United States v. Williams ( 2021 )

Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 23, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1229
ALAN ALONZO WILLIAMS,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CR-00395-REB-1)
_________________________________
Beale Tejada of Crane & Tejada, P.C., Denver, Colorado (Keith Bradley and Corey
McGehee of Squire Patton Boggs LLP, Denver, Colorado and Phoenix, Arizona on the
briefs), for Defendant-Appellant.
Elizabeth S. Ford Milani, Assistant United States Attorney (Jason Dunn, United
States Attorney, and Paul Farley, Assistant United States Attorney, on the brief),
Denver, Colorado, for Plaintiff-Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, BALDOCK, and PHILLIPS, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
Alan Williams pleaded guilty to a single count of bank fraud under 18 U.S.C.
§ 1344 and stipulated to restitution tied to that count and two other soon-to-be-dismissed
bank-fraud counts. The government got its conviction, and Williams limited his
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sentencing exposure and possible future charges. Now Williams steps back from his
bargain, seeking to keep what benefits him (his favorable plea deal) while contesting the
very restitution he stipulated was owed. And though he didn’t raise the issue below, he
now contests the district court’s apportionment of that total restitution between WebBank
and Wells Fargo Bank, as recommended by the Presentence Report (PSR).
To raise these challenges, Williams must first overcome the appeal waiver
included in his Plea Agreement. We conclude that the appeal waiver does not bar his
total-restitution challenge. In this circumstance, the Plea Agreement allows Williams to
appeal the apportionment of the total restitution and the substantive reasonableness of his
prison sentence as well. Addressing the merits of Williams’s challenges, we affirm.
BACKGROUND
The government charged Williams with a scheme that encompassed four bank-
fraud counts, which were based on two loans and an attempted loan from WebBank.
Though Williams pleaded guilty to just the first count, in the next section, we review the
facts underlying Williams’s entire bank-fraud scheme as charged in the Indictment, as
memorialized in the Plea Agreement, and as set out without objection in the PSR.
I. Factual Background
Williams co-owned and operated his family’s vending-machine business,
Williams Vending Company, Inc. (WVC). The business sold, leased, operated, and
repaired vending machines. Because Williams was a convicted felon and still on parole,
he was ineligible to obtain bank loans, which he desired mostly for his personal use.
Determined to obtain a loan, he recruited a part-time employee of WVC, described by the
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district court as Ms. X, to participate in fraudulently obtaining loans purportedly for
WVC. He scripted her role as being the president and sole owner of WVC. In enticing
Ms. X into his scheme, Williams knowingly exploited her need for money to feed a
crack-cocaine addiction.
Williams’s bank-fraud preparations began a year before he first applied for a loan
from WebBank. In November 2006, he filed documents with the Colorado Secretary of
State that falsely identified Ms. X as WVC’s owner. In these filings, he claimed that Ms.
X had invested significantly in WVC and managed the company for years. Then in
January 2007, he caused Ms. X to fraudulently obtain a $900,000 loan to purchase a
residence in Denver, Colorado, at which she neither resided nor intended to reside. And
in May 2007, he opened three WVC bank accounts over which Ms. X had “sole signature
authority,” though Williams in fact controlled the accounts. R. vol. 4 at 268.
With this foundation for the bank-fraud scheme in place, in late 2007, Williams
caused Ms. X to fraudulently apply to WebBank for an $800,000 Small Business
Administration loan. He had her act as the applicant and personal guarantor for the loan.
In addition, he had her falsely claim to be WVC’s president and sole owner, to have
“years of management experience” at WVC and elsewhere, to earn a substantial salary at
WVC, to have “substantial assets,” and to reside at the mentioned Denver residence. Id.
at 269. He also provided various documents to WebBank, signed or purportedly signed
by Ms. X. And he further falsely represented that WVC would use the loan funds to
fulfill certain government contracts, to pay existing debt, and for working capital. In
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support of these representations, he provided a fraudulent vending contract with Peterson
Air Force Base and a fraudulent purchase order with Ross Vending.
In December 2007 and January 2008, WebBank approved the loan, issuing eleven
checks payable jointly to WVC and a named creditor of WVC. The amount ultimately
disbursed was $787,574.58. Though WebBank imposed a condition on the loan that the
co-payee creditors sign the checks, none did so. Instead, Williams fraudulently endorsed
the checks and deposited them in a WVC bank account without paying any creditors in
full as the loan required. He spent the loan proceeds mostly on himself and not for the
promised business purposes.
