UNITED STATES OF AMERICA, Plaintiff - Appellee v. CHRISTIAN WINCHEL, Defendant - Appellant
No. 16-11208
United States Court of Appeals, Fifth Circuit
July 16, 2018
Lyle W. Cayce, Clerk
Appeal from the United States District Court for the Northern District of Texas
Before KING, JONES, and GRAVES, Circuit Judges.
After entering into a plea agreement with the Government, Defendant-Appellant Christian Winchel pleaded guilty to one count of producing child pornography in violation of
I
The Government moves to dismiss Winchel‘s appeal based on a waiver provision in the plea agreement. The provision states that “Winchel waives his rights, conferred by
“This court reviews de novo whether an appeal waiver bars an appeal.” United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). It is undisputed that Winchel knowingly and voluntarily agreed to the appeal waiver. The sole question is “whether the waiver applies to the circumstances at hand, based on the plain language of the [plea] agreement.” United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). “In determining whether a waiver applies, this court employs ordinary principles of contract interpretation, construing waivers narrowly and against the Government.” Keele, 755 F.3d at 754 (citing United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006)). “We construe any ambiguity in the plea agreement against the Government.” United States v. Burns, 433 F.3d 442, 445 n.2 (5th Cir. 2005) (quoting United States v. De Los Santos, 152 F. App‘x 375, 377 (5th Cir. 2005)); accord United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001).
Winchel‘s Paroline-based appeal of the district court‘s restitution order falls within the meaning of “a direct appeal of a sentence exceeding the statutory maximum punishment.”
Because Winchel did not waive his right to bring this appeal, the Government‘s motion to dismiss is DENIED.
II
The parties agree that since Winchel did not object to the restitution order in the district court, plain error review governs the merits of his appeal.
The Supreme Court has identified four requirements for reversing a trial court based upon plain error review: (1) “there must be an error or defect—some sort of [d]eviation from a legal rule—that has not been intentionally relinquished or abandoned”; (2) “the legal error must be clear or obvious, rather than subject to reasonable dispute“; (3) “the error must have affected the appellant‘s substantial rights”; and (4) “if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). The Government concedes that the first three prongs are satisfied in this case but argues that we should decline to correct the district court‘s plain error under the fourth prong.
“[I]t is well established that courts ‘should’ correct a forfeited plain error that affects substantial rights if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906 (2018) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). That standard is easily satisfied in the present case. When a court orders a defendant to pay nearly $1.5 million in restitution without determining whether that amount complies with a basic statutory requirement—in this case,
Given the length of his prison term and the amount of his current assets, the Government deems it unlikely that Winchel will ever pay restitution and contends that the “highly remote chance” that he will is insufficient to justify the further proceedings that compliance with Paroline requires. We disagree. The fact that the district court entered a legally binding restitution order without ensuring that the amount was authorized by statute is sufficient to warrant our exercise of discretion under the fourth prong of plain error review. See United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007) (plain error standard “easily” met where the district court‘s error regarding the scope of its authority to order restitution “increased the amount of restitution that [the defendant] was ordered to pay by over $100,000”); United States v. Austin, 479 F.3d 363, 373 (5th Cir. 2007) (“When a defendant is ordered to pay restitution in an amount greater than the loss caused, the error affects substantial rights as well as the fairness and integrity of the judicial proceeding.“).
Accordingly, the restitution order is VACATED, and the case is REMANDED to the district court for further proceedings.