Case Information
*1 Before W OOD Chief Judge , K ANNE S YKES , Circuit Judges .
K ANNE Circuit Judge
. Appellant Vernado pled guilty theft pursuant written he admitted he “committed numerous stances device fraud” “misused means identification employees companies,” specifical ly identifying individual he de frauded. At sentencing, presented evidence were twenty eight scheme.
Despite having waived his right to appeal, Malone ar ‐ gues materially breached by presenting evidence four were referred by name Because made clear named vic ‐ tims either an “example” just “[o]ne of” compa nies he defrauded, did commit materi al breach introducing evidence more vic tims than specifically named. Accordingly, enforce appellate waiver dismiss appeal.
I. B ACKGROUND
On September 11, 2013, grand jury indicted three counts—mail fraud, wire fraud, aggravated identi ty theft—stemming multi year scheme fraudu lently obtain use credit cards.
A. Plea Agreement entered into written he plead guilty counts dictment fraud, U.S.C. § theft, 1028A. guilty provided following:
I have been convicted fraud before, including federal court. In instance, I committed numer ous instances device used mails do so. example, I pretended an employee Modineer Co. changed Company’s Citgo account line account I control. Once I that, I *3 3 2400 ordered fleet credit cards and had them mailed locations South Bend, Indiana area I receive them. Some these locations abandoned houses. Then, without proper authori zation, I used these credit cards buy gift cards, gasoline, merchandise myself persons I knew. I also defrauded Wright Ex press Fleet Services (WEX) 2012. During time, I misused means identification em ployees several companies credit accounts with WEX. One these J&C Ambulance Service Inc. I misused means identification Rick Reed at Ambulance Ser vice Inc. with intent defraud I ordered on March 15, ordered [sic] credit cards sent S. 26th Street, South Bend, Indiana via Federal Express (FED EX tracking no. 527759742018). I received these cards began us ing them fraudulently March 17, 2012. I same type thing company called Rural Metro. instance, March 28, 2012, I fraudulently ordered cards they sent my request S. 26th Street, South Bend, Indiana via FED EX (FedEx tracking 528981371819). On March 2013, I started using cards fraudulently[.]
With respect sentencing, provided court would “determine applicable sen tencing guideline range” “determine all matters, wheth er legal, relevant application sentenc ing guidelines including, but limited to, … related adjustments” after considering input “from the govern ment.” Malone expressly waived his right appeal his con viction or “all components [his] sentence, or manner … [his] sentence was determined or imposed, any Court on any ground.” exchange for guilty plea,
dismiss wire count and recommend either level reduction for acceptance responsibility, depending applicable offense level timeliness guilty plea. The stipulated amount loss was $120,000, but contained stipulations.
On August district court held change hearing. entered guilty counts indictment. After reviewing agree ment, court accepted found it made knowingly voluntarily.
B. Sentencing presentence investigation report (PSR) recommend ed level enhancement offense involving more than ten victims. U.S.S.G. 2B1.1(b)(2)(A)(i). en hancement, PSR explained, because “Modineer WEX sustained actual loss” yet “10 additional corpora tions/companies who customers also con sidered they initially charged incurred liability charges, although company ultimately absorbed losses.” objected, arguing Modineer WEX, suffered unreimbursed financial losses, should count victims. *5 5 15 ‐ 2400
At sentencing hearing, called St. Jo ‐ seph County Police Officer Philip Williams. Williams testi fied that reported that twenty ‐ eight its clients “were subject fraudulent charges their credit accounts as a result Malone fraud.” The sought ad mit affidavits ten clients, but Malone objected, contending that “in our victims.” Explaining further, Malone pointed agreement’s basis, describing as a stipula tion arguing that because section only refers WEX, Ambulance, Rural Metro, “those only peo ple [he] acknowledging that victims case.”
