United States v. Carl Kieffer ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-2650, 14-2652 & 14-2653
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARL F. KIEFFER,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Illinois, Nos. 13-CR-30251-MJR,
14-CR-30051-MJR & 14-CR-30052-MJR — Michael J. Reagan, Chief Judge.
____________________
SUBMITTED FEBRUARY 10, 2015 — DECIDED JULY 27, 2015
____________________
Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judg-
es.
PER CURIAM. Carl Kieffer robbed the Bank of O’Fallon in
O’Fallon, Illinois, on October 15, 2013. He fled by car and led
police officers on a high-speed chase. The officers lost sight
of him temporarily but later found him hiding in a cornfield.
Mr. Kieffer confessed to robbing the bank, and the police re-
trieved the $3,330 he had stolen. Mr. Kieffer also confessed
that he had robbed six other banks (five outside Illinois) dur-
14-2650, 14-2652 & 14-2653 2
ing the previous two months. At the time of his arrest, he
faced charges for only two of those robberies, however, one
in Lusk, Wyoming, and another in Charlotte, Michigan.
Mr. Kieffer agreed to plead guilty to those robberies, and the
cases were transferred to the Southern District of Illinois and
consolidated with Mr. Kieffer’s prosecution for the robbery
in O’Fallon. See Fed. R. Crim. P. 20. Mr. Kieffer pleaded
guilty to all three robberies, see 18 U.S.C. § 2113(a), and he
signed a stipulation acknowledging his confession to com-
mitting the four uncharged robberies.
At sentencing the district court calculated a total offense
level of 28 and criminal history category of V, yielding a
guidelines imprisonment range of 130 to 162 months. The
total offense level was reached by separately calculating the
offense levels for all seven bank robberies, see U.S.S.G.
§ 1B1.2(c), and then applying a multiple-count adjustment,
see id. § 3D1.4. Mr. Kieffer received concurrent twenty-year
sentencesthe statutory maximum on each count, see 18
U.S.C. § 2113(a). The court also ordered Mr. Kieffer to pay
$10,615 in restitution to the banks he robbed in Wyoming
and Michigan, plus an additional $21,230 to the banks in the
four uncharged robberies.
On appeal, Mr. Kieffer challenges a portion of his restitu-
tion order as well as the calculation of his guidelines impris-
onment range. He does not challenge separately the reason-
ableness of his sentence, however, assuming the guidelines
range is properly calculated.
We begin by making two threshold points. First, as part
of his plea agreement, Mr. Kieffer agreed to relinquish his
appeal rights except that he could challenge “the reasona-
bleness of the sentence” if “the sentence imposed is in excess
14-2650, 14-2652 & 14-2653 3
of the Sentencing Guidelines as determined by the Court.”1
Neither issue presented by these appeals falls within that
narrow exception, which, typically, would constrain our re-
view. See United States v. Worden, 646 F.3d 499, 502–04 (7th
Cir. 2011). But the Government’s brief is silent about
Mr. Kieffer’s appeal waiver, so the Government has waived
reliance on that waiver. United States v. Adigun, 703 F.3d
1014, 1022 (7th Cir. 2012). Second, at sentencing Mr. Kieffer
did not object to the guidelines calculations or the order of
restitution, so the parties agree that our review is limited to
plain error.
As for the merits, Mr. Kieffer first argues that the district
court overstated his total offense level by including the four
uncharged robberies when applying the multiple-count ad-
justment of § 3D1.4. He denies stipulating that he committed
those robberies and argues that, instead, he stipulated only
to confessing that he committed those offenses when ques-
tioned by the FBI.
Mr. Kieffer may not disavow his stipulations by quib-
bling over semantics. To establish a factual basis for his
guilty pleas, Mr. Kieffer stipulated to the facts underlying
the three charged robberies. At the same time, he stipulated
that the Government could prove beyond a reasonable
doubt that he had “admitted [to] robbing” the four other
banks and that “the FBI has confirmed that [he] robbed”
those other banks. 2 This stipulation is sufficiently specific to
establish Mr. Kieffer’s commission of the four uncharged
robberies, and thus for a sentencing court to include those
robberies when applying the multiple-count adjustment.
1 R.31 at 10−11.
2 R.32 at 4−5.
14-2650, 14-2652 & 14-2653 4
See U.S.S.G. § 1B1.2(c); United States v. Shutic, 274 F.3d 1123,
1124–25 & n.1 (7th Cir. 2001); United States v. Brown, 14 F.3d
337, 339, 341 (7th Cir. 1994); United States v. Eske, 925 F.2d
205, 207 (7th Cir. 1991). Accordingly, the district court did
not commit any error—much less plain error—in calculating
Mr. Kieffer’s imprisonment range.
