United States v. Henry Lo

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10219
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-00442-WHO-1
HENRY LO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick III, District Judge, Presiding
Argued and Submitted June 13, 2016
San Francisco, California
Filed October 5, 2016
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges, and Royce C. Lamberth,* District Judge.
Opinion by Judge Ikuta
*
The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
2 UNITED STATES V. LO
SUMMARY**
Criminal Law
The panel affirmed the district court’s restitution order
and forfeiture money judgment, both in the amount of
$2,232,894, in a case in which the defendant pleaded guilty
to three counts of wire fraud and mail fraud.
The panel held that the circumstances surrounding the
signing and entry of the plea agreement support the
conclusion that the defendant entered into the agreement
knowingly and voluntarily.
The panel rejected the defendant’s challenges to the
enforceability of the appeal waiver as to the restitution order.
The panel held that the plea agreement provided sufficient
information from which the defendant could have derived an
accurate estimate of the amount of restitution for which he
was liable, and rejected the argument that the restitution order
is an illegal sentence.
The panel rejected the defendant’s challenges to the
enforceability of the appeal waiver as to the forfeiture order.
The panel explained that one can validly waive the right to
appeal a forfeiture order issued as part of the sentence
regardless of whether the plea agreement provides the
defendant with a reasonably accurate estimate of the amount
of forfeiture or whether the defendant was given adequate
notice before a district court determined that amount.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LO 3
Rejecting the defendant’s arguments as to why the forfeiture
order constitutes an illegal sentence as to which the appeal
waiver is ineffective, the panel held:
(1) that the defendant received sufficient notice of the
forfeiture order;
(2) that because the government sought a money
judgment, not a forfeiture of specific property, the
government was not required to follow the procedures
applicable to its seeking of “substitute property” under
21 U.S.C. § 853(p) and Fed. R. Crim. P. 32.2(e);
(3) that forfeiture is not statutorily limited to amounts
traceable to the three counts to which the defendant pleaded
guilty – i.e., his three specific uses of the wires or mail – but
rather covers property, obtained by the defendant directly or
indirectly, as a result of the commission of the mail fraud or
wire fraud offense, which necessarily includes the fraudulent
scheme as a whole; and
(4) that the forfeiture order did not violate Apprendi v.
New Jersey.
4 UNITED STATES V. LO
COUNSEL
Martha Boersch (argued), Boersch Shapiro LLP, Oakland,
California, for Defendant-Appellant.
Meredith Osborn (argued), Assistant United States Attorney;
Barbara J. Valliere, Chief, Appellate Division; Brian J.
Stretch, United States Attorney; United States Attorney’s
Office, San Francisco, California; for Plaintiff-Appellee.
OPINION
IKUTA, Circuit Judge:
Henry Lo appeals the district court’s imposition of a
restitution order and a forfeiture money judgment, both in the
amount of $2,232,894, as part of his sentence for three counts
of wire fraud and mail fraud to which he pleaded guilty. The
district court had jurisdiction under 18 U.S.C. § 3231, and we
have jurisdiction under 28 U.S.C. § 1291. Because Lo validly
waived his right to appeal, and none of the exceptions to such
waivers are applicable, we dismiss this appeal.
I
On August 19, 2014, Henry Lo was indicted in district
court for two different schemes to defraud: wire fraud in
violation of 18 U.S.C. § 1343, and mail fraud in violation of
18 U.S.C. § 1341.
According to the indictment, Lo worked for Absolutely
New, Inc. (ANI), a consumer goods company headquartered
in San Francisco, from 2007 until 2010. Lo “knowingly and
UNITED STATES V. LO 5
with intent to defraud” devised and executed “a scheme and
artifice to defraud ANI” that involved several different uses
of the wires. From January 2008 until September 2010, Lo
used about $1,300,000 from ANI bank accounts to purchase
cashier’s checks, and either deposited them in his personal
account at the brokerage firm Charles Schwab & Co., Inc., or
used them to make payments on his personal line of credit at
Wells Fargo bank. In late 2010, Lo gained access to one of
ANI’s bank accounts, and from December 2010 until
February 2012 (after Lo left the company), he directed almost
$240,000 from that account into his own American Express
account. From January 2010 to February 2012, Lo caused
ANI to transfer around $550,000 to Lo’s PayPal account.
Finally, Lo also used a debit card linked to ANI’s bank
account to pay about $30,000 of his personal expenses. In
total, Lo stole more than $2,000,000 from ANI.
The indictment detailed specific acts that constituted use
of the wires to further Lo’s scheme to defraud. Counts 1
through 12 recited specific instances (including the date and
the dollar amount of the transfer) when Lo caused electronic
payments from an ANI bank account to be made to Lo’s
American Express account through American Express’s
computer servers. Count 1 alleged that Lo made an
“[e]lectronic payment in the amount of $26,750.00” on
January 4, 2011. Counts 13 through 24 recited twelve
additional instances when Lo caused electronic payments
from his PayPal account to be transferred to one of his bank
accounts. Count 13 alleged a “[t]ransfer in the amount of
$2,000.00” on January 26, 2010.
The indictment also charged Lo with mail fraud, in
violation of 18 U.S.C. § 1341. According to the indictment,
from March 2013 to June 2013, Lo “knowingly and with the
6 UNITED STATES V. LO
intent to defraud” executed a scheme to steal money from his
girlfriend, A.W. Lo persuaded A.W. to let him prepare her
tax returns, and then convinced A.W. to pay her estimated
taxes to the IRS by writing checks totaling more than
$125,000 to a Schwab account in the name of Lo’s wife. In
connection with this scheme, Lo forged confirmation
statements from Schwab which confirmed that her checks
would be sent to the IRS on A.W.’s behalf. He sent these
statements through the mail to A.W.
As with the wire fraud charges, the indictment also
detailed the acts that constituted use of the mail to further
Lo’s scheme to defraud. Counts 26 through 29 recited four
specific instances (including the date and the dollar amount)
of forged confirmation statements from Schwab. Count 26
alleged: “Statement purporting to confirm Schwab’s wire
transfer of $50,000.00 to the IRS on behalf of A.W.” on
April 2, 2013.
The indictment contained a forfeiture allegation under
18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), stating
that if convicted, Lo would forfeit to the United States
“property constituting, and derived from, proceeds the
defendant obtained directly and indirectly, as the result of
those violations, including, but not limited to, the following
real property or personal property.” The listed property
included one piece of real property and identified funds in
various bank or brokerage accounts. The forfeiture allegation
also stated that if any of the listed property was unavailable
as a result of an act or omission by Lo, “any and all interest
the defendant has in other property” would be forfeited to the
United States under 21 U.S.C. § 853(p).