But Williams wanted more. In April 2008, WebBank approved a second loan, this
for $300,000, with Ms. X again acting as the applicant and personal guarantor. This time,
Williams falsely represented that WVC needed to purchase vending machines and trucks
to serve three major apartment complexes. As proof, he provided a fraudulent vending
contract with a property-management company and a fraudulent purchase order for
vending machines. In May 2008, WebBank wired the loan proceeds to a WVC account.
Williams again mostly spent the money on himself, including the purchase of two new
Mercedes Benz cars.
Still unsatisfied, a couple of months later, Williams went back to WebBank for
more money. In June 2008, WebBank lent another $60,000 on the second loan, for a total
amount disbursed of $359,253.70. When applying this time, using Ms. X as before,
Williams fraudulently represented that WVC needed to purchase service trucks. In
support, he submitted fake invoices from a truck vendor. WebBank issued a check jointly
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payable to WVC and the vendor. But again, Williams fraudulently endorsed the check
and then deposited it in a WVC account he could access. As before, he did not use the
loan proceeds for WVC purposes.
And a couple of months later, Williams tried for even more. In August 2008,
WebBank denied a last request from him for a third, $550,000 loan (though not because
WebBank had yet uncovered the fraud). To support this request, Williams again used
Ms. X as before and falsely stated that WVC needed to purchase equipment so that it
could qualify to be Denver public schools’ exclusive vending-machine servicer. Among
the application documents, he provided additional fraudulent documents, seeking to lead
WebBank into believing that WVC had reduced its outstanding liabilities.
In January 2009, WebBank discovered the fraud. At this time, the amounts
disbursed on the $800,000 and $360,000 loans remained unpaid, meaning that the
principal unpaid balances on the loans were $787,574.58 and $359,253.70, respectively.
Together, the balances totaled $1,146,828.28.
II. Procedural Background
Based on this conduct, the government indicted Williams on four counts of bank
fraud under 18 U.S.C. §§ 1344 and 2(b). Williams pleaded guilty to Count One, which
related to the $800,000 loan, and the government successfully moved to dismiss the
remaining counts. The dismissed counts related to the $300,000 loan, the $60,000
modification to it, and the $550,000 attempted loan. In the Plea Agreement, the parties
stipulated to a total amount of restitution of $1,146,828.28 (the unpaid principal on
the two loans). In doing so, the parties referenced the operative statute—the
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Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A, which mandates
restitution to victims of certain crimes, including bank fraud. Id. § 3663A(c)(1)(ii);
see United States v. Bowling, 619 F.3d 1175, 1187 (10th Cir. 2010) (ruling that the
MVRA requires “[a] district court sentencing an individual convicted of bank fraud”
to impose restitution).
In the PSR, the probation officer recommended that the court apportion the
stipulated restitution of $1,146,828.28 between two listed victims—WebBank for
$936,828.28, and Wells Fargo for $210,000. Williams didn’t object. 1 The court
awarded the total restitution and apportioned it as recommended. In doing so, the
court adopted the PSR’s extensive fact findings, which included many stipulated facts
included in the Plea Agreement.
The PSR explained the reason for recommending the apportionment of $210,000
to Wells Fargo. It noted that in 2011, WebBank had sued Wells Fargo “based on Wells
Fargo’s negotiation of WebBank’s checks despite the fact they bore forged
1
His counsel was attentive and disputed other matters, though, objecting to
including the attempted-loan amount of $550,000 as loss in setting the advisory
sentencing range under the sentencing guidelines.
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endorsements.” 2 R. vol. 4 at 272. The PSR noted that “[t]he lawsuit was settled with
Wells Fargo Bank agreeing to pay WebBank $210,000.” Id. It recommended the parties’
stipulated total-restitution amount of $1,146,828.28, “[p]ursuant to 18 U.S.C. § 3663A.”
Id. at 296.
At the sentencing hearing, the district court addressed Williams’s objections to the
PSR, none of which pertained to restitution. Afterward, the court turned to restitution,
noting that “Mr. Williams is essentially broke, financially unable presently or
prospectively to pay a fine or interest on restitution.” R. vol. 8 at 35. Thus, the court
imposed no fine and waived any interest on restitution. The court then adopted the PSR’s
recommended total restitution and its apportionment between “the two victims identified
2
If Williams is contesting the Wells Fargo findings as plain error, he must fail.
