United States v. Podgers , 201 F. App'x 878 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-30-2006
USA v. Podgers
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3617
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-3617
UNITED STATES OF AMERICA
v.
SUSAN C. PODGERS,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No.: 04-CR-228
District Judge: The Honorable David S. Cercone
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 26, 2006
Before: SMITH, WEIS, and NYGAARD, Circuit Judges
(Filed: October 30, 2006)
OPINION
SMITH, Circuit Judge
Susan C. Podgers was receiving federal worker compensation benefits for a partial
disability. Nevertheless, she began performing child care services in 1999. Thereafter,
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she falsely affirmed in several affidavits submitted to continue her federal worker
compensation benefits that she had no other employment or income. A grand jury
subsequently returned an indictment charging Podgers with four counts of violating 18
U.S.C. § 1920 by making false statements to obtain federal benefits.1 Pursuant to a plea
agreement, Podgers pleaded guilty to count one of the indictment. The plea agreement
contained a waiver of appellate rights, which permitted an appeal only if the United States
appealed, the sentence exceeded the applicable statutory limits set forth in the United
States Code, or the sentence unreasonably exceeded the applicable guideline range.
The pre-sentence report (PSR) prepared by probation indicated that the amount of
loss was $13,963.48. This total represented the difference between the amount of benefits
she actually received and the amount she would have received if she had been truthful.
Based on this figure and a downward adjustment for an acceptance of responsibility,
Podgers’ total offense level was 8. Because Podgers’ criminal history category was I, her
guideline range was zero to six months of imprisonment. Restitution was required
pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3664.
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Section 1920 provides in relevant part:
Whoever knowingly and willfully . . . makes a false,
fictitious, or fraudulent statement or representation . . . in
connection with the application for or receipt of compensation
or other benefit or payment under subchapter I or III of
chapter 81 of title 5, shall be guilty of perjury, and on
conviction thereof shall be punished . . . .
18 U.S.C. § 1920.
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Based on 5 U.S.C. § 8106, the PSR set the amount of restitution at $57,472.56,
representing the entire sum that she received in benefits from 2000 to 2003. Section 8106
pertains to the payment of worker compensation benefits for a partial disability and
specifies that an employee who knowingly omits or understates any of his earnings
“forfeits his right to compensation . . . .” 5 U.S.C. § 8106(b). Podgers did not object to
the PSR’s findings.
At sentencing, in response to the Court’s inquiry as to whether there were any
additions, corrections, or modifications to the PSR, Podgers advised that there were only
several technical corrections. Because there were no other objections to the PSR’s
findings, the Court adopted the PSR as its final findings and rulings. Although Podgers
did not object to the amount of restitution, the prosecution advised the District Court that
there was a disagreement as to whether the $13,963.48 amount of loss governed the
amount of restitution due, and that the government’s position was that 5 U.S.C. § 8106required that the defendant forfeit the entire amount of the benefits she had received, i.e.,
$57,472.56.
The District Court sentenced Podgers to a three year term of probation, with home
detention for the first four months. In addition, the Court ordered Podgers to pay
restitution in the full amount of $57,472.56.
Despite the fact that Podgers waived her appeal rights, she filed an appeal
challenging the amount of restitution ordered by the District Court. The District Court
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exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under
18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
Podgers argues that the District Court erred by ordering restitution equal to the
entire amount of benefits she received. She asserts that § 8106 applies to forfeiture and
does not govern restitution. In response, the government argues, inter alia, that Podgers
waived her right to appeal under the terms of the plea agreement. Podgers’ reply
contends that her appellate waiver does not bar this appeal because the “plain language of
the plea agreement” specified that she waived only her right to “take a direct appeal from
her conviction or sentence.” She asserts that “[r]estitution is different from either a
conviction or a sentence.” Alternatively, Podgers argues that this appeal falls within the
exception for a sentence that exceeds the statutory limits of the United States Code. We
review the validity of an appellate waiver de novo. United States v. Khattak, 273 F.3d
557, 560 (3d Cir. 2001).
Podgers’ assertion that her appellate waiver does not apply because restitution is
different from a conviction and sentence is meritless. In United States v. Leahy, 438 F.3d
328 (3d Cir. 2006) (en banc), this Court reaffirmed that restitution ordered as part of a
criminal sentence is a criminal penalty. Id. at 333-35. Here, in imposing sentence, the
District Court ordered that Podgers pay restitution and that aspect of her punishment is set
forth in the judgment issued by the District Court. Thus, the appellate waiver applies to
this component of Podgers’ sentence.
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Podgers’ alternate contention is that the amount of restitution ordered exceeds the
statutory provisions of the Criminal Code and that this entitles her to proceed with her
appeal under one of the exceptions to the appellate waiver in the plea agreement. Podgers
does not explain why restitution for the full amount of the benefits exceeds the statutory
limits of the Criminal Code. Instead, she asserts generally that the Victim and Witness
Protection Act and the Mandatory Victims Restitution Act, see 18 U.S.C. §§ 3663,
3663A, and 3664, require the “accurate calculation of restitution.” An inaccurate
calculation of restitution, however, is not necessarily determinative of whether that
amount exceeds the statutory limit. Section 3664(f)(1) of the Mandatory Victims
Restitution Act, which is applicable in this criminal matter, mandates that “the court shall
order restitution to each victim in the full amount of each victim’s losses.”
