United States v. Ballard
713 F. App'x 748
| 10th Cir. | 2017Background
- Richard Ballard pled guilty to wire fraud for diverting investor funds to personal use and entered a Rule 11(c)(1)(C) plea agreement that included "restitution as determined by the court."
- The plea agreement contained an express waiver of appellate and collateral-attack rights as to components of the sentence, except if the court imposed a sentence exceeding the parties' recommendation; no specific restitution amount was agreed.
- The district court sentenced Ballard to 27 months imprisonment and ordered $415,477.11 in restitution to 11 victims who submitted victim impact statements.
- Ballard appealed the restitution order, arguing it was excessive because it included losses attributable to three non-victims (two conceded by the Government) and salary payments to his son that he contends were legitimate business expenses.
- The government argued the court lacks jurisdiction under 18 U.S.C. § 3742 but the Tenth Circuit found jurisdiction under 28 U.S.C. § 1291 because the district court entry of sentence is a final order.
- The panel applied the Hahn three-part framework to decide whether Ballard’s appellate waiver bars the restitution appeal and whether enforcing the waiver would be a miscarriage of justice.
Issues
| Issue | Ballard's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the appellate waiver bars Ballard’s challenge to the restitution order | Waiver should not preclude review of an unlawful restitution order that exceeds statutory maximum or includes non-victim losses | Waiver covers challenges to components of the sentence, including restitution determined by the court | Waiver is enforceable: the appeal falls within scope and was knowing and voluntary; no miscarriage of justice shown |
| Whether the court has appellate jurisdiction over the appeal | Implicit: Ballard proceeded with appeal despite waiver | Government: § 3742 limits appeals; but district court’s sentence is a final order under § 1291 providing jurisdiction | Court exercised jurisdiction under 28 U.S.C. § 1291; § 3742(c) inapplicable because restitution amount was not a specific agreed term |
| Whether the restitution order exceeded the MVRA statutory maximum (i.e., was unlawful) by including non-victims’ losses | Restitution unlawfully included losses of three non-victims and salary to son, so order exceeds victims’ actual losses | Restitution amount is supported by record (FBI findings and larger investor losses); any inclusion errors are harmless because actual losses exceed the award | Restitution did not exceed statutory maximum; record supports the award and any errors were harmless |
| Whether Gordon/Hudson allow circumventing enforcement of an appellate waiver | Those cases permit review when restitution is unlawful and thus provide an exception to waiver | Hahn governs enforcement of waiver; Gordon/Hudson fit within Hahn’s miscarriage-of-justice prong but only when restitution is unlawful | Gordon/Hudson do not help Ballard here because the restitution order is lawful; Hahn controls and mandates enforcement of the waiver |
Key Cases Cited
- United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (articulates three-part test for enforcing appellate waivers)
- United States v. Gordon, 480 F.3d 1205 (10th Cir. 2007) (refuses to enforce waiver when restitution order is unlawful and exceeds MVRA limits)
- United States v. Hudson, 483 F.3d 707 (10th Cir. 2007) (permits review of restitution legality despite waiver where record lacks support for victim loss)
- United States v. Gallant, 537 F.3d 1202 (10th Cir. 2008) (restitution calculations under MVRA need not be perfectly precise but must be rooted in actual loss)
- Hughey v. United States, 495 U.S. 411 (1990) (MVRA restitution authorized only for victims’ losses resulting from the count of conviction)