United States v. Curtis L. Johnson , 934 F.3d 716 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2350
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CURTIS L. JOHNSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cr-00053 — Michael J. Reagan, District Judge.
____________________
ARGUED APRIL 1, 2019 — DECIDED AUGUST 20, 2019
____________________
Before EASTERBROOK, SYKES, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. During an in-chambers confer-
ence among court and counsel, Curtis Johnson’s attorney
withdrew an objection to the restitution amount to be paid to
the victims of his client’s wire fraud. Johnson was not present.
Then, in open court, Johnson confirmed he no longer disputed
restitution, recognized the plea agreement included an appeal
waiver, pleaded guilty, and was sentenced. Johnson now
challenges his sentence, arguing he did not waive this appeal
2 No. 18-2350
and his sentence is unconstitutional because he was not pre-
sent when his attorney dropped the restitution objection. We
uphold the appeal waiver and dismiss Johnson’s appeal.
I
For almost three years, Johnson managed financial and
production operations for a business that produces hand rails
in Fishers, Indiana owned by the Tuttle family. 1 He kept the
books, paid vendors, purchased equipment, and entered into
loan agreements for the company, so he had access to and sig-
nature authority for the company’s bank accounts and the
company’s credit.
During that time Johnson defrauded the company by us-
ing its funds and credit card for personal expenses, including
a hot tub and three “company” cars for his family members.
He wired money directly from the company’s bank account
into his personal bank account, and he obtained company
loans from which he skimmed some proceeds.
The company discovered Johnson’s fraud and fired him,
but the damage was done. The business had to pay back the
loans, and the owners were forced to use personal retirement
and college savings to ward off creditors. The Tuttle family
ultimately lost its business.
Johnson was indicted on eight counts of wire and mail
fraud. He eventually pleaded guilty to one count of wire
fraud in violation of 18 U.S.C. § 1343. The plea agreement
1 Johnson’s titles were chief operating officer and chief financial officer
of Tuttle Aluminum and Bronze Co., Inc. and of Tuttle Railing Systems, a
division of Tuttle Aluminum, which we refer to collectively as “the com-
pany.”
No. 18-2350 3
contained an appeal waiver. It also stated the government’s
position that Johnson owed restitution totaling $211,428.80,
comprised of credit card purchases, vehicle payments, cash
withdrawals, wire transfers, and diverted loan proceeds.
Johnson agreed he owed the victims restitution, but he dis-
puted the amount.
The presentence investigation report adopted the govern-
ment’s restitution calculation. Johnson never submitted a sen-
tencing memorandum, and he has never specified his own
restitution figure. At one point he hypothesized that a loss
range between $40,000 and $95,000 would result in a lesser
offense level, but ultimately provided no calculation detailing
what he believed that figure should be.
Johnson’s guilty plea and sentencing took place at the
same hearing, during which the victims of Johnson’s crime
addressed the court. Before the hearing, the district judge met
with counsel for the government and the defendant in cham-
bers and off the record. Then, on the record early in the
hearing, the court reviewed the plea agreement with Johnson,
noting the in-chambers conference:
THE COURT: My understanding, in meeting
with counsel off the record, is that the amount
of restitution and loss is not in dispute now; is
that correct?
[DEFENSE COUNSEL]: That’s correct, Your
Honor.
THE COURT: … So restitution in the amount of
$211,428.80 plus interest will be ordered, … Do
you understand all of that?
THE DEFENDANT: Yes.
4 No. 18-2350
The court also reviewed with Johnson terms in the plea agree-
ment, including his previous dispute with the restitution
amount:
THE COURT: Next, over on page 6, there’s a
sentence regarding restitution. This indicates
that restitution is in dispute. It is no longer in
dispute; correct?
THE DEFENDANT: Yeah, yes.
The district court also twice reviewed with Johnson the
waiver of his right to appeal, which provided:
Direct Appeal:
… in exchange for the concessions made by the
Government in this Plea Agreement, … [t]he de-
fendant further agrees that in the event the
Court sentences the defendant to [a] sentence
within the applicable Advisory Guidelines
Range as calculated by the Court at sentencing,
… then the defendant expressly waives the de-
fendant’s right to appeal the sentence imposed
in this case on any ground, …
The court accepted Johnson’s guilty plea and adopted the
presentence report’s proposed guideline range of 21 to 27
months. In his allocution, Johnson told the court, “I under-
stand the restitution and, if given the opportunity, I will repay
all of that.“ Since the company fired him, Johnson had bought
into a small-town accounting practice and was earning some
money. The district court noted in its sentencing remarks the
tension between incarceration and securing restitution for the
victims through Johnson’s private sector earnings. After a
thorough and complete hearing, the district court sentenced
No. 18-2350 5
Johnson to 21 months’ imprisonment and ordered $211,428.80
in restitution, plus interest.
Johnson appeals. 2 According to him, the appeal waiver in
the plea agreement should not preclude this challenge, as he
was “sentenced unconstitutionally.” Johnson contends the
off-the-record, in-chambers conference was an integral part of
his sentencing hearing, so his absence violated his constitu-
tional right to be present at sentencing. He also asserts he did
not waive any arguments about the restitution, or his right to
attend the in-chambers conference.
II
A defendant may waive the right to appeal his sentence.
See FED. R. CRIM. P. 11(b)(1)(N). We review de novo the en-
forceability of an appeal waiver in a plea agreement. United
States v. Alcala, 678 F.3d 574, 577 (7th Cir. 2012) (citation omit-
ted). “A defendant may waive appellate rights through a plea
agreement, assuming such waiver is voluntary and know-
ing.” United States v. Galloway, 917 F.3d 604, 606 (7th Cir. 2019)
(citing United States v. Worthen, 842 F.3d 552, 554 (7th Cir.
