* 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.

REVISED SEPTEMBER 17, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20930

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

SUNNY ALFRED IMEH

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:05-cr-00050

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Sunny Alfred Imeh (“Imeh”) appeals the voluntariness of his guilty plea.

Imeh argues that the district court affected his substantial rights by failing to

notify him of its authority to order restitution, and by imposing a restitution

order in excess of the maximum amount that the court warned him could be

imposed as a fine. Imeh asks this court to reduce the amount of restitution

United States Court of Appeals

Fifth Circuit

F I L E D

September 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-20930

2

ordered by the district court to the total amount of fines warned of in the district

court’s admonition. Imeh failed to establish that he would not have pleaded

guilty but for the error, or that this case presents facts that seriously affect the

fairness, integrity, or public reputation of judicial proceedings. Accordingly, we

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May 2005, Imeh was charged in a thirty-three count superseding

indictment with, inter alia, conspiracy to commit wire fraud, mail fraud, health

care fraud, and aiding and abetting, all related to his durable medical equipment

company. In June 2005, after signing a plea agreement, Imeh pleaded guilty to

two counts: conspiracy, in violation of 18 U.S.C. § 371, and health care fraud, in

violation of 18 U.S.C. § 1347. In the written plea bargain, Imeh agreed to

cooperate with the ongoing government investigation. He also agreed to pay

restitution to the government, a fine imposed by the court, and a $200 special

assessment. In the agreement, Imeh waived his right to appeal his sentence

unless the sentence imposed was above the statutory maximum. The

government dismissed the remaining charges.

Before Imeh entered his plea, the district court held a hearing, pursuant

to Federal Rule of Criminal Procedure 11, during which the court admonished

Imeh that he could be responsible for a fine of up to $250,000 for each of the two

counts in his guilty plea. The court did not warn Imeh of the possibility of

restitution, although at the plea colloquy the government read aloud the factual

basis for the pleas—including the fact that Imeh had received approximately

$1.6 million in his scheme. Imeh acknowledged that the factual basis was

accurate. The district court sentenced Imeh to sixty months’ imprisonment for

the conspiracy count and sixty-three months’ imprisonment for the health care

fraud count, to be served concurrently. The court also imposed restitution in the

amount of $668,730.05. The court did not impose a fine.
No. 07-20930

1 The defendant in Glinsey sought to withdraw his guilty plea, but the court fashioned

a remedy that adjusted his sentence, rather than overturning his conviction. 209 F.3d at 392,

395 (“We may reduce the order of restitution to $1 million, an amount that does not infringe

his substantial rights. Glinsey is not prejudiced so long as his liability does not exceed the

maximum amount that the court informed him could be imposed as a fine.”).

3

II. JURISDICTION

Imeh did not file a timely notice of appeal, but he later filed a pro se

motion to file an untimely notice of appeal. The district court denied the motion

based on Imeh’s waiver of the right to appeal in his plea agreement. In an

appeal of that ruling, this court held that the district court erred in denying

Imeh’s motion because the plea agreement waived only Imeh’s right to appeal

his sentence, not his right to appeal his conviction. See United States v. Imeh,

255 F. App’x 833, 834-35 (5th Cir. 2007) (per curiam) (unpublished) (citing

United States v. Palmer, 456 F.3d 484, 487-89 (5th Cir. 2006)). Because Imeh’s

Rule 11 argument implicated the voluntariness of his guilty plea, this court

considered this appeal to be a challenge to Imeh’s conviction. Imeh, 255 F. App’x

at 835. In characterizing Imeh’s appeal as an appeal of his conviction, this court

relied on United States v. Glinsey, 209 F.3d 386, 394 (5th Cir. 2000). Imeh, 255

F. App’x at 835. Glinsey characterized a Rule 11 error as affecting the

voluntariness of a guilty plea, and it provided a reduced restitution award as a

remedy. 209 F.3d at 394, 396.1 On remand, the district court granted Imeh an

out-of-time appeal.

III. STANDARD OF REVIEW

Because Imeh’s trial counsel did not object to the restitution order at the

time of the district court’s Rule 11 admonishment, this court reviews for plain

error. United States v. Vonn, 535 U.S. 55, 59 (2002). To constitute plain error,

Imeh must show that“(1)there was an error; (2)the error was clear and obvious;

and (3) the error affected the defendant’s substantial rights.” United States v.

Villegas, 404 F.3d 355, 358 (5th Cir. 2005). To justify reversal for a district
No. 07-20930

4

court’s error in a Rule 11 admonishment of a defendant, the defendant “must

show a reasonable probability that, but for the error, he would not have entered

the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In

addition, this court may correct a plain error only if it “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” United States v.

Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omitted).

