PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 05-4565

STEVEN IRA COHEN,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at New Bern.

Malcolm J. Howard, District Judge.

(CR-03-77-H; CR-04-28-H)

Argued: May 26, 2006

Decided: August 17, 2006

Before NIEMEYER and TRAXLER, Circuit Judges, and

Joseph R. GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

Dismissed by published opinion. Judge Traxler wrote the opinion, in

which Judge Niemeyer and Judge Goodwin joined. 

COUNSEL

ARGUED: Larry Constantine Economos, MILLS & ECONOMOS,

L.L.P., Greenville, North Carolina, for Appellant. Anne Margaret

Hayes, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON

BRIEF: Frank D. Whitney, United States Attorney, Christine Wit-
cover Dean, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. 

OPINION

TRAXLER, Circuit Judge: 

Pursuant to a written plea agreement, Steven Ira Cohen pled guilty

to two counts of mail fraud, see 18 U.S.C.A. § 1341 (West Supp.

2006), and one count of conspiracy to commit health care fraud, see

18 U.S.C.A. § 1347 (West 2000). The district court sentenced Cohen

to a term of 28 months imprisonment, followed by a three-year term

of supervised release, and ordered Cohen to pay $371,901 in restitution, pursuant to the Mandatory Victims Restitution Act ("MVRA"),

see 18 U.S.C.A. § 3663A (West 2000 & Supp. 2006). 

Cohen now seeks to appeal, arguing that the district court erred in

determining the amount of loss for sentencing purposes and in calculating the amount of restitution owed to his victims. The United States

moved to dismiss the appeal based on an appeal waiver contained in

Cohen’s plea agreement. Because the appeal waiver is valid and the

issues Cohen seeks to raise fall within its scope, we grant the government’s motion and dismiss the appeal. 

I.

Defendant Cohen is a chiropractor licensed to practice in the State

of North Carolina, who has owned, operated, and practiced at several

chiropractic clinics in the state since the early 1980s. In January 2004,

Cohen was indicted on 21 counts of mail fraud and 16 counts of

health care fraud (the "First Indictment"). The First Indictment

charged that, from July 6, 1998 through October 22, 1998, Cohen

devised a scheme to defraud Blue Cross/Blue Shield ("BCBS") and

the United States Department of Labor’s Office of Worker’s Compensation Programs ("OWCP") by submitting claims for medical services

that had never been provided and by submitting claims that misrepresented the nature and extent of patient treatments. According to the

2 UNITED STATES v. COHEN
First Indictment, Cohen’s fraudulent claims caused BCBS and OWCP

to send checks by U.S. Mail in payment for the services purportedly

rendered at Cohen’s clinics. 

Approximately three months later, Cohen was charged in a separate

indictment with one count of conspiracy to commit health care fraud,

511 counts of health care fraud, one count of conspiring to launder

money, in violation of 18 U.S.C.A. § 1956 (West 2000 & Supp.

2006), and two counts of attempting to influence a witness, in violation of 18 U.S.C.A. § 1512(b)(1) (West 2000) (the "Second Indictment"). The Second Indictment charged a much broader scheme,

alleging that from June 1999 through April 2004, Cohen set up several different clinics and conspired with others, including other medical providers, to submit false and fraudulent health care claims to

BCBS and several additional insurance companies. According to the

Second Indictment, Cohen and other members of the conspiracy submitted claims with fictitious addresses, multiple claims for the same

treatment, claims for services that were never rendered, and claims

that misrepresented the nature of the treatment provided. Each of the

511 separate counts of health care fraud represents a separate fraudulent billing that incorporates by reference the factual basis of the conspiracy. 

