenced to twenty-six months in

prison, three years of supervised release, a special assessment of one hundred

dollars, and an amount of restitution to be determined. Over three years later, on

December 20, 2007 the district court amended the judgment and ordered Johnson

to pay restitution in the amount of $21,593.70. It is undisputed that neither of the

exceptions to the appeal waiver are at issue. The sentence was within the
Section 3664(d)(5) provides: 1

If the victim’s losses are not ascertainable by the date that is 10 days prior to

sentencing, the attorney for the Government or the probation officer shall so inform the

court, and the court shall set a date for the final determination of the victim’s losses, not

to exceed 90 days after sentencing. If the victim subsequently discovers further losses,

the victim shall have 60 days after discovery of those losses in which to petition the

court for an amended restitution order. Such order may be granted only upon a showing

of good cause for the failure to include such losses in the initial claim for restitutionary

relief.

18 U.S.C. § 3664(d)(5).

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guidelines range and the order of restitution did not exceed $30,000.00.

II. DISCUSSION

We review the validity of a sentence appeal waiver de novo. United States

v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001). A sentence appeal waiver

must be made knowingly and voluntarily. Id. The waiver is valid if the

government shows either that: (1) the district court specifically questioned the

defendant about the waiver; or (2) the record makes clear that the defendant

otherwise understood the full significance of the waiver. United States v. Bushert,

 

997 F.2d 1343, 1351 (11th Cir. 1993).

Johnson argues that, notwithstanding his sentence appeal waiver, he may

appeal the amended judgment because the district court issued a restitution order

that was untimely pursuant to 18 U.S.C. § 3664(d)(5). Johnson cites to United 1

States v. Maung, 267 F.3d 1113 (11th Cir. 2001), wherein we stated that §
At the time of our opinion in Satterfield, the VWPA was codified at 18 U.S.C. §§ 3579 2

and 3580; however, Congress recodified the VWPA as §§ 3663 and 3664 through the Sentencing

Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987. See United States v. Dickerson, 370

F.3d 1330, 1337 n.13 (11th Cir. 2004).

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3664(d)(5) prohibits a district court from “impos[ing] a sentence and then

delay[ing] determination of the amount of losses more than 90 days from

sentencing.” Id. at 1121. Johnson argues that this untimeliness rendered the

sentence illegal and that even a valid waiver should not preclude us from vacating

it. In support, Johnson cites United States v. Andis, 333 F.3d 886 (8th Cir. 2003)

(en banc), in which the Eighth Circuit held that imposition of an illegal sentence

constituted “a miscarriage of justice” and may be appealed despite the existence of

an otherwise valid waiver. Id. at 891-92.

The government argues that Johnson knowingly and voluntarily waived his

right to appeal his sentence as evidenced by the clear terms of the plea agreement

as well as by the district court’s specific questioning of Johnson at the plea

hearing. The government argues that because restitution is part of a criminal

defendant’s waiver, see United States v. Satterfield, 743 F.2d 827, 837 (11th Cir.

1984) (“There can be little doubt that Congress intended the restitution penalties

of the VWPA [Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663 ] to 2

be incorporated into the traditional sentencing structure.”), a waiver of the right to
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appeal a sentence necessarily includes a waiver of the right to appeal the

restitution imposed. The government asserts that, although the Eighth Circuit

recognized a “miscarriage of justice” exception, the court cautioned that the

exception was “a narrow one and w[ould] not be allowed to swallow the general

rule that waivers of appellate rights are valid.” Andis, 333 F.3d at 891. The

government states that Johnson does not object to the substance of the amended

sentence (the amount of restitution did not exceed the $30,000 threshold), but

merely that the court acted untimely; thus, the sentence itself did not violate

Johnson’s right to due process or result in a miscarriage of justice.

In United States v. Kapelushnik, 306 F.3d 1090 (11th Cir. 2002), we held

that where “the district court fails to [issue an order of restitution] within the 90-

day limitations period, the judgment of conviction becomes final and contains no

enforceable restitution provision.” Id. at 1093-94. In Maung, however, we

indicated that in limited circumstances a district judge may impose restitution after

the 90-day period, such as “in cases where the defendant’s own bad faith” causes

the delay. Maung, 267 F.3d at 1122 (“Allowing the defendant’s own bad faith

delay to foreclose the entry of a restitution order could conceivably put restitution

in some cases in the defendant’s own discretion.”). Thus, although the question

was not before us, we recognized the possibility that the 90-day period could be
This court adopted as binding precedent the decisions of the former Fifth Circuit prior to 3

October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

“The right to appeal is purely statutory.” Bushert, 997 F.2d at 1347. 4

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equitably tolled. Id. Our reasoning in Maung comports with the well established

rule that equitable tolling principles “are read into every federal statute of

limitation” absent congressional intent to the contrary. Cook v. Deltona Corp.,

753 F.2d 1552, 1562 (11th Cir. 1985); see also Ellis v. Gen. Motors Acceptance

Corp., 160 F.3d 703, 707 (11th Cir. 1998) (same); Hill v. Texaco, Inc., 825 F.2d

333, 334 (11th Cir. 1987) (same).

Because the statute of limitations may be equitably tolled, it is not

jurisdictional. See Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir.

