In re: Sealed Case, et al

Filing

OPINION filed [1411353] (Pages: 16) for the Court by Judge Henderson [11-3038]

USCA Case #11-3038

Document #1411353

Filed: 12/21/2012

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2012

Decided December 21, 2012

No. 11-3038
IN RE: SEALED CASE
______
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00213-01)
______
Thomas J. Saunders argued the cause for the appellant.
Nicholas P. Coleman, Assistant United States Attorney,
argued the cause for the appellee. Ronald C. Machen Jr.,
United States Attorney, and Roy W. McLeese III and Diane
Lucas, Assistant United States Attorneys, were on brief.
Before: SENTELLE, Chief Judge, HENDERSON, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: After
signing a plea agreement, the appellant pleaded guilty to four
counts of sex trafficking of children, see 18 U.S.C.
§ 1591(a)(1). At sentencing the district court imposed a term
of imprisonment and also ordered the appellant to pay a total
of $3,892,055 in restitution to the four victims. The appellant
challenges the restitution order; the government argues,

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however, that he waived his right to appeal the restitution
order. While we conclude the appellant did not waive his right
to appeal the restitution order, we reject his merits argument
and affirm the district court.
I.
From 2006 through 2009, the appellant prostituted four
underage females: S.H., T.S., M.S. and A.L. He prostituted
S.H. from approximately March 1, 2008 through August
2008; T.S. from approximately March 13, 2006 through May
15, 2009; M.S. from approximately May 17, 2009 through
May 30, 2009; and A.L from approximately May 27, 2009
through May 30, 2009. He did so by transporting each victim
from his residence in Temple Hills, Maryland into the District
of Columbia, where the four exchanged sex for money.
The government indicted the appellant on September 1,
2009. On December 11, 2009, he signed a ten-page plea
agreement. The agreement provides that the appellant “agrees
to admit guilt and enter a plea of guilty to . . . four counts of
violating 18 U.S.C. § 1591 (Sex Trafficking of Children).”
Appendix (A) 24. Section Eleven of the plea agreement
provides that “pursuant to 18 U.S.C. §§ 1593 and 3664, it is
mandatory that the Court order [the appellant] to make
restitution for the full amount of any victims’ compensable
losses” and that any contested restitution issue may be
litigated at sentencing or at a subsequent hearing. A 28.
Section Twelve of the plea agreement includes the following
appeal waiver:
[The appellant] is aware that federal law,
specifically 18 U.S.C. § 3742, affords [him]
the right to appeal the sentence in this case.
[He] is aware that in the event that sentence is
imposed upon consideration of the Sentencing

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Guidelines rather than in accordance with
Section Two [i.e. if the Court rejects the plea
agreement],
the
Government’s
factual
stipulations and predictions about the
calculation of the sentencing guidelines are not
binding on the sentencing judge. Knowing that,
[the appellant] waives the right to appeal his
sentence or the manner in which it was
determined pursuant to 18 U.S.C. § 3742,
except to the extent that (a) the Court sentences
[him] to a period of imprisonment longer than
the statutory maximum, or (b) the Court
departs upward from the applicable Sentencing
Guideline range pursuant to the provisions of
U.S.S.G. § 5K.2 or based on a consideration of
the sentencing factors set forth in 18 U.S.C.
§ 3553(a). Further, [he] reserves the right to
make a collateral attack upon [his] sentence
pursuant to 28 U.S.C. § 2255, if new and
currently unavailable information becomes
known to him. In agreeing to this waiver, [the
appellant] is aware that [his] sentence has yet
to be determined by the Court. Realizing the
uncertainty in estimating what sentence the
Court ultimately will impose, [the appellant]
knowingly and willingly waives [his] right to
appeal the sentence, to the extent noted above,
in exchange for the concessions made by the
Government in this Agreement.
A 29.
On December 31, 2009, the appellant pleaded guilty
before a magistrate judge, who accepted the plea agreement.