We acknowledge that in Davis v. United States, 140 S. Ct. 1060, 1061–62 (2020) (per
curiam), the Court rejected the Fifth Circuit’s rule that plain-error review was
unavailable for unpreserved fact issues. In United States v. Cristerna-Gonzalez, 962
F.3d 1253, 1262 (10th Cir. 2020), we noted that Davis didn’t rule that plain error of
facts can be established by speculation. And we examined United States v. Saro, 24
F.3d 283 (D.C. Cir. 1994), a case cited approvingly in Davis, in which the D.C.
Circuit ruled that the district court had plainly erred in adopting unobjected-to PSR
facts concerning a defendant’s aiding and abetting negotiations in a drug transaction.
Id. On this point, we emphasized Saro’s language that “at least when those findings
are internally contradictory, wildly implausible, or in direct conflict with the
evidence that the sentencing court heard at trial, factual errors can indeed be
obvious.” Id. at 1263 (emphasis omitted) (quoting Saro, 24 F.3d at 291). That sort of
situation differs from Williams’s. Here, the district court acted properly in
“accept[ing] any undisputed portion of the [PSR] as a finding of fact,”
Fed. R. Crim. P. 32(i)(3)(A), and Williams’s failure to object permitted the court to
deem the fact admitted without requiring additional evidence from the government,
United States v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009); see also United States
v. Dickerson, 678 F. App’x 706, 723 (10th Cir. 2017) (unpublished) (ruling that “the
law does not require the government to make a showing at the restitution hearing
where the facts underlying the restitution amounts are undisputed”).
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in the sentencing recommendation[.]” 3 Id. Next, the court found that “[a]s a proximate
result of Mr. Williams[’s] criminal conduct in committing the crime of conviction,
WebBank . . . ha[d] suffered pecuniary losses of $936,828.28, and Wells Fargo
Bank . . . ha[d] suffered pecuniary losses totaling $210,000, making total restitution of
$1,146,828.28.” 4 Id. Neither party objected or asked for additional findings.
Now, Williams has changed his mind about his restitution stipulation, challenging
the restitution order on two grounds. He challenges the total amount, contending that the
court had authority to order just $787,574.58 in restitution, the amount then owed on his
fraudulent loan charged in his sole count of conviction. He also challenges that the court
apportioned the restitution between WebBank and Wells Fargo, arguing that Wells Fargo
wasn’t a victim to which restitution is permitted. He also now challenges his prison
sentence. We review under 28 U.S.C. § 1291.
3
The MVRA has two definitions of victim: one, a “person directly and
proximately harmed as a result of the commission of an offense” and two, a person
“directly harmed by a defendant’s criminal conduct in the course of [a] scheme”
from an offense involving scheme as an element. 18 U.S.C. § 3663A(a)(2) (emphasis
added).
4
According to Wells Fargo’s Declaration of Victim Losses statement, in the 2011
lawsuit, it paid $210,000 to settle WebBank’s 2011 lawsuit alleging that Wells Fargo was
responsible for “four checks totaling $531,698.90 deposited into Alan Williams’[s]
business checking account . . . between 12/9/07 and 6/17/08.” R. vol. 4 at 304. “All four
checks had dual payees but were only endorsed by Williams.” Id. According to
WebBank’s Declaration of Victim Losses, it suffered $1,058,707.38 in losses from
Williams’s bank fraud, after offsetting its losses by the $146,176.51 it recovered “by
suing Wells Fargo on some forged checks.” Id. at 305.
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DISCUSSION
In resolving this appeal, we begin by examining whether the appeal waiver bars
Williams from appealing the issues he now raises. After determining that it doesn’t, we
then address the merits of Williams’s restitution and prison-sentence arguments. On the
merits of his restitution arguments, Williams must surmount the invited-error and plain-
error standards, two steep climbs that he cannot summit. On the merits of his argument
challenging the substantive reasonableness of his sentence, he hasn’t showed that the
district court abused its discretion in imposing its 84-month sentence.
I. Appeal Waiver
The Plea Agreement in this case contains an appeal waiver, detailed below. But
the terms of the appeal waiver and other related Plea Agreement provisions do not bar
Williams’s appeal of the total-restitution amount; an exception to the waiver saves that
argument. Accordingly, the Plea Agreement allows him to appeal other matters that the
appeal waiver otherwise would have barred—both the apportionment of restitution and
the substantive reasonableness of his prison sentence. That’s because the Plea Agreement
provides that if an appeal-waiver exception applies, he “may appeal on any ground that is
properly available in an appeal that follows a guilty plea.” R. vol. 1 at 118. And because
we conclude that the appeal waiver doesn’t bar Williams’s arguments, we decide the
merits of Williams’s challenges on appeal.
