United States v. Michal Zakrzewski , 462 F. App'x 421 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAL ZAKRZEWSKI, a/k/a White Mike,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00166-FDW-1)
Argued: October 28, 2011 Decided: February 2, 2012
Before WILKINSON, KING, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson
and Judge King joined.
ARGUED: David O. Schles, LAW OFFICE OF DAVID SCHLES, Charleston,
West Virginia, for Appellant. Michael Alan Rotker, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Lanny A. Breuer, Assistant Attorney General, Greg D.
Andres, Acting Deputy Assistant Attorney General, Ellen R.
Meltzer, Patrick M. Donley, Peter B. Loewenberg, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:
Michal Zakrzewski pleaded guilty to offenses stemming from
his participation in a fraudulent telemarketing conspiracy. On
appeal, Zakrzewski challenges his sentence, which includes a
restitution order. The government seeks to enforce Zakrzewski’s
appeal waiver, maintaining that his appeal should be dismissed.
Zakrzewski, however, contends that the appeal waiver cannot be
enforced because the government breached its agreement with
Zakrzewski by improperly using statements he made during his
proffer session to resist his request for a downward variance at
sentencing.
We decline to resolve whether the government breached its
agreement with Zakrzewski and, if so, the impact of such a
breach on Zakrzewski's appeal waiver. Because Zakrzewski failed
to object to the use of his proffered statements at sentencing
or to the amount of the restitution order, we review each issue
for plain error. Applying that exacting standard, we find no
merit to Zakrzewski’s claim for relief based on the proffered
statements. As to the restitution order, the amount imposed by
the district court exceeds the statutory limit, which provides
an independent ground for excusing Zakrzewski's appeal waiver.
Reaching the merits of that claim, we find plain error and,
accordingly, vacate the restitution order and remand.
2
I.
A.
In April 2002, Zakrzewski traveled to San Jose, Costa Rica
to work in a call center operated by Guisseppe Pileggi.
Zakrzewski and Pileggi first met in Canada in 2000, where their
telemarketing scheme began in 2001. In 2002, Pileggi relocated
to Costa Rica to open one of several fraudulent call centers
targeting United States citizens. The call centers all utilized
the same basic scheme. An “opener” would call “leads” in the
United States, telling their potential victims that they had won
second prize in a sweepstakes. To mask the foreign origin of
the calls, the call centers employed a technology that made it
appear as if the calls originated in Washington, D.C. As part
of the scheme, the “opener” falsely indicated that he or she was
employed by a federal agency that regulated sweepstakes. The
“opener” told the victim that to claim the prize money, the
victim must pay a refundable “insurance fee”—typically several
thousands of dollars—to “Lloyd’s of London of Costa Rica.” The
“insurance fee” was to be wired via Western Union. 1 If the
1
As a continuing offense under 18 U.S.C. § 3237(a), wire
fraud may be prosecuted in “any district where a payment-related
wire communication was transmitted in furtherance of
[Zakrzewski’s] fraud scheme.” United States v. Ebersole, 411
F.3d 517, 527 (4th Cir. 2005) (citing United States v. Kim, 246
F.3d 186, 192 (2d Cir. 2001), cited with approval in United
States v. Stewart, 256 F.3d 231, 243 (4th Cir. 2001)). The
(Continued)
3
victim fell for the scam and wired the initial “insurance fee,”
a “loader” would call again, this time telling the victim that
he or she had actually won first prize in the sweepstakes and
needed to wire more money to receive the larger prize. If the
victim acquiesced in wiring more money, the victim would
continue to be “loaded” and “reloaded.” No victim ever received
any prize money.
After arriving in Costa Rica in 2002, Zakrzewski first
worked as an “opener” in Pileggi’s call center, but in 2003
Zakrzewski became a “room boss.” In this position, Zakrzewski
was tasked with scheduling the calls, providing lists of leads,
collecting the results of the calls, and delivering these
results to his supervisors. After a falling out with Pileggi,
Zakrzewski left Pileggi’s employ to join another call center
operated by Al Duncan. In early 2005, however, Zakrzewski
returned to Pileggi’s center. In December 2005, Zakrzewski left
the call center and opened a scooter rental business in Puerto
Viejo, Costa Rica.
Western Union wire transfers were electronically routed and
processed through Charlotte, North Carolina (within the Western
District of North Carolina), before being sent to their final
destinations. See United States v. Llamas, 599 F.3d 381, 385
n.3 (4th Cir. 2010) (noting, in a case involving another call
center defendant, that venue was proper in the Western District
of North Carolina because the wire transfers were routed through
that district).