On July 7, 2004, the district court ordered the two indictments consolidated for trial. The parties engaged in plea negotiations and, on

July 23, 2004, reached a plea agreement that was memorialized in

writing. In paragraphs 2.a. and 2.b. of the plea agreement, respectively, Cohen agreed, without qualification, "[t]o plead guilty to

counts sixteen and seventeen of the [First Indictment], filed January

14, 2004; and count one of the [Second] Indictment filed April 15,

2004," and "[t]o make restitution to any victim in whatever amount

the Court may order, pursuant to 18 U.S.C. §§ 3663 and 3663A [of

the MVRA]." J.A. 65. Counts sixteen and seventeen of the First

Indictment charged Cohen with receiving payment from BCBS for

two fraudulent health care claims. Count One of the Second Indictment charged Cohen with the June 1999 through April 2004 conspiracy to defraud the insurance companies. 

Paragraph 2.c. of the agreement memorialized an appeal waiver,

under which Cohen agreed:

UNITED STATES v. COHEN 3
To waive knowingly and expressly all rights, conferred by

18 U.S.C. § 3742, to appeal whatever sentence is imposed,

including any issues that relate to the establishment of the

[applicable and advisory] Guideline range, reserving only

the right to appeal from an upward departure from the

Guideline range that is established at sentencing, and further

to waive all rights to contest the conviction or sentence in

any post-conviction proceeding, including one pursuant to

28 U.S.C. § 2255, excepting an appeal or motion based upon

grounds of ineffective assistance of counsel or prosecutorial

misconduct not known to the Defendant at the time of the

Defendant’s guilty plea. The foregoing appeal waiver does

not constitute or trigger a waiver by the Government of any

of its rights to appeal provided by law.

J.A. 66. In paragraph 4 of the agreement, Cohen represented that he

understood the maximum terms of imprisonment for his crimes, as

well as the applicable penalty of "[r]estitution pursuant to 18 U.S.C.

§§ 3663 and 3663A [of the MVRA], and as agreed to in paragraph

2(b) [of the agreement]." J.A. 71, 72. 

Following a guilty plea proceeding pursuant to Rule 11(b) of the

Federal Rules of Criminal Procedure, the district court accepted

Cohen’s plea. At the subsequent sentencing hearing, the district court

heard arguments and evidence as to the amount of loss for purposes

of calculating the advisory guideline sentence, as well as to the

amount of restitution due under the MVRA. At the conclusion of the

hearing, the district court calculated the amount of loss from the

fraudulent schemes, for purposes of determining Cohen’s advisory

guideline range, at $377,095. Cohen was sentenced to 28 months in

prison, followed by a three-year term of supervised release. In addition, the district court calculated Cohen’s restitution obligations to his

victims to be $371,901.1

1The $377,095 loss calculation was based upon loss allocated to four

insurance carriers (Allstate Insurance ($17,150), Nationwide Insurance

($20,135), State Farm Insurance ($49,440), and Blue Cross Blue Shield

($290,370)). The restitution amounts for each company were identical,

with the exception of Allstate Insurance Company, which had a loss

amount of $17,150, but a restitution amount of only $11,976. 

4 UNITED STATES v. COHEN
II.

Despite the appeal waiver, Cohen thereafter filed this appeal seeking to challenge the district court’s calculation of the $377,095 guideline loss as clearly erroneous, and the restitution amount of $371,901

as an abuse of discretion. He argues that the appeal waiver provision

contained in the plea agreement is invalid and unenforceable. Even if

enforceable, Cohen argues that he may nevertheless appeal the restitution portion of the order because restitution falls outside the scope of

the appeal waiver. 

The government moved to dismiss the appeal based upon the

appeal waiver. Thus, "[t]he threshold issue we must consider is

whether the appeal waiver in [Cohen’s] plea agreement precludes him

from presenting these issues on appeal." United States v. Blick, 408

F.3d 162, 167 (4th Cir. 2005). Generally speaking, we will uphold a

defendant’s waiver of appellate rights if the waiver is valid and the

issue sought to be appealed falls within the scope of the waiver. See

United States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994); see also

Blick, 408 F.3d at 168 (We "adhere[ ] to the principle that sentencing

appeal waivers generally are enforceable, and we have enforced such

waivers in a number of cases."). To determine whether an appeal

waiver is valid, we look to "whether the defendant knowingly and

intelligently agreed to waive the right to appeal," an inquiry "ultimately . . . evaluated by reference to the totality of the circumstances." Id. at 169 (internal quotation marks omitted). We review the

validity of an appeal waiver de novo. See id. at 168. 

