IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10246

UNITED STATES OF AMERICA

Plaintiff – Appellee

v.

JESSICA CHRISTINE BAGLEY

Defendant – Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:12-CR-188-1

Before DAVIS, ELROD, and COSTA*, Circuit Judges. 

PER CURIAM:**

This appeal presents the question whether the district court committed 

plain error when it ordered Jessica Christine Bagley to pay restitution based 

on conduct beyond her offense of conviction.

* Judge Costa participated by designation in this case as a United States District 

Judge for the Southern District of Texas. Since that time, he has been appointed as a Fifth 

Circuit Judge. ** 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.

United States Court of Appeals

Fifth Circuit

FILED

August 13, 2014

Lyle W. Cayce

Clerk

 

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No. 13-10246

I.

Bagley pleaded guilty to one count of possessing a forged and counterfeit 

security in violation of 18 U.S.C. § 513(a). The security at issue was a blank 

counterfeit check. It was one of many that Bagley and others had created using 

stolen identities. 

Although the count to which she was pleading guilty involved a blank 

check and thus caused no loss, the factual resume Bagley signed at the plea 

colloquy stated that the penalty for her conviction may include “restitution to 

victims . . . which the defendant agrees may include restitution arising from 

all relevant conduct, not limited to that arising from the offense of conviction 

alone.” The district court also orally confirmed this understanding before 

Bagley entered her plea.

The Presentence Report (PSR) noted that restitution is ordinarily limited 

to the offense of conviction, but characterized Bagley’s acknowledgement in the 

factual resume as an agreement that she would “pay restitution as a result of 

all relevant conduct.” The relevant conduct assessment, which was also used 

to determine Bagley’s Sentencing Guidelines range, found $7,918.57 in actual 

loss attributable to counterfeit checks that were used during the scheme. 

Bagley did not object to either this calculation or the PSR’s recommendation 

that restitution should include relevant conduct. The district court followed 

the PSR and ordered Bagley to pay restitution of $7,918.57.

II.

Because Bagley challenges the restitution order for the first time in this 

appeal, we review for plain error. To demonstrate plain error, an appellant 

must show an error that is clear and obvious and that affected her substantial 

rights. Puckett v. United States, 556 U.S. 129, 135 (2009) (citing United States 

v. Olano, 507 U.S. 725, 732–34 (1993)). If the appellant makes such a showing, 

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this court has the discretion to remedy the error, but should do so only if the 

error seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. Id.

We first consider whether it was error to impose restitution based on 

relevant conduct. “The general rule is that a district court can award 

restitution to victims of the offense, but the restitution award can encompass 

only those losses that resulted directly from the offense for which the defendant 

was convicted.” United States v. Maturin, 488 F.3d 657, 660–61 (5th Cir. 2007). 

If the offense is conspiracy or a crime such as wire fraud that includes a 

“scheme” as an element, harm resulting from the entire charged conspiracy or 

scheme may be included. 18 U.S.C. § 3663(a)(2); United States v. Cothran, 302 

F.3d 279, 289 (5th Cir. 2002). The PSR describes a conspiracy and scheme in 

which Bagley participated, but she pleaded guilty to the discrete offense of

possessing a forged and counterfeit security. The offense of conviction thus did 

not support awarding restitution for all relevant conduct.

A court may, however, award restitution to victims of conduct beyond the 

offense of conviction “if agreed to by the parties in a plea agreement.” 18 USC 

§ 3663(a)(1)(A). The government contends that Bagley’s written and oral 

acknowledgement at the plea colloquy constituted such an agreement. But this 

court rejected such an argument earlier this year, holding that a similar 

statement in a factual resume was not a plea agreement. See United States v. 

Benns, 740 F.3d 370, 378 (5th Cir. 2014). The government, which noted Benns

in a Rule 28(j) letter, argues that Bagley’s more frequent acknowledgements

that she could be subject to restitution based on relevant conduct (both at the 

colloquy and in failing to object to the PSR) warrants a different result here. 

It remains the case, however, that there was no exchange of consideration that 

characterizes a plea agreement. Benns thus controls, rendering the restitution

order an error that was “clear and obvious.” Id. at 377.

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Because the error resulted in Bagley having to pay restitution the law 

does not require, it affected her substantial rights. United States v. Inman, 

411 F.3d 591, 595 (5th Cir. 2005). 

That leaves the final consideration under Olano—whether the error 

affected the fairness, integrity, or public reputation of the judicial proceeding. 

Contrary to the government’s assertion, Benns did find that the restitution 

error in that case met this standard. 740 F.3d at 378 (“When a defendant is 

ordered to pay restitution in an amount greater than the loss caused, the error 

affects substantial rights as well as the fairness and integrity of the judicial 

proceeding.” (quoting United States v. Austin, 479 F.3d 363, 373 (5th Cir. 

2007))). There is a distinction, however: Benns ordered restitution based on a 

relevant conduct calculation that was found to be erroneous, whereas in this 

case Bagley has never disputed that her relevant conduct caused loss in the 

amount of $7,918.57. Although the former situation has a greater impact on 

the fairness and integrity of the proceeding, our court has vacated restitution 

orders on plain-error review that imposed restitution beyond the count of 

conviction even when the relevant conduct calculation was correct. See Inman, 

411 F.3d at 595 (finding that a restitution order for a wire fraud conviction that 

included loss beyond the charged dates of the scheme warranted reversal under 

Olano); see also, e.g., United States v. Mason, 722 F.3d 691, 694–95 (5th Cir. 

2013) (same for a mortgage fraud conviction). That precedent warrants the 

same result in Bagley’s case.

III.

For the reasons stated above, we VACATE the district court’s order of 

restitution and REMAND to the district court for modification consistent with 

this opinion.

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