UNITED STATES V. LO 7
On November 20, 2014, Lo entered into a plea agreement
with the government, in which he agreed to plead guilty to
Counts 1, 13, and 26 of the indictment. Lo admitted he was
guilty of the elements of both wire fraud and mail fraud,
including that he knowingly participated in a scheme or plan
to defraud. He also agreed that the maximum penalties
included restitution and forfeiture.
In section 2 of the plea agreement, Lo agreed to the truth
of the facts underlying his conviction. Among other things,
Lo specified the precise dollar amount of funds he had stolen
as part of his schemes to defraud. He admitted that he
transferred $239,053 of ANI funds into his American Express
account as part of the wire fraud scheme, that he transferred
payments totaling $564,311 to the PayPal account that he
controlled, that he used ANI funds to purchase $1,356,777 in
cashier’s checks that he deposited into his personal accounts,
and that he made $30,330 in purchases using an ANI debit
card for his personal expenses. Lo also agreed that he
induced A.W. to write more than $125,000 in checks to a
Schwab account in his wife’s name as part of the mail fraud
scheme. In total, Lo admitted to defrauding ANI and A.W. of
at least $2,315,469.
The plea agreement included Lo’s agreement to give up
the rights he would otherwise have if he chose to proceed to
trial. Section 4 of the plea agreement also contained an
appeal waiver, which stated:
I agree to give up my right to appeal my
convictions, the judgment, and orders of the
Court. I also agree to waive any right I have
to appeal any aspect of my sentence, including
8 UNITED STATES V. LO
any orders relating to forfeiture and or
restitution.
In Section 9, Lo agreed “to pay restitution for all the
losses caused by all the schemes or offenses with which [he]
was charged in this case,” and he further agreed that
restitution “will not be limited to the loss attributable to the
counts to which [he is] pleading guilty.” He continued, “I
agree that the Court may order and I will pay restitution in an
amount to be set by the Court, but in no event less than
$1,700,000 to ANI and $46,189.54 to A.W., less any amounts
paid by me to ANI or A.W. after the date of this Agreement.”
He also agreed that “any fine, forfeiture, or restitution
imposed by the Court . . . will be immediately due and
payable and subject to immediate collection by the
government.”
Before sentencing, the government made an application
for a preliminary order of forfeiture. Its application stated
that Lo’s thefts from ANI and A.W. totaled at least
$2,323,971, and accordingly that amount was subject to
forfeiture.
At his change of plea hearing on November 20, 2014, the
district court engaged Lo in a detailed colloquy as required by
Rule 11 of the Federal Rules of Criminal Procedure. Lo
stated that the plea agreement was voluntary and that he
understood and agreed to its terms. Further, Lo stated that he
understood that the terms in the plea agreement “are merely
recommendations” to the court, and that the court could
impose a sentence that was more severe than he anticipated,
without letting him withdraw his plea. During the course of
the Rule 11 colloquy, Lo reaffirmed several times his
understanding that the district court could impose a sentence
UNITED STATES V. LO 9
that was different or more severe than he had been told. Lo
admitted that he had engaged in schemes to defraud both ANI
and A.W. and that he had fraudulently obtained over $2.2
million. Lo stated that he understood that the court would
order restitution of at least $1,700,00 to ANI and at least
$46,190 to A.W.
The court also addressed the appeal waiver and asked Lo:
Now, do you also understand that under some
circumstances you or the government would
have the right to appeal any sentence that I
impose, but because of the agreement that
you’ve entered into in entering a plea of guilty
you will have waived or given up your right to
appeal or collaterally attack all or part of your
sentence?
Lo responded “yes” to this question.
At the conclusion of the sentencing proceedings, the
district court sentenced Lo to 70 months imprisonment. The
district court interpreted the government’s forfeiture
application as seeking a money judgment, and ordered a
forfeiture money judgment in the amount of $2,232,894. The
district court also ordered Lo to pay $2,232,894 in restitution
to ANI and A.W. Pursuant to the plea agreement, the district
court dismissed the remaining counts. Lo timely appealed.
II
Before addressing Lo’s claims, we must first address the
government’s argument that Lo waived his right to appeal
any aspect of the sentence by agreeing to an appeal waiver in
10 UNITED STATES V. LO
his plea agreement. “We review the question whether a
defendant has validly waived his statutory right to appeal de
novo.” United States v. Nguyen, 235 F.3d 1179, 1182 (9th
Cir. 2000), abrogated on other grounds by United States v.
Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). We also
review the district court’s interpretation of statutes and the
federal rules de novo. See United States v. Mancuso,
718 F.3d 780, 798 (9th Cir. 2013). Factual findings are
reviewed for clear error. United States v. Alcaraz-Garcia,
79 F.3d 769, 772 (9th Cir. 1996).
A
Plea agreements, including appeal waivers, are essentially
contracts that we interpret according to contract principles.
United States v. Gerace, 997 F.2d 1293, 1294 (9th Cir. 1993).
“This customary reliance on contract law applies to
interpretation of an appeals waiver within a plea agreement,
and we will generally enforce the plain language of a plea
agreement if it is clear and unambiguous on its face.” United
States v. Jeronimo, 398 F.3d 1149, 1152 (9th Cir. 2005),
overruled on other grounds by United States v. Jacobo
Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). As a
general rule, “[a] waiver of appellate rights ‘is enforceable if
(1) the language of the waiver encompasses his right to
appeal on the grounds raised, and (2) the waiver is knowingly
and voluntarily made.’” United States v. Medina-Carrasco,
815 F.3d 457, 461 (9th Cir. 2016) (quoting Jeronimo,
398 F.3d at 1153). “We will enforce a valid waiver even if
the claims that could have been made on appeal absent that
waiver appear meritorious, because ‘[t]he whole point of a
waiver . . . is the relinquishment of claims regardless of their
merit.’” Id. at 462–63 (alterations in original) (quoting
Nguyen, 235 F.3d at 1184).
UNITED STATES V. LO 11
We begin with the question whether the appeal waiver
was knowingly and voluntarily made. United States v.
Michlin, 34 F.3d 896, 898 (9th Cir. 1994). In making this
determination, we look “to the circumstances surrounding the
signing and entry of the plea agreement to determine whether
the defendant agreed to its terms knowingly and voluntarily.”
United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.
1996). A district court is required to inform the defendant of
“the terms of any plea-agreement provision waiving the right
to appeal or to collaterally attack the sentence,” see Fed. R.
Crim. P. 11(b)(1)(N), and we have held that similar
procedures are “sufficient to find a knowing and voluntary
waiver,” United States v. Watson, 582 F.3d 974, 987 (9th Cir.
