United States v. Nathaniel Worden , 646 F.3d 499 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3567
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
N ATHANIEL JOSIAH W ORDEN ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:09-cr-58—Joseph S. Van Bokkelen, Judge.
A RGUED M AY 11, 2011—D ECIDED JULY 14, 2011
Before R OVNER and H AMILTON, Circuit Judges, and
L EFKOW, District Judge.Œ
L EFKOW, District Judge. Nathaniel Josiah Worden
pleaded guilty to one count of advertising child pornog-
raphy, a violation of 18 U.S.C. § 2251(d)(1). In a plea
agreement, Worden agreed to a comprehensive waiver
Œ
The Honorable Joan Humphrey Lefkow of the Northern
District of Illinois, sitting by designation.
2 No. 10-3567
of appellate rights. Worden now challenges the district
court’s order of approximately half a million dollars
in restitution to one of the victims of his offense. Because
we conclude that the restitution order falls within the
scope of the appellate waiver in Worden’s plea agree-
ment, his appeal must be dismissed.
I.
Worden was arrested for engaging in sexually ex-
plicit online chats with “Emily,” a person whom he be-
lieved to be a 14-year-old girl living in Vermont. Worden
emailed Emily numerous pictures and videos of minors
engaging in sexually explicit conduct, asked Emily to
send him sexually explicit photos of herself, offered to
ship Emily a webcam to facilitate their communica-
tions, and masturbated in front of his webcam while
he was online with Emily. Worden told Emily that he
had shared sexually explicit photos with others online.
He also suggested that he travel to Vermont to have
sex with Emily and to rape girls that Emily did not like.
Emily, in actuality, was an undercover police officer
working for the Vermont Internet Crimes Against
Children Task Force. After Worden’s arrest, the police
found in his possession more than 600 child pornog-
raphy images and videos, including images depicting
sadomasochistic conduct involving minors, minors
being restrained and in obvious pain, and minors under
the age of twelve.
A four-count superseding indictment charged Worden
with advertising, transporting, possessing, and attempting
No. 10-3567 3
to transfer obscene materials to a minor. Worden pleaded
guilty to advertising in exchange for the government’s
concessions, principally that the government would
move to dismiss the remaining counts and recommend
a minimum statutory sentence. The plea agreement
recited Worden’s right to appeal the conviction and the
sentence imposed and the court’s authority to impose
any sentence within the statutory maximum. Acknowl-
edging these rights, Worden stated:
I expressly waive my right to appeal or to contest my
conviction and my sentence imposed or the manner
in which my conviction or my sentence was deter-
mined or imposed, to any Court on any ground,
including any claim of ineffective assistance of
counsel unless the claimed ineffective assistance
of counsel relates directly to this waiver or its negotia-
tion, including any appeal under Title 18, United
States Code, Section 3742 or any post-conviction
proceeding, including but not limited to, a proceeding
under Title 28, United States Code, Section 2255[.]
Worden also agreed to pay restitution ordered by the
district court:
I acknowledge that . . . the Court is required to order
restitution for the full amount of any victims’ compen-
sable losses in this case. . . . I agree to the entry of a
Restitution Order for the full amount of any victims’
losses in this case as determined by the Court. . . .
The requirement of restitution of “the full amount of
any victims’ losses” arises under the Mandatory Restitu-
tion for Sexual Exploitation of Children Act, 18 U.S.C.
4 No. 10-3567
§§ 2259(a), (b). About five months after Worden entered
his guilty plea, the government filed a motion seeking
$533,244 in restitution on behalf of “Amy,” a child
depicted in one of the pornographic images that Worden
possessed.
After imposing the thirty-five-year statutory minimum
term of imprisonment, the district court held a separate
hearing to determine the amount of restitution. The
court heard testimony from an expert psychologist,
who stated that Amy would need weekly therapy for
the rest of her life and should start an inpatient program
as soon as possible. An economic and actuarial ex-
pert provided a report regarding the cost of Amy’s antici-
pated psychological treatment. Worden argued that
the psychologist’s testimony regarding Amy’s future
treatment was too speculative to support a restitution
award, largely because Amy was refusing to participate
in her current treatment plan. He also argued that there
was no evidence that he had proximately caused Amy’s
injury.
