United States v. Glenda Taylor-Sanders ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4604
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GLENDA TAYLOR-SANDERS,
Defendant - Appellant.
No. 21-4136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GLENDA TAYLOR-SANDERS,
Defendant - Appellant.
Appeals from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:19-cr-00147-RJC-DCK-1)
Argued: September 22, 2023 Decided: December 12, 2023
Before WYNN, QUATTLEBAUM, and HEYTENS, Circuit Judges.
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Dismissed by published opinion. Judge Wynn wrote the opinion, in which Judge
Quattlebaum and Judge Heytens joined.
ARGUED: David Quentin Burgess, DAVID BURGESS LAW, PC, Charlotte, South
Carolina, for Appellant. Julia Kay Wood, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Dena J. King, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
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WYNN, Circuit Judge:
When a criminal defendant’s valid guilty plea includes a waiver of the right to
appeal, this Court generally enforces the waiver by dismissing any subsequent appeal that
raises issues within the scope of the waiver. E.g., United States v. Adams, 814 F.3d 178,
182 (4th Cir. 2016); United States v. Cohen, 459 F.3d 490, 497 (4th Cir. 2006). But we
have established narrow exceptions to that rule. For example, even if an appeal waiver is
valid and applicable, we will review a claim that a district court’s sentence or restitution
order exceeded the court’s statutory authority. Cohen, 459 F.3d at 497–98.
Defendant Glenda Taylor-Sanders challenges several aspects of the sentence and
restitution order that the district court entered following her guilty plea. Each of these
challenges falls squarely within the scope of Taylor-Sanders’s valid appeal waiver, and
none qualifies for an exception that would permit our review. Accordingly, we dismiss
Taylor-Sanders’s appeal in its entirety.
I.
From February 2017 through May 2019, Taylor-Sanders took advantage of her role
as a licensed insurance agent to defraud several trucking companies and the insurance
finance company BankDirect Capital Finance. She defrauded the trucking companies by
misappropriating funds that the companies provided her to pay for their insurance policy
premiums. And she defrauded BankDirect Capital Finance by obtaining loans under the
guise of nonexistent insurance policies. Instead of using the funds she obtained to pay
insurance policy premiums or to pay back BankDirect Capital Finance for the legitimate
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loans it made to the trucking companies, Taylor-Sanders spent the funds on personal
expenditures including cars, football tickets, and mortgage payments.
Predictably, some of the trucking companies’ insurance policies lapsed because
Taylor-Sanders did not pay the insurance premiums. Her scheme unraveled when one
trucking company, DW Express, discovered its insurance policy was canceled for
nonpayment after it tried to file a claim for an April 2019 trucking accident. A grand jury
indicted Taylor-Sanders the next month on four counts of wire fraud under 18 U.S.C.
§ 1343 and two counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1).
On January 22, 2020, with the assistance of counsel, Taylor-Sanders signed a plea
agreement, under which she agreed to plead guilty to one count of wire fraud (Count Four).
She also agreed to pay “full restitution, regardless of the resulting loss amount, to all
victims directly or indirectly harmed by [her] ‘relevant conduct,’ . . . including conduct
pertaining to any dismissed counts or uncharged conduct, regardless of whether such
conduct constitutes an ‘offense’ under 18 U.S.C. §§ 2259, 3663 or 3663A.” S.J.A. 635
¶ 9a. 1 And she “waive[d] all rights to contest the conviction and sentence in any appeal”
on any grounds other than ineffective assistance of counsel or prosecutorial misconduct.
S.J.A. 636 ¶ 17. In exchange, the Government agreed to dismiss all the remaining counts
against her.
On January 24, 2020, Magistrate Judge David C. Keesler conducted a plea hearing
pursuant to Rule 11 of the Federal Rules of Criminal Procedure. When the magistrate judge
1
Citations to the “J.A.” and “S.J.A.” refer, respectively, to the Joint Appendix and
Sealed Joint Appendix filed by the parties in this appeal.
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asked Taylor-Sanders whether she had carefully reviewed the plea agreement with her
lawyer, Taylor-Sanders responded, “Not as much as I would like.” J.A. 80. The magistrate
judge then granted defense counsel’s request for a recess to further discuss the plea
agreement with Taylor-Sanders.
