UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                  v.                           No. 03-4520
JOSEPH ZIADEH,
                 Defendant-Appellant.
                                        
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                           (CR-02-273)

                        Argued: June 4, 2004

                       Decided: July 19, 2004

        Before GREGORY and DUNCAN, Circuit Judges,
       and Robert R. BEEZER, Senior Circuit Judge of the
       United States Court of Appeals for the Ninth Circuit,
                      sitting by designation.



Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Duncan and Senior Judge Beezer joined.


                            COUNSEL

ARGUED: Joseph William Kaestner, KAESTNER, PITNEY &
JONES, P.C., Richmond, Virginia, for Appellant. Mark Anthony
Exley, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:
2                       UNITED STATES v. ZIADEH
Raul Novo, Midlothian, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Alexandria, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

GREGORY, Circuit Judge:

   A grand jury in the United States District Court for the Eastern Dis-
trict of Virginia indicted Joseph Ziadeh (hereinafter "Joseph Ziadeh"
or "Appellant") on twenty counts, including mail fraud, bank fraud,
money laundering, bankruptcy fraud and related offenses; Appellant’s
wife, Aida Ziadeh, was also indicted on seventeen counts. Joseph
Ziadeh entered into a plea agreement with the government, whereby
he pled guilty to one count of bank fraud, in violation of 18 U.S.C.
§ 1344, and one count of conspiracy to defraud the United States, in
violation of 18 U.S.C. § 371, and agreed to pay full restitution. As a
result of Appellant’s plea, the government also agreed to cease prose-
cution against Aida Ziadeh.

   The district court imposed a sentence of thirty-seven months’
imprisonment and also ordered Appellant to pay ten victims a total of
$894,161.48 in restitution. Joseph Ziadeh timely filed his notice of
appeal, asserting that the district court abused its discretion in failing
to conduct an evidentiary hearing before ordering restitution, and
erred by failing to consider the statutory factors of the Mandatory
Victims Restitution Act (the "MVRA"), 18 U.S.C. §§ 3663A, 3664,
at sentencing. The government moved to dismiss the appeal, arguing
that in his plea agreement Appellant waived his right to appeal restitu-
tion. For the reasons that follow, we conclude that Appellant did not
waive his right to appeal restitution and thus decline to dismiss the
appeal, yet we find Appellant’s claims fail on the merits. Accord-
ingly, we affirm the restitution order imposed by the district court.
                       UNITED STATES v. ZIADEH                        3
                                   I.

  Joseph Ziadeh was president of Bell Construction Company
("Bell"). In 1996, Bell received a subcontract for approximately $6
million from the Army Corps of Engineers (the "Army Corps"). In
1998, the Army Corps terminated Bell for poor performance and fail-
ure to pay subcontractors. At the time of termination, Bell had been
paid approximately $4.4 million, and owed its subcontractors in
excess of $850,000. United Pacific assumed Bell’s role under the sub-
contract and completed the job.

   In 1998, the Army Corps mistakenly mailed Bell a check for
$145,742 made payable to United Pacific. Joseph Ziadeh endorsed
and deposited the check, and he and Aida used the funds for personal
expenses. A grand jury in the Eastern District of Virginia returned a
twenty-count indictment against Appellant and his wife, charging
them with offenses arising from the fraudulent check cashing as well
as their scheme to defraud subcontractors. In December 2002, Appel-
lant pled guilty to bank fraud, in violation of 18 U.S.C. § 1344, and
conspiracy to defraud the United States, in violation of 18 U.S.C.
§ 371. In return for Appellant’s plea, the government dismissed the
remaining counts in the indictment and agreed not to prosecute Aida
Ziadeh. In the plea agreement, Joseph Ziadeh waived his "right to
appeal any sentence within the statutory maximum" and agreed to
"entry of a Restitution Order for the full amount of the victims’ losses
as determined by the Court."

