Filed: Jul. 10, 2020
Latest Update: Jul. 10, 2020
Summary: Case: 19-11666 Date Filed: 07/10/2020 Page: 1 of 12 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ Nos. 19-11666 & 19-12723 Non-Argument Calendar _ D.C. Docket No. 6:18-cr-00020-CEM-TBS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHRISTOPHER RAY FAELLA, Defendant-Appellant. _ Appeals from the United States District Court for the Middle District of Florida _ (July 10, 2020) Before WILLIAM PRYOR, Chief Judge, and JORDAN and JILL PRYOR, Circuit Judges.
Summary: Case: 19-11666 Date Filed: 07/10/2020 Page: 1 of 12 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ Nos. 19-11666 & 19-12723 Non-Argument Calendar _ D.C. Docket No. 6:18-cr-00020-CEM-TBS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHRISTOPHER RAY FAELLA, Defendant-Appellant. _ Appeals from the United States District Court for the Middle District of Florida _ (July 10, 2020) Before WILLIAM PRYOR, Chief Judge, and JORDAN and JILL PRYOR, Circuit Judges. P..
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Case: 19-11666 Date Filed: 07/10/2020 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 19-11666 & 19-12723
Non-Argument Calendar
________________________
D.C. Docket No. 6:18-cr-00020-CEM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER RAY FAELLA,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(July 10, 2020)
Before WILLIAM PRYOR, Chief Judge, and JORDAN and JILL PRYOR, Circuit
Judges.
PER CURIAM:
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Christopher Ray Faella appeals the district court’s restitution award following
his convictions for receipt and possession of child pornography. He argues that the
district court abused its discretion by imposing a restitution amount without
considering the factors set forth in Paroline v. United States, 572 U.S. 434 (2014).
He also argues that the district court violated his due process rights by conducting
the restitution hearings in his absence.
Because Mr. Faella signed a valid appeal waiver, and the Paroline claim is
within the scope of that waiver, we dismiss that portion of the appeal. As to the due
process claim, we assume without deciding that the appeal waiver does not
encompass a claim that the district court imposed sentence without Mr. Faella’s
presence. But we conclude that Mr. Faella has failed to demonstrate plain error on
his due process claim, and we affirm that aspect of the appeal.
I
Mr. Faella was charged by indictment with five counts of receipt of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1); one count of
possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
(b)(2); and one count of being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Faella entered into a written plea
agreement with the government in which he pled guilty to the receipt of child
pornography counts and the possession of child pornography count in exchange for
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the government’s promise to dismiss the felon-in-possession charge. The agreement
included a section on mandatory restitution, in which Mr. Faella agreed to make
restitution to known victims of his offenses, “for the full amount of the victims’
losses as determined by the Court.” D.E. 28 at 4. The agreement also stated that
Mr. Faella “understands and agrees that the Court, in addition to or in lieu of any
other penalty, shall order the defendant to make restitution to any victim of the
offenses . . . .” Id. at 12 (emphasis in original).
The agreement contained a general appeal waiver in which Mr. Faella
“expressly waive[d] the right to appeal [his] sentence on any ground,” except:
(a) the ground that the sentence exceeds the defendant’s applicable
guidelines range as determined by the Court pursuant to the United
States Sentencing Guidelines; (b) the ground that the sentence exceeds
the statutory maximum penalty; or (c) the ground that the sentence
violates the Eighth Amendment to the Constitution.
Id. at 16–17 (emphasis removed). The appeal waiver also allowed Mr. Faella to
appeal if the government appealed.
Id.
The agreement acknowledged that Mr. Faella was entering it voluntarily and
that he understood the nature of the offenses to which he was pleading guilty. See
id. at 17–18.
He initialed every page of the agreement and, before his full signature
on the last page, he certified that the plea had been read by or to him in its entirety
and that he fully understood its terms. See
id. at 26.