A.

On appeal, Cohen argues that we should find his appeal waiver to

be invalid and unenforceable because: his ability to knowingly and

intelligently waive his right to appeal was compromised by his Attention Deficit Hyperactivity Disorder ("ADHD") and accompanying

reading and writing disability; the government drafted the plea agreement and he was in an unequal bargaining position given the severity

of the charges leveled against him; the appeal waiver was not reciprocal; and the government induced him to sign the plea agreement by

promising not to argue a guideline loss in excess of $76,211.61 at sentencing. 

UNITED STATES v. COHEN 5
Cohen’s argument that the agreement was not knowingly and intelligently entered into because he suffered from ADHD during its negotiation and execution is simply not supported by the record. The

record reflects that the district court undertook a careful inquiry to

determine that Cohen was competent and understood what he was

doing by entering into the plea agreement and pleading guilty. The

district court asked specific questions about Cohen’s ADHD condition, and explained to Cohen that the court had to be "clear and certain that the record is correct and that you had the requisite

understanding of what’s going on in order to enter a plea" because "at

some point in time, there may be a reason that you or some other individual would challenge your capacity to enter a plea today." S.J.A.

858. Cohen was also represented by counsel during the proceedings,

who assured the district court that the various doctors who evaluated

Cohen all found him competent to understand the nature of the court

proceedings. Cohen’s attorney further stated that he had no difficulty

communicating with Cohen and had no reason to doubt Cohen’s competency. Cohen likewise represented to the district court that he had

read his plea agreement, discussed it with his attorney, and understood "the terms, the language, the sentences, even legal phrases" in

the agreement after discussing it with his attorney. S.J.A. 864-65. 

In sum, the record evidence concerning Cohen’s mental impairments shows that he had the ability, after adequate consultation with

his lawyer, to enter into a knowing, intelligent and voluntary waiver

of his right to appeal, and does not call into question his sworn representations to the district court. See Blackledge v. Allison, 431 U.S. 63,

74 (1977) ("Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are

contentions that in the face of the record are wholly incredible.");

United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992) (en

banc) ("Statements of fact by a defendant in Rule 11 proceedings may

not ordinarily be repudiated, and, similarly, findings by a sentencing

court in accepting a plea constitute a formidable barrier to attacking

the plea.") (internal quotation marks omitted). 

We likewise reject Cohen’s argument that his appeal waiver is

unenforceable because he was induced to plead guilty based on his

"understanding" that the government would not argue at sentencing

6 UNITED STATES v. COHEN
that his actions resulted in a loss of more than $76,211.61. In essence,

Cohen argues that this "understanding" formed a part of his plea

agreement, which the government breached by advocating that he was

responsible for far higher losses. Although we will not enforce an otherwise valid appeal waiver against a defendant if the government

breached the plea agreement containing that waiver, see Blick, 408

F.3d at 168, the record in this case does not support Cohen’s claim

that this "understanding" was part of his plea agreement. Cohen

admitted to the district court that the "understanding" was "not committed to writing [in] the plea agreement." J.A. 359. At the plea colloquy, he further represented that the plea agreement contained all

agreements he had with the government and that no one had made any

other offer to induce him to plead guilty other than what was contained in the plea agreement. We will not invalidate Cohen’s appeal

waiver based on allegations of an "understanding" that is undocumented and unsupported. 

Cohen’s claim that we should find the waiver unenforceable based

upon his "unequal bargaining position" given the severity of the

charges leveled against him is equally unavailing. Cohen was represented by counsel during these proceedings, there is no indication that

he was subjected to any unconscionable conduct during the negotiation process, and Cohen affirmatively represented to the district court

that no one had threatened him or tried to force him to plead guilty.

