In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 14-2650, 14-2652 & 14-2653

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARL F. KIEFFER,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Illinois, Nos. 13-CR-30251-MJR,

14-CR-30051-MJR & 14-CR-30052-MJR — Michael J. Reagan, Chief Judge.

____________________

SUBMITTED FEBRUARY 10, 2015 — DECIDED JULY 27, 2015

____________________

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges.

PER CURIAM. Carl Kieffer robbed the Bank of O’Fallon in 

O’Fallon, Illinois, on October 15, 2013. He fled by car and led 

police officers on a high-speed chase. The officers lost sight 

of him temporarily but later found him hiding in a cornfield. 

Mr. Kieffer confessed to robbing the bank, and the police retrieved the $3,330 he had stolen. Mr. Kieffer also confessed 

that he had robbed six other banks (five outside Illinois) dur-
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ing the previous two months. At the time of his arrest, he

faced charges for only two of those robberies, however, one 

in Lusk, Wyoming, and another in Charlotte, Michigan. 

Mr. Kieffer agreed to plead guilty to those robberies, and the 

cases were transferred to the Southern District of Illinois and 

consolidated with Mr. Kieffer’s prosecution for the robbery 

in O’Fallon. See Fed. R. Crim. P. 20. Mr. Kieffer pleaded 

guilty to all three robberies, see 18 U.S.C. § 2113(a), and he 

signed a stipulation acknowledging his confession to committing the four uncharged robberies. 

At sentencing the district court calculated a total offense 

level of 28 and criminal history category of V, yielding a 

guidelines imprisonment range of 130 to 162 months. The 

total offense level was reached by separately calculating the 

offense levels for all seven bank robberies, see U.S.S.G.

§ 1B1.2(c), and then applying a multiple-count adjustment, 

see id. § 3D1.4. Mr. Kieffer received concurrent twenty-year 

sentencesthe statutory maximum on each count, see 18 

U.S.C. § 2113(a). The court also ordered Mr. Kieffer to pay 

$10,615 in restitution to the banks he robbed in Wyoming 

and Michigan, plus an additional $21,230 to the banks in the 

four uncharged robberies.

On appeal, Mr. Kieffer challenges a portion of his restitution order as well as the calculation of his guidelines imprisonment range. He does not challenge separately the reasonableness of his sentence, however, assuming the guidelines 

range is properly calculated.

We begin by making two threshold points. First, as part 

of his plea agreement, Mr. Kieffer agreed to relinquish his 

appeal rights except that he could challenge “the reasonableness of the sentence” if “the sentence imposed is in excess 
14-2650, 14-2652 & 14-2653 3

of the Sentencing Guidelines as determined by the Court.”1

Neither issue presented by these appeals falls within that 

narrow exception, which, typically, would constrain our review. See United States v. Worden, 646 F.3d 499, 502–04 (7th 

Cir. 2011). But the Government’s brief is silent about 

Mr. Kieffer’s appeal waiver, so the Government has waived 

reliance on that waiver. United States v. Adigun, 703 F.3d 

1014, 1022 (7th Cir. 2012). Second, at sentencing Mr. Kieffer

did not object to the guidelines calculations or the order of 

restitution, so the parties agree that our review is limited to 

plain error. 

As for the merits, Mr. Kieffer first argues that the district 

court overstated his total offense level by including the four 

uncharged robberies when applying the multiple-count adjustment of § 3D1.4. He denies stipulating that he committed 

those robberies and argues that, instead, he stipulated only 

to confessing that he committed those offenses when questioned by the FBI. 

Mr. Kieffer may not disavow his stipulations by quibbling over semantics. To establish a factual basis for his 

guilty pleas, Mr. Kieffer stipulated to the facts underlying 

the three charged robberies. At the same time, he stipulated 

that the Government could prove beyond a reasonable 

doubt that he had “admitted [to] robbing” the four other 

banks and that “the FBI has confirmed that [he] robbed” 

those other banks.2 This stipulation is sufficiently specific to 

establish Mr. Kieffer’s commission of the four uncharged 

robberies, and thus for a sentencing court to include those 

robberies when applying the multiple-count adjustment.

 1 R.31 at 10−11.

2 R.32 at 4−5.
14-2650, 14-2652 & 14-2653 4

See U.S.S.G. § 1B1.2(c); United States v. Shutic, 274 F.3d 1123, 

1124–25 & n.1 (7th Cir. 2001); United States v. Brown, 14 F.3d 

337, 339, 341 (7th Cir. 1994); United States v. Eske, 925 F.2d 

205, 207 (7th Cir. 1991). Accordingly, the district court did 

not commit any error—much less plain error—in calculating 

Mr. Kieffer’s imprisonment range.

