UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RICHARD BALLARD, Defendant - Appellant. No. 16-3274 (D.C. No. 2:14-CR-20057-JAR-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , EBEL , and MATHESON , Circuit Judges.

________________ _________________ Richard Ballard appeals an order requiring payment of restitution to victims of his wire fraud offense. Exercising jurisdiction u nder § 1291, we hold that his plea agreement contains an enforceable waiver of appellate right s. Accordingly, we dismiss this appeal.
I. BACKGROUND Mr. Ballard pled guilty to co mmitting wire fraud in viola tion of 18 U.S.C. § 1343 by diverting investor funds to hi s personal use. In his plea ag reement, he waived his right to appeal his sentence, in cluding any order of res titution imposed by the court. 1 The

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Paragraph 3 of the plea agreement stated: FILED United States Court of Appeals Tenth Circuit 

### November 1, 2017
Elisabeth A. Shumaker Clerk of Court2 district court sentenced him to 27 months in prison and orde red him to pay restitution of $415,477.11 to 11 victims who had submitted victim impact statements. 2 Despite his appeal waiver, Mr. Ballard filed this appeal challenging his restitution order as excessive. He argues the district court erred by includ ing in the restitution calculation (1) losses suffered by three individuals he claims were not victims of the offense, and (2) salary payments to his son he claims were not losses.
II. DISCUSSION

A. Jurisdiction The Government argues we lack subject matter jurisdiction over this appeal due to 18 U.S.C. § 3742(a), wh ich provides that a defendant may appeal an otherwise

3. Proposed (c)(1)(C) Sentence. The parties propose, as an appropriate disposition of the case: (a) 27 months in prison . . . ; (b) 5 years of supervised release; . . . (e) restitution as determined by the court

. ROA, Vol. 1 at 28 (emphasis added). Paragraph 11 of the plea agreement stated:
11. Waiver of Appeal and Collateral Attack. The defendant knowingly and voluntarily waives a ny right to appeal or collaterally attack any matter in connection with this prosecution, his conviction, or the components of the sent ence to be imposed herein . . . . In other words, the defendant waives the right to appeal the sentence imposed in this case, except to the extent, if any, the Court imposes a sentence in excess of the sentence recomme nded by the parties under Rule 11(c)(1)(C). Id. at 32 (emphasis added).

2 Although more than 20 investors suffer ed losses due to Mr. Ballard’s fraud, only those who submitted victim impact statements were awarded restitution.3 final sentence if the sentence: (1) “was imposed in vi olation of law,” (2) “was imposed as a result of an incorrect application of the sentencing guidelines,” (3) is greater than the term of imprisonment under the applicable guide lines range, or (4) “was imposed for an offense for which ther e is no sentencing guideline and is plainly unreasonable.” 18 U.S.C. § 3742( a). But we need not rely on § 3742(a) to establish jurisdiction here. The district court’s entr y of a sentence constitutes a final order, thereby establishing subject matter ju risdiction under 28 U.S.C. § 1291. United States v. Hahn , 359 F.3d 1315, 1320 (10t h Cir. 2004) (en banc); see 28 U.S.C. § 1291 (providing that courts of a ppeals have subject matter juri sdiction over final orders of district courts). The Government also suggests we lack jurisdiction due to 18 U.S.C. § 3742(c), which limits when a defendant who entere d a Rule 11(c)(1)(C) plea agreement that included a “specific sentence” may appeal. 3 But the plea agreement here only included “restitution as determined by the c ourt” rather than a specific amount of restitution. ROA, Vol. 1 at 28. Section 3742(c) is thus inapplicable. In any event, as explained above, we derive our jurisdiction from § 1291. See Hahn , 359 F.3d at 1320.
B. Appellate Waiver The primary question is whether to enfo rce Mr. Ballard’s appeal waiver and dismiss his challenge to the restitution order. In this section, we provide legal