The district court disagreed a stipulation three fraud. It held, however, additional ‐ did not qualify “victims” purposes related enhancement because they sustain “actual loss.” Instead, district court took Officer Williams’s testimony into account considering sentencing factors under 18 U.S.C. 3553(a). district court determined a total ad justed offense level a criminal history category IV, resulting guideline range months’ impris onment. district court granted level down ward variance cooperation matters. But, district court imposed level upward var iance due aggravating factors, specifically noting “that while characterized purposes guidelines, you defrauded cardholders over year period.” Ultimately, court imposed *6 6 15 2400 months mail fraud 24 consecutive months aggra vated identity theft required by 18 U.S.C. 1028A—for a total 61 months’ imprisonment—followed by 2 years supervised release.
II. A NALYSIS
Despite having waived right appeal, brings appeal ground materially breached plea Specifically, he contends it a material breach argue at sen tencing there plea mentioned theft. government, however, breach therefore, we enforce appellate waiver. argues appeal must be dis missed because appellate waiver, notwithstanding Malone’s claim a material breach. Of course, “a voluntary knowing waiver appeal is valid must en forced,” United States v. Sakellarion , F.3d 634, (7th Cir. 2011) (quotation marks omitted), “[u]nless a prosecutor’s transgression is so serious entitles defendant cancel whole agreement.” United States v. Whitlow , F.3d (7th Cir. 2002).
Because defendant may void a there material breach government, oth erwise valid appellate waiver does preclude our review claim material breach. Sakellarion F.3d 639.
Where, here, dispute, review whether breach de novo . Munoz 2013). We interpret agreement using ordinary principles of con tract law, “though with an eye to the special public interest concerns arise in context.” Id. (quotation marks omitted). Accordingly, the language agree ment ambiguous, we look to “the parties’ reasonable ex pectations construe ambiguities against the as drafter.” Id. But, “ we will not ignore plain language of contract ambiguity.” United States v. Matchopatow F.3d (7th Cir. 2001). Therefore, give unambiguous terms their plain meaning. O’Doherty 2011). contention stipulated victims of wire one victim of theft cannot squared unambiguous terms of Nothing factual basis dicates an as number of victims or pur ports limit government’s ability present evidence of of victims purposes of sentencing. See id. 217– 18. Instead, describes “numerous instances of de vice fraud,” example defrauding Modineer. The basis also states “misused means identification employees companies … . One these Ambulance Service.” (emphasis added). plain language does limit itself four victims. fact four are referred name does transform into stipula
tion victims. Instead, explicitly included just “[o]ne of” “example” type crimes. absence of express language of stipulation to the
number of is telling in light of the fact that is express language of stipulation in other parts of the agreement. government the defendant “stipulate[d] that the amount the loss in matter is $120,000,” the “agree[d]” to recommend level reduc ‐ tion acceptance responsibility dismiss count two. That language stands stark contrast the factual ba sis which contained language stipulation See Schilling F.3d 397–98 1998) (contrasting defendant’s admissions basis with sections where gov ernment “agree[d]” make certain sentencing recommen dations). Instead, given “one sided nature ac knowledgment criminal conduct” court’s duty determine, among other things, any related adjustments after input from government, clear that basis stipulation number victims. See O’Doherty at 217–18 (finding fac tual defendant “acknowledge[d]” prove tax losses $425,766 pre vent arguing at sentencing greater loss).
Finally, we note sentencing hearing objected introduction testimony about vic tims, stating:
[W]e full paragraph listed possible victims, Mr. said, ‘No, I don’t know who these people are,’ so ended up paragraph re fers Ambulance Rural Metro, only people that Mr. was acknowledging that victims this case.
But, plea agreement contained an integration clause, which stated that “[o]ther than what contained plea agreement no predictions, promises, or representations have been made me specific sentence that will im posed any matter.” (emphasis added). Thus, any ex trinsic evidence support Malone’s contention parties limit number cannot overcome express, unambiguous terms Cf. Logan 557–58 2001) (finding written plea agreement was complete despite defendant’s assertion prosecutor promised prosecute family).
Because listed by name serve “example” Malone’s “numerous instances device fraud” there no language stipulation purporting limit victims, breach presenting evidence sentencing scheme.
III. C ONCLUSION
Because breach would invalidate release appellate waiver, appeal DISMISSED.
[1] Although says clear record these events occurred 2012.