A. General Principles Governing Appeal Waivers
Waivers of the right to appeal are generally enforceable. United States v. Hahn,
359 F.3d 1315, 1324–25 (10th Cir. 2004) (en banc) (per curiam). In resolving the
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enforceability of an appeal waiver, we apply a three-prong inquiry: (1) whether the
disputed appeal falls within the scope of the appeal waiver; (2) whether the defendant
knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the
appeal waiver would result in a miscarriage of justice. Id. at 1325 (citation omitted). We
decide de novo whether an appeal waiver is enforceable. United States v. Lonjose, 663
F.3d 1292, 1297 (10th Cir. 2011) (citation omitted). In evaluating Williams’s appeal
waiver, we need go no further than the first prong, because his appeal is outside the
scope of the waiver.
B. Williams’s Appeal Waiver
In assessing plea agreements, we construe all the agreement’s provisions together.
United States v. Gordon, 480 F.3d 1205, 1209 (10th Cir. 2007). In negotiating key terms
of the Plea Agreement, the parties agreed to the following appeal waiver:
The defendant is aware that 18 U.S.C. § 3742 affords him the right to
appeal his sentence, including the manner in which that sentence is
determined. Understanding this, and in exchange for the concessions made
by the government in this agreement, the defendant knowingly and
voluntarily waives the right to appeal any matter in connection with this
prosecution, conviction, or sentence unless it meets any[5] of the following
criteria: (1) the sentence exceeds the maximum penalty provided in the
statutes of conviction . . . .[6]
5
The word “any” is handwritten into the Plea Agreement and initialed by
counsel. R. vol. 1 at 118.
6
The other two conditions apply if the court imposes a sentence beyond a
defined upper limit (which didn’t happen in this case) and if the government appeals
(which again didn’t happen).
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R. vol. 1 at 118. 7
And in a section entitled “STATUTORY PENALTIES,” the Plea Agreement
provides some guidance on the meaning and application of “maximum penalty”:
The maximum statutory penalty for a violation of 18 U.S.C. § 1344 is: not
more than 360 months of imprisonment; a fine of not more than $1,000,000
or the greater of twice the gross gain or twice the gross loss from the
offense, or both a fine and imprisonment; not more than 5 years of
supervised release; a $100 special assessment fee; plus restitution.
Id. at 119. Though the “plus restitution” term by itself doesn’t specify a maximum
restitution, the Plea Agreement provides that “[t]he parties agree that the [MVRA]
applies, and that the amount of restitution in this case is $1,146,828.28.” Id. at 118.
We recognize that restitution presents a less-obvious sort of “maximum” than do
the other categories of penalties. For instance, the statutory maximum prison time of
30 years is self-evident. Determining the maximum restitution requires more work. In
identifying the MVRA’s limits in a particular case, a district court must find facts and
then apply them through a multi-layered legal framework. For instance, the amount of
restitution a court may order to most victims is limited to the losses directly and
proximately caused by the defendant’s conduct underlying the offense of conviction,
7
Remember, the Plea Agreement provides that if any of the three appeal-
waiver exceptions applies, Williams “may appeal on any ground that is properly
available in an appeal that follows a guilty plea.” R. vol. 1 at 118. Without this
provision, the appeal waiver would bar his present appeal of his prison sentence,
because his sentence doesn’t “exceed[] the maximum sentence within the advisory
guideline range that applies to a total offense level of 20[.]” Id. And it would bar his
apportionment-of-restitution argument because that doesn’t relate to a maximum
sentence when Williams would otherwise owe the total restitution to WebBank.
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though the amount of restitution a court may order to some victims is limited to the losses
directly caused by a defendant’s conduct in a scheme. See 18 U.S.C. § 3663A(a)(2).
But the government drafted the Plea Agreement, including the appeal waiver and
associated provisions. And we read any ambiguities in appeal waivers against the
government and in favor of a defendant’s appellate rights. Lonjose, 663 F.3d at 1297
(citations omitted). On appeal, Williams has made a sufficient threshold argument that
the total restitution exceeds the MVRA’s limit (i.e., what the district court had authority
to order paid to WebBank) that he may proceed to the merits. See Gordon, 480 F.3d
at 1208–10 (reading the plea agreement as a whole in determining that the terms of the
appeal waiver didn’t waive the defendant’s ability to challenge the restitution order as
illegal under the MVRA); cf. United States v. Cooper, 498 F.3d 1156, 1158–60 (10th Cir.
2007) (enforcing an appeal waiver of the “sentence as imposed by the Court and the
manner in which the sentence is determined” against a challenge to restitution). If the
government expects us to enforce an appeal waiver in circumstances like these, it needs
to write a better appeal waiver. We conclude that Williams’s appeal waiver doesn’t bar
his appeal of the restitution order.