   In April 2003, the district court sentenced Ziadeh to thirty-seven
months’ imprisonment on each count to be served concurrently, a sen-
tence within the statutory maximum, and a five-year term of super-
vised release. With respect to restitution, the court found that the
precise amounts owed to many victims were not ascertainable at the
time of the hearing, thus in accord with 18 U.S.C. § 3664(d)(5) it
ordered the government to submit a proposed restitution order within
thirty days of sentencing, to which defendant could file a response
within ten days. Appellant objected to the government’s recommen-
dations, and without a hearing, the court resolved all objections in
favor of the government. As such, in June 2003, an order issued man-
dating restitution in the amount of $894,161.48 based on Appellant’s
course of fraudulent conduct.
4                      UNITED STATES v. ZIADEH
   Joseph Ziadeh timely filed a notice of appeal, and the government
moved to dismiss the appeal. We issued an order deferring action on
the government’s motion to dismiss pending oral argument.

                                  II.

   The government argues that we should dismiss Joseph Ziadeh’s
appeal of the district court’s restitution order because the plea agree-
ment into which Appellant entered contained a waiver of the right to
appeal sentence. Appellant counters that while he waived his right to
appeal a sentence of imprisonment, the language of his plea agree-
ment does not constitute waiver of his right to challenge the restitu-
tion order. Accordingly, Appellant does not challenge the validity of
the plea agreement, he merely challenges the scope of waiver.

   While the Constitution does not provide criminal defendants with
a right to appeal, see Jones v. Barnes, 

, 751 (1983), Con-
gress has accorded the right to appeal sentence, see 18 U.S.C. § 3742.
A defendant may, however, waive this statutory right to appeal.
United States v. Wiggins, 

, 53 (4th Cir. 1990). We will
enforce the waiver of a defendant’s right to appeal contained in a
valid plea agreement "so long as it is ‘the result of a knowing and
intelligent decision to forgo the right to appeal.’" United States v.
Attar, 

, 731 (4th Cir. 1994) (quoting United States v. Wes-
sells, 

, 167 (4th Cir. 1991)). If during the Fed. R. Crim.
P. 11 colloquy the district court fully questions a defendant regarding
the waiver of his or her right to appeal, we deem such waiver valid
and enforceable. See 

. The question of
whether a defendant validly waived his or her right to appeal is a
question of law that we review de novo. United States v. Marin, 

, 496 (4th Cir. 1992).

    To determine whether the waiver clause bars an appeal from the
restitution order, we must decide whether the appeal waiver was
valid, and, if so, whether the challenge to restitution is within the
scope of that waiver. See United States v. Broughton-Jones, 

, 1146 (4th Cir. 1995); 

33. Plea agreements
are grounded in contract law and both parties should receive the bene-
fit of their bargains. United States v. Ringling, 

, 506 (4th
Cir. 1993). We hold the government to a greater degree of responsi-
                         UNITED STATES v. ZIADEH                           5
bility for imprecision or ambiguity in the agreement. See United
States v. Harvey, 

, 300-01 (4th Cir. 1986). Where the
terms of the agreement are ambiguous, we construe them against the
government. 

we proceed to review both the text of
the plea agreement and the Rule 11 colloquy to determine whether
Ziadeh waived his right to appeal restitution.

   The plea agreement, in relevant part, stated the following with
regard to Appellant’s right to appeal:

      The defendant is aware that the defendant’s sentence will be
      imposed in accordance with the Sentencing Guidelines and
      Policy Statements. The defendant is aware that the Court has
      jurisdiction and authority to impose any sentence within the
      statutory maximum set for the offenses to which the defen-
      dant pleads guilty. . . . [T]he defendant knowingly waives
      the right to appeal any sentence within the maximum pro-
      vided in the statutes of conviction (or the manner in which
      that sentence was determined) on the grounds set forth in
      [18 U.S.C. § 3742] or on any ground whatever, in exchange
      for the concessions made by the United States in this plea
      agreement.

