United States v. Jeffery Haywood

Filing

PER CURIAM OPINION FILED - THE COURT: Duane Benton, Pasco M. Bowman and Jane Kelly (UNPUBLISHED) [4447479] [15-1974]

United States Court of Appeals
For the Eighth Circuit
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No. 15-1974
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jeffery M. Haywood
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 1, 2016
Filed: September 13, 2016
[Unpublished]
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Before BENTON, BOWMAN, and KELLY, Circuit Judges.
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PER CURIAM.
Jeffery Haywood directly appeals the sentence imposed by the district court
after he pled guilty--pursuant to a written plea agreement--to access-device fraud, in
violation of 18 U.S.C. §§ 2, 1029(a)(5). In his initial and supplemental briefs,
Haywood asserts arguments challenging his prison term and challenging certain

Appellate Case: 15-1974

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Date Filed: 09/13/2016 Entry ID: 4447479

aspects of the restitution order. Having jurisdiction under 28 U.S.C. § 1291, we
reverse in part, modify the judgment, and affirm the judgment as modified.
As to Haywood’s arguments challenging the substantive reasonableness of his
prison term, and the manner in which his prison term was calculated, we enforce the
appeal waiver contained in his plea agreement. See United States v. Andis, 333 F.3d
886, 889-90 (8th Cir. 2003) (en banc) (discussing enforcement of appeal waivers).
As to Haywood’s arguments challenging certain aspects of the restitution order,
we note that the appeal waiver does not apply. First, we conclude that the plea
agreement was sufficiently clear on the issue of restitution that the victims of
Haywood’s relevant conduct should be included in the restitution order. Second, in
light of the plea agreement’s expansive definition of Haywood’s relevant conduct, we
conclude that restitution was properly awarded for losses attributable to him. See 18
U.S.C. § 3663A(a)(3) (court shall order, if agreed to by parties in plea agreement,
restitution to persons other than victim of offense). Third, we conclude that a portion
of the restitution amount for one of the victims--although imposed based on the
presentence report and without objection--constituted plain error because it was not
part of the victim’s actual, provable losses. Specifically, the restitution amount
payable to J.F. should not have included $1,485 for a car security system, as there was
no information in the record indicating that a car security system was taken or
destroyed within the context of Haywood’s relevant conduct. See United States v.
Frazier, 651 F.3d 899, 904-05 (8th Cir. 2011) (under statute, restitution should be
limited to compensation for victim’s actual, provable losses); United States v.
Lachowski, 405 F.3d 696, 698 (8th Cir. 2005) (discussing plain error standard of
review; imposition of restitution without statutory basis can constitute plain error).

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Date Filed: 09/13/2016 Entry ID: 4447479

For the foregoing reasons, we reverse in part, modify the judgment to decrease
the restitution amount payable to J.F. from $1,772.91 to $287.91, and affirm the
judgment as modified.
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Date Filed: 09/13/2016 Entry ID: 4447479