II. Restitution Order
A. Total-Restitution Amount
Despite clinging to the benefits of the Plea Agreement (Williams emphasizes that
he is not seeking to withdraw his favorable plea deal) and acknowledging that he
stipulated to total restitution of $1,146,828.28 (the amount owing on his two loans
comprising Counts One through Three), Williams now complains that the district court
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exceeded its authority under the MVRA by imposing the exact amount of restitution he
asked the district court to impose. 8 The invited-error and plain-error doctrines await.
1. Invited Error: Total-Restitution Amount
As mentioned, Williams claims that the district court erred by imposing the total
amount of restitution that he stipulated to in the Plea Agreement. He faults the district
court, not himself. We, on the other hand, fault Williams, who invited any alleged error.
“The invited error doctrine prevents a party from inducing action by a court and later
seeking reversal on the ground that the requested action was error.” United States v.
Johnson, 183 F.3d 1175, 1178 n.2 (10th Cir. 1999). And more specifically, a defendant
cannot invite a district court to impose restitution and later complain that the court was
without authority to require any restitution. Id. at 1179 (citation omitted) (ruling in a case
in which the defendant stipulated to a smaller amount of restitution than the court
ordered); see also United States v. Sukhtipyaroge, 1 F.4th 603, 606 (8th Cir. 2021) (ruling
in a visa-fraud case that by expressly agreeing that a person “was entitled to at least some
restitution as an ‘identifiable victim,’ [the defendant] cannot now make the exact opposite
8
In United States v. Peterson, 268 F.3d 533, 534 (7th Cir. 2001) (Easterbrook,
J.), the court addressed a similar claim from a defendant who on appeal “sings a
different tune.” After reciting the plea-agreement benefits that the defendant sought
to keep while contesting his stipulated restitution, the court observed that “[i]t is not
clear that he understands the principal implication of this position: that his plea must
be set aside, the four dismissed counts reinstated, and the prosecution resumed in the
district court.” Id. The court noted that it was “not an option” for the defendant to
have the benefits of the plea agreement without the detriments. Id. In the court’s
words, “[t]he whole plea agreement stands, or the whole thing fails.” Id. (citation
omitted).
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argument on appeal” (citation omitted)); United States v. Pappas, 409 F.3d 828, 830 (7th
Cir. 2005) (ruling that defendant waived any challenge to the restitution amount when he
stipulated to that amount in his plea agreement).
By stipulating to the total-restitution amount, Williams did more than not object.
With eyes open, he agreed that he owed $1,146,828.28 of restitution—the amount he still
owed on his fraudulent bank loans. His stipulation on total restitution led the government
to move to dismiss the remaining counts and agree not to charge him further. Yet
Williams now complains that $1,146,828.28 in restitution exceeds the $787,574.58 he
then owed on his fraudulent loan charged in Count One, his sole count of conviction. But
Williams knew that $1,146,828.28 exceeds $787,574.58 when he stipulated to the total-
restitution amount.
By stipulating to the total-restitution amount while referencing the MVRA,
Williams necessarily agreed that the MVRA supported that amount. 9 And here, as
9
As we understand it, Williams may be trying to short-circuit this conclusion
by suggesting that the MVRA disallows a defendant from stipulating in a plea
agreement to total restitution. In this regard, he contrasts language in the Victim and
Witness Protection Act (VWPA), 18 U.S.C. § 3663, stating that “[t]he court may also
order restitution in any criminal case to the extent agreed to by the parties in a plea
agreement” with the MVRA’s silence on that point. 18 U.S.C. § 3663(a)(3). This
misses the mark. The quoted language from subsection (a)(3) simply allows the
parties to stipulate to restitution in “any criminal case,” not just cases involving the
crimes specified in subsection (a)(1)(A). Otherwise stated, the “to the extent agreed”
phrase modifies “any criminal case,” not “restitution.” Reading this sentence as
Williams does requires treating “any criminal case” as surplusage. Cf. Antonin Scalia
& Bryan Garner, Reading Law: The Interpretation of Legal Texts 174 (2012) (“If
possible, every word and every provision is to be given effect . . . . None should be
ignored.”). Further, neither the MVRA nor the VWPA limits total restitution—by
allowing parties to stipulate to restitution for nonvictims, both statutes take any cap
off restitution. 18 U.S.C. §§ 3663(a)(1)(A), 3663A(a)(3).