J.A. 30-31 ¶ 4. As is clear, however, the waiver provision made no
explicit reference to restitution.1 Instead, the waiver provision largely
referred to "sentence" in the context of the term of imprisonment. See

range" and "sentence within the
maximum provided in the statutes of conviction"). As such, we find
the plea agreement’s waiver provision is ambiguous as to whether
"sentence" includes the amount of restitution, or refers only to term
of imprisonment. For example, on the one hand, restitution is part of
"sentence" in the colloquial sense in that it is a determination for the
  1
   With respect to restitution generally, the plea agreement stated that
"defendant agrees to the entry of a Restitution Order for the full amount
of the victims’ losses as determined by the Court," and provided that
within thirty days after sentencing Appellant and Aida Ziadeh would
deliver a note payable to the government in the full amount of restitution
ordered by the district court, and notes that the district court would deter-
mine total loss, restitution victims and restitution amount. J.A. 30 ¶ 3.
6                       UNITED STATES v. ZIADEH
district court after guilt has been adjudged.2 On the other hand, resti-
tution is not simply "imposed in accordance with the Sentencing
Guidelines and Policy Statements" as the plea agreement specifies.
J.A. 30 ¶ 4; cf. United States v. Ready, 

, 559-60 (2d Cir.
1996) (holding that term "any sentence" within plea agreement’s
waiver of right to appeal provision did not include restitution because
of ambiguity). Rather, Appellant’s challenge is levied against the dis-
trict court’s determination of the victims and the amount owed —
alleged legal errors under the MVRA, not disagreements with the dis-
trict court’s authority to "impose any sentence within the statutory
maximum." See J.A. 30 ¶ 4.

   In addition, during Ziadeh’s Rule 11 colloquy, the district court did
not ask him about waiver of the right to appeal as it pertained to resti-
tution. Instead, after discussing maximum terms of imprisonment,
preparation of the Presentence Report, and the Sentencing Guidelines,
see Tr. at 10 (No. 3:02CR273-01, E.D. Va. Dec. 20, 2002), the fol-
lowing exchange transpired:

        THE COURT:           And should I impose a sentence on
                             you, a guideline sentence on you that
                             is less severe than what the govern-
                             ment thinks the guidelines call for,
                             the United States could appeal the
                             sentence? Do you understand that?
    2
    As a general matter, restitution is part of a criminal sentence. See
United States v. Buchey, 

, 461 (4th Cir. 1987) ("Criminal
restitution . . . is part of the sentencing process [and thus] is fundamen-
tally ‘penal’ in nature."); see also United States v. Snider, 

,
706-07 (9th Cir. 1992) ("Restitution imposed as a component of the
defendant’s sentence is a criminal penalty, not a civil remedy."); United
States v. Satterfield, 

, 837 (11th Cir. 1984) (noting that Con-
gress intended "to treat restitution as one of the options available to the
district court in imposing an appropriate sentence"). In fact, we have pre-
viously held that restitution fell within the ambit of a more broadly
worded waiver of the right to appeal a "sentence." See 

(implicitly finding that restitution fell within waiver of
right to appeal sentence, but finding grounds for appeal fell outside the
waiver).
                       UNITED STATES v. ZIADEH                         7
    THE DEFENDANT: Yes, sir.

    THE COURT:              And according to the plea agreement
                            you have waived your right to appeal
                            The Court’s guideline sentence if it
                            falls within the limits called for by
                            the guidelines?

    THE DEFENDANT: Yes, sir.

added). No discussion of waiver as to the restitu-
tion determination took place thereafter.

   In short, neither the plea agreement, nor the colloquy indicates
determinatively that Joseph Ziadeh was waiving his right to challenge
restitution. Instead, both the terms of the agreement and the discus-
sion of the plea during the colloquy focus on appeal rights as to the
term of imprisonment. Indeed, nowhere in the record is restitution dis-
cussed in the context of Ziadeh’s waiver of appellate rights. As such,
in accord with settled circuit law, see 

, we must hold
the government to its end of the bargain and resolve the ambiguous
language of the agreement in favor of Appellant. If the government
intended the plea agreement to include a waiver of appellate rights
related to restitution, it knew full well how to include such language
in the plea agreement. Because of the ambiguities within the plea
agreement and the absence of curative passages concerning restitution
during the plea colloquy, we hold that Joseph Ziadeh did not waive
the right to bring this appeal challenging the restitution order. Accord-
ingly, we proceed to consider Appellant’s claims on the merits.

                                  III.

