Filed: Sep. 27, 2013
Latest Update: Mar. 28, 2017
Summary: and the, court does, in fact, depart downward on that, basis, [Okoye] will not file a direct appeal, nor collaterally challenge any sentence, imposed.understood his plea agreement.restitution to First NLC and $345, 356 to Taylor Bean.United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.
United States Court of Appeals
For the First Circuit
No. 12-2045
UNITED STATES OF AMERICA,
Appellee,
v.
AUGUSTUS OKOYE,
a/k/a CHINEDU OKOYE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Selya and Thompson,
Circuit Judges.
Stuart W. Tisdale, Jr., court appointed counsel, with whom
Tisdale & Davis, P.A., was on brief for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.
September 27, 2013
TORRUELLA, Circuit Judge. Indicted on identity fraud and
wire fraud charges for stealing his older brother's identity to
obtain five fraudulent mortgages, Defendant/Appellant Augustus
Okoye ("Okoye") entered into a plea agreement containing an appeal
waiver. Pursuant to the agreement, Okoye was sentenced to 21
months of imprisonment and ordered to pay $454,207 in restitution
to the two defrauded mortgage companies, First NLC Financial
Services ("First NLC") and Taylor, Bean and Whittaker Mortgage
Corp. ("Taylor Bean"). On appeal, Okoye takes issue with the
restitution component of his sentence and argues that his appeal
waiver does not extend to it. After carefully reviewing the record
and the applicable law, we find that the waiver unambiguously
encompassed restitution and thus dismiss Okoye's appeal.
I. Background
In the fall of 2006, Okoye was facing foreclosure on his
home at 278 Brush Hill Road, Milton, MA. Unable to come up with
the $475,865 needed to stop the proceedings, Okoye stole his
brother's identity to obtain a $600,000 mortgage loan from First
NLC.1 Okoye used this loan to pay off the outstanding balance on
the mortgage and pocketed the remaining proceeds from the loan,
which amounted to $74,520. Apparently emboldened by his success at
First NLC, Okoye repeated essentially the same scheme at Taylor
1
At the time, Okoye's brother apparently enjoyed some degree of
success as an entrepreneur.
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Bean, where he fraudulently obtained four additional mortgage loans
totaling $438,750 to purchase two condos in Mattapan, MA.
Okoye made no payments on any of the mortgages, and his
brother immediately noticed the negative impact on his personal
credit rating. The fraudulent scheme came to light soon
thereafter, with an affidavit authored by Okoye detailing every
aspect of his misdeeds. Not surprisingly, the affidavit found its
way to the federal authorities, and Okoye's prosecution ensued.
On January 25, 2010, after negotiations with the
government, Okoye agreed to plead guilty to three counts of wire
fraud in violation of 18 U.S.C. § 1343, and one count of identity
fraud in violation of 18 U.S.C. § 1028(a)(7). In exchange, the
government agreed not to charge him with aggravated identity theft.
A written plea agreement memorialized all the terms of the parties'
bargain.
As relevant here, section 2 of the plea agreement
outlined the lists of penalties to which Okoye acknowledged being
exposed, including up to twenty years of imprisonment, and
"[r]estitution of up to the amount of the loss." Section 4, in
turn, established the sentencing recommendations that the parties
agreed the government would make. It set forth three different
scenarios, each stating in no uncertain terms that "[r]estitution
in the amount of the loss" would be an integral part of any
sentencing recommendation. Restitution was again mentioned in
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section 6 of the agreement, where Okoye agreed that he would
protect his assets "until the fine, forfeiture and restitution
ordered by the Court at sentencing . . . [we]re satisfied in full."
Section 7 of the agreement embodied the waiver-of-appeal
provision at issue here. It made plain that
[Okoye] agrees that he will not file a direct
appeal nor collaterally challenge any prison
sentence of 27 months or less. [Okoye] also
agrees that, if the U.S. Attorney files a
motion for downward departure . . . and the
court does, in fact, depart downward on that
basis, [Okoye] will not file a direct appeal
nor collaterally challenge any sentence
imposed.