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explained below, the district court could consider both the MVRA “victim” definitions in
accepting and adopting the parties’ stipulated total-restitution amount. In that
circumstance, Williams is stuck with any error he invited with his stipulation. He cannot
escape his invitation by now seeking to undermine its bank-fraud-scheme underpinnings
with arguments for extensions or reinterpretations of our circuit law (as discussed later).
By leading the district court to impose total restitution of $1,146,828.28, Williams
necessarily conceded that his § 1344 bank-fraud scheme justified that amount of
restitution under the MVRA. The parties couldn’t get to that high a figure without
accounting for the losses from the entire scheme. Simply put, Williams invited any
alleged error.
2. Plain Error: Total-Restitution Amount
Williams stipulated to the total-restitution amount, so it’s no surprise that he didn’t
object to the district court’s imposing it. Even if Williams had not stipulated to the total-
restitution amount, he would still lose. Because he didn’t object, we would review under
the plain-error standard. “To prevail under this standard, [a defendant] must show (1) an
error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Mendenhall, 945 F.3d 1264, 1267 (10th Cir. 2019) (internal quotation marks and
citation omitted). Williams falters at step two: Regardless of whether the district court
erred, Williams fails to establish that any error was plain.
“[I]n the case of an offense that involves as an element a scheme,” the MVRA
extends restitution to “any person directly harmed by the defendant’s criminal
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conduct in the course of the scheme.” 18 U.S.C. § 3663A(a)(2). The Indictment
details how Williams “knowingly engage[d] in a scheme to defraud a financial
institution, namely, WebBank, and to obtain funds owned by and under the custody
and control of it by means of materially false and fraudulent pretenses,
representations, and promises, (hereinafter referred to as ‘the scheme’).” R. vol. 1
at 9. After that, for Count One, the Indictment charges that Williams “did knowingly
execute and attempt to execute the scheme described in Paragraphs 1 and 2 of this
[I]ndictment by causing WebBank to fund a loan in the amount of $800,000 to
[WVC], all in violation of Title 18, United States Code, Sections 1344 and 2(b).” Id.
at 16.
For the first time on appeal, Williams argues that the district court couldn’t
lawfully impose restitution based on his bank-fraud scheme. 10 He notes that the bank-
fraud statute criminalizes the conduct of a person who “knowingly executes, or attempts
to execute, a scheme or artifice,” 18 U.S.C. § 1344 (emphasis added), not just a
“scheme” as required by the MVRA, § 3663A(a)(2). In short, he contends that “scheme
The MVRA scheme provision is what enables the total restitution to exceed
10
the amount resulting from Williams’s conduct underlying his count of conviction,
Count One, relating to the $800,000 loan. That is, the additional restitution is based
on the bank-fraud scheme.
That scheme makes it easier for Wells Fargo to also be considered a “victim.”
The MVRA scheme provision requires merely a showing of direct harm; the other
victim definition requires direct and proximate harm. 18 U.S.C. § 3663A(a)(2). But
even without relying on the scheme “victim” definition, that is, on the bank-fraud
scheme, Wells Fargo could still qualify as a victim, because its losses stemmed from
the count of conviction.
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or artifice” is broader than the MVRA’s condition that the offense “involves as an
element a scheme, conspiracy, or pattern.” He argues that “scheme or artifice” establishes
alternative means of violating § 1344, not alternative elements.
Williams bases his argument on Mathis v. United States, 136 S. Ct. 2243 (2016),
which established the elements-or-means test for categorical-approach analyses. But
Mathis ruled on the Armed Career Criminal Act’s (ACCA), 18 U.S.C. § 924(e),
language, which differs from the MVRA’s language in text and purpose. See, e.g.,
Mathis, 136 S. Ct. at 2247. The ACCA increases firearm-possession penalties (fines and
imprisonment) for defendants with three predicate “serious drug offense[s]” or “violent
felon[ies]” or a combination of them. 18 U.S.C. § 924(e)(1). In considering whether a
felony is violent, the ACCA asks whether the crime “has as an element the use, attempted
use, or threatened use of physical force against the person of another.” Id.§ 924(e)(2)(B)(i) (emphasis added). In contrast, the MVRA extends restitution liability to
an “offense that involves as an element a scheme, conspiracy, or pattern of criminal
activity.” Id. § 3663A(a)(2) (emphasis added). Further, though the ACCA bears on
criminal penalties, our circuit doesn’t treat restitution as a penalty (even though the Plea
Agreement in this case defined it as such for appeal-waiver purposes). See United States
v. Serawop, 505 F.3d 1112, 1122–23 (10th Cir. 2007) (stating that “we have
recognized that the MVRA does not inflict criminal punishment, and thus is not
punitive” (citations and footnote omitted)).