   On the merits, Appellant advances two interrelated arguments.
Appellant asserts that while he was allowed to object to the govern-
ment’s proposed restitution order, the district court abused its discre-
tion by not holding an evidentiary hearing. Appellant claims that
without such a hearing he was "not given a meaningful opportunity
to be heard." Although unclear from the briefs, the crux of Appel-
lant’s denial of "a meaningful opportunity to be heard" claim seem-
8                       UNITED STATES v. ZIADEH
ingly centers on his contention that certain subcontractors listed in the
restitution order were not victims of his fraudulent scheme. Relatedly,
Appellant argues that in imposing restitution without an evidentiary
hearing, the district court erred by failing to properly consider the
MVRA when fashioning restitution.3

                                    A.

   Appellant contends the district court’s failure to hold an evidenti-
ary hearing constitutes reversible error. As discussed above, after the
sentencing hearing, the district court ordered the government to sub-
mit a proposed restitution order, detailing the victims and amounts
owed because the amounts Appellant owed victims for the purposes
of restitution were not readily ascertainable, pursuant to 18 U.S.C.
§ 3664(d)(5). The government submitted its order and Appellant
objected to the government’s recommendations. Without holding an
evidentiary hearing, the district court found defendant’s objections
lacked merit and ordered restitution in the amount of $894,161.48.

   Section 3664(e) provides: "Any dispute as to the proper amount or
type of restitution shall be resolved by the court by the preponderance
of the evidence. The burden of demonstrating the amount of the loss
sustained by a victim as a result of the offense shall be on the attorney
    3
    At oral argument, Appellant’s counsel raised a new issue, namely
whether the district court improperly imposed restitution based on rele-
vant conduct rather than charged conduct. Because this issue was not
raised within Appellant’s nine-page merits brief (inclusive of table of
contents, table of authorities, issues presented, statement of the case,
facts and argument) — or, for that matter, his eleven-page reply brief —
we hold that argument is waived. See Cavallo v. Star Enter., 

, 1152 n.2 (4th Cir. 1996) (holding argument not raised in opening
brief, but raised for the first time in reply brief was waived); see also
Canady v. Crestar Mortgage Corp., 

, 973-74 (4th Cir.
1997) (holding issue waived because it was not mentioned in brief, but
was only raised in notice of appeal); Tucker v. Waddell, 

, 690
n.1 (4th Cir. 1996) (stating issues not addressed in brief or oral argument
are waived); 11126 Baltimore Blvd., Inc. v. Prince George’s County,
Md., 

, 993 n.7 (4th Cir. 1995) (same); United States v. Wil-
liams, 

, 666 (4th Cir. 1967) (per curiam) (holding issues
argued orally but not addressed in brief were waived).
                        UNITED STATES v. ZIADEH                          9
for the Government." 18 U.S.C. § 3664(e). Section 3664 does not
require the district court to hold an evidentiary hearing. Rather,
whether the district court should hold an evidentiary hearing is com-
mitted to the discretion of the district court, thus we review for abuse
of discretion. See Cagle v. Hutto, 

, 258 (4th Cir. 1999).
The district court’s determination of the amount of loss for restitution
purposes is reviewed for clear error. United States v. Dawkins, 

, 714 (4th Cir. 2000).

   Appellant argues that "because of the complex nature of the case
and the contradictory evidence presented by the parties prior to sen-
tencing," the district court abused its discretion by not holding an evi-
dentiary hearing on the issue of restitution. Br. of Appellant at 5-6.
In support of his claim, Ziadeh merely offers the bald assertion that
he "has denied that certain subcontractors listed by the Government
in their proposed Restitution Order were even subcontractors for the
purposes of the Contract, and the Government’s own listing of the
Final Restitution Order bears that assertion out." Br. of Appellant at
7; Reply Br. at 8. Nowhere in his briefing does Appellant specify
which subcontractors should not be considered victims and which res-
titution amounts he continues to challenge, nor does he specify which
facts he considers in "material dispute" such that an evidentiary hear-
ing is necessary. Accordingly, it is not difficult to conclude that the
district court did not abuse its discretion in failing to hold an evidenti-
ary hearing, and did not commit error, let alone clear error, in impos-
ing restitution of $894,161.48. See 

.