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On November 1, 2010, the district court sentenced the
appellant to 240 months’ imprisonment.
The district court also held separate evidentiary hearings
on January 21 and February 3, 2011 to calculate the amount
of restitution the appellant owed the four minors. Before the
hearings, the court received (1) mental health assessments
(MHAs) prepared by psychologist C. David Missar (Missar)
for each of the four; and (2) a report from the four minors’
guardian ad litem.
Missar’s MHAs were based on his reviews of each
victim’s mental health records and other relevant records, as
well as his interviews of A.L and S.H. Missar did not
interview M.S. or T.S. because M.S. had disappeared and
T.S.’s family did not respond to Missar’s attempts to contact
them. Based on this information, Missar diagnosed each
victim with various mental health and substance abuse
problems, including Post-Traumatic Stress Disorder (PTSD).
Missar recognized that some of the victims’ mental health and
substance abuse problems predated their association with the
appellant but he concluded there was “little doubt” that the
appellant had “exacerbated” any preexisting mental health
problems. A 222, 226, 230, 242. Additionally, the fact that
each victim was a minor prostitute working for the appellant
created “tremendous additional emotional traumas” for each.
A 222, 226, 230, 242. Missar concluded that each victim
required “significant mental health services, in different
stages and to differing degrees, for the rest of her life,”
including therapy, psychiatric care and educational tutoring.
A 222, 226, 230, 242. Missar created a “mid-range” estimate
of the total cost of services each victim would need over her
lifetime: $679,800 for A.L., $849,400 for T.S., $839,700 for
M.S. and $849,400 for S.H.

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The guardian ad litem submitted a restitution report on
January 4, 2011. The report relied on Missar’s
recommendations, calculations of the money the appellant
received due to each victim’s prostitution (estimating each
victim made $500 per day while prostituting) and sixty-eight
hours of attorney’s fees for each victim at $125 per hour. The
total recommended restitution was $1,122,925 for T.S,
$871,825 for M.S., $1,398,525 for S.H. and $632,525 for A.L.
Missar was the only witness at the district court’s two
restitution hearings, during which he explained the reasoning
he used in preparing the MHAs. First, Missar acknowledged
that the estimated amount for needed mental health services
was similar for each victim despite the fact that the length of
time each had worked for the appellant varied. Missar
explained that PTSD can develop in a matter of days but can
cause lifetime damage. While Missar acknowledged that each
victim had health/drug problems, he nonetheless believed that
his treatment recommendations were necessary and
appropriate because even if a victim had had no pre-existing
mental health problem, the appellant’s abuse of her would
have made necessary the treatment he recommended. Missar
further explained that, while he had been unable to interview
M.S. and T.S., he could render an expert opinion on their
conditions/treatment based on his review of each victim’s
grand jury testimony, his extrapolation from the two victims
he did interview and his previous experience in evaluating
individuals without interviewing them.
On March 30, 2011, the district court granted, inter alia,
the following restitution: (1) to S.H., $849,400 for treatment
and $365,600 for ill-gotten gains; (2) to T.S., $573,800 for
treatment and $577,500 for ill-gotten gains; (3) to M.S.
$839,700 for treatment and $5,465 for ill-gotten gains; and (4)
to A.L., $679,800 for treatment and $790 in ill-gotten gains.

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In determining the necessary treatment, the district court
adopted all of Missar’s recommendations but corrected the
total amount in the guardian ad litem’s report for T.S.’s
treatment because of a mathematical error. In calculating illgotten gains, the district court relied primarily on each
victim’s grand jury testimony.1 The appellant timely
appealed.
II.
A.
The appellant challenges the district court’s restitution
order only. The government first maintains that the appellant
waived his right to appeal the restitution order. We disagree.
A waiver of the right to appeal a sentence is
presumptively valid and is enforceable if the defendant’s
decision to waive is “knowing, intelligent, and voluntary.”
United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009);
1

For S.H., the district court multiplied $400 (the average daily
amount S.H. testified she earned for the appellant) by 914 days (the
length of time the appellant admitted he had prostituted S.H.). For
T.S., the court multiplied $500 (the daily amount T.S. testified she
was required to earn for the appellant) by 1155 (the total number of
days the appellant admitted that he prostituted T.S., minus four
days T.S. testified she failed to meet the $500 daily minimum). For
M.S., the court added $200 (the amount M.S. made on the first
night she worked for the appellant) to $5,265, the product of the
remaining number of days M.S. worked for the appellant and $405
(the average amount M.S. earned each day). For A.L., the district
court added the average of the amounts A.L. testified that she
charged for each of the four sexual contacts she had on her first
night working for the appellant ($280) to the amount she charged
for each of the three contacts on the second night.

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see also Brady v. United States, 397 U.S. 742, 748 (1970)
(“Waivers of constitutional rights not only must be voluntary
but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely
consequences.”). Moreover, “[a]n anticipatory waiver—that
is, one made before the defendant knows what the sentence
will be—is nonetheless a knowing waiver if the defendant is
aware of and understands the risks involved in his decision.”
Guillen, 561 F.3d at 529; see also United States v.
Cunningham, 145 F.3d 1385, 1391 (D.C. Cir. 1998) (in
waiving right to counsel, record must show defendant “knows
what he is doing and his choice is made with eyes open”)
(quotation marks omitted). “In the context of a plea bargain,
. . . a determination [of whether a waiver is knowing and
intelligent] is usually made at the plea hearing, at which the
court can fully explain the consequences of the waiver by
informing the defendant of exactly what rights he is giving up
and what rights he retains.” United States v. Accardi, 669 F.3d
340, 344 (D.C. Cir. 2012) (citing Guillen, 561 F.3d at 528). A
waiver, however, does not prevent an appeal if the district
court commits an error of law during sentencing. See Guillen,
561 F.3d at 530. For example, a waiver is not “enforced if the
sentencing court’s failure in some material way to follow a
prescribed sentencing procedure results in a miscarriage of
justice”—for instance, an “utter[] fail[ure] to advert to the
factors in 18 U.S.C. § 3553(a),” or if the sentence “is
unlawful because it exceeds the statutory maximum.” Id. at
531.2
2