2016). “A written appellate waiver signed by the defendant
will typically be voluntary and knowing, and thus enforcea-
ble through dismissal of a subsequent appeal.” Id. (citation
omitted).
2 Johnson’s notice of appeal challenges the judgment of conviction in
this case, and the conclusion of Johnson’s principal brief asks this court to
reverse and vacate his conviction and remand for further proceedings. But
the arguments in Johnson’s briefs challenge only his sentence, not the vol-
untariness of his guilty plea or any other aspect of his conviction. This dis-
crepancy is not material given our conclusion that Johnson waived this
appeal.
6 No. 18-2350
We interpret the terms of a plea agreement ‘‘according to
the parties’ reasonable expectations and construe any ambi-
guities in the light most favorable to the defendant.’’ United
States v. Shah, 665 F.3d 827, 837 (7th Cir. 2011) (citing United
States v. Quintero, 618 F.3d 746, 750 (7th Cir. 2010)). We also
consider the plea colloquy, evaluating whether the district
court ‘‘properly informed the defendant that the waiver may
bar the right to appeal.’’ Id. (with same citation).
The written plea agreement signed by Johnson included
the appeal waiver. He was sentenced within the guidelines
range to 21 months, so per the plea agreement he “expressly
waive[d his] right to appeal the sentence imposed in this case
on any ground.” “[R]estitution is part of a sentence,” United
States v. Perillo, 897 F.3d 878, 883 (7th Cir. 2018) (citations
omitted), so the waiver language includes Johnson’s chal-
lenge to that figure. See United States v. Worden, 646 F.3d 499,
502 (7th Cir. 2011) (“Because restitution is part of a criminal
sentence, and [the defendant] agreed not to challenge the sen-
tence, he may not appeal the restitution order.”) (citation
omitted).
Johnson argues his circumstances fall into a due process
exception to the appeal waiver. A defendant’s presence “is a
condition of due process to the extent that a fair and just hear-
ing would be thwarted by his absence, and to that extent
only.” United States v. Gagnon, 470 U.S. 522, 526 (1985) (per cu-
riam) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
Because restitution was the only issue remaining in the case
when he pleaded guilty and was sentenced—as evidenced by
him not stipulating to the government’s restitution figure in
the plea agreement—to uphold the waiver on that question,
he submits, would depart from the “minimum of civilized
No. 18-2350 7
procedure.” See United States v. Adkins, 743 F.3d 176, 192–93
(7th Cir. 2014) (holding an appeal waiver will not prevent a
defendant from challenging “some minimum of civilized pro-
cedure”).
Johnson also contends he focused his energies and defense
on the restitution debate, so that issue must be of a constitu-
tional magnitude. But due process violations do not turn on a
defendant’s subjective valuation of the alleged error. Rather,
to resurrect a right to an appeal this court has recognized
“fundamental errors,” United States v. Kratz, 179 F.3d 1039,
1042 (7th Cir. 1999). But this case does not present any of the
recognized examples of procedural defects marring a sen-
tence with fundamental error, such as a sentence based on the
defendant’s race, or which exceeds the statutory maximum
for the defendant’s particular crime. See Adkins, 743 F.3d at
192–93 (citing United States v. Bownes, 405 F.3d 634, 637 (7th
Cir. 2005)). For example, in Adkins the defendant’s sentence
included a special condition that prohibited “view[ing] or lis-
ten[ing] to” certain materials “or patroniz[ing] locations
where such material is available,” which this court invali-
dated as unconstitutionally vague and overbroad. 743 F.3d at
194. That is far afield from the detailed and substantiated res-
titution figure Johnson opposes.
There is no fundamental error here. At the plea and sen-
tencing hearing, the district court reviewed with Johnson in
detail what the appeal waiver meant. The court also gave ex-
amples of reasons that Johnson could still appeal despite the
waiver, such as prosecutorial misconduct or a retroactive ben-
eficial amendment to the sentencing guidelines. Johnson said
he understood it would be difficult to pursue such an appeal
and acknowledged the slim chances of success. And in
8 No. 18-2350
exchange for his promises in the plea agreement—including
the appeal waiver—Johnson obtained dismissal of seven of
the eight counts in the indictment. See United States v. Wenger,
58 F.3d 280, 282 (7th Cir. 1995) (“[Defendant] exchanged the
right to appeal for prosecutorial concessions; he cannot have
his cake and eat it too.”)
Next, Johnson claims he did not intentionally relinquish
any arguments about the restitution amount. We construe
waiver principles liberally in favor of defendants. United
States v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005) (cita-
tions omitted). But the topic of restitution arose approxi-
mately twenty times during the plea and sentencing hearing.
Though Johnson spoke numerous times during the nearly
one-hour hearing, he did not object to his absence from the in-
chambers meeting, or to the court’s statement that the dispute
about the restitution amount had been resolved. Despite nu-
merous opportunities to dispute the amount of restitution
owed, Johnson never spoke up to contest that figure.
Indeed, shortly after Johnson was placed under oath, he
expressly agreed to the precise restitution amount of
$211,428.80. So even if the appeal waiver did not preclude this
argument, the record of the plea and sentencing hearing
shows Johnson deliberately abandoned his position that the
restitution figure should be less. See United States v. Hathaway,
882 F.3d 638, 642 (7th Cir. 2018) (holding defendant waived
and did not just forfeit any objections to calculation of restitu-
tion amount).
In sum, Johnson’s circumstances do not present a due pro-
cess exception to the rule that most written appeal waivers are
effective. Although there are limits to an appeal waiver, see
Bownes, 405 F.3d at 637, Johnson does not fall outside them.
No. 18-2350 9
Johnson’s appeal waiver resolves this case. For the reasons
discussed, we DISMISS this appeal.