IV. DISCUSSION

Federal Rule of Criminal Procedure 11(b)(1) requires a district judge to

“inform the defendant of, and determine that the defendant understands” certain

rights and consequences of a guilty plea before accepting the plea. One of those

admonishments is “the court’s authority to order restitution.” FED. R. CRIM. P.

11(b)(1)(K). The district court in this case did not advise Imeh of its authority

to order restitution. The court only told Imeh that he could be fined $250,000 for

each of the two counts to which he pleaded guilty. However, Imeh agreed to pay

any restitution award in his written plea agreement. The district court did not

ask whether Imeh had read and understood the plea agreement.

In this appeal, Imeh argues that the district court’s failure to warn him of

the possibility of restitution was plain error and contends that the proper

remedy is to reduce the $668,730.05 restitution order to the total amount of fines

warned of in the court’s admonition, $500,000. Imeh relies primarily on this

court’s decision in Glinsey. 209 F.3d at 395. In Glinsey, the defendant’s plea

agreement did not mention restitution and the district court did not warn the

defendant ofthe possibility of restitution. Id. at 394. The district court informed

Glinsey only that he could face a fine of up to $1 million. Id. At sentencing, the

district court imposed restitution in the amount of $1,266,317.06; no fine was

imposed. Id. at 392.

At the time Glinsey was decided, this court applied a harmless error

analysis to Rule 11 errors, asking:“(1) Did the sentencing courtin fact vary from
No. 07-20930

5

the procedures required by Rule 11, and (2) if so, did such variance affect

substantial rights of the defendant?” United States v. Johnson, 1 F.3d 296, 298

(5th Cir. 1993) (en banc). Under that analysis, a defendant’s substantial rights

were violated if “the defendant’s knowledge and comprehension of the full and

correct information would have been likely to affect his willingness to plead

guilty.” Id. at 302.

Noting the Johnson harmless error standard, the Glinsey courtframed the

issue before it: “the question is whether Glinsey’s knowing about the roughly

$266,000 difference (between the amount of the possible fine he was informed

of and the restitution actually ordered) would have affected his willingness to

plead guilty.” Glinsey, 209 F.3d at 395. However, Glinsey never answered that

question. Id. (“Even assuming that the roughly $266,000 difference might have

affected his decision to plead guilty, the judgment need not be vacated.”).

Instead, the court merely reduced the amount of restitution to $1 million, the

amount the district court warned Glinsey he might have to pay in fines. Id. The

court reasoned that a defendant “is not prejudiced so long as his liability does

not exceed the maximum amount that the court informed him could be imposed

as a fine.” Id. “‘Whether the amount to be paid is classed as restitution or a fine

ordinarily makes little difference in its bite, and warning of one but notthe other

does not require collateral relief.’” Id. (quoting UnitedStates v. Stumpf, 900F.2d

842, 845 (5th Cir. 1990)). Thus, Glinsey established the rule that a potentially

prejudicial Rule 11 error can be remedied by simply reducing the amount owed

in restitution—instead of remanding to give the defendant an opportunity to

revise his plea.

Because the court reduced Glinsey’s financial obligation as a remedy, we

can infer that the court must have believed thatif a defendant’s liability exceeds

the maximum amount the court informed him could be imposed, that may, at

least in some circumstances, constitute prejudicial error. Cf. United States v.
No. 07-20930

2 The government argues that Glinsey does not apply in this case because the

restitution in Glinsey was ordered pursuant to 18 U.S.C. § 3663, which authorizes

discretionary restitution. Here, the restitution was ordered pursuant to the Mandatory

Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. However, the government’s argument

misses the mark. First, the MVRA does not alter the Fifth Circuit’s review of Rule 11 errors.

See United States v. Lam, 233 F.3d 575 (5th Cir. 2000) (per curiam) (unpublished table

decision) (applying Glinsey even when the restitution was ordered pursuant to the MVRA).

Second, this court has noted that the MVRA makes a district court’s Rule 11 admonishment

more important than when restitution awards are discretionary: “it is extremely critical that

the sentencing judge give as full a disclosure as possible at the time of the plea colloquy

regarding the court’s authority to order mandatory restitution and the probable quantum

thereof.” United States v. Powell, 354 F.3d 362, 369-70 (5th Cir. 2003). Therefore, the Glinsey

court’s failure to impose mandatory restitution does not distinguish its holding.

6

Maharaj, 176 F. App’x 536, 539 (5th Cir. 2006) (unpublished) (“Glinsey merely

stands for the proposition that a judgment equalto the amount announced atthe

plea colloquy cannot, by definition, affect a defendant’s substantial rights,

because the defendant received fair notice of that amount under [R]ule 11. It

does not follow that a judgment above the notified amount necessarily affects

substantial rights.” (citation omitted)).