(emphasis supplied).
At a March 23, 2010 change-of-plea hearing, the district
court judge spoke candidly with Okoye to make sure that he
understood his plea agreement. The court specifically commented on
the sections regarding the parties' sentencing recommendations and
the appeal waiver. Among other things, the court noted that appeal
waivers are generally enforceable so long as there exists
consideration for the defendant, and that Okoye's waiver presented
no exception, given that the government agreed to forgo aggravated
identity theft charges and recommend a reduced term of
imprisonment.
The court convened a sentencing hearing on August 8,
2010. After listening to the parties' sentencing recommendations,
it granted the government's motion for a downward departure and
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sentenced Okoye to 21 months' imprisonment. Pursuant to the plea
agreement, the court also ordered Okoye to pay $108,851 in
restitution to First NLC and $345,356 to Taylor Bean.
Okoye immediately objected to First NLC's restitution
award. He argued in open court that First NLC could not properly
receive restitution as it had been dissolved and no successor-in-
interest had come forward. Okoye maintained that there was thus no
certainty as to either the amount owed or the identity of the party
to be made whole. The court attempted to assuage these concerns by
entering a conditional restitution order and giving the government
90 days to establish that First NLC was in fact a victim.
On August 9, 2012, one day after his sentencing hearing,
Okoye lodged this appeal, which was perfected after the district
court entered a final order of restitution in favor of Morgan
Stanley Capital Holdings, LLC as First NLC's successor-in-interest.
II. Discussion
Okoye advances a number of substantive challenges to the
restitution order. The threshold inquiry, however, is whether
Okoye's appeal falls within the scope of the waiver-of-appeal
provision contained in his plea agreement.2 In making this
determination, we interpret the parties' agreement under basic
contract principles, United States v. Ríos-Hernández, 645 F.3d
2
Okoye does not challenge the validity of his plea agreement, and
we have no reason to believe that it is defective.
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456, 461 (1st Cir. 2011) (citing United States v. Acosta-Román, 549
F.3d 1, 3 (1st Cir. 2008)), and construe any ambiguities in the
waiver provision in favor of allowing the appeal to proceed.
United States v. Fernández-Cabrera,
625 F.3d 48, 51 (1st Cir.
2010). Mindful of this rule of construction, Okoye urges us to
find that the waiver-of-appeal provision in his plea agreement is
ambiguous insofar as it applies to restitution awards. According
to Okoye, such ambiguity stems from the use of the word "prison" as
a qualifier to the word "sentence" in some sections of the waiver
but not in others. In other words, Okoye pins all his hopes on the
proposition that the waiver is ambiguous as to whether the import
of the word "sentence" is limited to "prison sentence" even where
not explicitly indicated. We wholeheartedly disagree.
Our analysis is anchored in a well-settled tenet of
contractual exegesis: "In interpreting contractual language, we
consider the contract as a whole. Its meaning cannot be delineated
by isolating words and interpreting them as though they stood
alone." Farmers Ins. Exchange v. RNK, Inc., 632 F.3d 777, 785 (1st
Cir. 2011) (internal quotation marks omitted); see also United
States v. Alegría,
192 F.3d 179, 185 (1st Cir. 1999) ("[P]lea
agreements, like contracts generally, should be construed where
possible to give effect to every term and phrase."); Smart v.
Gillent Co. Long-Term Disability Plan, 70 F.3d 173, 179 (1st Cir.
1995) ("Accepted canons of construction forbid the balkanization of
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contracts for interpretive purposes."). Here, a holistic reading
of the plea agreement unequivocally negates Okoye's proposition.