   Appellant’s plea agreement required him to make full restitution
for "the full amount of victims’ losses as determined by the [district]
[c]ourt." J.A. 30 ¶ 3. First, of the total restitution ordered, it is clear
that $145,742, the amount of the Army Corps’ check to Union Pacific
which Appellant fraudulently received, was never in dispute before
the district court. Thus, the only amount ever in question would be the
additional sums owed the subcontractors. However, the government
and Joseph Ziadeh filed a "Statement of Facts" at the same time as
they filed the plea agreement, and that filing demonstrates the
amounts owed subcontractors were not properly in dispute. See R.
Tab 25 ("Statement of Facts" Dec. 20, 2002). In the Statement of
Facts, a single paragraph filing, the parties "stipulate[d] that the fac-
tual allegations contained in Count Nine of the Indictment . . . are
10                      UNITED STATES v. ZIADEH
true." 

of the indictment, the bank fraud
count to which Appellant pled guilty, incorporated the allegations of
Count Two, "Major Fraud Against the United States," ¶¶ 2-11. In
those stipulations, Appellant admitted to having participated in a
scheme to defraud the subcontractors. See J.A. at 15-17 ¶¶ 2-11
(detailing Appellant’s scheme to defraud the Army Corps of money
owed to Bell’s subcontractors). Specifically, Appellant admitted to
Paragraph 10 of Count Two, which stated that Bell owed its subcon-
tractors $850,000, 

10, and that money would have been
paid had Appellant and his wife not "diverted monies from [the sub-
contractors] to their own use," 

8.

   In sum, Appellant stipulated that the fraudulent conduct to which
he pled guilty had resulted in losses totaling $995,742, an amount for
which he agreed to pay "full restitution" under the terms of the plea
agreement. However, when the government prepared its recom-
mended restitution order, it traced only $748,419.48 to subcontractors
in addition to the $145,742 check cashed by Appellant and his wife.
Thus, the total amount of restitution recommended, and eventually
ordered by the district court, totaled $894,161.48, a sum $101,580.52
less than the amount for which Joseph Ziadeh stipulated that he was
responsible.4 In this light, we cannot conclude that the district court
abused its discretion by failing to hold an evidentiary hearing, nor can
we conclude that it committed a clear legal error in determining the
restitution amount.

                                   B.

     Appellant also argues that we should vacate the district court’s
  4
   Furthermore, at the sentencing hearing, the government, without
objection, proffered an exhibit detailing approximately $879,000 in
unpaid sums due the subcontractors. Thereafter, Ziadeh’s counsel
acknowledged on his client’s behalf that "in many instances he came up
short, and some of the contractors were not paid at that particular time.
But it is Mr. Ziadeh’s position . . . that he will pay any subcontractors,
any material men, any person who has furnished work or whatever to the
project . . . that the government can document that is owed. . . . And
[Ziadeh] stands ready now to agree to make restitution to any of those
people who were not paid." J.A. 122.
                        UNITED STATES v. ZIADEH                        11
findings of restitution — or remand for further consideration —
because it did not consider "mandatory statutory factors" in imposing
restitution. See Br. of Appellant at 6, 8; Reply Br. at 6. He asserts that
pursuant to 18 U.S.C. § 3664, in determining the restitution amount,

     the district court must make factual findings based on the
     record with respect to: amount of loss, defendant’s ability to
     pay and financial need of the defendant and the defendant’s
     dependents; and the relationship between restitution
     imposed and the loss caused by defendant’s conduct. The
     district court failed to account for some of these statutory
     factors, and thus remand is appropriate.

Br. at 6; Reply Br. at 6. Appellant’s contention is simply wrong as a
legal matter.

   The MVRA provides: "In each order of restitution, the court shall
order restitution to each victim in the full amount of each victim’s
losses . . . without consideration of the economic circumstances of the
defendant." 18 U.S.C. § 3664(f)(1)(A) (emphasis added). Appellant,
however, ignores this clear statutory mandate and instead relies on a
case, United States v. Piche, 

, 717-18 (4th Cir. 1992),
which interprets § 3664 of the MVRA’s superceded predecessor stat-
ute. Under the former Victim and Witness Protection Act of 1982 (the
"VWPA"), § 3664 required "the district judge to balance the victim’s
interest in compensation against the financial resources and circum-
stances of the defendant." 

and citation
omitted).