2009) (quoting Baramdyka, 95 F.3d at 844).1 The failure of
a court to do so, however, is not plain error where evidence
in the record shows that the defendant waived appellate rights
knowingly and voluntarily. See id. (holding there was no
plain error in failing to comply with Rule 11(b)(1)(N) given
the otherwise “diligent colloquy” and the defendant’s
“written assurances that he adequately reviewed the terms of
the plea agreement”); see also United States v. Ma, 290 F.3d
1002, 1005 (9th Cir. 2002) (holding there was no plain error
in failing to comply with Rule 11(b)(1)(N) where “[t]he
whole record” disclosed that the defendant knowingly and
voluntarily waived her right to appeal). As a general rule, if
the plea agreement “is voluntary, and taken in compliance
1
The requirement that the court advise the defendant of the terms of
any plea-agreement provision waiving the right to appeal was added to
Rule 11 in 1999. See Fed. R. Crim. P. 11(b)(1)(N) (formerly Fed. R.
Crim. P. 11(c)(6) (1999)). To the extent our decisions considering pre-
amendment colloquies indicate that a district court need not inform the
defendant of the terms of an appeal waiver, see United States v. Anglin,
215 F.3d 1064, 1066 (9th Cir. 2000); United States v. DeSantiago-
Martinez, 38 F.3d 394, 395 (9th Cir. 1992), they are no longer good law.
12 UNITED STATES V. LO
with Rule 11, then the waiver of appeal must be honored”
because “waivers of appeal must stand or fall with the
agreement of which they are a part.” United States v.
Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999) (internal
quotation marks omitted).
While a defendant must waive the right to appeal
knowingly and voluntarily, the defendant need not be aware
of possible grounds of appeal. See United States v. Navarro-
Botello, 912 F.2d 318, 320 (9th Cir. 1990) (upholding an
appeal waiver as knowing and voluntary because the
defendant “knew he was giving up possible appeals, even if
he did not know exactly what the nature of those appeals
might be”). Further, a defendant can validly waive appeal
rights without being informed of the severity of the sentence
that will be imposed; indeed, we have upheld waivers where
the defendant’s counsel inaccurately informed the defendant
of the plea’s consequences, as long as the inaccuracy was not
a “gross mischaracterization.” See Jeronimo, 398 F.3d at
1155–57; see also United States v. Guillen, 561 F.3d 527, 529
(D.C. Cir. 2009) (“An anticipatory waiver — that is, one
made before the defendant knows what the sentence will be
— is nonetheless a knowing waiver if the defendant is aware
of and understands the risks involved in his decision.”). In
short, where the plea agreement itself is valid, see Portillo-
Cano, 192 F.3d at 1250, and the defendant “is aware of his
right to appeal . . . and . . . expressly waives that right,” the
appeal waiver is knowing and voluntary, DeSantiago-
Martinez, 38 F.3d at 395.
If we determine that the appeal waiver is knowing and
voluntary, the second step is to “focus . . . upon the language
of the waiver to determine its scope.” Baramdyka, 95 F.3d at
843. “The scope of a knowing and voluntary waiver is
UNITED STATES V. LO 13
demonstrated by the express language of the plea agreement.”
United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009)
(quoting Anglin, 215 F.3d at 1066). Because we construe
plea agreements according to the principles of contract law,
any ambiguities in the contract language are construed against
the drafter, which in this case is the government. Anglin,
215 F.3d at 1065–67. Where the appeal waiver is valid, it
will bar a defendant from bringing a number of possible
claims that fall within its scope, including claims that the
district court abused its discretion in denying the defendant’s
motion to withdraw his guilty plea, see Jeronimo, 398 F.3d at
1154, that the district court incorrectly applied the Sentencing
Guidelines, see Medina-Carrasco, 815 F.3d at 462; Michlin,
34 F.3d at 901, that the district court lacked personal
jurisdiction over the defendant, see Baramdyka, 95 F.3d at
844, and that the district court abused its discretion in
imposing a special geographical condition of supervised
release, see United States v. Watson, 582 F.3d 974, 980, 987
(9th Cir. 2009), among others.
Nevertheless, we have carved out a number of exceptions
to the rule that a defendant can waive the right to appeal
various claims. See United States v. Bibler, 495 F.3d 621
(9th Cir. 2007). Among other exceptions, we have held that
“a waiver of the right to appeal would not prevent an appeal
where the sentence imposed is not in accordance with the
negotiated agreement.” Navarro-Botello, 912 F.2d at 321;
United States v. Martinez, 143 F.3d 1266, 1271 (9th Cir.
1998). We have also held that “[a] waiver of the right to
appeal does not bar a defendant from challenging an illegal
sentence.” Watson, 582 F.3d at 977; United States v. Gordon,
393 F.3d 1044, 1050 (9th Cir. 2004). We defined “illegal
sentence” in this context to mean “one not authorized by the
judgment of conviction or in excess of the permissible
14 UNITED STATES V. LO
statutory penalty for the crime.” United States v. Vences,
169 F.3d 611, 613 (9th Cir. 1999) (internal quotation marks
omitted); see also Jeronimo, 398 F.3d at 1153 n.2
(cataloguing exceptions to appeal waivers).
We have also developed a special notice requirement for
appeal waivers relating to restitution orders, holding that in
order for that waiver to be valid a defendant must be “given
a reasonably accurate estimate of the amount of the restitution
order to which he is exposed” at the time the defendant agrees
to waive the appeal. See United States v. Tsosie, 639 F.3d
1213, 1217 (9th Cir. 2011). The development of this notice
requirement is relevant to our analysis. “[U]ntil 1982
restitution could not be imposed as a separate component of
a federal criminal sentence, but only as a condition of
probation pursuant to the Federal Probation Act of 1925.”
Catharine M. Goodwin, Looking at the Law: The Imposition
of Restitution in Federal Criminal Cases, Fed. Probation,
Dec. 1998, at 95, 95. The Federal Probation Act (FPA),
18 U.S.C. § 3651, repealed by Pub. L. No. 98-473, tit. II,
§ 212(a)(2), 98 Stat. 1837, 1987 (1984), allowed restitution
only “for actual damages or loss caused by the offense for
which conviction was had.” 18 U.S.C. § 3651. Despite this
narrow language, we held that a court could order restitution
for additional amounts if the defendant stipulated to those
amounts in a plea agreement and the “plea bargain is fully
explored in open court.” Phillips v. United States, 679 F.2d
192, 194 (9th Cir. 1982).
In 1982, Congress enacted the Victim and Witness
Protection Act (VWPA), 18 U.S.C. §§ 3663–3664, which for
the first time authorized restitution as “a separate component
of a federal criminal sentence,” Goodwin, Looking at the
Law, supra, at 95, and not just as a condition of probation.