Noting that 28 U.S.C. § 2259(b)(1) instructs courts to
order restitution for the “full amount” of a victim’s losses,
the district court declined to read a proximate cause
requirement into the statute. It accepted the conclusions
of Amy’s experts and ordered Worden to pay the full
amount requested by the government.
II.
Worden argues that Amy’s participation in any future
treatment plan was too uncertain to support the amount
No. 10-3567 5
of restitution ordered by the district court. We may not
address the merits of Worden’s argument, however,
if we conclude that he waived the right to appeal the
restitution order. See United States v. Hare, 269 F.3d 859,
860 (7th Cir. 2001) (“A waiver of appeal is valid, and
must be enforced, unless the agreement in which it is
contained is annulled . . . .”).
We will enforce an appeal waiver in a plea agreement
if the terms of the waiver are clear and unambiguous
and the defendant knowingly and voluntarily entered
into the agreement. E.g., United States v. Blinn, 490 F.3d
586, 588 (7th Cir. 2007). We apply principles of contract
law in analyzing the terms of the waiver, “tempered by
recognition of limits that the Constitution places on the
criminal process.” United States v. Bownes, 405 F.3d 634,
636 (7th Cir. 2005). Those limits are not at issue here.
Worden waived his right to appeal or to contest his
conviction and the sentence imposed or the manner in
which his conviction or his sentence was determined
or imposed, to any court on any ground. Because restitu-
tion is a part of a criminal sentence, and Worden agreed
not to challenge his sentence, he may not appeal the
restitution order. See United States v. Behrman, 235 F.3d
1049, 1052 (7th Cir. 2000) (“An agreement waiving
appeal from ‘any sentence within the maximum pro-
vided in Title 18’ or similar language” would waive
the right to appeal a restitution order.).
Our review of the transcript of the district court’s
plea colloquy confirms that Worden knowingly and
voluntarily waived his right to appeal the restitution
6 No. 10-3567
order. The district court went over the plea agreement
in detail and confirmed that Worden entered into the
agreement freely and voluntarily. Three times, the court
told Worden that he might be ordered to pay restitu-
tion to the victims of his offense. Each time, Worden
confirmed that he understood that restitution could be
ordered.1 The district court also discussed the appeal
1
The district court engaged in two plea colloquies with
Worden. Towards the end of the first colloquy, Worden indi-
cated that he was not feeling well because he was hypoglycemic
and had not been sleeping well. The court took a break so that
Worden could get food from the cafeteria. When Worden
returned, the district court repeated most of the colloquy out
of concern that Worden had not been listening closely when
he was not feeling well.
During the first plea colloquy, the court asked, “Do you
understand that . . . you agreed that after you plead guilty you
will have no right to appeal your conviction or sentence or
any order of restitution and the manner by which they were
imposed? Do you understand that?” Worden responded, “Yes.”
The district court asked, “And you agreed to that?” Worden
again responded, “Yes.” During the second colloquy, the
district court asked Worden, “[D]o you understand . . . [that]
you agree that after you plead guilty you will have no right
to appeal your conviction or sentence or any order of restitu-
tion and the manner by which they were imposed? Do you
understand that?” Worden responded, “Yes.” The court then
asked, “Do you understand that the same paragraph of your
plea agreement also prohibits you from filing a habeas
corpus petition to collaterally attack your conviction and
(continued...)
No. 10-3567 7
waiver with Worden. Twice Worden was asked if he
agreed that after he pleaded guilty he would not have
the right to appeal his “conviction or sentence or any
order of restitution and the manner by which they were
imposed.” Worden confirmed both times that he agreed.
Worden argues that although he waived his right to
appeal the court’s restitution order, he is not foreclosed
from challenging the restitution amount. In support, he
relies primarily on Behrman, where we held that a de-
fendant who waived his right to appeal a sentence
“within the maximum provided in the statute(s) of con-
viction” had not waived his right to appeal a restitution
order that was authorized by a different statutory pro-
vision. 235 F.3d at 1052. Behrman does not suggest that
the amount of restitution may be separated from its
mere imposition. In Behrman, we determined that the
scope of the waiver did not extend to restitution (what-
ever the amount).
Several other circuits have concluded that when a
defendant waives his right to appeal his “sentence,” an
appeal of a restitution order falls within the scope of
the waiver. See United States v. Perez, 514 F.3d 296, 299
(3d Cir. 2007); United States v. Cohen, 459 F.3d 490, 497 (4th
Cir. 2006); United States v. Sharp, 442 F.3d 946, 952
(6th Cir. 2006); see also United States v. Johnson, 541 F.3d
1
(...continued)
sentence or any order of restitution and the manner by which
they were imposed? Do you understand that?” Worden re-
sponded, “Yes.”