Following a thirty-minute recess, Taylor-Sanders confirmed that she had an
adequate opportunity to review the plea agreement and the corresponding factual basis
document with counsel and was ready to proceed. She confirmed that she understood “that
the right to appeal [her] conviction and/or [her] sentence has been expressly waived in [her]
Plea Agreement.” J.A. 82.
However, when the magistrate judge asked Taylor-Sanders if she understood and
agreed with the factual basis document, Taylor-Sanders again waivered, claiming that some
facts within the document were “incorrect.” J.A. 84. The magistrate judge responded that
he would end the hearing for the day to allow Taylor-Sanders and her counsel to “have
some further conversation about” the plea deal. Id. Defense counsel informed the court that
Taylor-Sanders had changed her mind again and “wishe[d] to go through with the plea.”
J.A. 85. But the magistrate judge ended the hearing, stating, “I think the record is now
muddied enough that you guys are going to have to talk about it.” J.A. 85.
Eighty minutes later, the magistrate judge reconvened the hearing. He explained
that, because he had not intended to resume the hearing that day, he wanted to “make an
appropriate record about what we’re doing and why we’re doing it.” J.A. 86. Defense
counsel announced that she and the Government had submitted a revised factual basis
document that addressed Taylor-Sanders’s previous concerns. And defense counsel noted
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that she had reviewed the amended document with Taylor-Sanders, who “intend[ed] to
enter her guilty plea [that] afternoon.” J.A. 87.
To ensure that the plea was knowing and voluntary, the magistrate judge
reconducted much of the Rule 11 colloquy that he had begun earlier. Taylor-Sanders
confirmed that she intended to plead guilty, understood that the decision to plead guilty
was entirely hers, and had an adequate opportunity to review the plea documents and
discuss possible defenses with counsel. She confirmed that she understood and agreed with
the plea documents, that no one had threatened, intimidated, or forced her to enter the guilty
plea, and that she understood all parts of the proceeding. She also confirmed that she was
satisfied with her counsel’s services, had no further questions or statements, and still
wished to plead guilty.
After this colloquy, the magistrate judge found that Taylor-Sanders’s plea was
knowing and voluntary and that Taylor-Sanders understood the charges and potential
penalties and consequences of her plea. Finally, the magistrate judge found that the plea
was supported by an independent factual basis. As such, he accepted the plea and
recommended that the district court enter judgment.
Four months later, in May 2020, Taylor-Sanders moved to withdraw her guilty plea,
asserting “she was told she had no choice but to plead guilty” and that “her plea was not
knowing and voluntary because ‘she did not fully understand the interplay between what
her guideline range could be versus the final sentence.’” J.A. 107 (quoting Motion to
Withdraw Plea, No. 3:19-cr-00147-RJC-DCK-1 (W.D.N.C. May 22, 2020), ECF No. 43).
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She also asserted her legal innocence, arguing that she never acted with the requisite intent
to defraud.
Evaluating the motion, the district court found that “[a] proper Rule 11 hearing was
conducted,” during which Taylor-Sanders “testified under oath that she understood the
maximum penalty she faced, that she understood the terms of her Plea Agreement, that no
additional promises had been made to her, that she was satisfied with her attorney, and that
[the] Amended Factual Basis was true.” J.A. 113. The court therefore denied Taylor-
Sanders’s motion to withdraw, concluding that Taylor-Sanders’s claim was “not credible”
and that she had “failed to establish a fair and just reason to justify withdrawal of her guilty
plea.” J.A. 110–11.
In October 2020, the district court conducted Taylor-Sanders’s sentencing hearing.
The Government presented testimony from an FBI agent about the insurance fraud
investigation and testimony from a DW Express employee regarding the severe financial
impact of Taylor-Sanders’s fraud on DW Express’s business. Taylor-Sanders took the
stand and again disputed her guilt, claiming that the allegedly fictitious loans were not
fabricated and that DW Express was responsible for the lapse in its insurance coverage.
