United States v. Jalloul

Case: 21-10434 Document: 00516461128 Page: 1 Date Filed: 09/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-10434 September 6, 2022
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Steven Riad Jalloul,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-94-1
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Steven Riad Jalloul pleaded guilty to two counts of preparing false tax
returns in violation of 26 U.S.C. § 7206(2). At sentencing, the district court
ordered him to pay $14,100,029.87 in restitution to the IRS. Jalloul did not
object. He now challenges that restitution order, arguing it is a criminal
monetary penalty that exceeds the maximum statutory sentence because it is
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-10434
neither authorized by the statute of conviction, nor agreed to in the plea
agreement. Because the restitution order was authorized by the statute and
Jalloul agreed to it in his plea agreement, we AFFIRM.
* * *
The Government first argues that Jalloul’s appeal is barred by the
appeal-waiver provision in his plea agreement. But this appeal falls within the
agreement’s exception for a direct appeal of “a sentence exceeding the
statutory maximum.” See United States v. Kim, 988 F.3d 803, 811 (5th Cir.
2021) (holding “an otherwise valid appeal waiver is not enforceable to bar a
defendant’s challenge on appeal that his sentence, including the amount of a
restitution order, exceeds the statutory maximum”), cert. denied, 142 S. Ct.
225 (2021). Nevertheless, Jalloul’s appeal ultimately fails.
“Because a restitution order that exceeds the court’s statutory
authority is an illegal sentence, which always constitutes plain error, we
review de novo the legality of a restitution order, regardless of whether the
defendant raised this objection at sentencing.” United States v. Penn, 969
F.3d 450, 458 (5th Cir. 2020), cert. denied, 141 S. Ct. 2526 (2021); see also
United States v. Swenson, 25 F.4th 309, 322 (5th Cir. 2022). The Government
seeks leave to file a supplemental brief arguing that plain-error review applies.
Although some cases have applied plain-error review, we need not here
resolve which standard of review applies because Jalloul’s arguments fail
even under the more lenient one. See United States v. Pursley, 22 F.4th 586,
591 (5th Cir. 2022). Therefore, the Government’s motion for leave to file a
supplemental brief is DENIED as moot.
A district court may impose restitution only as authorized by statute.
Penn, 969 F.3d at 458. Restitution is generally not statutorily authorized for
Title 26 offenses. See 18 U.S.C. § 3663. But 18 U.S.C. § 3663(a)(3) allows a
district court to “order restitution in any criminal case to the extent agreed
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No. 21-10434
to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3); United States
v. Stout, 32 F.3d 901, 905 n.5 (5th Cir. 1994) (quoting § 3663(a)(3)). We treat
plea agreements like contracts, considering a defendant’s reasonable
understanding of the agreement and construing ambiguities against the
Government. See United States v. Escobedo, 757 F.3d 229, 233 (5th Cir. 2014);
United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
Jalloul’s plea agreement stated that the district court could impose
“restitution to victims or to the community, which may be mandatory under
the law, and which the defendant agrees may include restitution arising from
all relevant conduct, not limited to that arising from the offense of conviction
alone.” Further, the paragraph detailing the defendant’s agreement
stipulated, “The defendant fully understands that any financial obligation
imposed by the Court, including a restitution order and/or the
implementation of a fine, is due and payable immediately. . . . The defendant
understands that the defendant has a continuing obligation to pay in full as
soon as possible any financial obligation imposed by the Court.”
Jalloul argues that the plea agreement’s language is ambiguous, and he
did not explicitly agree to pay restitution. We held in United States v. Miller
that identical plea language unambiguously constituted an agreement to pay
restitution. 406 F.3d 323, 330 (5th Cir. 2005). Jalloul contends this line was
dicta, but he is wrong. See United States v. Wallace, 964 F.3d 386, 390 (5th
Cir. 2020), cert. denied, 141 S. Ct. 910 (2020) (noting that alternative holdings
are binding and not dicta); United States v. Segura, 747 F.3d 323, 328 (5th Cir.
2014). Because Jalloul agreed to pay restitution, the criminal monetary
penalty was authorized by law. See § 3663(a)(3); Stout, 32 F.3d at 905 n.5.
AFFIRMED.
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