In considering whether the full amount of the government’s loss may be the entire
amount of the benefits received, our decision in United States v. Tupone, 442 F.3d 145(3d Cir. 2006), is instructive.2 There, we distinguished
between the task of evaluating the text of § 1920 proper and that of
2
We do not consider 5 U.S.C. § 8106 dispositive of the quantification of the full
amount of the government’s loss in this criminal matter. Section 8106 is a civil statute
which deters the making of false statements in connection with the receipt of federal
benefits by creating a civil forfeiture remedy so the government may recover the entire
amount of the benefits that were paid. See United States v. Dawkins, 202 F.3d 711, 715
(4th Cir. 2000) (finding that automatic forfeiture provisions applicable to a conviction for
making false statements were not determinative of the amount of loss under the
sentencing guidelines because forfeiture is a penalty governed by a separate statutory
framework).
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measuring the “loss” amount under the Guidelines resulting from a violation of
that text. The former task involves assessing the breadth and level of culpability-
and liability-prescribed by the language of § 1920. As discussed above, Congress,
in passing § 1920, ascribed felony liability to the making of false statements in
connection with the application for or receipt of benefits in excess of $1000. For
the qualitative purpose of measuring criminal liability, then, all the benefits which
a defendant applies for or receives must necessarily be “counted.”
442 F.3d at 154 (emphasis in original).
Tupone instructs that the criminal liability under § 1920 is for “all the benefits
which a defendant applies for or receives . . . .” Id. (emphasis in original). Thus, the
order requiring Podgers to pay restitution for the full amount of the benefits received does
not exceed the limits set forth in the United States Code. Moreover, the record supports
a finding that the full amount of the government’s loss for restitution purposes is the
entire amount of the benefits received. The PSR, to which Podgers did not object, recited
that upon learning of her false statements, the government offered Podgers a sedentary
position, that she declined the offer, and that her benefits were terminated because of her
refusal to accept suitable work. Thus, there is a strong inference that had the government
learned of the falsehood at an earlier point in time, it would not have disbursed the
benefits that Podgers received. Accordingly, we conclude that Podgers has failed to show
that her sentence exceeds the statutory limits of the United States Code such that it is
exempt from the terms of the waiver of appeal rights contained in the plea agreement.
In United States v. Khattak, 273 F.3d 557 (3d Cir. 2001), we declared that
“waivers of appeals, if entered into knowingly and voluntarily, are valid.” Id. at 562. We
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recognized that some waivers may be invalidated if there is an error amounting to a
miscarriage of justice. In determining whether an error warrants invalidating an appellate
waiver, we observed that consideration should be given to the alleged error, its gravity, its
character, the impact of the error on the parties, and the extent to which the defendant
acquiesced in the result. Id. at 563 (quoting United States v. Teeter, 257 F.3d 14, 25 (1st
Cir. 2001)). We declared that it is the defendant who bears the burden of showing why
the appellate waiver should not be enforced. Id.Here, Podgers does not assert that she misunderstood the waiver of appeal rights
contained in the plea agreement. Nor has she claimed that she was coerced or pressured
to agree to the terms of the plea agreement such that waiver is involuntary. The record
shows that Podgers executed the plea agreement containing the waiver of her appeal
rights. The transcript of the guilty plea colloquy supports the District Court’s finding that
she made “a knowing, voluntary and informed decision to enter a plea of guilty . . . .”3
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As we pointed out in Khattak, the role of the sentencing judge is critical in
determining whether a waiver of appeal is knowing and voluntary. 273 F.3d at 563. We
take this opportunity to reiterate that the waiver of a right to file a direct appeal is of
profound significance and that district judges must carefully comply with the dictates of
Federal Rule of Criminal Procedure 11. Id. Accordingly, when we are asked to review
the enforcement of an appellate waiver, we scrutinize the guilty plea colloquy to ascertain
if the district court has “inform[ed] the defendant” and “determine[d] that the defendant
understands . . . the terms of any plea agreement provision waiving the right to appeal . . .
.” Fed. R. Crim. P. 11(b)(N). Thus, our inquiry is informed, at a minimum, by (1) the
specificity of the court’s explanation of the waiver of the appeal and the extent to which it
limits the defendant’s ability to challenge his conviction or sentence; (2) the defendant’s
responses to the court’s explanation; (3) the existence of any documentation referring to
this waiver; (4) whether the defendant executed such documentation; and (5) the extent to
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Although we have recognized that a waiver may be invalidated by an error that results in
a miscarriage of justice, Podgers has not identified any error which would warrant setting
aside her waiver of appeal. Moreover, we note that Podgers acquiesced in the result as
she did not present any argument during the sentencing hearing challenging either the
amount of or the basis for the restitution set forth in the PSR. Accordingly, we conclude
that the waiver provision of the plea agreement is enforceable, and we will dismiss this
appeal.
which the prosecution has reviewed the waiver in its remarks to the court prior to the
court’s colloquy.
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