Mr. Kieffer next argues that the district court lacked au-
thority to order him to pay restitution to the banks in the un-
charged robberies because those banks were not victims of
the offenses of conviction. The Government counters that
“discretionary” restitution was properly ordered as a condi-
tion of supervised release because the uncharged robberies
were included as additional counts of conviction when cal-
culating Mr. Kieffer’s guidelines range. 3
The Government’s argument suffers from two shortcom-
ings, the first of them factual. The district court may have
intended to impose restitution for the uncharged robberies
only as a condition of supervised release, but the judgments
of conviction go further. Each judgment does order total
payment of $21,230 to the four banks as a condition of su-
pervised release. Yet those judgments also impose total resti-
tution of $31,845 (the unrecovered losses from all seven rob-
beries) as “criminal monetary penalties” payable “immedi-
ately.” 4 Conditions of supervised release do not have imme-
diate effect.
More importantly, an order of restitution for the un-
charged robberies is not sustainable even as a special condi-
tion of supervised release. The Government is incorrect in
3 Appellee’s Br. 25.
4 R.40 at 5−6.
14-2650, 14-2652 & 14-2653 5
asserting that the guidelines instructions for incorporating
uncharged offenses into the defendant’s total offense level
have any bearing on the legality of a restitution order.
See United States v. Locke, 759 F.3d 760, 765–66 (7th Cir. 2014)
(distinguishing roles of sentencing guidelines and restitution
statutes); United States v. McGee, 612 F.3d 627, 635–36 (7th
Cir. 2010) (same). The Government cites no case on point to
support its assertion, and we have not found one.
District judges may order restitution only if there is a
statutory basis to do so. United States v. Westerfield, 714 F.3d
480, 489 (7th Cir. 2013); United States v. Webber, 536 F.3d 584,
601 (7th Cir. 2008). Restitution as a condition of supervised
release, which the district court apparently intended to order
in this case, is governed by 18 U.S.C. § 3583(d), which au-
thorizes sentencing judges to impose conditions listed as
discretionary conditions of probation in 18 U.S.C.
§ 3563(b)(2). See United States v. Hassebrock, 663 F.3d 906, 923
(7th Cir. 2011); United States v. Batson, 608 F.3d 630, 634–35
(9th Cir. 2010). Section 3563(b)(2) authorizes restitution to
the extent permitted by 18 U.S.C. § 3556, which, in turn, di-
rects sentencing courts to follow the mandates of the statutes
governing mandatory and discretionary restitution, 18
U.S.C. § § 3663, 3663A, without being confined to particular
offenses, see United States v. Frith, 461 F.3d 914, 919–20 (7th
Cir. 2006); Batson, 608 F.3d at 633−34. The restitution statutes
authorize restitution only for victims of an offense of convic-
tion unless the defendant consents to pay restitution to other
persons as part of a plea agreement, which Mr. Kieffer did
not do. See 18 U.S.C. § 3663(a)(1)(A), (a)(3); id. § 3663A(a)(3);
Hughey v. United States, 495 U.S. 411, 416 (1990); Frith, 461
F.3d at 919–20; United States v. Wells, 177 F.3d 603, 608–09
(7th Cir. 1999). This limitation applies even when restitution
14-2650, 14-2652 & 14-2653 6
is imposed only as a condition of supervised release.
See Frith, 461 F.3d at 919–20; Batson, 608 F.3d at 636–37; Unit-
ed States v. Varrone, 554 F.3d 327, 333–34 (2d Cir. 2009).
Mr. Kieffer did not consent as part of his plea agreement to
pay restitution to other persons, and the banks from the un-
charged robberies are not “tied to the specific conduct of
conviction.” Frith, 461 F.3d at 921. The restitution awarded
therefore is illegal. See id.; see also United States v. Menza, 137
F.3d 533, 537 (7th Cir. 1998) (explaining that restitution may
be awarded “to any victim of the…offense of conviction”).
We will correct this plain error, however, only if it affects
Mr. Kieffer’s substantial rights and seriously impugns the
fairness, integrity, or public reputation of the judicial pro-
ceedings. See United States v. Butler, No. 14-2770, 2015 WL
191150, at *4 (7th Cir. Jan. 15, 2015). Compelling Mr. Kieffer
to pay $21,230—a substantial sum—without any legal au-
thority affects his substantial rights, and so we exercise our
discretion to vacate the disputed award of restitution.
See United States v. Locke, 643 F.3d 235, 248 (7th Cir. 2011);
United States v. Allen, 529 F.3d 390, 397 (7th Cir. 2008); United
States v. Alburay, 415 F.3d 782, 789 (7th Cir. 2005); United
States v. Randle, 324 F.3d 550, 558 (7th Cir. 2003).
Accordingly, in each appeal the judgment is AFFIRMED,
except that the award of restitution to the banks involved in
the uncharged robberies is VACATED. The cases are RE-
MANDED for entry of corrected judgments providing for no
restitution in Case No. 13-CR-30251-MJR, $7,015 payable to
Lusk State Bank in Case No. 14-CR-30051-MJR, and $3,600
payable to Fifth Third Bank in Case No. 14-CR-30052-MJR.