UNITED STATES V. LO 15
Applying the precedent developed in the FPA context to this
new context, we held that a court could order restitution only
for: (1) “actual damages” as judicially determined, but only
after notice to the defendant; (2) an amount stipulated to in a
plea agreement2; or (3) the amount “alleged in the counts of
the indictment for which the conviction is had.” United
States v. Parrott, 992 F.2d 914, 917 (9th Cir. 1993). In light
of Parrott’s formulation of this rule, we subsequently
concluded that a court exceeded its authority in ordering
restitution for an amount that was neither clearly stipulated to
in a plea agreement nor based on a judicial determination of
actual damages after adequate notice to the defendant. United
States v. Phillips, 174 F.3d 1074, 1076 (9th Cir. 1999).
In 1996, Congress enacted another restitution statute, the
Mandatory Victims Restitution Act (MVRA), 18 U.S.C.
§ 3663A (the statute at issue in this case), to require
restitution for certain crimes. We continued applying the rule
we had developed in Parrott to this new statute. See Gordon,
393 F.3d at 1048; Tsosie, 639 F.3d at 1217. In Gordon, a
defendant agreed to pay approximately $14.5 million in
restitution, but the court ordered the defendant to pay
restitution totaling over $27 million. The court ordered the
higher amount of restitution without giving prior notice to the
defendant. We held that the defendant’s waiver of his right
to appeal the restitution order was not enforceable because
the defendant “lacked sufficient notice to waive his right to
appeal.” 393 F.3d at 1050. Similarly, in Tsosie, the plea
agreement contained an appeal waiver and provided that the
2
A 1990 amendment to the VWPA expressly provided that a court
could order such an amount. See 18 U.S.C. § 3663(a)(3) (“The court may
also order restitution in any criminal case to the extent agreed to by the
parties in a plea agreement.”).
16 UNITED STATES V. LO
defendant would make restitution as determined by the court.
639 F.3d at at 1216. At sentencing, the district court ordered
the defendant to pay $31,994 in restitution to the victim’s
mother. Id. at 1217. No prior notice had been given to the
defendant. We held that because the defendant’s plea
agreement did not set forth “a reasonably accurate estimate of
the amount of the restitution order to which he is exposed,”
id., the defendant lacked sufficient notice to waive his right
to appeal the restitution order, and therefore the appeal waiver
was unenforceable with respect to the restitution amount, id.
at 1218. We explained that “some precision in the plea
agreement is necessary to have a knowing appeal waiver” in
the restitution context because “there is neither a statutory
limit nor any guidelines covering the amount of restitution
orders.” Id. at 1219. Further, the amount of restitution may
“depend on a request or submission by a third party,” the
defendant may be unable to predict whether there will be a
request for restitution or the amount of such a request, and
therefore a defendant may plead guilty “believing that he will
not owe any restitution, when, in fact, the sky is the only limit
to his potential exposure.” Id.
B
We now apply these principles to Lo’s argument that the
appeal waiver does not bar his appeal of either the restitution
order or the forfeiture order.
As a preliminary matter, the circumstances surrounding
the signing and entry of the plea agreement support the
conclusion that Lo entered into the agreement knowingly and
voluntarily. The district court reviewed the plea agreement
thoroughly during the Rule 11 colloquy, which included
bringing the appeal waiver to Lo’s attention. The court also
UNITED STATES V. LO 17
warned Lo that the sentence could be greater than he had
been told. As a general rule, these factors indicate that the
plea agreement was voluntary and in compliance with Rule
11.3 In addition, the scope of Lo’s appeal waiver clearly
includes restitution and forfeiture; it states “I also agree to
waive any right I have to appeal any aspect of my sentence,
including any orders relating to forfeiture and or restitution.”
Under these circumstances, the appeal waiver is enforceable
absent an applicable exception.
Accordingly, we turn to Lo’s arguments that a number of
different exceptions are applicable here. We begin with his
claim that the appeal waiver does not bar his appeal of the
restitution order because the plea agreement did not give Lo
“a reasonably accurate estimate of the amount of the
restitution order to which he is exposed” at the time he agreed
to the appeal waiver, Tsosie, 639 F.3d at 1217, and therefore
his waiver was not knowing and voluntary. We disagree.
Our examination of the plea agreement shows that it provided
sufficient information from which Lo could have derived an
accurate estimate of the amount of restitution for which he
was liable. The plea agreement directly identified the
minimum amount of restitution Lo would be obliged to pay:
Lo agreed “that the Court may order and I will pay restitution
in an amount to be set by the Court, but in no event less than
$1,700,000 to ANI and $46,189.54 to A.W., less any amounts
paid by me to ANI or A.W. after the date of this Agreement”
3
In his reply brief, Lo argues that the appeal waiver is invalid because
the district court failed to apprise him of forfeiture at the plea colloquy in
violation of Rule 11. Because Lo did not raise this argument in his
opening brief, it is waived. See Omega Envtl., Inc. v. Gilbarco, Inc.,
127 F.3d 1157, 1167 (9th Cir. 1997) (declining “to address an argument
raised for the first time in the reply brief”).
18 UNITED STATES V. LO
(emphasis added). The plea agreement defined the additional
amounts of restitution that Lo would be obliged to pay. It
first stated that Lo would “pay restitution for all the losses
caused by all the schemes or offenses with which [he] was
charged in this case,” and that restitution “will not be limited
to the loss attributable to the counts to which [he is] pleading
guilty.” It set forth the exact amount of losses caused by each
of Lo’s fraudulent schemes. In total, the plea agreement
stated that Lo had defrauded ANI and A.W. of $2,315,469.
Accordingly, the plea agreement provided a reasonably
accurate estimate of the amount of restitution to which Lo
was exposed, and therefore his appeal waiver was knowing
and voluntary.
Lo next argues that his appeal waiver does not bar him
from challenging the restitution order because “the sentence
imposed is not in accordance with the negotiated agreement,”
Navarro-Botello, 912 F.2d at 321. According to Lo, he
agreed to pay only $1,700,000 to ANI and $46,190 to A.W.,
and the restitution order issued by the district court exceeded
that amount. The plain language of the plea agreement belies
this argument; the agreement clearly states that the
$1,700,000 and $46,189 amounts were the minimums that Lo
would have to pay rather than the maximum agreed-upon
restitution amount. The district court’s imposition of a larger
amount of restitution was not in conflict with the plea
agreement.
Finally, Lo argues that he may challenge the restitution
order because it is an illegal sentence. See Watson, 582 F.3d
at 977. According to Lo, the government presented no
evidence that the amounts at issue constituted losses to a
victim that were directly caused by Lo’s offenses, and
UNITED STATES V. LO 19
without such evidence, the court may not impose a restitution
order under the MVRA.
