United States v. Seth Nichols ( 2020 )

FILED
NOT FOR PUBLICATION
MAY 6 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10496
Plaintiff-Appellee, D.C. No.
4:18-cr-00167-CKJ-BGM-1
v.
SETH NICHOLS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted April 14, 2020**
San Francisco, California
Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,*** District Judge.
Defendant-Appellant Seth Nichols was convicted, based on his guilty plea,
of one count of Bank Fraud under 18 U.S.C. § 1344. He appeals orders denying
*
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).
***
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
his motion to withdraw the guilty plea, sentencing him to 60 months in prison, and
ordering payment of $3 million in restitution. We affirm.
1. We review the denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009).
Withdrawal “should be freely allowed” before sentencing “if a defendant ‘can
show a fair and just reason for requesting the withdrawal.’” Id. (quoting Fed. R.
Crim. P. 11(d)(2)(B)).
The victims’ civil lawsuit against Nichols’s family and related entities did
not establish a “fair and just reason” to withdraw the guilty plea. The express
terms of the agreement referring to “this global settlement” covered claims
“against the defendant only,” not claims against his family and related entities.
The victims did not file a civil suit against Nichols, and the district court did not err
in upholding his plea under these circumstances.
The designation of Wells Fargo as a victim in the case also did not establish
a “fair and just reason” for withdrawal of the guilty plea. Because Wells Fargo
waived any right it may have to restitution, its status as a named victim did not
subject Nichols to any greater exposure than expected.
Nichols’s claim that the government breached an alleged promise to provide
an independent restitution analysis also did not establish a “fair and just reason” for
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withdrawal of the plea. No such promise was stated in the plea agreement or at the
plea hearing. Although Nichols argues the promise was “implied,” we see no such
implication in the plea agreement, and the district court does not have the
discretion to add allegedly implied terms. See United States v. Hammond, 742
F.3d 880, 883 (9th Cir. 2014) (“Although Rule 11 gives courts discretion to accept
or reject a plea agreement, it does not authorize courts to . . . imply terms into
one.”).
The prosecutor’s arguments at sentencing also did not provide a basis for
withdrawal. We review claims for withdrawal of a plea based on statements at
sentencing de novo. See United States v. Mondragon, 228 F.3d 978, 980 (9th Cir.
2000). The government promised Nichols it would not “recommend an exact term
of incarceration. . . for example, 48 months.” At sentencing, the prosecutor
repeatedly referred to the court’s ability to sentence Nichols in the range of 0 to 60
months. The references to Nichols’s “four years” of criminal activity were not
implied recommendations for a four-year, or 48-month, prison term. Any
statements supporting an arguably “harsh” sentence within the stipulated range did
not violate the plea agreement because the government never promised to
recommend a sentence at the lower end of that range. Cf. United States v. Heredia,
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768 F.3d 1220, 1232 (9th Cir. 2014); United States v. Whitney, 673 F.3d 965, 971
(9th Cir. 2012).
2. We review Nichols’s Rule 11 argument against his 60-month sentence for
plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002). Pursuant to Rule
11, a district court that accepts a plea agreement is bound to terms providing “that a
specific sentence or sentencing range is the appropriate disposition of the case, or
that a particular provision of the Sentencing Guidelines, or policy statement, or
sentencing factor does or does not apply[.]” Fed. R. Crim. P. 11(c)(1)(C); see id.
11(c)(4)-(5). Because the plea agreement expressly states that the parties “agree to
a sentencing range from 0 to 60 months,” the district court did not violate Rule 11
when it sentenced Nichols to 60 months in prison.
Although the parties agreed that the applicable range under the federal
Sentencing Guidelines would be 33 to 41 months for the offense, they did not
agree that a sentence within the Guidelines range “is the appropriate disposition of
the case.” Fed. R. Crim. P. 11(c)(1)(C). To the contrary, they agreed that “the
Guidelines are only advisory and just one of the factors the Court will consider
under 18 U.S.C. § 3553(a) in imposing a sentence.” Thus, Nichols is incorrect in
arguing that the district court was bound under Rule 11 to sentence him within the
stipulated Guidelines range.
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3. We review the amount of restitution for abuse of discretion and the factual
findings supporting a restitution order for clear error. United States v. Galan, 804
F.3d 1287, 1289 (9th Cir. 2015). After the parties stipulated to a restitution
amount of approximately $2 million, the only remaining matter in dispute was
whether an additional $1.4 million, misappropriated from MSY’s operating
account, was a loss subject to restitution. Based on the record and the evidence
provided at the restitution hearing, the district court did not clearly err in finding
that the $1.4 million was a loss subject to restitution. Because the evidence
showed losses exceeding $3 million, the district court acted within its discretion in
setting the restitution amount at $3 million within the cap provided in the plea
agreement.
Finally, the district court did not err in issuing a final order of restitution
over Nichols’s protests regarding potential offsets. If any amount paid as
restitution is recovered in a civil settlement, Nichols may raise this issue before the
district court. See 18 U.S.C. § 3664(j)(2).
AFFIRMED.
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