United States v. Michael Winans, Jr.
2014 U.S. App. LEXIS 5384
6th Cir.2014Background
- Michael Winans, Jr. pleaded guilty to one count of wire fraud for a scheme that raised over $8 million from more than 1,000 investors through a fraudulent “Winans Foundation Trust.”
- Plea agreement calculated guideline loss between $7M and $20M, specified restitution "to every identifiable victim of defendant’s offense and all other relevant conduct," and included an appeal waiver of his conviction and sentence if within the agreement’s Part 3 range.
- Presentence Report listed 612 victims and recommended $5,004,750 restitution; Winans filed, then withdrew, an objection and the district court ordered $4,796,522 in restitution.
- Winans appealed, arguing (1) the appeal waiver did not cover the restitution order and (2) the restitution exceeded the district court’s authority under the MVRA; he also raised ineffective-assistance claims.
- The government moved to dismiss based on the appeal waiver; the Sixth Circuit reviewed whether the waiver covered restitution and whether the MVRA limited restitution to only statutory victims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the plea appeal waiver bars appeal of the restitution order | Winans: waiver did not encompass restitution amount/method | Government: waiver covered the sentence including restitution because Part 3 and colloquy tied restitution to the plea and guideline range | Waiver bars appeal of restitution; Winans knowingly waived right to appeal sentence including restitution |
| Whether the district court exceeded statutory authority under the MVRA by ordering restitution to 612 victims when one count listed two victims | Winans: MVRA limits restitution to victims of the specific offense; court exceeded authority | Government: MVRA allows restitution for persons harmed in the course of a scheme and by plea agreement; plea broadened restitution scope | Even if not waived, restitution complies with MVRA exceptions (scheme-based liability and plea agreement) |
| Whether statutory or non-waivable rights (MVRA) survive an appeal waiver | Winans: MVRA issues are non-waivable or reviewable despite waiver | Government: statutory rights can be waived via plea agreement unless reserved | Court: statutory rights can be waived; here plea did not reserve MVRA challenge and applicable MVRA exceptions apply |
| Whether ineffective-assistance claim can be resolved on direct appeal | Winans: raised ineffective-assistance claim now | Government: prefers §2255 collateral review; record insufficient for direct review | Court: declines to resolve on direct appeal; suggests §2255 is the preferable forum |
Key Cases Cited
- United States v. Smith, 344 F.3d 479 (6th Cir. 2003) (appeal waiver may not bar review when waiver was not knowing as to restitution calculation)
- United States v. McGilvery, 403 F.3d 361 (6th Cir. 2005) (constitutional and statutory rights can be waived in plea agreements)
- United States v. Fleming, 239 F.3d 761 (6th Cir. 2001) (valid waiver must be knowing and voluntary)
- United States v. Gibney, 519 F.3d 301 (6th Cir. 2008) (restitution is part of a criminal sentence)
- United States v. Sharp, 442 F.3d 946 (6th Cir. 2006) (defendant must negotiate reservation of appeal rights if wishing to preserve appeal of restitution)
- United States v. Freeman, 640 F.3d 180 (6th Cir. 2011) (discusses limits of appeal waivers when plea reserves certain statutory challenges)
- Massaro v. United States, 538 U.S. 500 (2003) (preferable to raise ineffective-assistance claims in §2255 proceedings)
- United States v. Wendlandt, 714 F.3d 388 (6th Cir. 2013) (withdrawing a sentencing objection waives appellate review of that issue)