United States v. Dina Smith ( 2010 )

Case: 09-50343 Document: 00511322225 Page: 1 Date Filed: 12/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 15, 2010
No. 09-50343
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DINA CLARISE SMITH,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-251-1
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Dina Clarise Smith pleaded guilty, pursuant to a plea agreement, to one
count of bank fraud and one count of aggravated identity theft. These charges
arose out of a scheme in which Smith, an accountant, wrote fraudulent checks
on her client’s bank account. Smith made the checks payable to herself and
forged the signatures of those authorized to sign them. The district court
sentenced her to a 33-month prison term on the bank-fraud count and a 24-
month prison term on the aggravated-identity-theft count, to be served
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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consecutively. The court also ordered her to pay $211,262.99 in restitution to
three victims.
Smith first argues that the factual basis was inadequate to support her
guilty plea on the identity-theft charge because, she asserts, it did not support
the conclusion that she knew the identities used to commit the offense belonged
to others as United States v. Flores-Figueroa, 129 S. Ct. 1886, 1894 (2009)
requires. Smith did not raise the argument in the district court, and thus our
review is for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).
In the factual basis, which Smith signed and which she attested was
accurate at the rearraignment hearing, she admitted that only three people had
the authority to sign checks on behalf of her client and that each time she made
a check payable to herself she forged the signatures of two them. Nothing in the
record suggests that Smith’s scheme did not involve the identities of actual
people; to the contrary, the success of the scheme necessitated that she use the
names of the actual people with authorization to sign the checks. Contrary to
Smith’s assertion, she was not required to explicitly admit that she knew that
the names used to forge the checks belonged to the those who were authorized
to sign them; the facts that she admitted were more than sufficient to draw this
inference. See United States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008).
Smith next contends that the Government did not meet its burden to show
that two of the victims suffered losses entitling them to restitution. We assume
without deciding that the appeal waiver in the plea agreement does not bar this
argument. See United States v. Smith, 528 F.3d 423, 425 (5th Cir. 2008). Smith
failed to object to the findings in the presentence report (PSR) related to
restitution or to the restitution order in the district court; thus, our review is for
plain error. See United States v. Howard, 220 F.3d 645, 647 (5th Cir. 2000). The
PSR reflects that a probation officer contacted four potential victims and that
three declared losses. Those reported losses were the basis of the PSR’s
restitution recommendation, which the district court adopted. Smith presented
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no information to the district court suggesting that these victims did not suffer
the losses they reported. Indeed, at the sentencing hearing, defense counsel
expressly agreed that the recommended restitution as described in the PSR was
correct. Moreover in her brief to this court, Smith fails to explain how the
information in the PSR is inaccurate. Because Smith failed to rebut the findings
in the PSR, the district court did not plainly err in adopting them and using
them as the basis for ordering restitution. See United States v. Smith, 528 F.3d
at 425.
Finally, Smith argues that the district court erred in assessing a two-level
offense-level enhancement for using sophisticated means to implement her
scheme. However, in the plea agreement, Smith agreed that she would not
challenge her conviction or sentence on appeal except in limited circumstances
not applicable here. Smith maintains that her appeal waiver should not be
enforced because at sentencing the district court told her the she had the right
to appeal unless this right had been waived as part of the plea agreement, that
she had the right to counsel on appeal, and that a notice of appeal was due
within 10 days. Smith explains that this information conflicted with other
information she received about the waiver and argues that the district court did
not ensure that she fully understood her right to appeal and the consequences
of waiving the right.
We enforce appeal waivers as long as they are made voluntarily and
intelligently. United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). Smith
signed the plea agreement, which included the waiver provision, attesting that
she had read it, had discussed it with her lawyer, and would comply with its
terms. At the rearraignment hearing, Smith again affirmed that she accepted
and approved of the agreement, and she waived a reading of it. She did not ask
any questions regarding the scope of the appellate waiver. Thus, her waiver is
valid. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
Moreover, there was no error in the district court’s statement at sentencing
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regarding Smith’s appellate rights. The court explained to Smith that she had
the right to appeal and to appointment of counsel on appeal “assuming your
rights to appeal were not given up or waived as part of your plea agreement.”
Because Smith had waived her right to appeal, there can be no confusion that
the rights the court explained did not apply to her. The court’s comments did not
render the appeal waiver unknowing; indeed, they were entirely consistent with
the waiver.
Smith also argues that the appeal waiver does not bar her sentencing
appeal because the waiver does not explicitly forbid challenges to the guidelines
calculations. We enforce broad appellate waivers and have declined to examine
the correctness of applying a particular guideline where the defendant has
agreed to a general waiver of the right to appeal the sentence. United States v.
Bond, 414 F.3d 542, 546 (5th Cir. 2005). Moreover, Smith explicitly gave up her
right to challenge the guidelines calculations. In addition to the general appeal
waiver where Smith “waive[d] the right to appeal any aspect of the conviction
and sentence,” the agreement explained that Smith’s sentence would be
determined using the Sentencing Guidelines, that guidelines calculations “can
be extremely complicated” and that “[e]ven if the sentence is worse than [Smith]
expects,” she would “nonetheless be barred from” challenging the sentence on
appeal. Accordingly, we will enforce the waiver and decline to address Smith’s
sentencing argument.
AFFIRMED.
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