Mr. Kieffer next argues that the district court lacked authority to order him to pay restitution to the banks in the uncharged robberies because those banks were not victims of

the offenses of conviction. The Government counters that 

“discretionary” restitution was properly ordered as a condition of supervised release because the uncharged robberies 

were included as additional counts of conviction when calculating Mr. Kieffer’s guidelines range.3

The Government’s argument suffers from two shortcomings, the first of them factual. The district court may have 

intended to impose restitution for the uncharged robberies 

only as a condition of supervised release, but the judgments 

of conviction go further. Each judgment does order total 

payment of $21,230 to the four banks as a condition of supervised release. Yet those judgments also impose total restitution of $31,845 (the unrecovered losses from all seven robberies) as “criminal monetary penalties” payable “immediately.”4 Conditions of supervised release do not have immediate effect.

More importantly, an order of restitution for the uncharged robberies is not sustainable even as a special condition of supervised release. The Government is incorrect in 

 3 Appellee’s Br. 25.

4 R.40 at 5−6.
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asserting that the guidelines instructions for incorporating 

uncharged offenses into the defendant’s total offense level 

have any bearing on the legality of a restitution order. 

See United States v. Locke, 759 F.3d 760, 765–66 (7th Cir. 2014) 

(distinguishing roles of sentencing guidelines and restitution 

statutes); United States v. McGee, 612 F.3d 627, 635–36 (7th 

Cir. 2010) (same). The Government cites no case on point to 

support its assertion, and we have not found one.

District judges may order restitution only if there is a 

statutory basis to do so. United States v. Westerfield, 714 F.3d 

480, 489 (7th Cir. 2013); United States v. Webber, 536 F.3d 584, 

601 (7th Cir. 2008). Restitution as a condition of supervised 

release, which the district court apparently intended to order 

in this case, is governed by 18 U.S.C. § 3583(d), which authorizes sentencing judges to impose conditions listed as 

discretionary conditions of probation in 18 U.S.C.

§ 3563(b)(2). See United States v. Hassebrock, 663 F.3d 906, 923 

(7th Cir. 2011); United States v. Batson, 608 F.3d 630, 634–35 

(9th Cir. 2010). Section 3563(b)(2) authorizes restitution to 

the extent permitted by 18 U.S.C. § 3556, which, in turn, directs sentencing courts to follow the mandates of the statutes 

governing mandatory and discretionary restitution, 18 

U.S.C. § § 3663, 3663A, without being confined to particular 

offenses, see United States v. Frith, 461 F.3d 914, 919–20 (7th 

Cir. 2006); Batson, 608 F.3d at 633−34. The restitution statutes 

authorize restitution only for victims of an offense of conviction unless the defendant consents to pay restitution to other 

persons as part of a plea agreement, which Mr. Kieffer did 

not do. See 18 U.S.C. § 3663(a)(1)(A), (a)(3); id. § 3663A(a)(3); 

Hughey v. United States, 495 U.S. 411, 416 (1990); Frith, 461 

F.3d at 919–20; United States v. Wells, 177 F.3d 603, 608–09 

(7th Cir. 1999). This limitation applies even when restitution 
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is imposed only as a condition of supervised release. 

See Frith, 461 F.3d at 919–20; Batson, 608 F.3d at 636–37; United States v. Varrone, 554 F.3d 327, 333–34 (2d Cir. 2009). 

Mr. Kieffer did not consent as part of his plea agreement to 

pay restitution to other persons, and the banks from the uncharged robberies are not “tied to the specific conduct of 

conviction.” Frith, 461 F.3d at 921. The restitution awarded 

therefore is illegal. See id.; see also United States v. Menza, 137 

F.3d 533, 537 (7th Cir. 1998) (explaining that restitution may 

be awarded “to any victim of the...offense of conviction”).

We will correct this plain error, however, only if it affects 

Mr. Kieffer’s substantial rights and seriously impugns the 

fairness, integrity, or public reputation of the judicial proceedings. See United States v. Butler, No. 14-2770, 2015 WL 

191150, at *4 (7th Cir. Jan. 15, 2015). Compelling Mr. Kieffer

to pay $21,230—a substantial sum—without any legal authority affects his substantial rights, and so we exercise our 

discretion to vacate the disputed award of restitution.

See United States v. Locke, 643 F.3d 235, 248 (7th Cir. 2011); 

United States v. Allen, 529 F.3d 390, 397 (7th Cir. 2008); United 

States v. Alburay, 415 F.3d 782, 789 (7th Cir. 2005); United 

States v. Randle, 324 F.3d 550, 558 (7th Cir. 2003).

Accordingly, in each appeal the judgment is AFFIRMED, 

except that the award of restitution to the banks involved in 

the uncharged robberies is VACATED. The cases are REMANDED for entry of corrected judgments providing for no 

restitution in Case No. 13-CR-30251-MJR, $7,015 payable to 

Lusk State Bank in Case No. 14-CR-30051-MJR, and $3,600 

payable to Fifth Third Bank in Case No. 14-CR-30052-MJR.