In fact, the plea agreement in at least three different sections
unambiguously established that Okoye's sentence would include
"restitution in the amount of the loss." Accordingly, at this late
hour, Okoye cannot be heard to say that he was uncertain as to
whether the term "any sentence" as used in the waiver-of-appeal
provision encompassed restitution. He must now live with the
consequences of his bargain. See United States v. Donath, 616 F.3d
80, 84 (1st Cir. 2010) ("When enforcing the appellate waiver, we
stress that both sides are obligated to live by the bargain they
made.").
In any event, we would reach the same result even under
Okoye's atomistic reading of the waiver-of-appeal provision. Okoye
makes much of the way in which the waiver-of-appeal provision is
structured. Specifically, he directs our attention to the fact
that the word "prison" qualifies the word "sentence" at the
beginning of the waiver-of-appeal provision. In Okoye's view,
"[t]hat limited sense of [the word] 'sentence' . . . carries
forward and attaches by implication to the phrase 'any sentence' in
the next statement." Okoye's submissions on appeal, however,
provide us with absolutely no guidance as to how or why we should
get around the hoary maxim expressio unius est exclusio alterius,
which "instructs that when certain matters are mentioned in a
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contract, other similar matters not mentioned were intended to be
excluded." Institut Pasteur v. Cambridge Biotech Corp., 104 F.3d
489, 495 (1st Cir. 1997). Put differently, Okoye provides us with
nothing to conclude that the parties did not mean to exclude the
qualifier "prison" when referring to "any sentence" in the closing
clause of the waiver-of-appeal provision. Our independent analysis
of the record has revealed no reason so to conclude.
To complicate matters further for Okoye, his proposed
construction of the phrase "any sentence" is at odds with our
precedent. See, e.g., United States v. Acosta, 303 F.3d 78, 87
(1st Cir. 2002) ("It is undisputed that restitution is part of a
sentence.") (citing United States v. Wallen, 953 F.2d 3, 4 (1st
Cir. 1991)). It also contravenes the import many of our sister
circuits have afforded to the word "sentence." See, e.g., United
States v. Pérez,
514 F.3d 296, 299 (3d Cir. 2007) ("By waiving his
right to appeal his criminal sentence, [defendant] waived his right
to appeal the restitution order."); United States v. Cooper, 498
F.3d 1156, 1159 (10th Cir. 2007)(holding that appeal waiver barred
appeal of restitution order, where plea agreement clearly specified
that restitution was part of the defendant's sentence); United
States v. Cohen,
459 F.3d 490, 497 (4th Cir. 2006) (finding that
defendant waived right to appeal restitution order where he agreed
to "waive knowingly and expressly all rights, conferred by 18
U.S.C. § 3742, to appeal whatever sentence is imposed"); United
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States v. Sharp, 442 F.3d 946, 948, 952 (6th Cir. 2006) (same);
United States v. Behrman,
235 F.3d 1049, 1052 (7th Cir. 2000)
(holding that "[a]n agreement waiving appeal from 'any sentence
within the maximum provided in Title 18' or similar language"
waives the right to appeal an order of restitution).3 Okoye
advances no reason why we should stray away from the foregoing
authority. Needless to say, we will not do so here.
III. Conclusion
For the reasons stated above, Okoye's appeal is hereby
dismissed.
Dismissed.
3
Notably, some of our sister circuits were examining plea
agreements which at no point specifically referenced restitution as
part of the defendant's sentence. See Pérez, 514 F.3d at 299;
Cohen, 459 F.3d at 497; Sharp, 442 F.3d at 952. While we have
previously stated that "the circuits are divided as to whether a
waiver-of-appeal provision contained in a plea agreement, which
does not specifically refer to restitution, precludes a subsequent
appeal of a restitutionary order," United States v. Salas-
Fernández, 620 F.3d 45, 47 (1st Cir. 2010) (emphasis supplied), we
have never identified such disagreement where, as here, the plea
agreement specifically outlines restitution as part of a
defendant's sentence. There is a stronger rationale for barring an
appeal under such circumstances, given that the defendant is on
notice of the restitutionary aspect of his sentence.
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