4
B.
Zakrzewski’s departure was timely because months later, on
May 16, 2006, Costa Rican and U.S. authorities raided more than
fifteen Costa Rican call centers. The raids resulted in the
arrest of many persons involved in the call centers, 2 but
Zakrzewski, now living in Puerto Viejo, was not arrested.
Ultimately, on April 27, 2007, Zakrzewski was charged in a
sealed complaint in the Western District of North Carolina with
conspiracy to defraud via a telemarketing scheme, in violation
of 18 U.S.C. §§ 371, 1343, and 2326. Zakrzewski was arrested in
Costa Rica on June 25, 2007. Subsequently, he was named in a
twenty-three count indictment filed on July 25, 2007 in the
Western District of North Carolina, charging him in Count 1 with
conspiracy to defraud, in violation of 18 U.S.C. §§ 371, 1343,
1341, 2314, and 2326(2)(A)-(B); and in Counts 2-23 with wire
fraud, and aiding and abetting the same, in violation of 18
U.S.C. §§ 2, 1343, and 2326(2)(A)-(B).
For reasons not clear from the record, Zakrzewski was
detained for a substantial time by Costa Rican authorities
2
The district court that presided over Zakrzewski’s case
also presided over the proceedings against many of these call
center defendants. Because there were multiple Costa Rican call
center conspiracies, we refer generally to the “call center
defendants.” We note, however, for purposes of remand, that it
appears that Zakrzewski was part of the Pileggi and Duncan
conspiracies.
5
before he was extradited to the United States, making his
initial appearance in the Western District of North Carolina on
May 1, 2009. Shortly after his initial appearance, Zakrzewski
signed a proffer agreement with the government. 3 The proffer
agreement provided that Zakrzewski would meet with the Fraud
Section of the Department of Justice “to determine whether [he
could] provide reliable cooperation.” J.A. 20. Although the
agreement generally protected statements Zakrzewski made during
his proffer session from use at trial or sentencing, it also
provided that Zakrzewski’s statements “may” be used to “rebut
any evidence offered by or on [his] behalf in connection with
the trial and/or sentencing.” Id.3
We have explained that
A “proffer agreement” is generally understood to be an
agreement between a defendant and the government in a
criminal case that sets forth the terms under which
the defendant will provide information to the
government during an interview, commonly referred to
as a “proffer session.” The proffer agreement defines
the obligations of the parties and is intended to
protect the defendant against the use of his or her
statements, particularly in those situations in which
the defendant has revealed incriminating information
and the proffer session does not mature into a plea
agreement or other form of cooperation agreement.
United States v. Lopez, 219 F.3d 343, 345 n.1 (4th Cir. 2000)
(citing Harry I. Subin et al., Federal Criminal Practice § 10.5
(1992)).
6
During his proffer session, Zakrzewski made several
admissions relevant to this appeal, including that (1) he was
aware of the May 2006 raids, resulting in the arrest of many
call center defendants, (2) he had checked the website for the
Western District of North Carolina to determine if he had been
charged, and (3) he took $40,000 in proceeds from the call
center when he left in December 2005 to open his scooter rental
business.
Following his proffer session, Zakrzewski signed a written
plea agreement with the government, agreeing to plead guilty to
Counts 1 and 8. The plea agreement included an appeal waiver,
barring Zakrzewski from appealing his conviction or sentence
“within the maximum provided by the statute of conviction except
for (1) claims of ineffective assistance of counsel or (2)
prosecutorial misconduct.” Id. at 45–46. Zakrzewski also
agreed to make full restitution for his offense conduct, with
the parties further agreeing that $10 million was a suitable
restitution figure.
C.
On August 12, 2009, Zakrzewski entered a plea of guilty to
Counts 1 and 8. During the plea hearing, the magistrate judge
confirmed that Zakrzewski understood the terms of his appeal
waiver, and the government noted that by the terms of the plea
agreement, Zakrzewski agreed to pay $10 million in restitution.
7
Prior to sentencing, Zakrzewski filed a sentencing
memorandum, requesting that the district court vary downward
from the Guidelines range to impose a sentence of 70 months’
imprisonment. At the sentencing hearing, Zakrzewski reiterated
the arguments advanced in his sentencing memorandum, emphasizing
in relevant part that he voluntarily withdrew from the
conspiracy, and that because he was “late to th[e] prosecution
. . . due to circumstances beyond his control,” the value of his
cooperation was diminished. J.A. 57–58. In support, Zakrzewski
noted that although a motion under Federal Rule of Criminal
Procedure 35 remained a possibility, despite his cooperation,
the government had not filed a motion for substantial assistance
under United States Sentencing Guidelines § 5K1.1 because there
were no pending prosecutions of call center defendants.