3 Section 3742(c) refers to Rule 11(e )(1)(C). In 2002, Rule 11(e)(1)(C) was renumbered as Rule 11(c)(1)(C), thoug h no substantive changes were made.4 background on the Mandatory Victims Rest itution Act (“MVRA”) and this court’s Hahn framework for determining when to enforce appellate waivers. We then apply Hahn and conclude that Mr. Ballard ’s waiver bars this appeal.
1. Legal Background

a. The Mandatory Victims Restitution Act Federal courts lack inherent authority to orde r restitution and may do so only when authorized by statute, such as the MVRA. United States v. Gordon , 480 F.3d 1205, 1210 (10th Cir. 2007). The MVRA requires courts to order restitution if the offense of conviction “involves as an element a scheme, c onspiracy or pattern of criminal activity.” 18 U.S.C. § 3663A(a)(2). Wi re fraud includes as an elem ent a scheme to defraud. United States v. Daniel , 749 F.3d 608, 613 (7th Cir. 2014); see also 18 U.S.C. § 1343. The maximum amount of restitution pe rmitted under the MVRA is “the full amount of each victim’s lo sses as determined by the court.” 18 U.S.C. § 3664(f)(1)(A); see also Gordon , 480 F.3d at 1211 (providing that the MVRA authorizes restitution to c over victims’ “loss[es] resu lting from the count to which [the defendant] pled guilty”) (citing Hughey v. United States , 495 U.S. 411, 420 (1990)); United States v. James , 564 F.3d 1238, 12 46 (10th Cir. 20 09) (stating that courts determine restitution based on victim s’ “actual loss”). “Restitution must not unjustly enrich crime victims or provide them a windfall.” United States v. Ferdman , 779 F.3d 1129, 1132 ( 10th Cir. 2015). In calculating loss under the MVRA, the court is not required to use absolute precision. United States v. Gallant , 537 F.3d 1202, 1252 (10th Cir. 2008). “A5 sentencing court may resolve restitution un certainties with a vi ew towards achieving fairness to the victim, so long as it still makes a re asonable determination of appropriate restitution rooted in a calculation of actual loss.” Id . (quotations omitted). Although the statute permits so me imprecision, a restitution order that exceeds the maximum amount—i.e., the vict ims’ actual loss—is unlawful under the
MVRA. See Gordon , 480 F.3d at 1210. b. Hahn’s three-part framework Under Hahn , we will enforce an app eal waiver if (1) “the disputed appeal falls within the scope of the waiver of appellate rights,” (2) “the de fendant knowingly and voluntarily waived his appellate rights,” and (3) “enforcing the waiver would [not] result in a miscarriage of justice.” 359 F.3d at 1325. One of the situations we identified as a miscarriage of justice is “where the se ntence exceeds the statutory maximum.” Id . at 1327 (quotations omitted). Enforc ing an unlawful restitution order “constitute[s] a miscarriage of justice because [the order] is beyond the remedy authorized by the statute.” Gordon , 480 F.3d at 1212.
2. Analysis Mr. Ballard does not dispute that he wa ived his appellate rights knowingly and voluntarily; the only questions here relate to (a) the scope of the waiver and (b) whether enforcement would result in a miscarriage of justice.

a. Scope of the waiver Mr. Ballard’s challenge to the restituti on award falls within the scope of his appeal waiver. In paragraph 11 of the pl ea agreement, Mr. Ba llard “waive[d] any6 right to appeal . . . the com ponents of the sentence to be im posed herein . . . .” ROA, Vol. 1 at 32. In paragraph 3, the co mponents of the proposed sentence included “restitution as determined by the court.” Id . at 28. The plea agreement also stated that “the defendant waives the right to appeal the sentence im posed in this case, except to the extent, if any, the Court imposes a sentence in excess of the sentence recommended by the parties under Rule 11(c)(1)(C).” Id . at 32. 4 But the parties did not recommend a specific restitution order amount, so this exception does not apply. Because restitution, “as dete rmined by the [district] cour t,” was a component of the sentence, Mr. Ballard’s appeal is within the scope of his waiver. Id. at 28.
2. Miscarriage of Justice Mr. Ballard contends that the restit ution order exceeds the MVRA’s statutory maximum because it requires payments to indi viduals who were not victims and includes amounts of money that were not losses under the MVRA. The restitution order, he concludes, is thus unlawful and unenforceable. We disagree. The district court’s restitution order doe s not exceed the vic tims’ actual loss and thus does not exceed the MVRA’s statutory maximum. The court imposed a restitution award of $415,477.11—the amount of invest ors’ money the FBI determined Mr. Ballard embezzled for personal use. But the record supports that the victims’ actual loss—the proper basis of a restitution calculation—is actually much higher. Mr. Ballard’s top two investors invested a total of $500,000 in to his companies, wh ich “because of [Mr.

