The appeal is from a judgment of conviction and the sentence of a corporation for negligent endangerment that resulted in death. See 42 U.S.C. § 7413(c)(4). The sentence included a $1,000,000 fine and a restitution award of $2,000,000. We agree that there was no evidence to support either amount. We MODIFY the fine and VACATE the restitution order. As modified, the judgment is AFFIRMED.
FACTS
C&MI is a company that recycles hazardous compounds used by manufacturers. One of its clients is Honeywell. On July 30, 2003, a Honeywell employee, Delvin Henry, died from exposure to toxins released from a container that C&MI had mislabeled as holding a non-toxic refriger *752 ant. It actually contained highly toxic industrial waste.
Almost five years later, a federal grand jury in the Middle District of Louisiana returned a two-count indictment against C&MI. Count one alleged that C&MI violated 42 U.S.C. § 6928(d)(2)(A) by illegally storing hazardous waste. Count two alleged a violation of 42 U.S.C. § 7413(c)(4), negligent endangerment that results in death. In January 2010, C&MI entered into a written agreement with the government by which it agreed to plead guilty to count two in exchange for the dismissal of count one. It also waived its right to appeal, save for any punishment imposed in excess of the statutory maximum or claim of ineffective assistance of counsel.
At sentencing, the district court adopted the factual findings in the pre-sentence report. It noted that Honeywell, in a separate proceeding which stemmed from Henry’s death, had also been tried and sentenced. Thereafter the district court accepted the plea agreement, sentenced C&MI to two years of probation, fined the company $1,000,000, and ordered it to pay $2,000,000 in restitution. C&MI appeals the size of the fine and the award of restitution as exceeding the amount authorized by the relevant statutes.
DISCUSSION
The government asserts that C&MI may not appeal the restitution award due to the appellate waiver contained in the plea agreement. C&MI disagrees, relying on a reservation clause in the agreement.
By the terms of its plea agreement, C&MI “expressly waives the right to appeal its conviction and sentence” except for “the right to appeal any punishment in excess of the statutory maximum.” The pertinent statute is 18 U.S.C. § 3664. It allows “restitution to each victim in the full amount of each victim’s losses as determined by the court.” 18 U.S.C. § 3664(f)(1)(A). The general rule is that the statute does not authorize a restitution order that exceeds the victim’s losses.
See United States v. Norris,
We review
de novo
whether a sentence exceeded the statutory maximum.
United States v. Shabazz,
Similarly, the court ordered C&MI to pay $2,000,000 in restitution. The government agrees with C&MI that this order was also impermissible because there was no finding of loss.
See Middlebrook,
C&MI and the government disagree over the proper remedy for these *753 errors. C&MI acknowledges that it would be appropriate for this court to impose a fine of $500,000. See 18 U.S.C. § 3571(c). The government, while admitting that it failed to meet its burden before the district court, asks that we remand the case so that it can try again. C&MI argues that is improper.
The government generally may not present new evidence on remand when reversal is required due to the failure to present evidence originally.
United States v.
Archer;
The first point is an admission that the government had a chance to prove the amount of loss during the original proceeding before the district court. The second misreads our precedents. When a litigant fails to object in the district court, this court does not usually return the case but reviews for plain error.
See United States v. Whitelaw,
The government admits this record contains no evidence regarding the amount of pecuniary loss suffered by Henry’s estate. Restitution therefore cannot be awarded. See 18 U.S.C. § 3571(c). The maximum fine is $500,000.
We MODIFY the fine to $500,000 and VACATE the restitution award. The judgment of conviction and sentence, as modified, are AFFIRMED.
Notes
. Both parties’ appellate briefs state that a $2 million restitution award to the Henry estate was entered in the 2007 sentencing of Honeywell for the same events, and a record was made at that sentencing to support the award. Nothing from that record was introduced at the C&MI sentencing. We note that at oral argument, the government suggested C&MI’s restitution obligation would have been joint and several with Honeywell's.