In opposing Zakrzewski’s request for a variance, the
government first observed that in “withdrawing” from the
conspiracy, Zakrzewski took $40,000 from the victims of the call
center. Second, the government argued that Zakrzewski was
responsible for the fact that he was late to the prosecution,
noting that although he was aware of the raids on the call
centers, he did not turn himself in, and that Zakrzewski had
checked the court’s website to see if he had been charged. In
so arguing, the government utilized Zakrzewski’s statements from
his proffer session. Zakrzewski, however, made no objection.
8
In sentencing Zakrzewski, the district court began by
noting an advisory Guidelines range of 135 to 168 months.
Looking to the sentencing factors in 18 U.S.C. § 3553(a), the
court found that a slight downward variance was appropriate to
account for the time Zakrzewski spent in Costa Rican custody.
Declining to impose a more robust variance, the court first
noted that Zakrzewski was part of “a very complex, very
sophisticated conspiracy” that targeted vulnerable persons. Id.
at 92. Second, the court observed that prior to leaving the
conspiracy, Zakrzewski occupied a position of leadership at the
call center and that he “didn’t truly legally walk away from the
scheme, [he] actually left the scheme with $40,000 in criminal
proceeds.” Id. at 94. Third, the court found that although
Zakrzewski did not personally pose a future threat, it believed
there was a general need to deter organized foreign criminal
conduct targeting U.S. citizens.
After considering the statutory sentencing factors, the
district court sentenced Zakrzewski to 126 months’ imprisonment,
followed by three years of supervised release. The district
court also ordered Zakrzewski to pay $4.2 million in
restitution, noting that although Zakrzewski agreed to pay $10
million, $4.2 million was the more appropriate figure based on
the dollar value of the claims filed in cases involving other
call center defendants.
9
Zakrzewski’s attorney did not file a notice of appeal, but
subsequent to Zakrzewski’s successful petition for relief under
28 U.S.C. § 2255, the court entered an amended judgment,
enabling Zakrzewski to timely appeal.
II.
On appeal, Zakrzewski challenges his sentence as both
procedurally and substantively unreasonable. Specifically, he
contends that the district court committed procedural error by
considering evidence not properly before the court—his proffered
statements, and imposed a substantively unreasonable sentence.
Zakrzewski also argues that the restitution order is erroneous
because it is not limited to the losses caused by his criminal
conduct.
The government counters that Zakrzewski’s appeal should be
dismissed because the issues raised fall within the scope of the
valid appeal waiver contained in his plea agreement.
Zakrzewski, however, contends that in using his proffered
statements at sentencing, the government breached the terms of
the proffer agreement and committed prosecutorial misconduct,
thus piercing the veil of his appeal waiver.
We need not decide whether the government’s use of
Zakrzewski’s proffered statements was a breach of the agreement
or prosecutorial misconduct. Because Zakrzewski failed to
10
object to the use of his statements at sentencing, we review
only for plain error, and find none.
Zakrzewski’s challenge to the restitution order presents a
separate issue. Our cases provide that a defendant may not
waive his right to appeal a sentence in excess of the statutory
maximum, an exception also found in the parties’ plea agreement.
Because the amount of restitution imposed by the district court
exceeds the statutory maximum, the appeal waiver does not
foreclose our consideration of this issue. Reaching the merits,
we find that the district court plainly erred in ordering
Zakrzewski to pay $4.2 million in restitution. Accordingly, we
vacate the restitution order and remand for further proceedings.
III.
“The threshold issue we must consider is whether the appeal
waiver . . . precludes [Zakrzewski] from presenting these issues
on appeal.” United States v. Cohen, 459 F.3d 490, 493-94 (4th
Cir. 2006) (citation and alterations omitted). We will uphold
an appeal waiver if it is valid and if the issue raised on
appeal falls within the scope of the waiver. Id. at 494.
Our broad enforcement of appeal waivers, however, is not
without exception. First, we will of course recognize
exceptions to an appeal waiver agreed to by the parties. In
this case, the parties agreed that Zakrzewski retained his right
11
to appeal a sentence outside the statutory maximum, as well as
ineffective assistance of counsel and prosecutorial misconduct
claims. 4 Second, we will allow an appeal to proceed where the
government has breached the very agreement on which it seeks to
rely in enforcing the appeal waiver. See United States v.
Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009) (“A defendant’s
waiver of appellate rights cannot foreclose an argument that the
government breached its obligations under the plea agreement.”)
(citing Cohen, 459 F.3d at 495); see also United States v.
Blick, 408 F.3d 162, 168 & n.5 (4th Cir. 2005).
It is within this framework that we consider, in turn,
Zakrzewski’s challenge to his sentence and the restitution
order.
4
The exceptions in Zakrzewski’s appeal waiver are familiar
ones. See, e.g., United States v. Dawson, 587 F.3d 640, 643
(4th Cir. 2009) (noting that the defendant “waived the right ‘to
contest the . . . sentence’ except for claims of ‘ineffective
assistance of counsel,’ or ‘prosecutorial misconduct’ ”); Cohen,
459 F.3d at 493 (noting that the appeal waiver included “all
rights to contest the conviction or sentence in any post-
conviction proceeding, including one pursuant to 28 U.S.C. §
2255, excepting an appeal or motion based upon grounds of
ineffective assistance of counsel or prosecutorial misconduct”).
12
IV.
A.
First, we consider Zakrzewski’s claims that the district
court committed both procedural and substantive error with
respect to his prison sentence. The government contends that
these claims should be summarily dismissed based on Zakrzewski’s
appeal waiver.
To begin with, we have little difficulty in affirming the
validity of Zakrzewski’s appellate waiver. See United States v.
Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (upholding a
waiver as valid where it was “the result of a knowing and
intelligent decision to forgo the right to appeal”) (citation
omitted). Zakrzewski pleaded guilty pursuant to a valid Rule 11
colloquy, wherein the magistrate judge specifically questioned
Zakrzewski about the appeal waiver. See id. (looking to the
specifics of the Rule 11 colloquy in finding the waiver valid,
even where “the district court did not question [the defendant]
specifically about the waiver provision itself” (citing United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992)).
And despite Zakrzewski’s assertion that the appeal waiver
is “so lacking in mutuality and fairness” as to be facially
invalid, Reply Br. 18, he concedes that such waivers are
routinely enforced. See, e.g., United States v. Poindexter, 492
F.3d 263, 270 (4th Cir. 2007) (noting that “[a]ppeal waivers
13
also play an important role in the plea bargaining process” and
are “enforce[d] . . . so long as the waiver is knowing and
intelligent and the issue sought to be appealed falls within the
scope of the appeal waiver” (citing Blick, 408 F.3d at 168)).
Moreover, we note that Zakrzewski received certain benefits from
his plea agreement—namely, the government agreed to dismiss
twenty-one counts in the indictment and to recommend that
Zakrzewski receive the full three-point reduction for acceptance
of responsibility at sentencing. Thus, we decline Zakrzewski’s
invitation to reject the appeal waiver on its face.
We also find that Zakrzewski’s complaints regarding his
prison sentence fall within the scope of his appeal waiver. The
appeal waiver bars Zakrzewski from challenging “any sentence
within the maximum provided by the statute,” J.A. 45–46, and
here there is no suggestion that the district court imposed a
sentence of imprisonment outside of the statutory maximum.
Thus, absent an exception to our general enforcement of appeal
waivers, Zakrzewski’s claims regarding his prison sentence are
barred.
B.
Zakrzewski maintains that the government’s use of his
proffered statements at sentencing triggers such an exception.
He claims that in using his statements to rebut his request for
a downward variance, the government committed prosecutorial
14
misconduct and breached the agreement. Accordingly, he argues
that his appeal either falls within an express exception to his
appeal waiver or that the government is barred from enforcing an
appeal waiver found in an agreement that it breached. 5
The government responds that there was no breach, as the
statements were used to rebut evidence offered by Zakrzewski at
sentencing, and thus their use was expressly contemplated by the
terms of the proffer. To this, Zakrzewski replies first that no
“evidence”—only argument by counsel—was offered at sentencing.
He further contends that the argument was not a
misrepresentation—only an advocate’s characterization of the
facts—and thus there was nothing to rebut.
We need not decide whether the government’s use of
Zakrzewski’s proffered statements excuses Zakrzewski's appeal
waiver. Waiver or not, Zakrzewski did not object in the
district court to the use of the challenged statements, and thus
we review their effect on the sentencing proceedings for plain
error.
