United States v. A. Zai , 564 F. App'x 215 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0312n.06
No. 13-3199
FILED
Apr 24, 2014
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
A. EDDY ZAI, ) OHIO
)
Defendant-Appellant. )
BEFORE: GUY, GIBBONS, and GRIFFIN, Circuit Judges.
PER CURIAM. A. Eddy Zai appeals the district court’s restitution order.
Pursuant to a plea agreement, Zai pleaded guilty to conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371; two counts of defrauding a financial institution, in
violation of 18 U.S.C. § 1344; bank bribery, in violation of 18 U.S.C. § 215; three counts of
money laundering, in violation of 18 U.S.C. § 1957; and two counts of making false statements
to a financial institution, in violation of 18 U.S.C. § 1014. The district court sentenced Zai to
87 months in prison and ordered him to pay restitution in the amount of $23,623,294.91.
On appeal, Zai raises the following challenges to the restitution order: (1) the order was
improper because the amount exceeded the $16.7 million restitution figure that the parties agreed
to in the plea agreement; (2) the evidence presented at sentencing was insufficient to support the
amount of the restitution order; and (3) the district court erred by declining to reduce the
restitution amount by the value of the property that was to be forfeited under the plea agreement.
No. 13-3199
United States v. Zai
We review de novo whether a restitution order is permitted under the law. United States
v. Batti, 631 F.3d 371, 379 (6th Cir. 2011). We review the amount of a restitution order for an
abuse of discretion. Id.
The district court’s restitution order was not improper. First, despite Zai’s argument to
the contrary, the parties did not agree on the appropriate amount of restitution in the plea
agreement, and, in any case, the district court was not bound by the terms of the agreement, see
Fed. R. Crim. P. 11(c)(1)(B). Further, the National Credit Union Administration Board’s victim
declaration, which set forth the details concerning its pecuniary losses, provided a sufficient
factual basis for the district court’s restitution order. See 18 U.S.C. § 3664(e)-(f)(1)(A); United
States v. White, 492 F.3d 380, 418 (6th Cir. 2007). As the government notes, Zai did not contest
this evidence at sentencing. Finally, the district court did not err by declining to reduce the
restitution amount by the value of the property that was to be forfeited under the plea agreement
because, at the time of sentencing, the property had not yet been forfeited and turned over to the
victim. See United States v. Reese, 509 F. App’x 494, 500 (6th Cir. 2012), cert. denied, 133 S.
Ct. 2780 (2013); United States v. Taylor, 582 F.3d 558, 567-68 (5th Cir. 2009); United States v.
Doe, 374 F.3d 851, 856 (9th Cir. 2004).
Accordingly, we affirm the district court’s restitution order.
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