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At the change of plea hearing, the district court explained the offenses to
which Mr. Faella was pleading guilty, the elements of those offenses that the
government would have to prove had the case gone to trial, and the maximum
penalties corresponding to the offenses. The court then referenced the plea
agreement, which Mr. Faella acknowledged was in front of him. The court
confirmed that Mr. Faella had initialed every page of the agreement and that he had
signed the agreement at the end, indicating he had a chance to review it with his
attorney and understood it. The court highlighted some of the major points in the
agreement, and generally pointed out that Mr. Faella had expressly waived the right
to appeal his sentence: “[Y]ou expressly waive the right to appeal your sentence in
accordance with the limitation set forth in your plea agreement. Does all this sound
familiar to you?” D.E. 120 at 6:20–24. The court accepted Mr. Faella’s guilty plea,
concluding that there was a factual basis for the plea and that Mr. Faella had
intelligently, freely, and voluntarily waived his rights in entering the plea.
The probation office filed initial and final presentence investigation reports,
neither of which provided victim impact statements or contained a recommended
restitution amount. Two days before the sentencing hearing, the probation office
filed several victim impact statements and restitution requests contained in
voluminous supplements to the presentence report that the government had
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inadvertently failed to timely share with opposing counsel and the probation office.
The district court ultimately postponed the sentencing hearing to a later date.
The probation office continued to file victim impact statements and restitution
requests in supplements to the presentence investigation report, all of which Mr.
Faella opposed. Owing to the number of victims who were still coming forward
with restitution requests, the government filed a motion to bifurcate the restitution
hearing.
At the sentencing hearing, and over defense counsel’s objection, the district
court granted the government’s motion in part and scheduled the restitution hearing
for a later date, stating in its scheduling notice that “Defendant’s Presence is
required.” D.E. 76. Mr. Faella was present at the sentencing hearing and spoke
during the allocution portion. The court imposed concurrent 168-month terms of
imprisonment for the child pornography offenses and, consistent with Mr. Faella’s
plea agreement, dismissed the felon-in-possession charge. Just before going into
recess, the court noted that Mr. Faella should be transported back to the court in order
to be physically present for the restitution hearing.
At the first restitution hearing a few weeks later, the parties stated they had
not been able to come to an agreement regarding the restitution amount. After
hearing both sides’ positions, the court directed the parties to submit additional
arguments in writing to assist it in making its decision as to the proper restitution
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amount. The minutes for the first restitution hearing do not list Mr. Faella as being
present, but the transcript could be read as indicating that he attended. See D.E. 126
at 7:1–3 (court noting Mr. Faella is “not waiving his right to be here, and it’s perfectly
appropriate”); id. at 44:2–5 (“[D]oes your client want to be here for—well, no, we’re
just doing written submissions. There won’t be another hearing. So we won’t have
to meet again.”)
A few weeks after the first restitution hearing, Mr. Faella’s counsel requested
oral argument regarding the applicability of our decision in United States v.
Rothenberg, 923 F.3d 1309 (11th Cir. 2019), to the government’s request for
restitution. The district court held a second restitution hearing to hear argument as
to the impact of Rothenberg and as to the restitution issue more broadly. Afterwards,
the court issued an order requiring Mr. Faella to pay $52,500 in restitution to a
number of victims. The court’s minutes for the second restitution hearing does not
conclusively indicate whether Mr. Faella was present, but defense counsel did not
make any objection or indicate Mr. Faella’s absence.
II
Both parties acknowledge the existence of the appeal waiver, but the
government presses the preclusive effect of the waiver on Mr. Faella’s appeal in its
response brief. Mr. Faella did not submit a reply brief to address the government’s
argument, or explain why his appeal waiver is invalid or how his arguments on
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appeal can survive it. If the appeal waiver in Mr. Faella’s plea agreement applies,
Mr. Faella would be barred from raising his claims and we would be required to
dismiss his appeal. See United States v. DiFalco, 837 F.3d 1207, 1215 (11th Cir.