Again, we reject this argument. An award of restitution
is illegal only if it is not authorized for the offense at issue or
is in excess of the amount allowed by statute. Vences,
169 F.3d at 613. In this case, the award of restitution was not
only authorized but in fact mandatory. Under the MVRA, a
district court must order a defendant who has committed
specified offenses, including “any offense committed by
fraud or deceit,” 18 U.S.C. § 3663A(c)(1)(A)(ii), to make
restitution to the victim of the offense. United States v.
Anderson, 741 F.3d 938, 951 (9th Cir. 2013). A “victim” is
defined as “any person directly harmed by the defendant’s
criminal conduct in the course of the scheme, conspiracy, or
pattern.” 18 U.S.C. § 3663A(a)(2). Lo was convicted of wire
fraud and mail fraud, which are included in the class of
offenses for which restitution must be ordered. See 18 U.S.C.
§ 3663A(c)(1)(A)(ii); United States v. Thomsen, — F.3d —,
2016 WL 4039711, at *12 (9th Cir. July 28, 2016) (mail
fraud); United States v. Booth, 309 F.3d 566, 575–76 (9th Cir.
2002) (wire fraud). Further, Lo agreed in the plea agreement
that ANI and A.W. were directly harmed by Lo’s wire fraud
and mail fraud schemes.4 Under the facts admitted by Lo,
4
In the factual basis for the plea agreement, Lo admitted that he made
the following unauthorized transfers: he “caused $239,052.76 of ANI
funds to be paid to [his] American Express account” for his personal
expenses; he “caused ANI to make payments totaling $564,310.54 to a
PayPal account” that Lo registered and controlled; he used ANI funds to
purchase $1,356,777 in cashier’s checks that he deposited into his
personal accounts; and he used an ANI debit card to make unauthorized
personal purchases totaling $30,330. Lo also admitted to causing A.W.
to pay more than $125,000 in personal checks to Lo’s Schwab account,
believing the funds were being sent to the IRS.
20 UNITED STATES V. LO
both ANI and A.W. constituted “victims” of his scheme to
defraud.
Nor was the restitution award in excess of the amount
allowed by the MVRA. The offenses here, mail fraud and
wire fraud, each contain the element that the alleged acts be
completed in furtherance of a scheme to defraud.5 The
MVRA provides that “in the case of an offense that involves
as an element a scheme, conspiracy, or pattern of criminal
activity,” restitution is owed to “any person directly harmed
by the defendant’s criminal conduct in the course of the
scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2).
Accordingly, when the crime of conviction is mail fraud or
other crime requiring proof of a scheme, a court is authorized
to order restitution “on related but uncharged conduct that is
part of a fraud scheme,” and is not limited to “the harm
caused by the particular counts of conviction.” Thomsen, —
F.3d at — , 2016 WL 4039711, at *12 (emphasis omitted)
(quoting In re Her Majesty the Queen in Right of Canada,
785 F.3d 1273, 1276 (9th Cir. 2015) (per curiam)) (applying
this rule to mail fraud); see also Booth, 309 F.3d at 575–76
(reaching the same conclusion with respect to wire fraud).
Here, Lo pleaded guilty to mail fraud and wire fraud, and
agreed that the conduct alleged in each count of conviction
furthered either the scheme to defraud ANI or the scheme to
5
The essential elements of a wire fraud offense are “(1) the existence
of a scheme to defraud; (2) the use of wire, radio, or television to further
the scheme, and (3) a specific intent to defraud.” United States v. Jinian,
725 F.3d 954, 960–61 (9th Cir. 2013). Similarly, the essential elements
of a mail fraud offense include: (1) a scheme to defraud; (2) materiality of
the statements made in furtherance of the scheme; (3) an intent to defraud;
and (4) use of the mails. United States v. Woods, 335 F.3d 993, 997 (9th
Cir. 2003).
UNITED STATES V. LO 21
defraud A.W. Lo also agreed that the restitution order for his
offenses would include all losses caused by the two
fraudulent schemes as a whole. Lo acknowledged that his
fraudulent conduct, including the specific acts alleged in the
counts that were dismissed, directly harmed ANI and A.W.,
and agreed that the dollar amounts specified in the plea
agreement represented the losses ANI and A.W. had suffered
as a result of his schemes. Accordingly, the plea agreement
itself establishes that the transfers of funds from ANI and
A.W. to Lo constituted losses to victims directly caused by
Lo’s fraudulent schemes. Lo again admitted these factual
allegations at his change of plea hearing. Therefore, the
district court did not err in ordering restitution for all losses
caused by the schemes to defraud, and the order was not
illegal.
III
We now turn to Lo’s challenges to the forfeiture order.
Although a valid appeal waiver would normally bar Lo’s
challenge, Lo claims that two exceptions to the general rule
are applicable.
A
Lo first argues that the notice requirement applicable to
restitution orders is equally applicable to forfeiture orders,
and therefore his waiver of the right to appeal the forfeiture
order was unenforceable because the plea agreement did not
give Lo “a reasonably accurate estimate” of the amount of
forfeiture to which he was exposed. We disagree. As our
prior discussion indicated, we based our rule in the restitution
context on statutory language allowing restitution only for
“actual damages or loss caused by the offense for which
22 UNITED STATES V. LO
conviction was had,” 18 U.S.C. § 3651 (repealed), and
subsequent interpretations requiring restitution amounts to be
judicially determined after notice to the defendants, Parrott,
992 F.2d at 917, or to be a “reasonably accurate estimate”
stipulated to in the plea agreement, Tsosie, 639 F.3d at 1217.
There is no analogous statutory history limiting forfeiture to
“actual damages or loss,” and the forfeiture statutes at issue
here are much broader than the relevant restitution statutes.
See 18 U.S.C. § 981(a)(1)(C) (providing that “[a]ny property,
real or personal, which constitutes or is derived from
proceeds traceable to” various offenses specified in the
statute “is subject to forfeiture to the United States”); see also
United States v. Newman, 659 F.3d 1235, 1241 (9th Cir.
2011) (“Criminal forfeiture is . . . separate from restitution,
which serves an entirely different purpose.”).
Further, our rationale for creating an exception unique to
restitution orders is not applicable to forfeiture orders. See
Tsosie, 639 F.3d at 1219. Unlike restitution, criminal
forfeiture does not depend on contingent requests and
submissions by third parties that may be impossible to
predict. Id. Rather, the government must notify the
defendant of its intent to seek forfeiture by including an
allegation in the indictment or information, and if the
defendant is convicted, the court must order forfeiture of all
proceeds that constitute or are derived from the offense. See
28 U.S.C. § 2461(c), 18 U.S.C. § 981; see also Newman,
659 F.3d at 1239. “[T]he district court must impose criminal
forfeiture in the amount of the ‘proceeds’ of the crime.” Id.