8 No. 10-3567
1064, 1066 (11th Cir. 2008) (defendant could not ob-
ject to restitution order as untimely under 18 U.S.C.
§ 3664(d)(5) where he had waived his right to appeal
his sentence).
On the other hand, as Worden emphasizes, in
some circumstances courts have concluded that a de-
fendant did not waive his right to appeal the amount of
restitution by entering into a plea agreement that
waives the right to appeal the “sentence” imposed by
the court. See United States v. Pearson, 570 F.3d 480,
485 (2d Cir. 2009) (where defendant waived his
right to appeal his “conviction and any sentence incorpo-
rating the agreed disposition specified herein,” and the
“agreed disposition” included an order to pay restitu-
tion “in full,” defendant had not waived appeal of errors
in the district court’s determination of what constitutes
“full restitution”); United States v. Oldimeji, 463 F.3d
152, 157 (2d Cir. 2006) (no waiver where defendant
agreed not to file an appeal or otherwise challenge his
“sentence . . . in the event that the Court imposes a total
term of imprisonment of 114 months” because the
wording of the agreement supported the inference that
“sentence” referred to the period of imprisonment);
United States v. Sistrunk, 432 F.3d 917, 918 (8th Cir. 2006)
(no waiver where agreement stated that “the defendant
hereby waives all rights conferred by Title 18, United
States Code, Section 3742 to appeal his sentence, unless
the Court sentences the defendant above offense level
10”); United States v. Zink, 107 F.3d 716, 718 (9th Cir.
1997) (no waiver where the text of the agreement sug-
gested that reference to “any sentence” referred only to
No. 10-3567 9
sentences calculated by using the Sentencing Guidelines);
United States v. Ready, 82 F.3d 551, 560 (2d Cir. 1996) (no
waiver where plea agreement referred to “any sentence
up to the maximum established by statute,” suggesting
that the use of the term “sentence” was not intended
to include restitution because restitution is not limited
by statute).
We do not retreat from respecting the limits of plea
agreement waivers, but our analysis is guided foremost
by the facts before us. Here, the broad language of the
waiver and the district court’s detailed colloquy assure
us that Worden waived his right to appeal the amount
of restitution as well as the order itself. The court’s
“determin[ation]” or “impos[ition]” of Worden’s sen-
tence would logically include the calculation of the
amount of restitution to be awarded. The district court,
during the plea colloquy, confirmed that Worden
intended to waive his right to appeal his “conviction or
sentence or any order of restitution and the manner by
which they were imposed.”
Finally, as in United States v. Feichtinger, 105 F.3d
1188, 1190 (7th Cir. 1997), we must ask, if Worden is
right, “what . . . does [the defendant’s] waiver waive?”
Under the statutory scheme created by the Mandatory
Restitution for Sexual Exploitation of Children Act, the
court’s order of restitution to any “victim” of Worden’s
offense was mandatory. See 18 U.S.C. § 2259(b)(4)(A).
In these circumstances, a waiver of the right to appeal
the court’s order of restitution—but not the amount of
restitution—would be of little consequence. Rather than
10 No. 10-3567
adopt the bifurcated analysis suggested by Worden, we
conclude that Worden’s plea agreement bars all non-
waivable challenges to the court’s restitution order.
Worden does not argue that the court’s restitution
order exceeded the statutory maximum. Because we
do not reach the merits in this appeal, we need not
address the circuit split arising from other cases
involving Amy concerning whether section 2259 requires
a showing of proximate causation.2 Compare In re
Amy, 636 F.3d 190, 198-99 (5th Cir. 2011) (holding
that proximate cause requirement in section 2259 applies
only to “other losses” covered by section 2259(b)(3)(F)),
with United States v. Monzel, ___ F.3d ___, 2011 WL 1466365,
at *5-7 (D.C. Cir. Apr. 19, 2011) (noting circuit split and
holding that section 2259 is limited to losses proximately
caused by defendant). Accordingly, Worden’s appeal
is D ISMISSED.
2
At oral argument, Worden’s counsel confirmed that he
does not contend that section 2259 requires the government
to show that the defendant was the proximate cause of the
victim’s injuries.
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