2005) (per curiam) (explaining that federal statutory limitations period under

scrutiny was “‘mandatory and jurisdictional’ [and therefore] not subject to

equitable tolling”); Coke v. Gen. Adjustment Bureau, Inc., 640 F.2d 584, 588-89

(5th Cir. 1981) (distinguishing between jurisdictional prerequisites and statutes of

limitations that can be equitably tolled). The crux of Johnson’s appeal, therefore, 3

is whether the factual circumstances of this case permitted the district court to

equitably toll the 90-day limitations period. We do not reach that question,

however, because we find that Johnson waived his statutory right to appeal his 4

sentence.
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Johnson does not dispute that his waiver was knowing and voluntary; that

he explicitly waived an appeal as to restitution so long as the amount did not

exceed $30,000; or that the amount of restitution is, in fact, under $30,000. That

Johnson may have a meritorious argument on whether the court erred in

effectively equitably tolling the limitations period does not overcome his waiver in

this instance. As we have said previously, “[w]aiver would be nearly meaningless

if it included only those appeals that border on the frivolous.” United States v.

Howle, 166 F.3d 1166, 1169 (11th Cir. 1999). The waiver includes more than just

difficult or debatable legal issues; it includes “waiver of the right to appeal blatant

error.” Id.; United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005)

(per curiam).

We recognize, however, that an effective waiver is not an absolute bar to

appellate review. In Bushert, we commented that “a defendant who has executed

an effective waiver does not subject himself to being sentenced entirely at the

whim of the district court.” Bushert, 997 F.2d at 1350 (internal quotation marks

omitted). We indicated that “a defendant could not be said to have waived his

right to appellate review of a sentence imposed in excess of the maximum penalty

provided by statute or based on a constitutionally impermissible factor such as

race.” Id. at 1350 n.18 (internal quotation marks omitted). We also stated that
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“[i]t is both axiomatic and jurisdictional that a court of the United States may not

impose a penalty for a crime beyond that which is authorized by statute.” Id. Six

years after Bushert, we stated that “[i]n extreme circumstances—for instance, if

the district court had sentenced [the defendant] to a public flogging—due process

may require that an appeal be heard despite a previous waiver.” Howle, 166 F.3d

at 1169 n.5. 

Assuming that the district court erred in delaying the issuance of the

restitution order, the 36 months that accrued beyond the 90-day threshold does

not, by itself, give rise to an “extreme circumstance” requiring it to be heard

despite a previous knowing and voluntary waiver. Johnson cannot be said to have

been subjected to the unfettered whim of the district court, or punished on the

basis of a constitutionally impermissible factor such as race. Furthermore, we do

not believe the Bushert court, in referencing “the maximum penalty provided by

statute” or the imposition of “a penalty for a crime beyond that which is authorized

by statute,” had in mind an untimely restitution order; rather, we read that

commentary as aiming at the imposition of a sentence exceeding the statutory

range authorized for the offense of conviction. The restitution statute at issue

here, 18 U.S.C. § 3663, has no prescribed statutory maximum. See Dohrmann v.

United States, 442 F.3d 1279, 1281 (11th Cir. 2006). Johnson can hardly be
To the extent that the Eighth Circuit’s application of the “miscarriage of justice” 5

exception, recognized in Andis, 333 F.3d at 891-92, would result in a different outcome, we

respectfully disagree. We are not sure, however, that the Eighth Circuit would apply the

“miscarriage of justice” exception in this case. The Eighth Circuit has previously held that a

defendant’s appeal waiver was not overcome by defendant’s arguments attacking restitution on

grounds of due process, insufficient evidence showing loss, and the victim’s failure to seek

restitution. United States v. Greger, 98 F.3d 1080, 1081-82 (8th Cir. 1996). We further note that

the Eighth Circuit has recently clarified the language in Andis referring to “a defendant ha[ving]

the right to appeal an illegal sentence, even though there exists an otherwise valid waiver.” 

Andis, 333 F.3d at 891-92. In United States v. Schulte, 436 F.3d 849 (8th Cir. 2006), the court

cautioned that “not every action that is contrary to law or in excess of the district court’s statutory

authority constitutes an ‘illegal sentence’ that avoids an appeal waiver.” Id. at 850. Indeed, the

court stated that “[t]he concept of an ‘illegal sentence’ may not apply neatly to restitution orders,

as they are not in the nature of a criminal penalty.” Id. at 851 (internal quotation marks omitted). 

The court explained that the focus of Andis was on “a statutory range” and that restitution orders

“are not subject to any prescribed statutory maximum.” Id. (internal quotation marks omitted).

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viewed as receiving punishment in excess of a statutory maximum—or, indeed,

even in excess of his own expectations—given that he agreed not to appeal an

order of restitution that did not exceed $30,000. “A plea agreement is, in essence,

a contract between the Government and a criminal defendant.” Howle, 166 F.3d at

1168. To allow an appeal in this instance would effectively write into the contract

an exception that the parties did not agree to. This we cannot do. The Sixth

Circuit has recently come to the same conclusion. See United States v. Gibney,

519 F.3d 301, 305-06 (6th Cir. 2008) (dismissing appeal due to waiver despite

defendant’s argument that district court’s restitution order exceeded the ninety-day

time frame in 18 U.S.C. § 3664(d)(5)).5

Before concluding, we recognize that there is a need for finality in imposing
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restitution and that a thirty-six month delay is not a trivial amount of time. Our

decision today does not provide district courts with free reign to disregard the 90-

day period where a defendant has executed an appeal waiver. Under different

circumstances, we can foresee how a delay may require our review despite a valid

waiver. Here, however, where Johnson voluntarily and knowingly waived an

appeal of restitution that did not exceed an amount of $30,000, where the court

imposed an amount less than $30,000, and where the length of delay beyond the

period of limitations is 36 months, Johnson’s waiver precludes our review. 

Accordingly, we grant the government’s motion to dismiss.

SO ORDERED.