S.J.A. 865.2 Thus, on our review of the record, we conclude that

Cohen knowingly and voluntarily entered into the appeal waiver contained in his plea agreement and that it is valid and enforceable.

2As noted above, the appeal waiver provision of the plea agreement

explicitly allowed the government to retain its right to appeal. But even

if we were to conclude that appeal waivers in plea agreements must

always be reciprocal, regardless of the parties’ desire to negotiate them

otherwise, the remedy would not be to invalidate the defendant’s waiver,

but to deem the government as having waived its right to appeal as well.

Cf. United States v. Guevara, 941 F.2d 1299, 1299-1300 (4th Cir. 1991).

Accordingly, to the extent Cohen argues that the omission of a reciprocal

waiver invalidates his waiver, the claim is without merit. 

UNITED STATES v. COHEN 7
B.

Having concluded that Cohen is bound by the terms of his appeal

waiver, we turn to the question of whether the issues Cohen seeks to

raise on appeal "fall within the scope of the appeal waiver." See Blick,

408 F.3d at 169. We conclude that they do. 

The first issue Cohen seeks to raise on appeal — that the district

court erred in fixing the monetary loss for purposes of calculating his

advisory guideline range — clearly falls within the scope of the

appeal waiver. Cohen specifically agreed "to waive knowingly and

expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the [applicable and advisory] Guideline range." J.A. 66.

Indeed, Cohen agrees that, if this court concludes that his appeal

waiver was knowing and intelligent, then his attack on the district

court’s loss calculation for purposes of determining his advisory sentencing guideline range would fall within the scope of his waiver.

Accordingly, Cohen has waived his right to appeal this issue. See

Blick, 408 F.3d at 170 ("[T]he fact that Blick claims in his net loss

argument that the district court erred in its guideline calculation is of

no moment here. . . . [A]n appeal waiver of the type involved in this

case precludes a claim that the given sentence resulted from a misapplication of the Guidelines.") (internal quotation marks omitted).

With regard to the restitution order imposed during his sentencing,

Cohen argues that his challenge falls outside the scope of his appeal

waiver because "restitution" is not part of his "sentence." We disagree. 

Although restitution enables victims to recover losses that might be

available in civil litigation, restitution is nonetheless part of the criminal defendant’s sentence. See United States v. Bruchey, 810 F.2d 456,

461 (4th Cir. 1987) ("Criminal restitution . . . is part of the sentencing

process [and] . . . is fundamentally ‘penal’ in nature."); United States

v. Adams, 363 F.3d 363, 365 (5th Cir. 2004) ("Restitution under the

MVRA is a criminal penalty and a component of the defendant’s sentence.") (internal quotation marks omitted); United States v. Acosta,

303 F.3d 78, 87 (1st Cir. 2002) ("It is undisputed that restitution is

part of a sentence."); United States v. Vandeberg, 201 F.3d 805, 814

8 UNITED STATES v. COHEN
(6th Cir. 2000) ("Restitution is a part of one’s sentence under the statutory scheme, and cannot be imposed without giving the defendant an

opportunity to be heard."); United States v. Ramilo, 986 F.2d 333, 336

(9th Cir. 1993) ("Under the [Victim and Witness Protection Act or

VWPA], restitution is part of the criminal sentence."); United States

v. Satterfield, 743 F.2d 827, 837 (11th Cir. 1984) ("The history [of the

VWPA] is replete with references to restitution as part of the criminal

sentence. . . . There can be little doubt that Congress intended the restitution penalties of the VWPA to be incorporated into the traditional

sentencing structure.").3

The language of the statutory restitution provisions also supports

the view that restitution should be considered part of the sentence.

Under § 3553(a) of Title 18, the district court is required to consider

"the need to provide restitution to any victims of the offense," when

"determining the particular sentence to be imposed." 18 U.S.C.A.

§ 3553(a)(7) (West 2000). The MVRA requires a district court, "when

sentencing a defendant convicted of an offense described in subsection (c)," to order, "in addition to . . . any other penalty authorized by

law, that the defendant make restitution to the victim of the offense."