2016) (citations omitted).
A
Mr. Faella’s first argument on appeal is that the district court abused its
discretion by failing to consider the factors set forth in Paroline in determining the
proper amount of restitution. This argument does not fall under any of the three
appeal waiver exceptions in the agreement. That claim is therefore permissible only
if we conclude that the appeal waiver is invalid or unenforceable.
We review the validity of a sentence appeal waiver de novo. See United States
v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A waiver will be enforced if it
was made knowingly and voluntarily. See United States v. Bushert,
997 F.2d 1343,
1350–51 (11th Cir. 1993). To establish that the waiver was made knowingly and
voluntarily, the government must show either that (1) the district court specifically
discussed the waiver with the defendant at the plea colloquy, or that (2) the record
makes clear that the defendant otherwise understood the full significance of the
waiver. See
id. at 1351. “[A]n examination of the text of the plea agreement,”
standing alone, is insufficient to find that the defendant made the appeal waiver
knowingly and voluntarily.
Id. at 1352. “Without a manifestly clear indication in
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the record that the defendant otherwise understood the full significance of the
sentence appeal waiver, a lack of sufficient inquiry by the district court during the
[Fed. R. Crim. P.] 11 hearing will be error.” Id. Restitution is part of a sentence and
a challenge to a restitution amount can be waived by a valid appeal waiver. See
Johnson, 541 F.3d at 1067–68.
According to his plea agreement, Mr. Faella expressly waived his right to
appeal on all but three narrow grounds. At his plea colloquy, he attested that he had
an opportunity to read the agreement with his attorney, and that he understood it.
The district court noted the appeal waiver among other provisions of the plea
agreement, and Mr. Faella confirmed the district court’s summary. Although this
was not as extensive and probing an inquiry as we would want, we have previously
determined that a waiver is enforceable in similar circumstances—where a defendant
professed to understand it during the plea colloquy, confirmed that he had read the
plea agreement and knew that it was binding, and entered into the plea agreement
freely and voluntarily. See United States v. Weaver, 275 F.3d 1320, 1323–24, 1333
(11th Cir. 2001) (holding that an appeal waiver was valid where it was “referenced”
at the Rule 11 hearing and where the district court established that the defendant had
read and understood “every page and every word” of the plea agreement).
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Because the appeal waiver is valid, and because Mr. Faella’s Paroline
argument does not come within the waiver’s exceptions, we dismiss that portion of
the appeal.
B
We have recognized that “there are certain fundamental and immutable legal
landmarks within which the district court must operate regardless of the existence of
sentence appeal waivers.” Bushert, 997 F.2d at 1350 n.18. See also United States v.
Blick,
408 F.3d 162, 171–72 (4th Cir. 2005) (“[A] defendant’s agreement to waive
appellate review of his sentence is implicitly conditioned on the assumption that the
proceedings following entry of the plea will be conducted in accordance with
constitutional limitations.”) (citation omitted).
Mr. Faella’s second argument—that the district court violated his due process
rights by conducting the restitution hearings without him—implicates these
concerns. The U.S. Constitution and the Federal Rules of Criminal Procedure
protect a defendant’s right to be present at his trial and sentencing. See Fed. R. Crim.
P. 43(a)(2)–(3) (requiring that “the defendant must be present at . . . every trial stage,”
including “sentencing”). See also United States v. Mosquera, 886 F.3d 1032, 1043
(11th Cir. 2018) (stating that a criminal defendant’s right to be present at trial is based
in the Confrontation Clause of the Sixth Amendment, the Due Process Clause of the
Fifth Amendment, and Federal Rule of Criminal Procedure 43); United States v.
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Huff, 512 F.2d 66, 71 (5th Cir. 1975) (“[S]entencing is, of course, a critical stage of
the proceedings against the accused, at which he is constitutionally entitled to be
present and represented by counsel.”). We assume, without deciding, that Mr.
Faella’s due process claim is not barred by the appeal waiver.
We conclude, however, that Mr. Faella’s possible absence from the restitution
hearings did not constitute plain error. Plain error is the appropriate standard of
review because defense counsel did not object to Mr. Faella’s possible absence from
the two restitution hearings. See United States v. Margarita Garcia, 906 F.3d 1255,
1266–1268 (11th Cir. 2018).
First, it is not clear from the record whether Mr. Faella was actually absent
from the proceedings. At the first restitution hearing, the court stated Mr. Faella was
“not waiving his right to be here.” D.E. 126 at 7:1–3. It then stopped itself before
asking whether Mr. Faella wanted to be present at a future hearing on restitution,
given that the parties were “just doing written submissions,” because there would
not be another hearing. See id. at 44:2–5. The court had, at the prior sentencing
hearing, recognized that Mr. Faella requested to be physically present for the
restitution hearing and that he should be transported back. See D.E. 122 at 42:2–8.
The minute entries for the hearings in the case generally do not indicate whether Mr.
Faella was present and the transcripts for these hearings do not list Mr. Faella as a
participant—even though we know from the transcripts that he was present, for
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example, at the sentencing hearing, where he spoke, and at a hearing on a motion to
reduce sentence, where the court reporter noted that Mr. Faella entered the
courtroom. See D.E. 122 at 10:10–11:7; D.E. 124 at 2:19. We cannot conclude on
this record that Mr. Faella was absent merely because he is not formally listed as
present in the transcripts or minute entries of the restitution hearings. 1
Second, even if Mr. Faella was absent, his counsel—as noted—did not object
to his absence at the restitution hearings. Nor did counsel include a request that Mr.
Faella be present at the second restitution hearing when he moved for oral argument
regarding the effect of Rothenberg. Defense counsel therefore may have waived the
ability to challenge this purported error on appeal. See United States v. Brantley, 68
F.3d 1283, 1291 (11th Cir. 1995) (“Failure to assert the right to presence or to object
to a violation of Rule 43 may constitute a valid waiver.”). We therefore fail to see
how there was error that was plain.
Third, we do not deem any error to have affected Mr. Faella’s substantial
rights. Assuming Mr. Faella was absent, and viewing the record as a whole—and
particularly the restitution hearing transcripts—his absence did not undermine his
ability to receive a fair and just hearing. See United States v. Gagnon, 470 U.S. 522,
1
In recounting the facts of the case, Mr. Faella’s counsel does not assert that Mr. Faella was absent,
relying instead on the record’s silence as to his appearance at the restitution hearings. See Br. of
Appellant at 12–15;
id. at 17 (“There is nothing in the record that affirmatively states that Mr.
Faella attended either of the two restitution hearings.”). Trial counsel for the government does not
recall whether he was present. See Br. of Appellee at 25 n.4.
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526 (1985) (per curiam) (“[T]he presence of a defendant is a condition of due process
to the extent that a fair and just hearing would be thwarted by his absence, and to
that extent only.”) (citation omitted; alteration in original). Mr. Faella’s presence
was not reasonably likely to change the outcome of the proceeding. At the first
restitution hearing, counsel ably advocated for Mr. Faella and argued against the
restitution amount pressed by the government, citing to legal authorities and the
specific factual details of Mr. Faella’s case. The second restitution hearing regarding
the effect of Rothenberg involved purely legal arguments, which defense counsel
handled with competence. Finally, the district court awarded less restitution than the
government sought. See D.E. 141 at 2–5. Any error did not affect Mr. Faella’s
substantial rights.
III
Mr. Faella’s Paroline argument is within the scope of his appeal waiver, and
we therefore dismiss it. Assuming that his due process claim is not barred by the
appeal waiver, Mr. Faella has not satisfied the plain error standard.
DISMISSED IN PART AND AFFIRMED IN PART.
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