United States v. Brandon Harris

Case: 17-14852 Date Filed: 09/19/2018 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14852
Non-Argument Calendar
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D.C. Docket No. 5:15-cr-00040-MTT-CHW-10
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON HARRIS,
a.k.a. Boo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(September 19, 2018)
Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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After pleading guilty, Brandon Harris was convicted of one count of
misprision of felony, in violation of 18 U.S.C. § 4, for concealing from law
enforcement his knowledge of the theft of firearms from a sporting-goods store.
At sentencing, the district court ordered Harris to pay the sporting-goods store and
its insurer a total of nearly $25,000 for the stolen firearms.
Harris argues on appeal that his guilty plea was unknowing and involuntary
because he was unaware, until sentencing, that he would be required to pay
restitution at all or in the amounts eventually ordered. And he asserts that the
government breached the terms of the plea agreement by seeking restitution at
sentencing. He desires either to excise the restitution order or to withdraw his
guilty plea altogether.
Harris suggests that our review is for plain error, which we apply to forfeited
claims not properly raised below. But plain-error review is not appropriate where,
as here, a defendant has waived the issues he raises on appeal. See United States v.
Lewis, 492 F.3d 1219, 1221 (11th Cir. 2007) (“[W]hile forfeited claims are
reviewed under [Fed. R. Civ. P.] 52(b) for plain error, waived claims are not.”).
“Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known right.” United
States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks omitted). For instance,
we have held that a defendant’s affirmative, voluntary, and knowing withdrawal of
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a sentencing objection waives review of such objection on appeal, even for plain
error. United States v. Horsfall, 552 F.3d 1275, 1283–84 (11th Cir. 2008); United
States v. Masters, 118 F.3d 1524, 1525–26 (11th Cir. 1997). Similarly, under the
doctrine of “invited error,” we have held that a party who induces or invites the
district court into making an error is precluded from contesting the error on appeal.
United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). This doctrine stems
from the common-sense notion that a party who invites the trial court to commit an
error cannot later cry foul on appeal. United States v. Brannan, 562 F.3d 1300,
1306 (11th Cir. 2009).
Here, Harris waived his challenges to the validity of his guilty plea and, with
it, to the restitution order. At sentencing, the district court offered to allow him to
withdraw his guilty plea based on his assertions that he was unaware that
restitution would be imposed as part of his sentence. See Doc. 324 at 18 (“I will let
you withdraw your guilty plea if that’s what you want to do.”). In other words, the
court offered Harris the very relief he seeks on appeal.
But Harris declined the district court’s offer with full knowledge of what
that entailed. Instead, he advised the court, first through counsel and then
personally, that he understood restitution was part of his guilty plea, he did not
wish to withdraw his guilty plea, and he was ready to finish sentencing and for the
court to award restitution as outlined in the presentence investigation report.
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Defense counsel then advised the court that, in counsel’s view, Harris’s decision to
proceed with sentencing, and to have the court order restitution, was knowing and
voluntary. We agree. And only after the court received Harris’s personal
assurance about these matters did it finish the hearing and order restitution.
Harris’s actions constitute waiver. Even assuming that the district court
erred during the plea colloquy, Harris knowingly and voluntarily refused to
withdraw his guilty plea and, instead, reaffirmed it with the knowledge that the
court would order him to pay $23,194 to the insurance company and $1,088 to the
sporting-goods store. By expressly telling the court to move forward with
sentencing and to impose restitution, with full knowledge of what that entailed,
Harris waived review, even for plain error, of any challenge he could have made to
voluntariness of his guilty plea based on his alleged lack of knowledge of
restitution. Cf. Masters, 118 F.3d at 1526 (“The plain error doctrine is inapplicable
in a situation such as this—where the defendant fully comprehends the error the
court is going to commit and nonetheless agrees to be bound by it.”).
Likewise, Harris cannot now argue that the plea agreement barred the
government from seeking restitution because he expressly agreed at sentencing that
restitution could be awarded as part of his plea. See Brannan, 562 F.3d at 1306. In
any case, the government breached no obligation in the plea agreement, because
nothing in the plea agreement prohibited the government from seeking restitution
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or a particular amount of restitution. To the contrary, Harris acknowledged in the
plea agreement that restitution could be awarded to any victims, even if specific
details were lacking.
For these reasons, we affirm Harris’s conviction and sentence.
AFFIRMED.
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