United States v. Romel Murphy ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3781
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United States of America
Plaintiff - Appellee
v.
Romel Murphy
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: October 17, 2022
Filed: January 17, 2023
[Unpublished]
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Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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PER CURIAM.
Romel C. Murphy pled guilty to one count of wire fraud, in violation of 18
U.S.C. § 1343, pursuant to a plea agreement. The agreement required him to make
restitution under 18 U.S.C. §§ 3663 and 3663A. He appeals, objecting to the
restitution amount. 1 Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Murphy defrauded clients by soliciting funds for music performances by
famous artists, but then keeping the funds for himself. His plea agreement required
paying the “full amount of the victims’ losses,” with specific amounts to be
“investigated during the course of preparation of the presentence investigation
report.” Murphy objected to the loss amount in the draft PSR, noting that the parties
would attempt to resolve the disagreement before sentencing. The final PSR
recommended that Murphy pay total losses of $410,582.
At sentencing, the district court initially said that the total restitution was
$411,908.23. It immediately corrected the number to $410,908.23. Relying on an
email from the government (copied to Murphy, but not in the record), the court read
an itemized list of the amounts payable, naming each victim. The court again said
the total was $410,908.23. But the itemized amounts actually totaled $414,433.23.
Later during the sentencing hearing, the court set a restitution amount at
$414,433.23. Defense counsel agreed to the amount.
Murphy argues that the district court clearly erred by awarding more
restitution than the record supports, which he claims is $400,582. Murphy waived
this argument by agreeing to the amount ordered by the district court.
Waiver is “an intentional relinquishment or abandonment of a known right or
privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Waiving a right or
privilege “‘extinguish[es]’ any potential error and leaves nothing to correct” on
appeal. United States v. Evenson, 864 F.3d 981, 983 (8th Cir. 2017), quoting United
States v. Olano, 507 U.S. 725, 732-33 (1993). See United States v. Chavarria-Ortiz,
828 F.3d 668, 671 (8th Cir. 2016) (“Waiver precludes appellate review.”). See
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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generally United States v. Campbell, 764 F.3d 874, 878 (8th Cir. 2014) (invited error
where the court announces an intent to take a certain act and defense counsel
“specifically approves” that action), quoting Matthew v. Unum Life Ins. Co. of Am.,
639 F.3d 857, 868 (8th Cir. 2011).
Murphy stresses that he objected to the draft PSR. At sentencing, the district
court stated its understanding that the parties had “resolved the restitution issues.”
The district court asked defense counsel if “the Court needs to rule on any of your
objections.” Defense counsel replied, “No, I do not believe the Court needs to rule
on any of those objections.” Later, defense counsel did “confirm” that the total was
$414,433.23. He added “that those were the figures that were discussed with me
ahead of this proceeding, and I had agreed to them.” See generally United States v.
Harrison, 393 F.3d 805, 808 (8th Cir. 2005) (finding that defendant waived his
sentencing challenge because the judge had “repeatedly identified the issues,” and
the defense counsel still requested the sentence). By withdrawing his objections and
agreeing to the amount of restitution, Murphy waived that argument on appeal. See
United States v. Burnette, 518 F.3d 942, 946 (8th Cir. 2008) (denying review of a
defendant’s argument that the drug quantities attributed to him were incorrect
because the defendant withdrew this objection to the PSR). See generally United
States v. Richardson, 238 F.3d 837, 841 (7th Cir. 2001) (sentencing challenge
waived when judge asked counsel if he objected to the sentencing enhancement, and
he said no), cited with approval in Harrison, 393 F.3d at 807; United States v.
Schrimsher, 58 F.3d 608, 609-10 (11th Cir. 1995) (finding that a defendant agreed
to pay restitution “in excess of the amount contemplated by the plea agreement” by
admission in the sentencing hearing). Cf. United States v. Chalupnik, 514 F.3d 748,
751, 752, 754-55 (8th Cir. 2008) (restitution amount reviewed for clear error where
the defendant opposed the restitution in a Sentencing Memorandum and the record
supported no amount); United States v. Frazier, 651 F.3d 899, 906 n.1, 911 (8th Cir.
2011) (restitution award reversed where defendant objected at sentencing to the
amount exceeding actual loss).
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The judgment is affirmed.
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