18 U.S.C.A. § 3663A(a)(1) (emphasis added). And, § 3664 of Title 18

provides that a "sentence that imposes an order of restitution is a final

judgment notwithstanding the fact that . . . such a sentence can subsequently be . . . appealed and modified under section 3742 [of Title 18,

United States Code]." 18 U.S.C.A. § 3664(o)(1)(B) (West Supp.

2006) (emphasis added). This view is likewise consistent with our

sentencing guidelines, which instruct courts to enter restitution for the

full amount of an identifiable victim’s loss if authorized under an

appropriate statute. See U.S. Sentencing Guidelines Manual

§ 5E1.1(a) (2004). 

3The Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C.A.

§ 3663A, was enacted in 1996 to amend the Victim and Witness Protection Act ("VWPA"), 18 U.S.C.A. § 3663, "by requiring district courts to

impose ‘full’ restitution without considering the defendant’s economic

circumstances." United States v. Karam, 201 F.3d 320, 330 (4th Cir.

2000). These amendments, however, do not change the fundamental

premise that restitution is part of a criminal defendant’s sentence under

either the VWPA or the MVRA. 

UNITED STATES v. COHEN 9
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," J.A. 66,

has waived his right to appeal a restitution order. See United States

v. Broughton-Jones, 71 F.3d 1143, 1146-47 (4th Cir. 1995) (implicitly

finding that a defendant who waives the "right to appeal her sentence

on [the] grounds [listed in 18 U.S.C.A. § 3742(a)]" is deemed to have

waived the right to appeal a lawfully imposed restitution order); see

also United States v. Sharp, 442 F.3d 946, 948-52 (6th Cir. 2006)

(dismissing appeal of restitution order where defendant waived the

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 the right to appeal a

punishment in excess of the statutory maximum and an upward departure from the most applicable sentencing guidelines range, because

restitution fell under neither exception); United States v. Behrman,

235 F.3d 1049, 1052 (7th Cir. 2000) (concluding that "[a]n agreement

waiving appeal from ‘any sentence within the maximum provided by

Title 18’ or similar language would foreclose [an appeal from the restitution order]"); but see United States v. Phillips, 174 F.3d 1074,

1075-76 (9th Cir. 1999) (finding no waiver of right to appeal restitution where defendant "knowingly and voluntarily waive[d] [his] right

to appeal any sentence and restitution order imposed by the Court and

the manner in which the Court determine[d] [his] sentence and restitution order, so long as the sentence is up to a net offense level of 12

following an adjustment for acceptance of responsibility," because the

plea agreement contained no cap on restitution and the plea agreement

was ambiguous as to the amount of damages the defendant might

owe); United States v. Cupit, 169 F.3d 536, 539 (8th Cir. 1999) (per

curiam) (considering challenge to restitution order despite defendant’s

agreement to "waive all rights to appeal whatever sentence is

imposed," expressly declining to "resolve the waiver of restitution

issue in this case"); United States v. Ready, 82 F.3d 551, 559-60 (2d

Cir. 1996) (concluding that defendant did not waive his right to

appeal a restitution order despite his "admittedly broad [ ]waiver of

right to appeal ‘whatever sentence is imposed’" because the terms of

the plea agreement were ambiguous as to whether "sentence" included

"restitution").

10 UNITED STATES v. COHEN
C.

Cohen’s final claim is that the appeal waiver does not preclude his

appeal from the restitution portion of his sentence because the amount

of the restitution obligation exceeded the district court’s authority

under the MVRA.