Under the forfeiture statutes, a defendant can predict both the
application of forfeiture and its amount. Therefore, an appeal
waiver can validly waive the right to appeal a forfeiture order
issued as part of the sentence regardless of whether the plea
agreement provides the defendant with a reasonably accurate
UNITED STATES V. LO 23
estimate of the amount of forfeiture or whether the defendant
was given adequate notice before a district court determined
that amount. This rule is consistent with the general rule,
outside the restitution context, that a defendant may waive the
right to appeal without knowing the severity of the sentence
that may be imposed. Jeronimo, 398 F.3d at 1155. We
therefore decline to apply Tsosie’s restitution-specific rule to
the appeal of a forfeiture order.
B
Second, Lo raises four arguments as to why the forfeiture
order constitutes an illegal sentence to which the appeal
waiver is ineffective: (1) the government did not provide the
notice required by statute; (2) the court did not follow the
procedure required to seek forfeiture of “substitute property”
pursuant to 21 U.S.C. § 853(p); (3) the amount of the
forfeiture order exceeded the amounts associated with his
counts of conviction; and (4) the forfeiture order violated
Apprendi v. New Jersey, 530 U.S. 466 (2000). We consider
each argument in turn.
1
Lo’s first argument is that the forfeiture order is not
authorized by statute because the government did not provide
sufficient notice that it was seeking a forfeiture money
judgment.
To evaluate this claim, we begin by considering the
statutory framework for forfeiture orders. Under 28 U.S.C.
§ 2461(c), if a person is charged with a criminal offense for
which forfeiture is authorized, “the Government may include
notice of the forfeiture in the indictment or information
24 UNITED STATES V. LO
pursuant to the Federal Rules of Criminal Procedure.” If the
government provides such notice of the forfeiture in the
indictment, and the defendant is subsequently convicted of
the offense that gives rise to the forfeiture, “the court shall
order the forfeiture of the property as part of the sentence in
the criminal case pursuant to the Federal Rules of Criminal
Procedure . . . .” Id.
The federal rule referenced in § 2461(c) is Rule 32.2 of
the Federal Rules of Criminal Procedure. Newman, 659 F.3d
at 1242. Rule 32.2(a) sets forth the requirements for notice
of forfeiture. It provides that a court may not enter an order
of forfeiture unless the indictment or information contains
notice that the government will seek forfeiture. Fed. R. Crim.
P. 32.2(a). However, “[t]he indictment . . . need not identify
the property subject to forfeiture or specify the amount of any
forfeiture money judgment that the government seeks.” Id.
Rule 32.2 also specifies how the court shall order the
forfeiture of property. The government has several options:
it can “seek the forfeiture of specific property, or the
government may seek a money judgment.” Newman,
659 F.3d at 1242. “If the government seeks a personal money
judgment, the court must determine the amount of money that
the defendant will be ordered to pay.” Fed. R. Crim. P.
32.2(b). In addition, where property constituting the proceeds
of an offense cannot be obtained, the government may seek
“substitute property” as allowed under Rule 32.2(e) and
21 U.S.C. § 853(p).
Section 2461 also references 21 U.S.C. § 853, and states
that the procedures in that statute “apply to all stages of a
criminal forfeiture proceeding” except for an exception that
is inapplicable here. Section 853(p) provides a procedure for
the forfeiture of substitute property: pursuant to this section,
UNITED STATES V. LO 25
“if any property described in [§ 853(a), defining property
subject to forfeiture], as a result of any act or omission of the
defendant,” either cannot be located or has been transferred
to a third party, placed beyond the jurisdiction of the court,
substantially diminished in value, or commingled with other
property, see 21 U.S.C. § 853(p)(1)(A)–(E), the court shall
order forfeiture of “substitute property,” defined as “any other
property of the defendant, up to the value” of the original
property subject to forfeiture. 21 U.S.C. § 853(p)(1), (2).
Although 28 U.S.C. § 2461 does not expressly reference
18 U.S.C. § 981, we have held that “§ 2461(c) permits the
government to seek criminal forfeiture whenever civil
forfeiture is available and the defendant is found guilty of the
offense.” Newman, 659 F.3d at 1239. Therefore, where the
government includes a criminal forfeiture allegation pursuant
to 18 U.S.C. § 981 and 28 U.S.C. § 2461(c), forfeiture is
authorized under § 981 even though that section typically
governs civil, rather than criminal, forfeiture. Newman,
659 F.3d at 1239–40. Section 981(a)(1)(C) provides that
“[a]ny property, real or personal, which constitutes or is
derived from proceeds traceable to . . . any offense
constituting ‘specified unlawful activity’ (as defined in
section 1956(c)(7) of this title), or a conspiracy to commit
such offense,” is subject to forfeiture.6 “Proceeds” is defined
6
18 U.S.C. § 981(a)(1)(C) does not directly reference 18 U.S.C.
§ 1341 or 18 U.S.C. § 1343, but does so indirectly. The section states that
property derived from proceeds traceable to an offense constituting
“‘specified unlawful activity’ (as defined in section 1956(c)(7) of this
title)” is subject to forfeiture. Id. Section 1956(c)(7) defines “specified
unlawful activity” in part as “any act or activity constituting an offense”
listed in 18 U.S.C. § 1961(1). Section 1961(1), in turn, lists both mail
fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343, among other
offenses. See also United States v. Silvious, 512 F.3d 364, 369 (7th Cir.
26 UNITED STATES V. LO
in part as “property of any kind obtained directly or
indirectly, as the result of the commission of the offense
giving rise to forfeiture, and any property traceable thereto,
and is not limited to the net gain or profit realized from the
offense.” 18 U.S.C. § 981(a)(2)(A).
Having reviewed the statutory framework, we now turn to
Lo’s argument that the court exceeded its authority in issuing
a forfeiture order because Lo was not given the notice
required by 28 U.S.C. § 2461(c) and 18 U.S.C.
§ 981(a)(1)(C). According to Lo, the indictment’s forfeiture
allegation was deficient because it stated that if convicted, Lo
would forfeit property “including, but not limited to,” a list of
specified real and personal property, and did not state that Lo
would be subject to a money judgment. We disagree. The
forfeiture allegation met the requirement in 28 U.S.C.
§ 2461(c) that the government “include notice of the
forfeiture in the indictment or information pursuant to the
Federal Rules of Criminal Procedure.” It also met the
requirement of Rule 32.2(a), that the indictment contain
“notice to the defendant that the government will seek the
forfeiture of property as part of any sentence in accordance
with the applicable statute.” The additional information in
the forfeiture allegation that the property Lo would forfeit
included, but was not limited to, specific property did not
cause the notice to be insufficient for purposes of 28 U.S.C.
§ 2461 or Rule 32.2(a). The government is not legally
required to notify a defendant that it is seeking a money
judgment; indeed, Rule 32.2(a) states that the government
“need not identify the property subject to forfeiture or specify
2008); United States v. Foley, 508 F.3d 627, 635 (11th Cir. 2007); United
States v. Jennings, 487 F.3d 564, 585 (8th Cir. 2007); United States v.
Vampire Nation, 451 F.3d 189, 200 (3d Cir. 2006).
UNITED STATES V. LO 27
the amount of a money judgment.” Fed. R. Crim. P. 32.2(a)
(emphasis added). Because Lo was not entitled to
notification that the government was seeking specific
property, the government’s decision to seek a money
judgment instead of the listed property does not render the
government noncompliant with the statute. In any event, we
disagree with Lo’s argument that the allegation’s failure to
specify that the government might seek a money judgment
made it misleading, given that the allegation made clear that
forfeiture was “not limited to” the property listed in the
indictment. We conclude that Lo received sufficient notice
of the forfeiture order.
2
We next turn to Lo’s argument that the government was
required to seek forfeiture of “substitute property” pursuant
to 21 U.S.C. § 853(p) and follow the procedures set forth in
that statute, and that its failure to do so made the forfeiture
order illegal. Again, this argument fails. As explained in
Newman, the procedural and substantive requirements of Rule
32.2(e) and § 853(p) apply “before the court may order the
forfeiture of substitute property.” Newman, 659 F.3d at 1242.
But where the government does not seek substitute property
under Rule 32.2(e), but seeks only “a money judgment as a
form of criminal forfeiture under Rule 32.2(b),” those
requirements are inapplicable. “When the government seeks
a money judgment, Rule 32.2(b) does not permit the court to
do anything other than ‘determine the amount of money that
the defendant will be ordered to pay,’ which is specified by
statute.” Id. at 1242. Lo attempts to distinguish Newman on
the ground that the defendant in that case had agreed to a
money judgment in his plea agreement. See id. at 1238.
Newman did not rely on that fact; instead, it relied solely on
28 UNITED STATES V. LO
the text of 28 U.S.C. § 2461(c) and Rule 32.2 to conclude that
forfeiture money judgments and forfeiture orders of specific
property are subject to different procedural requirements. Id.
at 1242.
Here the government sought a money judgment, not
forfeiture of specific property, in its application for a
preliminary order of forfeiture. Therefore, under Newman,
the government was not required to follow the procedures
applicable to its seeking of substitute property. See 659 F.3d
at 1242–43.
3
Lo argues next that the district court’s forfeiture order
was an illegal sentence because the amount of forfeiture is
statutorily limited to proceeds that constitute or are derived
from the counts to which he pleaded guilty, Counts 1, 13, and
26. The proceeds associated with those two acts of wire fraud
and one act of mail fraud, as set forth in the indictment, added
up to $78,750. Lo therefore argues that the district court’s
forfeiture order of $2,232,894 exceeded its statutory
authority.
The Seventh Circuit rejected an almost identical argument
in United States v. Venturella, 585 F.3d 1013, 1016–18 (7th
Cir. 2009). In that case, the government alleged that the
defendants committed mail fraud by fraudulently obtaining
government benefits in two different mail fraud schemes (the
first scheme was comprised of counts 1–26, and the second
scheme was comprised of counts 27–30). For each of the two
schemes, the indictment first gave the factual background and
explained the overall scheme. It then provided “a chart that
specifies the mailings corresponding with each count, which
UNITED STATES V. LO 29
the defendants made ‘for the purpose of executing’ the
fraudulent scheme.” Id. at 1017. The indictment also
included a forfeiture charge under 18 U.S.C. § 981(a)(1)(c)
and 28 U.S.C. § 2461(c) of $114,313 for the first scheme,
and $301,491 for the second scheme. Id. The defendants
entered into a plea agreement and pled guilty to one of the
counts which specified a mailing involving $478. The other
charges were dismissed pursuant to the agreement. Id. at
1016. On appeal, the defendants claimed that the extent of
their criminal forfeiture must be limited to the amount
associated with the count of conviction, or $478.
The Seventh Circuit rejected this argument. First, it noted
that the indictment associated each individual mailing with
the overall scheme. In light of this structure, the court
concluded that each count included the entire scheme to
defraud the government, “and each mailing was a separate act
in furtherance of that scheme.” Id. at 1017. By pleading
guilty to one count of mail fraud that included the entire
fraudulent scheme, the defendants in effect pleaded guilty to
the entire mail fraud scheme. Id. Second, the Seventh Circuit
provided a close analysis of the relevant forfeiture statutes,
and concluded that “contrary to the defendants’ claims,
forfeiture is not limited solely to the amounts alleged in
the count(s) of conviction.” Id. As the Seventh Circuit
explained, “18 U.S.C. § 981(a)(1)(C) authorizes forfeiture for
‘[a]ny property, real or personal, which constitutes or is
derived from proceeds traceable to’ the commission of certain
specified offenses, including mail fraud,” and “18 U.S.C.
§ 981(a)(2)(A) defines ‘proceeds’ as ‘property of any kind
obtained directly or indirectly, as the result of the commission
of the offense giving rise to forfeiture, and any property
traceable thereto, and is not limited to the net gain or profit
realized from the offense.’” Id. (alteration in original). The
30 UNITED STATES V. LO
court concluded that “[t]he plain language of section
981(a)(1)(C) along with the expansive definition of
‘proceeds’ indicates that the statute contemplates the
forfeiture of property other than the amounts alleged in the
count(s) of conviction.” Id. The court therefore held that a
forfeiture amount of $114,313 was proper. Id. at 1017–18.
We agree with the Seventh Circuit’s statutory analysis,
and conclude that it is equally applicable here. The language
of the forfeiture statute broadly makes forfeitable any
property, obtained by the defendant directly or indirectly, as
a result of the commission of a mail fraud or wire fraud
offense. See 18 U.S.C. § 981(a)(1)(C), (a)(2)(A). The
offenses here, mail fraud and wire fraud, each contain the
element that the alleged acts be completed in furtherance of
a scheme to defraud. See United States v. Jinian, 725 F.3d
954, 960–61 (9th Cir. 2013) (wire fraud); United States v.
Woods, 335 F.3d 993, 997 (9th Cir. 2003) (mail fraud).
Because the proceeds from a mail fraud or wire fraud offense
include funds obtained “as the result of the commission of the
offense,” and the commission of such a mail fraud or wire
fraud offense necessarily includes a fraudulent scheme as a
whole, the proceeds of the crime of conviction consist of the
funds involved in that fraudulent scheme, including additional
executions of the scheme that were not specifically charged
or on which the defendant was acquitted. See United States
v. Capoccia, 503 F.3d 103, 117–18 (2d Cir. 2007) (stating
that, “[w]here the conviction itself is for executing a scheme,
engaging in a conspiracy, or conducting a racketeering
enterprise,” the proceeds for purposes of forfeiture include
the proceeds of “that scheme, conspiracy, or enterprise”); see
also United States v. Hasson, 333 F.3d 1264, 1279 (11th Cir.
