1 Smith’s plea agreement states the following, in relevant part: “Defendant hereby

expressly waives her rights to appeal the conviction or sentence imposed in this case, and the

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60385

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

SHARON SMITH

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

Before KING, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

Sharon Smith appeals the sentence imposed following her guilty plea

conviction for conspiracy to commit wire fraud, identity theft, identification and

authentication fraud, and possession and use of counterfeit and forged bank

checks with intent to defraud. Smith argues that the district court’s restitution

order was not supported by sufficient evidence. The Government maintains that

Smith’s appeal is barred by the appeal waiver in her plea agreement, or

alternatively, that the district court properly ordered Smith to pay restitution

based on the information contained in the presentence report (PSR).1

United States Court of Appeals

Fifth Circuit

F I L E D

May 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-60385

manner in which sentence was imposed, on any ground whatsoever.”

2 At the sentencing hearing, the prosecutor stated that “[a]t the change of plea

[hearing], the estimate that I gave the Court [regarding the amount of restitution] was

$356,000.” This assertion is not supported by the record.

2

In two unpublished cases, we have held that an appeal waiver barred

review of a restitution order, but both of those cases involved plea agreements

that explicitly stated that the defendant agreed to pay restitution in an amount

determined by the district court. See United States v. Helmer, 169 F. App’x 897,

898 (5th Cir. March 7, 2006) (plea agreement stated that“[t]he Defendant agrees

to pay restitution as determined by the Court”); United States v. Glynn, 149 F.

App’x 322, 323 (5th Cir. Oct. 7, 2005) (plea agreement stated that “defendant

further agrees thatthe Court will order full restitution in an amount determined

by the Court”); accord United States v. Lester, 200 F.3d 1179, 1179 (8th Cir.

2000) (defendant waived his right to appeal the restitution order when his plea

agreement stated that he would “pay any restitution ordered by the District

Court”). 

Unlike Helmer and Glynn, the plea agreement in this case said nothing

about restitution. Furthermore, Smith’s obligation to pay restitution was not

clearly communicated during the Rule 11 colloquy. See United States v. Bond,

414 F.3d 542, 544 (5th Cir. 2005) (appeal waiver must be “knowing and

voluntary”). Although the district court told Smith that “restitution is

appropriate,” the prosecutor immediately responded that “I don’t think there’s

a restitution section in the plea agreement.” After stating that “I want to be sure

we understand where we are on that,” the district court changed the subject and

did not resolve the issue.2 See FED. R. CRIM. P. 11(b)(1)(K) (“[T]he court must

inform the defendant of, and determine that the defendant understands, the

following: the court’s authority to order restitution.”). 

Additionally, the district court never informed Smith that the restitution

order was covered by the appeal waiver. See United States v. Baty, 980 F.2d 977,
No. 07-60385

3

979 (5th Cir. 1992) (“It is up to the district court to insure that the defendant

fully understands her right to appeal and the consequences of waiving that

right.”); FED. R. CRIM. P. 11(b)(1)(N). 

Because this appeal is more easily resolved on the merits, we decline to

address the issue of whether a general appeal waiver bars review of a restitution

order when the plea agreement does not discuss restitution. Compare United

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

MVRA [(Mandatory Victims Restitution Act)] is a criminal penalty and a

component of the defendant’s sentence”), and U.S. SENTENCING GUIDELINES

MANUAL § 5E1.1(a)(1) (2006) (requiring the district court to impose a restitution

order under the MVRA), with United States v. Sistrunk, 432 F.3d 917, 918 (8th

Cir. 2006) (general appeal waiver did not bar review of a restitution order when

the plea agreement did not discuss restitution), and United States v. Zink, 107

F.3d 716, 717-18 (9th Cir. 1997) (same), and United States v. Ready, 82 F.3d 551,

559-60 (2d Cir. 1996) (plea agreement was ambiguous as to whether the waiver

of the right to appeal the “sentence” included the restitution order, and this

ambiguity would be construed strictly against the Government), and United

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

an “illegal” restitution order is not barred by an otherwise valid general appeal

waiver). Although restitution is technically a component of the defendant’s

sentence, itis unclear “whether the waiver applies to the circumstances at hand,

based on the plain language of the [plea] agreement.” Bond, 414 F.3d at 544.

The plain language of Smith’s plea agreement did not mention restitution, and

the Rule 11 colloquy did not resolve this uncertainty.

“Once we have determined that an award of restitution is permitted by the

appropriate law, we review the propriety of a particular award for an abuse of
No. 07-60385

3 We review de novo whether a restitution order is permissible under the MVRA.

Adams, 363 F.3d at 365. Smith does not challenge the applicability of the MVRA to her case.

See 18 U.S.C. § 3663A(c)(1)(A)(ii)(MVRA applies to “any offense committed by fraud or deceit”).

4

discretion.”3 Adams, 363 F.3d at 365. Assuming that Smith did not waive her

right to appeal the restitution order, we conclude that the district court did not

abuse its discretion by ordering her to pay restitution in the amount of $346,946

jointly-and-severally with her co-defendants.

We reject Smith’s argument that the Government was required to present

live testimony or a sworn affidavit from the victim at the sentencing hearing

regarding the total amount of loss. “The district court may adopt the facts

contained in a presentence report without further inquiry if those facts have an

adequate evidentiary basis with sufficient indicia of reliability and the defendant

does not present rebuttal evidence or otherwise demonstrate that the

information in the PSR is unreliable.” United States v. Trujillo, 502 F.3d 353,

357 (5th Cir. 2007) (internal quotation marks and brackets omitted). “The

defendant bears the burden of showing that the information in the PSR relied

on by the district court is materially untrue.” Id.

In this case, the PSR indicates that the probation officer interviewed an

employee of the victim, who identified the amount of loss attributable to each

member of the conspiracy, including the $58,301 attributable to Smith, for a

total loss of $346,946. At the sentencing hearing, Smith’s attorney stated that

he calculated the total loss to be $305,005. This conclusory statement, standing

alone, does not demonstrate that the information contained in the PSR was

materially untrue. Smith did not introduce any rebuttal evidence or elicit any

live testimony atthe sentencing hearing suggesting thatthe victim’s calculation

of the total loss was incorrect. See United States v. Valencia, 44 F.3d 269, 274

(5th Cir. 1995) (“Although Valencia correctly observes that no testimony was

presented on this issue, the record reflects no request for, or denial of, an

evidentiary hearing. Valencia has not shown that the PSR information is
No. 07-60385

4 Smith also argued at the sentencing hearing that she was not responsible for the

losses caused by her co-conspirators before she joined the conspiracy. She did not raise this

argument on appeal, so we decline to address it. United States v. Ogle, 415 F.3d 382, 383 (5th

Cir. 2005). 

5

untrue.”); see also United States v. Rodriguez, 897 F.2d 1324, 1327 (5th Cir.

1990) (noting that the defendant “never presented any evidence to rebut

anything in the [PSR]” and stating that the defendant must assert “with

specificity and clarity each factual mistake [in the PSR] of which he complains.”)

(internal quotation marks omitted). 

Accordingly, we AFFIRM the judgment of the district court.4