The district court found that the Government’s witnesses were credible, that the
documents it submitted were consistent with the factual basis document and Presentence
Investigation Report, and that the evidence “overwhelmingly establishe[d] a factual basis”
for Taylor-Sanders’s guilty plea. J.A. 238. In contrast, the district court found that Taylor-
Sanders’s testimony was not credible, noting Taylor-Sanders was “thoroughly impeached
by her prior misstatements in other arenas.” J.A. 238. The district court further found that
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Taylor-Sanders had “engaged in a pattern of fraudulent activity over a lengthy period of
time involving multiple businesses in which she received funds to obtain insurance
policies, and on multiple occasions either failed to turn those funds over or . . . didn’t apply
for the insurance policy at all” and instead “used those funds for personal benefit and to
make Ponzi payments so that she could keep the fraudulent scheme alive.” J.A. 248.
The district court adopted the Presentence Investigation Report’s calculation of
Taylor-Sanders’s offense level as 25, including a two-point increase for causing DW
Express substantial financial hardship and another two-point increase for unauthorized use
of a means of identification. Since Taylor-Sanders had a criminal history category of I, the
district court calculated her Guidelines sentencing range as 57 to 71 months. It then
sentenced Taylor-Sanders to 66 months’ imprisonment, within that range, and entered
judgment.
In December 2020, the Government requested more than $700,000 in total
restitution. It sought $242,092.47 of restitution for harm to BankDirect Capital Finance.
And for DW Express, the Government requested:
1) $125,363.80 for the value of the totaled truck and interest payments owed on
a loan that financed the truck;
2) $21,821.25 for the loss of the flatbed trailer destroyed in the accident;
3) $62,874.59 for the total value of loan payments DW Express made to
Taylor-Sanders that she failed to transfer to BankDirect Capital Finance;
4) $120,030.68 for towing fees, storage fees, cleanup costs, and destroyed cargo
expenses that DW Express incurred because of the accident; and
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5) $139,847.09 for the profits DW Express lost from April 2019 through April
2020 because it could not use the destroyed truck and trailer, 2
for a total of $469,937.41.
On March 10, 2021, the district court ordered Taylor-Sanders to pay restitution in
the amounts the Government requested.
Taylor-Sanders now raises several challenges to her guilty plea, sentence, and
restitution order. 3 She argues that her guilty plea was not knowing and voluntary because
of the stops and starts during her Rule 11 colloquy, that the district court miscalculated her
offense level, and that the district court made several errors when awarding DW Express
restitution. Among Taylor-Sanders’s challenges to the restitution award is a claim that the
district court lacked authority under the Mandatory Victims Restitution Act to award
restitution for DW Express’s lost profits.
II.
A.
At the outset, we must determine whether Taylor-Sanders’s guilty plea and plea
waiver were valid. United States v. Blick, 408 F.3d 162, 168–69 (4th Cir. 2005). While
Taylor-Sanders’s plea agreement contained an appeal waiver, the existence of such a
waiver does not bar our review of the validity of the guilty plea and plea waiver. See United
States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991).
2
The Government estimated lost profits as the profits earned from a similar truck
in the previous year.
3
Taylor-Sanders timely appealed her conviction, sentence, and restitution order. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
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“[W]e review the acceptance of a guilty plea under the harmless error standard.”
United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016). “Under harmless error review,
‘[a]ny deviation from the requirements of Rule 11 is reversible unless the government
demonstrates that it was harmless.’” United States v. Martinez, 277 F.3d 517, 524 (4th Cir.
2002) (alteration in original) (quoting United States v. Lyons, 53 F.3d 1321, 1322 n.1 (D.C.
Cir. 1995).
Rule 11 requires that, before accepting a guilty plea, a district court “must ensure
that the defendant understands the nature of the charges to which the plea is offered, any
mandatory minimum penalty, the maximum possible penalty, and the various rights the
defendant is relinquishing by pleading guilty.” Williams, 811 F.3d at 622. The district court
must also “determine that the plea is voluntary and that there is a factual basis for the plea.”