5
The government notes that Zakrzewski is attempting to rely
on a breach of the proffer agreement to circumvent the appeal
waiver contained in his plea agreement. Whether the government
may breach one agreement with a defendant while seeking to
enforce another is a question we need not decide based on our
conclusion that Zakrzewski cannot meet the rigorous demands of
plain error review.
15
To warrant relief for plain error, Zakrzewski bears the
burden of showing “(1) an error, (2) that is plain, (3) that
affects [his] substantial rights, and (4) that seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.” Dawson, 587 F.3d at 645. An appellate court
enjoys discretion in determining whether to notice the error.
See United States v. Olano, 507 U.S. 725, 732 (1993). As to the
third prong of this test, Zakrzewski must satisfy us that the
alleged error “ ‘affected the outcome of the district court
proceedings[,]’ ” which, in the sentencing context, requires a
showing of a “ ‘reasonable probability, based on the appellate
record as a whole, that but for the error he would have received
a more favorable sentence.’ ” Dawson, 587 F.3d at 645 (quoting
Puckett v. United States, 129 S.Ct. 1423, 1429 (2009); United
States v. Lovelace, 565 F.3d 1080, 1088 (8th Cir. 2009)).
Zakrzewski cannot meet his burden here. He complains that
the government erred in using his proffered statements that he
took $40,000 when he left the call center, knew of the raids on
the call center, and had monitored the court’s website to see if
he had been charged. The district court, however, referred to
only one of these statements before announcing its sentence,
noting that Zakrzewski “withdrew” from the conspiracy with
$40,000 in criminal proceeds in tow. Moreover, this fact was
included without objection in the presentence report prepared by
16
the probation office prior to Zakrzewski’s sentencing. In any
event, this isolated reference did not play a meaningful role in
the district court's lengthy sentencing explanation, wherein it
made a persuasive case for its chosen sentence based largely on
factors unrelated to the information disclosed in Zakrzewski’s
proffer. For example, the court noted that Zakrzewski was part
of a complex conspiracy, that he played a leadership role in
that conspiracy, and that a significant sentence was warranted
to generally deter similar conduct. After determining that a
slight downward variance was appropriate to account for
Zakrzewski's extended detention at the hands of the Costa Rican
authorities, the district court imposed a sentence of 126
months’ imprisonment on each count, to be served concurrently.
On this record, Zakrzewski cannot meet the “rigorous plain
error standard” of showing that the government’s use of his
proffered statements affected his substantial rights. Dawson,
587 F.3d at 648. Accordingly, we affirm the district court’s
prison sentence. 6
6
While Zakrzewski’s claim of procedural error was not
raised below, and thus is subject only to plain error review, we
note that our decision in United States v. Hargrove, 625 F.3d
170 (4th Cir. 2010) suggests that his claim of substantive
unreasonableness is reviewed for abuse of discretion. See id.
at 183 (“Several circuit courts of appeal have held that
appellate courts review the substantive reasonableness of a
sentence for abuse of discretion regardless of whether the
(Continued)
17
V.
Next, we consider Zakrzewski’s claim that the district
court erred in ordering restitution. Because the restitution
order is part of the district court’s sentence, the government
maintains that this claim, too, must be dismissed based on the
appeal waiver. We disagree.
We have recognized that even a defendant who signs an
appeal waiver can “not be said to have waived his right to
appellate review of a sentence imposed in excess of the maximum
penalty provided by statute.” United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992) (emphasis added). And because federal
courts lack “the inherent authority to order restitution, but
must rely on a statutory source,” we have also held that “a
restitution order that exceeds the authority of the statutory
source ‘is no less ‘illegal’ than a sentence of imprisonment
that exceeds the statutory maximum.’ ” Cohen, 459 F.3d at 498(quoting Broughton-Jones, 71 F.3d at 1147). Accordingly, if
Zakrzewski’s restitution order exceeds the statutory maximum, a
challenge to it is not barred by his appeal waiver.
The Mandatory Victims Restitution Act of 1996 (the “MVRA”)
controls here and provides in relevant part that in sentencing a
parties noted an objection below.”). Having reviewed the
sentencing transcript at length, we find no abuse of discretion.