   As the above-quoted section of the MVRA demonstrates, however,
this requirement of the former-VWPA no longer exists. In United
States v. Alalade, 

(4th Cir. 2000), we explained in detail
the effect of the revisions to § 3664 with the passage of the MVRA:

     [T]he plain language of the MVRA did not grant the district
     court discretion to reduce the amount of restitution . . . .
     Critically, with passage of the MVRA, Congress completely
     deleted the language of the VWPA affording the district
     court discretion in cases such as this to consider any factor
     it deemed appropriate in determining the amount of restitu-
12                        UNITED STATES v. ZIADEH
      tion to be ordered, see 18 U.S.C.A. § 3664(a) (West 1985)
      (amended 1996), and replaced it with language requiring the
      district court to order restitution in the full amount of loss
      to each victim as determined by the district court, see 18
      U.S.C.A. § 3664(f)(1)(A) (West Supp. 1999). Furthermore,
      in contrast to the VWPA, the MVRA does not contain any
      language requiring the district court, in determining the
      total amount of restitution to be ordered, to consider the
      financial resources of the defendant or the financial needs
      and earning ability of the defendant and the defendant’s
      dependents. Compare 18 U.S.C.A. § 3664(f) (West Supp.
      1999) with 18 U.S.C.A. § 3664(a) (West 1985) (amended
      1996).

added); see also United States v. Chay, 

, 686 (7th Cir. 2002) (holding the MVRA "prohibits the court
from examining the defendant’s ability to pay restitution"); United
States v. McGlothlin, 

, 784 (8th Cir. 2001) (same);
United States v. Myers, 

, 168-69 (5th Cir. 1999) (same);
United States v. Coates, 

, 683 (3d Cir. 1999) (same).5
  5
    In his reply brief and at oral argument, Appellant attempted to refine
his MVRA claim. In his reply brief, Appellant asserts, "[t]here is no evi-
dence in the record that the district court, after determining the full resti-
tution amounts owed, took into consideration the financial condition of
the defendant, the defendant’s dependents, or whether assets are jointly
controlled in determining the manner and scheduling of restitution pay-
ments." Reply Br. at 10 (emphasis added). Under the MVRA, typically
the court is to consider the economic circumstances of the defendant in
determining whether restitution should be paid in a lump-sum, schedule
of payments, or a combination of payments at specified intervals. See 18
U.S.C. § 3664(f)(2)-(3). Even assuming this argument was not waived,
see supra note 3 (citing Cavallo), we find that it would have been super-
fluous, or perhaps more directly, flatly contrary to Appellant’s plea
agreement for the district court to have conducted such an inquiry.
Appellant’s plea agreement vitiated the need for the district court to
engage in such an analysis because it stated precisely the schedule and
manner by which restitution was to be paid:
      [D]efendant agrees to the entry of a Restitution Order for the full
      amount of the victims’ losses as determined by the Court. The
                        UNITED STATES v. ZIADEH                            13
Accordingly, Appellant’s arguments that the district court erred by
failing to consider his financial circumstances in determining restitu-
tion are wholly without merit.

                                    IV.

   For the reasons stated above, we deny the government’s motion to
dismiss the appeal and affirm the district court’s restitution order.

                                                              AFFIRMED

    defendant agrees that within 30 days after sentencing in this
    case, the defendant and the defendant’s spouse, Aida L. Ziadeh,
    will make and deliver a note payable to the United States of
    America in the full amount of restitution ordered by the Court
    . . . secured by a properly recorded Deed of Trust in real prop-
    erty owned by the defendant and the defendant’s spouse, Aida L.
    Ziadeh, whether individually or jointly held . . . with equity equal
    to the amount of restitution ordered.
J.A. 30 ¶ 3 (emphasis added). Because this element of the plea agreement
is unambiguous, Appellant’s MVRA claim regarding the district court’s
failure to analyze his financial condition "in determining the manner and
scheduling of payments" is spurious.