Williams didn’t preserve a Mathis-type, categorical-approach argument, so we
don’t review its merits de novo. Instead, as mentioned, Williams must meet the stringent
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requirements of plain error. And as the government notes, Williams hasn’t cited a case
ruling that Mathis’s categorical approach requires a finding that “scheme or artifice”
captures conduct beyond “scheme.” Indeed, though pre-Mathis, our circuit has said the
opposite about the federal wire-fraud statute’s “scheme or artifice” element in relation to
restitution under the MVRA. See United States v. Gallant, 537 F.3d 1202, 1248 (10th Cir.
2008) (examining the wire-fraud statute). Moreover, as the government notes, it’s an
open question in our circuit whether artifice is something within every scheme. Cf.
Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1355 (7th Cir. 1995) (“An elaborate artifice of
fraud is the central meaning of a scheme to defraud through false promises.”).
Nor have we located a case ruling contrary to Gallant on this point. So we can cut
to the simplest way in which Williams fails. Williams cannot meet the second prong of
the plain-error analysis. He hasn’t identified any Supreme Court or Tenth Circuit case (or
any case from another circuit) applying the categorical approach to § 1344 bank fraud in
calculating restitution under the MVRA. And we see a good reason why Williams didn’t
make this sort of Mathis argument in district court—he likely would have jeopardized his
Plea Agreement had he contested the total-restitution amount. Accordingly, Williams
fails in his argument that the district court plainly erred in imposing $1,146,828.28 as
restitution.
B. Apportionment Between WebBank and Wells Fargo
For the first time on appeal, Williams challenges the district court’s apportioning
$210,000 of the total restitution to Wells Fargo. He correctly notes that the Plea
Agreement doesn’t identify by name any entities that qualify as a victim under the
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MVRA. But he acknowledges that the PSR recommended apportioning the total
restitution between two MVRA victims: WebBank and Wells Fargo. And he concedes
that he didn’t object to the PSR’s recommendation.
Even so, Williams maintains that Wells Fargo is not a victim under the MVRA.
He must meet the plain-error standard to prevail on this argument. But he faces an even
more difficult challenge than he did on the total-restitution issue. Once he’s lost on his
total-restitution issue, he can no longer maintain that the total restitution of $1,146,828.28
isn’t owed at least to WebBank. As the government puts it, “Williams’[s] substantial
rights are undiminished, given that he agreed to restitution of $1.15 million in his Plea
Agreement, all of which would have been payable to WebBank if not for its settlement
with Wells Fargo.” Appellee’s Answer Br. at 12. And that leaves him in an untenable
spot under a plain-error analysis. Though he faces problems on all four prongs of that
analysis, we again cut to the easiest ones on which to affirm—the second and third.
As for the second prong, Williams hasn’t cited a case ruling that a defendant can
complain about apportionment of an enforceable total amount of restitution. Nor have we
located any authority on that point. Accordingly, Williams hasn’t shown that his alleged
error is plain.
As for the third prong, Williams hasn’t shown that the district court’s
apportionment of his owed restitution substantially prejudiced him. See United States v.
Miller, 406 F.3d 323, 331–32 (5th Cir. 2005) (ruling that the alleged mistaken award of
restitution to the incorrect recipient didn’t affect the defendant’s substantial rights,
“because [the defendant] would be required to pay the same amount of restitution,
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regardless of which entity receives it”); United States v. Brantley, 537 F.3d 347, 353 (5th
Cir. 2008) (ruling that any error in imposing a fine instead of restitution didn’t affect the
defendant’s substantial rights, because the fine was about the same as the restitution the
court could have awarded). Every dollar of restitution Williams pays will count in his
favor. His total-restitution obligation will neither rise nor fall depending on whether his
case involves one victim or two. Any issue from the apportionment would be an issue
between Wells Fargo and WebBank, and they have none.
III. Prison Sentence
Williams challenges the substantive reasonableness of his 84-month prison
sentence. The district court calculated an advisory guideline range of 57–71 months (after
reducing the PSR’s recommended total offense level from 20 to 18 to comport with
Williams’s position on the amount of loss). It then varied upward by two levels back to
20, and to an advisory guideline range of 70–87 months, after considering the sentencing
factors set out at 18 U.S.C. § 3553(a). Once there, the court imposed an 84-month
sentence, an upward variance of thirteen months, or 18 percent. 11
11
In the district court, Williams sought downward departures and variances.
