United States v. Austin, 907 F.3d 995

Keith Austin was indicted (2013) in an eight-year mortgage‑fraud scheme; charged with bank fraud, wire fraud, aggravated identity theft, and obstruction; alleged losses exceeded $8 million.
Austin was the only defendant who went to trial; on day six he entered an oral, blind guilty plea to three counts (two counts of bank fraud and obstruction / aggravated identity theft), with the government dismissing the remaining counts.
During the plea colloquy the court advised Austin about statutory maximums and told him the Sentencing Guidelines would be considered; the court did not mention forfeiture.
The PSR (2014 Guidelines manual) calculated a Guidelines range of 188–235 months based on an $8.6M+ loss (20‑level enhancement); the 2015 Guidelines in effect at sentencing called for an 18‑level loss enhancement, but nobody caught the discrepancy at sentencing.
At sentencing the government presented a loss chart totaling $9,134,900 (50 properties); Austin did not object to the chart. The court denied a two‑level acceptance‑of‑responsibility reduction and imposed 144 months’ imprisonment total, ordered $9,134,900 restitution jointly and severally, and entered a forfeiture order (~$4.37M); Austin didn’t move to withdraw his plea.

Issue	Austin's Argument	Government's Argument	Held
Adequacy of Rule 11 colloquy regarding Sentencing Guidelines	Court failed to fully explain Guidelines and departures; plea involuntary	Court informed Austin that Guidelines would be considered and were not mandatory; Austin had discussed Guidelines with counsel	No plain error; colloquy sufficient about Guidelines
Failure to inform defendant of applicable forfeiture under Rule 11(b)(1)(J)	Plea involuntary because court never mentioned forfeiture; would not have pled if warned	Omission was technical; Austin has no evidence he would have refused plea	No plain error; defendant failed to show reasonable probability he’d have declined plea
Denial of acceptance‑of‑responsibility reduction	Austin claimed pleading before verdict showed acceptance	Government emphasized late plea after trial and that defendant put gov’t to its burden	Court did not err in denying reduction; factual determination upheld
Restitution / loss / forfeiture calculations and Guidelines range error	Austin argued restitution and loss must be limited to counts pleaded; contested inclusion of some losses	Government’s loss chart overstated victims; concedes up to ~$3M of properties may not qualify as financial‑institution victims	Remand required: sentence vacated and resentencing ordered to recalculate restitution, loss, forfeiture, and to correct Guidelines application

United States v. Vonn, 535 U.S. 55 (clarifies plain‑error review when defendant did not object to plea colloquy)
United States v. Parker, 368 F.3d 963 (totality of circumstances test for Rule 11 adequacy)
United States v. Sura, 511 F.3d 654 (defendant must show plea involuntary and would not have pleaded absent error)
United States v. Dyer, 892 F.3d 910 (defendant must demonstrate reasonable probability he would not have pleaded but for error)
Missouri v. Frye, 566 U.S. 134 (plea bargaining central to criminal justice; defendants may plead for many reasons)
Phillips v. United States, 668 F.3d 433 (dismissal of counts can constitute a benefit to defendant)