United States v. Timothy Curry, 547 F. App'x 768

From 2006–2012, Timothy Curry ran companies that took advance fees ($2,750–$25,500) to obtain loans for clients but then stopped communicating and kept the deposits.
A three-count indictment for wire fraud followed; Curry pleaded guilty to one count.
The plea agreement set a Guidelines range of 41–51 months (based on $400,000–$1,000,000 loss), acknowledged restitution would be ordered, and deferred the specific restitution amount to the district court.
The plea agreement contained an appellate waiver: if Curry received a sentence within 41–51 months, he waived “any right to appeal his conviction or sentence.”
The PSR calculated $696,665 in restitution; Curry objected, claimed some fees were legitimately retained, but produced no affidavits or evidence and did not request a separate restitution hearing.
The district court sentenced Curry to 41 months (within the agreed range) and ordered $695,665 in restitution; Curry appealed the restitution order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Curry’s appellate waiver bars his appeal of the restitution order	Curry contends that reserving the right to litigate restitution in the district court preserved an appellate challenge to restitution	Government and district court contend the broad waiver (if sentence within 41–51 months) waived any appeal of the sentence, including restitution	The waiver is enforceable and covers restitution; appeal dismissed
Whether the district court erred in calculating restitution	Curry argues the restitution amount is improper because some clients’ conduct caused loan denials, so he could keep fees	Government relies on victim declarations and bank records; Curry failed to present evidence or request a hearing	Court did not reach the merits because of the valid waiver; procedural default of appellate review due to waiver
Whether the plea waiver was knowing and voluntary	Curry does not dispute voluntariness	Government points to signed plea agreement and proceedings	Waiver deemed knowing and voluntary and thus enforceable
Whether the district court was obligated to hold a separate restitution hearing	Curry suggests lack of a separate hearing undermines his ability to challenge restitution	Court notes statute makes additional hearings optional and Curry declined opportunities to present evidence	No obligation to hold a separate hearing; Curry had chances but failed to present supporting evidence

United States v. Gibney, 519 F.3d 301 (6th Cir. 2008) (plea waiver that covers a sentence within the Guidelines bars appeal of restitution)
United States v. Bradley, 400 F.3d 459 (6th Cir. 2005) (defendants may knowingly waive constitutional rights in plea agreements)
United States v. Freeman, 640 F.3d 180 (6th Cir. 2011) (plea agreements interpreted using contract principles)
United States v. Reese, [citation="509 F. App'x 494"] (6th Cir. 2012) (upholding plea-waiver enforcement as to sentencing components)
United States v. Sharp, 442 F.3d 946 (6th Cir. 2006) (similar enforcement of appellate waivers)
United States v. Calderon, 388 F.3d 197 (6th Cir. 2004) (right to litigate in district court distinct from appellate rights)
United States v. Vandeberg, 201 F.3d 805 (6th Cir. 2000) (18 U.S.C. § 3664(d)(4) makes additional restitution hearings permissive)
Bates v. United States, 522 U.S. 23 (1997) (omission of language in one clause but inclusion in another can show intentional choice)