Id. “[I]n the absence of extraordinary circumstances, the truth of sworn statements made
during a Rule 11 colloquy is conclusively established.” United States v. Lemaster, 403 F.3d
216, 221–22 (4th Cir. 2005). Accordingly, a properly conducted Rule 11 colloquy raises
“a strong presumption that the plea is final and binding.” United States v. Bowman, 348
F.3d 408, 414 (4th Cir. 2003) (quoting United States v. Lambey, 974 F.2d 1389, 1394 (4th
Cir. 1992) (en banc)).
“Generally, if a district court questions a defendant regarding the waiver of appellate
rights during [a properly conducted] Rule 11 colloquy and the record indicates that the
defendant understood the full significance of the waiver,” we will also hold that the appeal
waiver is valid. United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012); see also
United States v. Boutcher, 998 F.3d 603, 608 (4th Cir. 2021) (“A ‘valid’ appeal waiver is
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one entered by the defendant knowingly and intelligently, a determination that [the Court]
make[s] by considering the totality of the circumstances.”).
Here, the magistrate judge conducted a proper Rule 11 colloquy. The magistrate
judge confirmed that Taylor-Sanders had reviewed the charge with counsel, understood the
contents and possible consequences of her plea agreement, and was voluntarily pleading
guilty. When Taylor-Sanders twice expressed concerns about the plea agreement or factual
basis document, the magistrate judge provided a recess for her to convene with counsel and
make any necessary changes to the plea agreement before proceeding.
While Taylor-Sanders claims the interruptions in the colloquy show her plea was
not knowing or voluntary, they in fact demonstrate the opposite. The magistrate judge took
great care in ensuring that Taylor-Sanders received the time she needed to fully understand
the terms and consequences of her guilty plea. If the magistrate judge had ignored Taylor-
Sanders’s hesitations and continued the colloquy uninterrupted, that may have raised
questions about Taylor-Sanders’s knowingness. That the magistrate judge instead
addressed her uncertainties by pausing the proceedings demonstrates that the process,
though bumpy, constituted a full and proper Rule 11 colloquy. Accordingly, we hold that
Taylor-Sanders’s guilty plea is valid and binding.
We also conclude that Taylor-Sanders’s appeal waiver was valid. The plea
agreement unequivocally states that Taylor-Sanders waived “all rights to contest the
conviction and sentence in any appeal” except for claims of ineffective assistance of
counsel and prosecutorial misconduct. S.J.A. 636 ¶ 17. And during the Rule 11 colloquy,
the magistrate judge explained the appeal waiver and Taylor-Sanders affirmed that she
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understood it. Since Taylor-Sanders’s appeal waiver was included in her plea agreement
and addressed during the Rule 11 colloquy, and since the plea agreement was valid, her
appeal waiver is also valid.
B.
Because Taylor-Sanders’s plea agreement included a valid appeal waiver, we next
consider whether the issues she raises on appeal fall within the scope of the waiver. In
doing so, we interpret the plea agreement via basic principles of contract law, but “with a
greater degree of scrutiny than we would evaluate a contract in a civil context.” Boutcher,
998 F.3d at 608. “Nonetheless, courts cannot rewrite agreements or construe ambiguities
when none exists.” Id. at 608–09.
“[R]estitution is . . . part of [a] criminal defendant’s sentence.” Cohen, 459 F.3d at
496. And Taylor-Sanders’s appeal waiver broadly and unambiguously bars claims
regarding Taylor-Sanders’s conviction and sentence. When an issue falls within the scope
of a valid appeal waiver, we generally enforce the waiver by declining to hear the covered
issues. Adams, 814 F.3d at 182. Each of the issues Taylor-Sanders raises on appeal
regarding calculation of her offense level or restitution fall within that broad waiver, so we
must dismiss her appeal.
To be sure, there are narrow circumstances in which we will not enforce an appeal
waiver that is otherwise applicable. See United States v. Broughton-Jones, 71 F.3d 1143,
1146 (4th Cir. 1995) (“[E]ven valid appeal waivers will not bar appellate review of every
sentence.” (citing United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992))); Marin, 961
F.2d at 496 (“[A] defendant who waives his right to appeal does not subject himself to
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being sentenced entirely at the whim of the district court.”). One exception permits us to
review claims that the district court’s sentence or restitution order exceeded the court’s
statutory authority. Cohen, 459 F.3d at 497–98. Taylor-Sanders attempts to frame one issue
on appeal—her appeal regarding the district court’s order of restitution for DW Express’s
lost profits—as falling under this exception. We are not persuaded.
