602 F. App'x 147
5th Cir.2015Background
- Bevon pleaded guilty to mail, wire, and bank fraud relating to multiple schemes beginning in 2005–2008.
- Probation officer’s PSR allocated actual losses: MVRA: JPMorgan Chase $5,541.53; HSBC $2,300; Rebowe $113,000 (ultimately settled).
- District court ordered restitution totaling $100,380.68 to several entities, including HSBC $2,300.
- Bevon objected to $113,000 portion; later amendments reflected Rebowe’s restoration and settlement with insurers.
- Bevon appealed after sentencing; issue concerns restitution legality for HSBC.
- Court vacates HSBC restitution while affirming other restitution and judgment components.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HSBC restitution was waived at sentencing | Bevon did not knowingly waive HSBC issue | — | Not waived; no intentional relinquishment found |
| Whether HSBC restitution was permitted under MVRA | HSBC was within Bevon’s offense-related fraud schemes | HSBC not a victim of offenses of conviction; beyond temporal scope | Illegal; restitution tied to schemes not including HSBC; vacate HSBC award |
| Whether parties must agree to restitution to non-victims in a plea agreement | Agreement allowed awards to others if within plea | No agreement to include HSBC | HSBC restitution improper absent plea agreement consent |
| What standard of review applies to legality of restitution | De novo review appropriate | Plain error potentially applicable | De novo review applied; legality examined without preserved objection |
| Scope of restitution related to conduct within indictment vs. extra-judicial acts | HSBC conduct related to conduct underlying offenses | HSBC conduct not within indictment’s scope | Restitution limited to offenses conduct; HSBC excluded |
Key Cases Cited
- United States v. Nolen, 472 F.3d 362 (5th Cir. 2006) (restitution legality reviewed de novo when challenged as illegal)
- United States v. Maturin, 488 F.3d 657 (5th Cir. 2007) (plain error review for unpreserved restitution challenges)
- United States v. Inman, 411 F.3d 591 (5th Cir. 2005) (restitution for conduct within offense scope; temporal scope limits)
- United States v. Benns, 740 F.3d 370 (5th Cir. 2014) (restitution may include non-victims only if party agreement exists)
- Espinoza v. United States, 677 F.3d 730 (5th Cir. 2012) (restitution limited to losses from offense unless element includes scheme)
- Read v. United States, 710 F.3d 219 (5th Cir. 2012) (where scheme is element, restitution may cover actions pursuant to that scheme)
- United States v. Conn, 657 F.3d 280 (5th Cir. 2011) (objections not raised below may constitute waiver only in appropriate contexts)
- Hughey v. United States, 495 U.S. 411 (1989) (MVRA restitution limitations tied to offense conduct)