4 The plea agreement expressly preserve d Mr. Ballard’s right to appeal two issues: (1) ineffect ive assistance of counsel and (2 ) prosecutorial misconduct.7 Ballard’s] fraud . . . were basically worth nothi ng to the investors” in the end. ROA, Vol. 2 at 93. Even without taking into accoun t the losses of the additional nine victims receiving restitution, the losses attributable to these two investors alone provide ample support for the restitution orde r. Nor does the restitution result in a windfall for the victims, as the amount each wa s awarded is still significantly less than what the U.S. Probation Office determined th ey were due—a fact Mr. Ballard does not contest. Mr. Ballard contends that losses attribut ed to three individuals should have been subtracted from the award beca use they were not victims. 5 Although these individuals were never slated to receive restitution, th eir losses were included in the total amount of restitution to be divi ded among the 11 victim s who submitted victim impact statements. Mr. Ballard has a point. If someone is not a victim deserving restitution under the MVRA, then the restitution award—which must reflect the actual loss suffered by the
victims —should not include losses attributable to th at person. But any such error here is harmless because, as explained above, ample re cord evidence suppor ts the restitution award even without these contested amounts, and thus there is no need to remand. See United States v. Seignious , 757 F.3d 155, 164 (4th Cir. 2014). The same point applies to Mr. Ballard ’s argument that the restitution award erroneously includes salary payments to hi s son, which he cont ends were legitimate business expenses. Again, restitution is calc ulated based on the victims’ actual loss.

5 According to the FBI’s forensic report, the rest itution award included losses of $18,500, $6,600, and $8,000 attributable to three individuals—two of whom the Government conceded were not victims.8 Even if the payments to his son were legitim ate, the total amount of the investors’ losses caused by his fraud far exceeded the actual restitution award of $415,477.11. Finally, Mr. Ballard argues that our decisions in Gordon 6 and United States v. Hudson , 483 F.3d 707 (10th Cir. 2007), 7 permit him to appeal the legality of the restitution order. To the extent he argues his appellate waiver does not preclude us from engaging in the Hahn analysis above, he is correct. Under Hahn , we have jurisdiction over this appeal and a framework for deciding whether an appellate waiver applies. 359 F.3d at 1320, 1325. We have determined that Mr. Ballard has failed to demonstrate that any of the three Hahn factors preclude enforcement of the appellate waiver. To the extent Mr. Ballard contends Gordon and Hudson allow him to circumvent our en banc decision in Hahn , we disagree. Taken togethe r, these two cases support the proposition that we cannot enfo rce an appeal waiver when the sentence includes an

6 In Gordon , we held that the defendant’s appe llate waiver preserved her right to appeal an unlawful restituti on order. 480 F.3d at 1208-09. The restitution order in question was unlawful because it included losses not associated with the sole count of conviction and thus exceeded the MVRA. Id. at 1207. Applying Hahn , we declined to enforce the appellate waiver because an appe al of an unlawful restitution order “[wa]s beyond the scope of the waiver,” id . at 1210, and enforcing an unlawful restitution order would “constitute a mis carriage of justice,” id. at 1212 (citing Hahn , 359 F.3d at 1327). Mr. Ballard’s restitution order is not un lawful, so this case is inapt.

7 In Hudson , the defendant, who had pled guilty to selling counterfeit software, appealed the amount of restitution, arguing the copyright holder had failed to demonstrate any losses related to his offense. 483 F.3d at 709. Citing Hahn and Gordon , we held that a defendant cannot “be deemed to have waived his right to appeal the legality of the court’s restitution order” and proceeded to find the restitu tion order unlawful because there was no support in the reco rd that the defendant’s actions had deprived the copyright holder of potential sales. Id . at 711. Enforcing an unlawf ul restitution order constitutes a miscarriage of justice under Hahn , and we declined to do so. Id . Again, the restitution order here is not unlawful.9 unlawful restitution order—essentially a reiteration of Hahn’s third prong, which provides that a “sentence [that] exceeds th e statutory maximum,” such as an unlawful restitution order, would be a miscarriage of justice. Id. at 1327. Mr. Ballard’s restitution order, however, was not unlawful, and thus these cases are inapt.
* * * * In sum, Mr. Ballard signed a plea agreem ent waiving his right to appeal any component of his sentence, including restitu tion. He appealed the restitution order, challenging its le gality. Applying Hahn’s framework, we conclude that Mr. Ballard failed to demonstrate any of the three circum stances that would pr eclude application of the appellate waiver. First, his appeal falls within the scope of the waiver. Second, he does not contest that the waiver was knowing and voluntary. Third, the restitution order is within the MVRA’s statutory maximum so enforcing the appellate waiver, regardless of whether the district court committed any e rrors in calculating the award, would not result in a miscarriag e of justice. Accordingly, we hold Mr. Ballard’s waiver of appellate rights enforceable and dismiss this appeal.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge