United States v. Gerald Edwards

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30092
Plaintiff-Appellee, D.C. No. 3:08-cr-00092-JWS-1
v.
MEMORANDUM*
GERALD EDWARDS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Gerald Edwards appeals pro se from the district court’s order denying his
“Motion to Stop Collection of Restitution.” We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
As an initial matter, we decline to enforce the appeal waiver in Edwards’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
plea agreement, as the government urges, because the waiver does not clearly
apply to an appeal of the restitution order. See United States v. Charles, 581 F.3d
927, 931 (9th Cir. 2009).
Edwards argues that the district court erred by failing to order the
government to stop collecting against his 2009 restitution judgment. Edwards did
not challenge the validity of his restitution order on direct appeal. Even assuming
he could challenge it now, we conclude that he is not entitled to relief because he
has not shown that collection of restitution, in the amount to which he stipulated at
sentencing, would result in “a complete miscarriage of justice.” United States v.
Gianelli, 543 F.3d 1178, 1184-85 (9th Cir. 2008).
We do not reach Edwards’s remaining arguments because they were not
specifically and distinctly raised and argued in the district court or his opening
brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
This disposition is without prejudice to Edwards moving in the district court,
pursuant to 18 U.S.C. § 3664(k), for an adjustment to the restitution payment
schedule based on a material change in his economic circumstance.
Edwards’s motion to file a late reply brief is granted. The Clerk will file the
reply brief received at Docket Entry No. 28.
AFFIRMED.
2 19-30092