Although we enforce appeal waivers that are knowing and voluntary, "even valid appeal waivers [do] not bar appellate review of

every sentence." Broughton-Jones, 71 F.3d at 1146 (internal quotation

marks omitted). A "defendant who waives his right to appeal does not

subject himself to being sentenced entirely at the whim of the district

court." Id. at 1147. Just as "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," a defendant could not be

said to have waived his right to appellate review of a restitution order

"imposed when it is not authorized by the [applicable restitution statute]." Id. This is because federal courts do not have the inherent

authority to order restitution, but must rely on a statutory source. See

id. at 1149. Because a restitution order that exceeds the authority of

the statutory source "is no less ‘illegal’ than a sentence of imprisonment that exceeds the statutory maximum, appeals challenging the

legality of restitution orders are similarly outside the scope of a defendant’s otherwise valid appeal waiver." Id. at 1147. 

In this case, the statutory source of the district court’s authority to

impose restitution is the MVRA, which required the district court to

order restitution for (1) those who are "directly and proximately

harmed as a result of the commission of an offense for which restitution may be ordered" and (2) "in the case of an offense that involves

as an element a scheme, conspiracy, or pattern of criminal activity,

any person directly harmed by the defendant’s criminal conduct in the

course of the scheme, conspiracy, or pattern." 18 U.S.C.A.

§ 3663A(a)(2) (West 2000); cf. United States v. Davenport, 445 F.3d

366, 373 (4th Cir. 2006) (holding that court cannot order restitution

under the MVRA to persons who are not victims of the offenses for

which the defendant was convicted). 

Cohen does not dispute that his offenses are ones for which restitution may be ordered. See 18 U.S.C.A. § 3663A(c)(1) (listing the

UNITED STATES v. COHEN 11
offenses covered by the MVRA as including "an offense against property under this title, . . . including any offense committed by fraud or

deceit"). Rather, he argues that the district court exceeded its authority under the MVRA by ordering him to pay restitution to all victims

of the conduct falling within the scope of the conspiracy count as it

is defined in the Second Indictment. According to Cohen, although he

pled guilty to the conspiracy count in the Second Indictment, he effectively limited his role in the conspiracy (and, thereby, the amounts he

owed in restitution) in the plea agreement. 

We are unpersuaded. Under the express terms of the plea agreement, as confirmed by the colloquy at the plea hearing, Cohen unconditionally pled guilty "to . . . count one of the [Second] Indictment

filed April 15, 2004," J.A. 65, which charged Cohen and others with

a conspiracy to defraud health care providers during the time frame

from June 1999 through April 2004. Cohen also agreed to "[t]o make

restitution to any victim in whatever amount the Court may order,

pursuant to 18 U.S.C. §§ 3663 and 3663A." J.A. 65. During the guilty

plea hearing, Cohen confirmed to the district court that he was pleading guilty to the conspiracy count as defined in the Second Indictment:

Q. How do you plead to Count One of the April 15, 2004

original indictment [the Second Indictment]? 

A. Guilty, Your Honor. 

Q. Did you as charged in Count One [of the Second

Indictment] on or about October 22, 1998 involve yourself in a conspiracy; that is, an agreement with at least

two people involved, to commit healthcare fraud and at

some point during this conspiracy knowingly perform

one of the overt acts charged in the indictment? 

A. Yes, Your Honor. 

THE COURT: Thank you. You may be seated. Madame

United States Attorney, I’ll hear your proffer of the facts

you believe the United States could prove at trial so I might

12 UNITED STATES v. COHEN
have an independent factual basis for accepting Dr. Cohen’s

plea.

S.J.A. 867. At that point, the court was provided with the requisite

independent factual basis for accepting the plea on the conspiracy

count — the same factual recitation that was set forth as the factual

stipulation in the plea agreement. By way of summary, Cohen admitted having an interest in a number of separate clinics (most of which

listed the same address), practicing within those clinics, and hiring

various medical doctors to also evaluate patients who visited the clinics. In addition, Cohen admitted that "[b]etween 2000 and 2002," he

and at least one of these physicians personally "caused materially

false and fraudulent claims for reimbursement to be submitted . . . to

the insurance companies for needle electromyographies supposedly

administered to patients, knowing that those services had not been

administered." J.A. 76. 