We have stated that this exception permits “appellate review of a sentence imposed
in excess of the maximum penalty provided by statute or based on a constitutionally
impermissible factor such as race.” Marin, 961 F.2d at 496. But in doing so, we have
distinguished claims that a sentence is “illegal” because the district court lacked the
authority to issue the sentence (which remain reviewable despite an appeal waiver) from
claims that a sentence was “imposed in violation of law” because it has otherwise merely
“been touched by a legal error” (in which case we will enforce the appeal waiver).
Thornsbury, 670 F.3d at 539.
For example, if the district court imposes a term of imprisonment that exceeds the
statutory maximum, the resulting sentence is illegal as beyond the court’s authority, and
our review will not be barred by an appeal waiver. See Marin, 961 F.2d at 496. But while
a district court’s failure to consider a nonfrivolous argument at sentencing might mean that
a sentence is imposed in violation of law, that is a legal error, the appeal of which can be
barred by an appeal waiver. See United States v. McGrath, 981 F.3d 248, 250 (4th Cir.
2020).
In the restitution context, we have applied this exception to review claims that a
district court lacked the authority to order restitution at all. See Broughton-Jones, 71 F.3d
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at 1147 (“Because a restitution order imposed when it is not authorized by the [Victim and
Witness Protection Act] is no less ‘illegal’ than a sentence of imprisonment that exceeds
the statutory maximum, appeals challenging the legality of restitution orders are similarly
outside the scope of a defendant’s otherwise valid appeal waiver.”). But we held in United
States v. Boutcher that when a district court commits legal error by valuing restitution as
the amount of a defendant’s profit rather than of a victim’s loss, that error falls within the
scope of an appeal waiver because it challenges the amount of restitution rather than the
court’s authority to impose restitution at all. Boutcher, 998 F.3d at 610 (citing Cohen, 459
F.3d at 497–500).
Here, the restitution order included $139,847.09 for a year of DW Express’s lost
profits. This amount was calculated based on the profits from a truck similar to the totaled
truck in the year preceding the wreck, on the theory that, but for Taylor-Sanders’s fraud,
DW Express would have quickly replaced the wrecked truck and trailer with insurance
proceeds and continued to enjoy profits from their use. Taylor-Sanders argues that this
portion of the restitution order exceeded the scope of the court’s authority because “[t]he
plain language in 18 U.S.C. § 3663A(b)(1) does not authorize a district court to order
restitution for lost income in cases involving property.” Opening Br. at 24.
Taylor-Sanders’s argument is foreclosed by our decision in Boutcher. 4 Just like the
defendant in Boutcher, Taylor-Sanders does not dispute that the Mandatory Victims
Restitution Act permits restitution for the offense for which she was convicted. And this
4
We express no opinion on the merits of Taylor-Sanders’s interpretation of
§ 3663A(b)(1) and instead limit our analysis to whether the issue was waived.
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case and Boutcher involve a claim that the district court misinterpreted the definition of
restitution in § 3663A(b)(1) and by doing so erroneously increased the amount of
restitution it ordered. Taylor-Sanders has not offered, and we cannot discern, any reason to
distinguish the legal error claimed in Boutcher from that claimed here. Accordingly, we
must also dismiss Taylor-Sanders’s lost-profits claim. 5
III.
We conclude that each of Taylor-Sanders’s claims on appeal are barred by the
appeal waiver in her guilty plea. Therefore, her appeal is
DISMISSED.
5
In addition to dismissing the appeal as to Taylor-Sanders’s sentencing and
restitution claims, we dismiss her appeal related to claims for ineffective assistance of
counsel and prosecutorial misconduct. Taylor-Sanders raised those two issues without any
substantive argument to avoid procedural default in the event of a post-conviction
challenge. “A party waives an argument by failing to present it in its opening brief or by
failing to develop its argument—even if its brief takes a passing shot at the issue.” Grayson
O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (cleaned up). Because Taylor-
Sanders fails to raise substantive arguments on these issues, we dismiss them as waived.
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