Imeh urges this court to apply Glinsey here; however, the remedy in

Glinsey is not appropriate under the circumstances. First, Glinsey merely notes

that a restitution award lower than the total amount warned of by the district

court does not affect substantial rights; that does not require that all awards

exceeding the amount warned of by the district court must necessarily affect

substantial rights. See Maharaj, 176 F. App’x at 538. Second, the defendant in

Glinsey was not warned in his plea agreement of the possibility of

restitution—Imeh signed a plea agreement that recognized the possibility of

restitution. Third, a different standard applies: Glinsey’s harmless error

approach asked only whether a proper admonishment would have been likely to

affect his willingness to plead guilty. In contrast, in the plain error context,

Imeh must show a reasonable probability that, but for the error, he would not

have entered the plea.2
No. 07-20930

7

The critical factor in our decision not to apply a Glinsey-type remedy is

that we review the voluntariness of guilty pleas for plain error when the

defendant did not make a contemporaneous objection. In Vonn, 535 U.S. at 59,

the Supreme Court held that the plain error standard applies in reviewing a

Rule 11 error where the defendant failed to object in the trial court. Plain error

review differs from harmless error review in two important ways. First, in

harmless error review, the government carries the burden to show that a trial

error did not affect a defendant’s substantial rights. Id. at 58. In plain error

review, the defendant carries the burden of showing that the error affected his

rights. Id. Second, in plain error review, even if a defendant makes such a

showing, he “has the further burden to persuade the court that the error

seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings.” Id. at 63 (internal quotation marks omitted).

The only case in this circuit applying plain error review to a Rule 11 error

of this type is Maharaj. 176 F. App’x at 538. In that case, the district court

warned the defendant of the possibility of a fine up to $250,000 but did not warn

him ofthe court’s authority to order restitution. Id. at 537. The defendant’s plea

agreement stated that any fine or restitution would be due immediately. Id.

Maharaj represented to the district court that he had read and understood the

plea agreement. Id. at 538. At sentencing, the district court imposed MVRArequired restitution of roughly $225,000, plus a $125,000 fine. Id. Although

Maharaj did not make a contemporaneous objection, he appealed the restitution

order, arguing that his total financial obligation should be reduced from

$350,000 to the amount the district court orally admonished him—about

$250,000. Id. Because Maharaj failed to raise an objection before the district

court, this court applied plain error review. Id.

The Maharaj court concluded that, “[m]ost importantly in the context of

plain error review . . . we are not persuaded that [the defendant] would not have
No. 07-20930

3 Although the facts of Maharaj can be distinguished from this case on several grounds,

none persuade us that Imeh is entitled to relief. First, Maharaj was held jointly and severally

liable for the restitution order with his two co-defendants—not so in the instant case. Second,

the difference between the judgment amount and the amount warned of at the plea colloquy

was approximately $100,000 in Maharaj—that difference is $168,730.05 in the instant case.

Finally, the defendant in Maharaj represented to the district court that he had read and

understood the plea agreement—Imeh made no such representation before the trial court.

None of these factors, however, suggest that the plain error standard, applied in Maharaj,

should not apply here.

8

pleaded guilty but for the error.” Id. at 539. That is, when the defendant fails

to object contemporaneously to the Rule 11 admonishments, we apply plain error

review. As defined in the Rule 11 plain error context, a defendant “must show

a reasonable probability that, but for the error, he would not have entered the

plea.” Dominguez Benitez, 542 U.S. at 83.3

The district court’s failure to notify Imeh thatit had the authority to order

restitution was clear and obvious error. FED.R.CRIM.P. 11(b)(1)(K); see Glinsey,

209 F.3d at 394; Maharaj, 176 F. App’x at 538. However, Imeh has failed to

show that the Rule 11 error in this case affected his substantial rights. Imeh

asserts that the difference between the restitution order and the district court’s

warning “makes it unlikely that Imeh would have pleaded guilty” but for the

district court’s failure to provide the proper admonishment. This bald assertion

alone is not enough to show a “reasonable probability” that the district court’s

error was a but for cause of Imeh’s decision to enter the plea. Furthermore,

Imeh offers no ground on which to conclude that his sentence “seriously affect[s]

the fairness, integrity or public reputation of judicial proceedings.” See Olano,

507 U.S. at 732 (internal quotations marks omitted).

V. CONCLUSION

Imeh has failed to show that but for the district court’s error he would not

have pleaded guilty. In addition, he has not shown that the verdict in this case

affects the fairness, integrity, or public reputation of judicial proceedings.
No. 07-20930

9

Accordingly, we affirm the district court’s conviction and decline to adjust the

restitution order.

AFFIRMED.