On appeal, he argues against the district court’s sentence both as an upward departure
and as a variance. We see no confusion in the record. The court “var[ied] upward.” R.
vol. 8 at 34. It applied the section 3553(a) factors: “Next, I considered carefully the
sentencing factors and needs of the federal sentencing statute codified at 18 U.S.C.
Section 3553(a)(1) through (7) and made an individualized assessment based on the
facts presented.” Id. at 31. The court mentioned departures only in rejecting
Williams’s motion for a downward departure.
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In its § 3553(a) analysis, the district court noted that Williams’s fraud “was a
serious offense in the way it was planned and perpetrated, and in the terms of the victims
affected and the amount of actual loss to those victims.” R. vol. 8 at 32. Further, the court
noted Williams’s long criminal history, which included fifteen felony convictions for
“offenses including robbery, forgery, criminal attempt to commit theft, or burglary, theft,
aggravated motor vehicle theft, and identity theft.” Id. at 33. The court remarked that
“[t]his is one of the most extensive criminal records that I’ve seen on the bench.” Id.
The district court also addressed Williams’s “threat to the public, the need for
deterrence, and the need for avoidance of unwarranted sentencing disparities[.]” Id. It
described Williams as “a career and habitual offender who presents a clear, present, and
ongoing threat to the public, especially our financial institutions.” Id. In considering all
the circumstances, the court noted that “[t]roubling here, there are no special or
compelling mitigating circumstances.” Id. Reviewing the failure of past “judicial
interventions,” the court noted that Williams’s “philosophy and lifestyle evince an abject
disrespect for our laws and the rights of our citizens.” Id. at 34. And the court noted
“[a]nother troubling and exacerbating, aggravating circumstance,” that is, Williams’s
“continued exploitation of a hapless female drug addict to execute his scheme, and that
continued exploitation is unconscionable.” Id. 12
The PSR advised the court of interviews conducted with Ms. X’s sister in
12
which she stated that Ms. X had been addicted to crack cocaine for five years (and
during Williams’s bank-fraud scheme) so badly that she was emaciated, weighing
about 80 pounds. During this time, the sister said, Williams was the only person who
would provide Ms. X cash.
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The district court’s sentence fell within the limits of Williams’s appeal waiver.
Williams reserved the right to appeal the length of his prison time only if “the sentence
exceeds the maximum sentence within the advisory guideline range that applies to a total
offense level of 20[.]” R. vol. 1 at 118. It doesn’t. But as earlier explained, because
Williams can appeal his total-restitution amount, he can appeal his prison sentence too.
We review substantive reasonableness for an abuse of discretion. See United
States v. Smart, 518 F.3d 800, 805–06 (10th Cir. 2008). In doing so, we ask “whether the
length of the sentence is reasonable given all the circumstances of the case in light of the
factors set forth in 18 U.S.C. § 3553(a).” United States v. Carter, 941 F.3d 954, 960–61
(10th Cir. 2019) (internal quotation marks and citation omitted). “A district court abuses
its discretion when it renders a judgment that is arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir.
2008) (citation omitted).
Williams complains of comments the district court made after explaining and
imposing its 84-month sentence. After reviewing Williams’s crime and the § 3553(a)
factors, the court ruled that a seven-year sentence was proper “to achieve and vindicate
the important requirements and needs of the federal sentencing statute.” R. vol. 8 at 34.
Immediately after that, the district court stated an afterthought: “Additionally, even if
only parenthetically, in my long experience[,] a sentence of seven years for a 16th felony
conviction where the actual loss approaches $1.5 million is certainly not unreasonable. In
the state court system in Colorado, Mr. Williams would easily be approaching habitual
criminal territory.” Id. at 34–35.
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Williams contends that the court abused its discretion by treating a loss of
$1,114,828.28 as one that “approaches $1.5 million.” Opening Br. at 46–48. Whatever
“approaches” means, we note that the district court had just reviewed the loss figures and
knew what they were. This comment doesn’t show the abuse of discretion necessary to
warrant a resentencing.
Williams also complains that the district court tied its sentence to Colorado state
law. But we see nothing showing that the district court’s remark about habitual-offender
status under Colorado law impacted his sentence. As mentioned, the district court had
already explained and imposed its sentence.
Finally, Williams complains that though his criminal-history category was VI, the
court increased his sentence based on his criminal history. But the district court was free
to consider Williams’s long criminal history and explained its basis for doing so. In short,
we see no abuse of discretion.
CONCLUSION
For the foregoing reasons, we affirm the restitution order and the prison sentence.
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