18
defendant convicted of certain offenses, the court “shall order
. . . that the defendant make restitution to the victim of the
offense.” 18 U.S.C. § 3663A(a)(1). The MVRA’s focus on the
offense of conviction, as opposed to relevant conduct, requires
that the restitution order be limited to the “losses to the
victim caused by the offense.” United v. Llamas, 599 F.3d 381,
390–91 (4th Cir. 2010) (citation omitted) (concluding that “in
the context of a conspiracy, a restitution award under the MVRA
is limited to the losses attributable to the specific conspiracy
offenses for which the defendant was convicted”). In addition,
under 18 U.S.C. § 3663A(a)(3), “[t]he court shall also order, if
agreed to by the parties in a plea agreement, restitution to
persons other than the victim of the offense.”
In cases involving two other call center defendants, we
determined the restitution order in question to be illegal under
18 U.S.C. § 3663A(a)(1). See Llamas, 599 F.3d at 390-91 (noting
that “[b]ecause the [$4.2 million] restitution order was not
limited to losses attributable to the Center . . . [but held the
defendant] jointly and severally liable for losses caused . . .
by other Costa Rican call centers utilizing similar sweepstakes
schemes” the district court committed “legal error,” as conceded
by the government); United States v. Susi, 378 F. App’x 277, 288
(4th Cir. 2010) (per curiam) (“Like Llamas, Susi was . . .
convicted of participating in a conspiracy involving only one
19
call center, and not of a conspiracy involving all sixteen Costa
Rican call centers. Thus the restitution order . . . should
also have been ‘limited to the losses attributable’ to [Susi’s]
call center conspiracy.”). As a result, we vacated the
restitution orders in both cases and remanded for resentencing. 7
This case is admittedly different from Llamas and Susi,
because here the parties agreed that Zakrzewski would make “full
restitution,” that restitution would include Zakrzewski’s “total
offense conduct, . . . not limited to the count(s) of
conviction,” and that the amount to be recommended to the court
would be $10 million. J.A. 42. In our view, however, these
stipulations by the parties do not warrant a different result.
First, in setting Zakrzewski’s restitution order, the
district court was not operating under the parties’ agreement;
rather, the court simply imposed the same amount of restitution
it had ordered in the related cases based on the government’s
representation that $4.2 million was the proper figure. We,
however, have twice vacated this award in other cases. Thus,
7
The government argues that under United States v. Johnson,
410 F.3d 137 (4th Cir. 2005), Zakrzewski may not benefit from
the subsequent change in law regarding the restitution order.
In Johnson the defendant sought to obtain the benefit of United
States v. Booker, 543 U.S. 220 (2005). Johnson, 410 F.3d at
149. Here, however, unlike Johnson, there was no subsequent
change in law that rendered the district court’s restitution
order illegal; rather, the orders were always illegal under the
MVRA. Johnson, then, does not control our analysis.
20
because the district court did not rely on the plea agreement in
setting the restitution order, we too decline to rely on it to
save an order that we have twice determined to be illegal.
Second, while Zakrzewski agreed to pay a sum certain, he
“did not agree . . . to relieve the government of its burden of
proving that [his] restitution obligation included only those
losses caused by [his] criminal conduct.” United States v.
Patty, 992 F.2d 1045, 1051 (10th Cir. 1993) (concluding that
“although Defendant could be ordered to pay restitution in an
amount up to $25,000,000 [as agreed to in the plea agreement],
she could not be ordered to pay restitution in excess of those
losses which the government proved were the result of her
fraudulent acts” (citing United States v. Herndon, 982 F.2d
1411, 1420 (10th Cir. 1992)). As we have determined in Llamas
and Susi, the $4.2 million restitution order is based on the
losses attributable to all Costa Rican call centers, but
Zakrzewski was not involved with this broader group of call
centers. The restitution order, then, is not linked to
Zakrzewski’s criminal conduct.
The district court had no “inherent authority” to impose
restitution, but rather was confined by the terms of the MVRA.
Cohen, 459 F.3d at 498. Because the restitution order is not
based on Zakrzewski’s plea agreement or his criminal conduct, it
21
exceeds the statutory maximum under the MVRA, and accordingly is
outside the scope of Zakrzewski’s appeal waiver.
Reaching the merits of Zakrzewski’s restitution claim, we
review for plain error, as no objection was raised in the
district court. For the reasons discussed in Llamas and Susi,
the district court committed plain error in setting the amount
of the restitution order. We further conclude that Zakrzewski’s
substantial rights are affected by the restitution order, and
that the erroneous order affects the fairness of the judicial
proceedings. See United States v. Ubakanma, 215 F.3d 421, 429
(4th Cir. 2000). Exercising our discretion, we vacate the
district court's order of restitution and remand for further
proceedings.
VI.
For the reasons stated herein, the judgment of the district
court is
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
22