United States v. Curtis L. Johnson, 934 F.3d 716

Curtis Johnson was CFO/COO of a family-owned railing business and diverted company funds for personal use, causing the business to fail; he was indicted on multiple fraud counts and pleaded guilty to one count of wire fraud.
The written plea agreement included an appeal waiver and stated the government’s restitution calculation of $211,428.80; Johnson agreed he owed restitution but initially disputed the amount.
The court and counsel held an off-the-record, in-chambers conference before the plea/sentencing hearing; defense counsel withdrew an objection to restitution during that conference while Johnson was not present.
On the record at the combined plea and sentencing hearing, the court reviewed the plea, restitution, and the appeal waiver with Johnson; Johnson stated he understood, agreed to the $211,428.80 restitution, and pleaded guilty.
The district court adopted the PSR, sentenced Johnson within the Guidelines to 21 months, and ordered restitution; Johnson appealed, arguing the appeal waiver should not bar his challenge because his absence from the in-chambers conference rendered the sentence unconstitutional and he did not waive restitution claims.

Issue	Johnson's Argument	Government's Argument	Held
Enforceability of written appeal waiver	Waiver should not bar this appeal because his sentence was rendered unconstitutionally in his absence; due process exception applies	Written, signed waiver and on-the-record colloquy made the waiver knowing and voluntary; sentence within Guidelines so waiver bars appeal	Waiver enforceable; appeal dismissed
Presence at in-chambers conference / due process	Absence from off-the-record meeting where counsel withdrew restitution objection violated his right to be present and tainted sentencing	Defendant had extensive on-the-record review and multiple opportunities to object; no fundamental error shown	No due process exception; absence did not constitute fundamental error
Challenge to restitution amount	Johnson says he never knowingly relinquished challenges to the restitution figure	Johnson expressly agreed on the record to the restitution amount and had many chances to object; restitution is part of the sentence and waived	Challenge waived / abandoned; restitution order upheld as part of the sentence

United States v. Alcala, 678 F.3d 574 (7th Cir.) (appeal-waiver enforceability reviewed de novo)
United States v. Galloway, 917 F.3d 604 (7th Cir.) (written appellate waivers are typically voluntary and knowing)
United States v. Perillo, 897 F.3d 878 (7th Cir.) (restitution is part of a criminal sentence)
United States v. Worden, 646 F.3d 499 (7th Cir.) (restitution challenges barred by sentence appeal waivers)
United States v. Gagnon, 470 U.S. 522 (1985) (defendant’s presence is required only to the extent absence would thwart a fair hearing)
United States v. Adkins, 743 F.3d 176 (7th Cir.) (recognition of limits to appeal waivers where fundamental procedural defects exist)
United States v. Bownes, 405 F.3d 634 (7th Cir.) (limits on enforceability of appeal waivers)
United States v. Wenger, 58 F.3d 280 (7th Cir.) (defendant exchanged appellate rights for prosecutorial concessions)