Although there is no such expressed intent in the language of the

agreement, Cohen now claims that the intent of the "factual stipulation" was to limit his "offense of conviction" under the Second Indictment for purposes of computing his restitution obligation to false

claims for "needle electromyographies" submitted to insurance companies "[b]etween 2000 and 2002" that amounted to no more than

$7,165.00. J.A. 76. In other words, Cohen argues that the offense of

conviction for purposes of the MVRA was restricted to Cohen’s specific "admissions of guilt as specifically defined by the factual basis

of his plea" contained in the plea agreement. As a result, Cohen

argues, the district court was authorized to impose a restitution obligation of no more than $7,331.50 ($7,165.00 for the conspiracy count

in the Second Indictment, plus $166.50 for the face amount of the

claims involved in the two counts of mail fraud in the First Indictment).

We are unpersuaded by Cohen’s attempt to use the factual stipulation, without more, to limit his role in the conspiracy to which he pled

guilty. Cohen pled guilty to Count One of the Second Indictment,

which charged an overarching conspiracy encompassing a wide array

of fraudulent conduct that was not limited to false claims to insurance

companies for needle electromyographies between 2000 and 2002.

One of the overt acts charged in the conspiracy count of the Second

UNITED STATES v. COHEN 13
Indictment was that, "[o]n multiple occasions between January 2000

and February 2002, [Cohen] and a co-conspirator caused materially

false claims to be filed with [the] insurance companies falsely claiming that medical doctors had administered electromyography procedures to patients" at two of Cohen’s clinics. J.A. 36. But, there is no

indication that, when Cohen admitted in his plea agreement that he

submitted false claims to insurance companies for "needle electromyographies" during the time frame "[b]etween 2000 and 2002," J.A.

76, the intent of the parties was to effectively rewrite Count One of

the Second Indictment and have Cohen plead guilty only to a conspiracy so limited in time and scope. Rather, we think the clear import

of the language was to establish Cohen’s admission that he "knowingly perform[ed] one of the overt acts charged in the [Second Indictment]," S.J.A. 867, for purposes of providing the requisite factual

basis for acceptance of his plea to Count One of the Second Indictment as written. This is all that is needed to hold him responsible for

the full extent of the conspiracy. See United States v. Burgos, 94 F.3d

849, 858 (4th Cir. 1996) (en banc) (explaining that the Government

does not need to prove that the defendant had "full knowledge of all

of [the conspiracy’s] details," and that a defendant can be convicted

of conspiracy "if he joins the conspiracy with an understanding of the

unlawful nature thereof and willfully joins in the plan on one occasion, . . . even though he had not participated before and even though

he played only a minor part") (internal quotation marks omitted). 

In sum, we are satisfied that the district court complied with its

mandatory statutory obligation to order restitution to all "victims" of

the conspiracy to which Cohen pled, even if Cohen did not expressly

admit to each and every overt act alleged to support it, and that the

district court did not exceed its authority in doing so. See 18 U.S.C.A.

§ 3663A(a); United States v. Newsome, 322 F.3d 328, 341 (4th Cir.

2003) (rejecting defendant’s claim that restitution should be limited

to the harm caused by the substantive offense of which he was convicted, despite his conviction of a broader conspiracy; "under the

MVRA, each member of a conspiracy that in turn causes property loss

to a victim is responsible for the loss caused by the offense") (emphasis in original). The plea agreement contains no provision purporting

to limit Cohen’s restitution obligation and, on the contrary, the agreement clearly documents the parties’ understanding that restitution

would be a component of Cohen’s sentence and that Cohen was

14 UNITED STATES v. COHEN
agreeing "[t]o make restitution to any victim in whatever amount the

Court may order, pursuant to 18 U.S.C.A. §§ 3663 and 3663A." J.A.

65. 

Because the district court’s restitution award was within the scope

of its authority under the MVRA, Cohen’s challenge to the amount

of restitution ordered falls within the scope of the appeal waiver contained in the plea agreement. 

III.

For the foregoing reasons, we grant the government’s motion to

dismiss Cohen’s appeal in its entirety.

DISMISSED

UNITED STATES v. COHEN 15