United States v. Fuad Jejna , 509 F. App'x 550 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 30, 2013
Decided June 3, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-2813 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v.
No. 10 CR 200-3
FUAD JEJNA, Joan B. Gottschall, Judge.
Defendant-Appellant.
Order
Fuad Jejna participated in the heist of more than $100,000 from a bank. He pleaded
guilty to bank larceny, 18 U.S.C. §2113(b), and together with the prosecutor stipulated
to a prison sentence of 46 months. See Fed. R. Crim. P. 11(c)(1)(C). The district judge
approved the agreement and imposed the 46-month sentence. As part of the agreement,
Jejna waived the right to appeal. After he nonetheless filed a notice of appeal, his lawyer
filed an Anders brief proposing that the appeal be dismissed as frivolous. We invited Je-
jna to respond, see Circuit Rule 51(b), and he chose not to use this opportunity.
Counsel reports that Jejna does not want to withdraw his guilty plea, so he properly
bypasses the question whether the Rule 11 colloquy was adequate. See United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002). Because the waiver of appeal stands or falls with
the plea, the appeal must be dismissed.
No. 12-2813 Page 2
There is one potential exception. The judgment directs Jejna to pay restitution, dur-
ing his imprisonment, by participating in the Inmate Financial Responsibility Program.
See 28 C.F.R. §§ 545.10, 545.11. Although the plea agreement’s waiver bars any contest
to the amount of restitution, it does not cover the method of collecting that sum. See
United States v. Shah, 665 F.3d 827 (7th Cir. 2011). The district court’s order to participate
in the Inmate Financial Responsibility Program is erroneous, for the reasons explained
in United States v. Sawyer, 521 F.3d 792, 794–95 (7th Cir. 2008). See also United States v.
Boyd, 608 F.3d 331, 335 (7th Cir. 2010).
Jejna’s counsel recognized the error and discussed it with his client, who elected not
to contest this aspect of the district judge’s order. (If Jejna plans to participate in the
Program, he has no reason to complain.) This waiver forecloses any relief here. Moreo-
ver, we concluded in Sawyer that errors in decisions about how restitution will be paid
(as opposed to the amount of restitution) do not meet the standards of plain error, be-
cause they do not affect the defendant’s substantial rights. A person who owes a partic-
ular amount as restitution does not have a “substantial right” in deferring the start of
payment, we held in Sawyer.
We therefore accept the Anders submission. Counsel is discharged, and the appeal is
dismissed as frivolous.