United States v. Lo, No. 15-10219 (9th Cir. 2016)
Annotate this CaseDefendant pleaded guilty to three counts of wire fraud and mail fraud. On appeal, defendant challenged the restitution order and a forfeiture money judgment, both in the amount of $2,232,894. The court concluded that, as a preliminary matter, the circumstances surrounding the signing and entry of the plea agreement support the conclusion that defendant entered into the agreement knowingly and voluntarily. The court also concluded that the plea agreement shows that it provided sufficient information from which defendant could have derived an accurate estimate of the amount of restitution for which he was liable; the plain language of the plea agreement clearly states the minimum amounts of restitution that defendant would have to pay rather than the maximum agreed-upon restitution amount, and the district court’s imposition of a larger amount of restitution was not in conflict with the plea agreement; the award of restitution is not an illegal sentence in this case and the district court did not err in ordering restitution for all losses caused by the schemes to defraud, and the order was not illegal; and the court rejected defendant's arguments as to the forfeiture order and concluded that it did not constitute an illegal sentence. Accordingly, the court dismissed the appeal.
Court Description: Criminal Law. The panel affirmed the district court’s restitution order and forfeiture money judgment, both in the amount of $2,232,894, in a case in which the defendant pleaded guilty to three counts of wire fraud and mail fraud. The panel held that the circumstances surrounding the signing and entry of the plea agreement support the conclusion that the defendant entered into the agreement knowingly and voluntarily. The panel rejected the defendant’s challenges to the enforceability of the appeal waiver as to the restitution order. The panel held that the plea agreement provided sufficient information from which the defendant could have derived an accurate estimate of the amount of restitution for which he was liable, and rejected the argument that the restitution order is an illegal sentence. The panel rejected the defendant’s challenges to the enforceability of the appeal waiver as to the forfeiture order. The panel explained that one can validly waive the right to appeal a forfeiture order issued as part of the sentence regardless of whether the plea agreement provides the defendant with a reasonably accurate estimate of the amount of forfeiture or whether the defendant was given adequate notice before a district court determined that amount. UNITED STATES V. LO 3 Rejecting the defendant’s arguments as to why the forfeiture order constitutes an illegal sentence as to which the appeal waiver is ineffective, the panel held: (1) that the defendant received sufficient notice of the forfeiture order; (2) that because the government sought a money judgment, not a forfeiture of specific property, the government was not required to follow the procedures applicable to its seeking of “substitute property” under 21 U.S.C. § 853(p) and Fed. R. Crim. P. 32.2(e); (3) that forfeiture is not statutorily limited to amounts traceable to the three counts to which the defendant pleaded guilty – i.e., his three specific uses of the wires or mail – but rather covers property, obtained by the defendant directly or indirectly, as a result of the commission of the mail fraud or wire fraud offense, which necessarily includes the fraudulent scheme as a whole; and (4) that the forfeiture order did not violate Apprendi v. New Jersey. 4 UNITED STATES V. LO
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