2003) (holding, for purposes of forfeiture, that “[i]n
determining what transactions involved the proceeds of mail
UNITED STATES V. LO 31
and wire fraud, the jury was not restricted to the three
substantive counts of wire fraud on which it returned a guilty
verdict” and could consider evidence of fraud adduced in
support of an additional money laundering count).
In this case, the indictment charged Lo with a scheme to
defraud ANI of more than $2,000,000 through use of the
wires. Each individual count included both the scheme to
defraud and a specific use of the wires as an act in furtherance
of that scheme. The same is true with respect to the scheme
to defraud A.W. of more than $125,000 through use of the
mails: each individual count included the scheme to defraud
and identified a specific use of the mail in furtherance of that
scheme. Under 18 U.S.C. § 981(a)(2)(A), the “proceeds”
from Counts 1, 13, and 26 to which Lo pleaded guilty include
all funds obtained “as the result of the commission” of those
offenses. Because the commission of those wire fraud and
mail fraud offenses necessarily involved execution of the
relevant fraudulent schemes, see Jinian, 725 F.3d at 960–61;
Woods, 335 F.3d at 997, the court was authorized to order
forfeiture of the funds obtained from those schemes,
including from the additional executions of the schemes
alleged in the indictment and admitted in the plea agreement.
See Venturella, 585 F.3d at 1017.
In arguing that he should be held responsible only for
amounts traceable to his three specific uses of the wires or
mail, Lo relies on United States v. Garcia-Guizar, 160 F.3d
511 (9th Cir. 1998). This reliance is misplaced. In Garcia-
Guizar, the government executed search warrants at the
defendant’s storage locker, and seized sixteen packages of
marijuana and a bundle of cash (amounting to $43,070) in a
brown paper bag. Id. at 515. Some $4,300 of the cash in the
bag had serial numbers showing them to be “pre-recorded
32 UNITED STATES V. LO
government funds from . . . the methamphetamine sales.” Id.
The government sought the entire bag of cash as the
“proceeds” the defendant “obtained, directly or indirectly” as
the result of the drug offenses. 21 U.S.C. § 853(a)(1). The
defendant was convicted and the jury returned a verdict that
the entire bag of cash was subject to forfeiture. We reversed,
holding that the government had proven only that the $4,300
was proceeds of the conduct for which the defendant was
actually convicted. Id. at 519. Lo argues that by analogy,
only the amounts traceable to the three counts to which he
pleaded guilty, i.e., his three specific uses of the wires or
mail, are subject to forfeiture.
We disagree. Garcia-Guizar is inapposite because in that
case, the government was not seeking a money judgment, but
rather took the position that the bag of cash found in the
locker was the proceeds of the drug offenses. But the
government produced no evidence that anything other than
the $4,300 in bills with prerecorded serial numbers
constituted the proceeds of a drug offense. Nor did the
government seek a money judgment on the grounds that the
proceeds of the defendant’s drug offense amounted to
$43,070. By contrast, in our case, the government established
the amount of proceeds subject to forfeiture and sought a
money judgment, and so need only prove that the dollar
amount constitutes the proceeds of the wire and mail fraud
offenses. See Newman, 659 F.3d at 1242; see also
Venturella, 585 F.3d at 1018 (finding that Garcia-Guizar did
not require that a money judgment be limited to the
individual transaction amounts specified in the counts of
conviction).
The district court therefore did not err in ordering a
forfeiture money judgment in the amount of proceeds that Lo
UNITED STATES V. LO 33
obtained as a result of his two fraudulent schemes. Nor did
the district court clearly err in calculating that total to be
$2,232,894, where the plea agreement, as well as the
Presentencing Report, victim impact statements, and other
evidence submitted as part of the district court’s three
sentencing proceedings all supported that amount. See
Newman, 659 F.3d at 1244 (“The district court may rely on
factual statements in the plea agreement.”).
4
Lo next contends that the district court’s forfeiture order
was illegal because it violated Apprendi v. New Jersey,
530 U.S. 466 (2000). According to Lo, the amount of a
forfeiture order is a fact that increases his penalty, and
therefore must be determined by the jury. We reject this
argument.
In Apprendi, the Court held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Id. at 490. The Court later clarified that Apprendi applies to
criminal fines in Southern Union Co. v. United States. 132 S.
Ct. 2344, 2350 (2012).
But the Supreme Court had previously developed a
different rule applicable to forfeiture orders. In Libretti v.
United States, the Court ruled that “the right to a jury verdict
on forfeitability does not fall within the Sixth Amendment’s
constitutional protection.” 516 U.S. 29, 49 (1995). We
recently considered whether Apprendi and Southern Union
had abrogated Libretti, and concluded that Libretti was still
good law in the context of criminal forfeiture. See United
34 UNITED STATES V. LO
States v. Phillips, 704 F.3d 754, 769–70 (9th Cir. 2012).
Phillips’s holding was clear: “there is no constitutional ‘right
to a jury verdict on forfeitability’ in a criminal forfeiture
proceeding.” Id. at 769 (quoting Libretti, 516 U.S. at 49); see
also United States v. Christensen, — F.3d —, 2015 WL
11120665, at *44 (9th Cir. July 8, 2016) (“We have held that
there is no constitutional right to have a jury decide
forfeiture.”). Every other circuit to consider whether Libretti
has been abrogated agrees. See id.; United States v. Simpson,
741 F.3d 539, 559–60 (5th Cir. 2014); United States v.
Sigillito, 759 F.3d 913, 935 (8th Cir. 2014); United States v.
Fruchter, 411 F.3d 377, 380–82 (2d Cir. 2005). We have
likewise concluded “that Federal Rule of Criminal Procedure
32.2 does not require a jury determination for forfeiture in the
form of a personal money judgment, which is what the
government obtained here.” Christensen, — F.3d at —, 2015
WL 11120665, at *44.
Although Lo attempts to distinguish these cases on the
ground that his forfeiture order was not limited to the
amounts alleged in the counts of conviction, we have already
rejected this argument, because the forfeiture statute
authorizes forfeiture of the proceeds from his fraudulent
schemes. Cf. Fruchter, 411 F.3d at 384 (rejecting an
Apprendi challenge to a similar forfeiture order for amounts
associated with the overall racketeering scheme for which the
defendant was convicted). Accordingly, we reject Lo’s
argument that the forfeiture order here violated Apprendi.
IV
We conclude that Lo entered into an enforceable appeal
waiver, that neither the restitution order nor the forfeiture
UNITED STATES V. LO 35
order is illegal, and that Lo has not raised any other exception
that would permit us to consider his appeal.
DISMISSED.