Interpretation of a plea agreement relies on contract law, In re
Sealed Case, 686 F.3d 799, 802 (D.C. Cir. 2012), and ambiguity in
a plea agreement is construed against the drafting party; in this
case, the government. See Segar v. Mukasey, 508 F.3d 16, 25 (D.C.
Cir. 2007).

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We conclude that the appellant did not waive his right to
appeal the restitution order by signing the plea agreement.
The ten-page plea agreement contains eighteen separate
sections. Section Twelve of the plea agreement provides for
waiver of appeal and recites, in pertinent part: “You [are]
aware that federal law, specifically 18 U.S.C. § 3742, affords
[you] the right to appeal the sentence in this case . . . . [and
that you] waive[ ] the right to appeal [your] sentence or the
manner in which it was determined pursuant to 18 U.S.C.
§ 3742 . . . .” A 29 (emphasis added). But the remainder of
Section Twelve refers only to “a period of imprisonment” and
“the applicable Sentencing Guidelines range” (providing for a
range for imprisonment, supervised release and fines but not
for restitution). See A 29. Section Twelve also references
Section Two of the plea agreement (entitled
“Recommendation as to Appropriate Sentence”), which
defines “sentence” as simply the period of incarceration,
stating “[you] and the Government agree that a sentence of
180 to 240 months incarceration is the appropriate sentence.”
A 25 (emphases added). Section Two also mentions “other
sentencing incidents” such as “fines and terms of supervised
release,” but does not include restitution. A 25.
While Section Eleven of the plea agreement explains that
the appellant must pay restitution,3 the fact that the appellant
acknowledges the obligation to pay restitution does not mean
that he forfeits the right to appeal the amount thereof.
Moreover, a comparison of the plea agreement’s restitution
provision—Section Eleven—with its forfeiture provision—
3

Section Eleven provides, in pertinent part: “[You] understand[ ]
that in addition to the other penalties provided by law . . . it is
mandatory that the Court order [you] to make restitution for the full
amount of any victims’ compensable losses.” A 28.

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Section Thirteen—indicates that the appeal waiver does not
apply to restitution. Like Section Eleven, Section Thirteen
provides that forfeiture is mandatory. Unlike Section Eleven,
however, Section Thirteen contains its own appeal waiver:
“[You] further agree[ ] to waive all constitutional and
statutory challenges in any manner (including direct appeal . .
. ) to any forfeiture carried out . . . as it relates to the noncontested items . . . .” A 30. The fact that the plea agreement
expressly eliminates an appeal right for forfeiture but not for
restitution suggests that appeal of restitution has not been
waived. Cf. Posters ‘N’ Things, Ltd. v. United States, 511
U.S. 513, 517-22 (1994) (language omitted from one statutory
provision but included in parallel provision indicates former
provision does not include language); Clinchfield Coal Co. v.
Fed. Mine Safety & Health Review Comm’n, 895 F.2d 773,
779 (D.C. Cir. 1990) (“explicit direction for something in one
provision, and its absence in a parallel provision, implies an
intent to negate it in the second context”).4
The government nonetheless contends that waiver of the
right to appeal the “sentence” waives the right to appeal
restitution because “restitution” is necessarily part of a
“sentence.” As noted above, Section Twelve of the plea
agreement cites to the defendant’s right to appeal a sentence
under 18 U.S.C. § 3742. Section 3742 does not address

4

Moreover, at the Rule 11 hearing during which the appellant
entered his guilty plea, the magistrate judge did not discuss
restitution or the right to appeal restitution but did discuss
imprisonment, fines, forfeiture and supervised release. See Accardi,
669 F.3d at 344 (finding appeal waiver not knowing and intelligent
when no colloquy regarding appeal waiver occurred at Rule 11
hearing).

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restitution.5 Restitution is instead treated in sections 3663 and
3664 of Title 18. Significantly, section 3664(o)(1)(B)
provides that a defendant appeals a restitution order pursuant
to section 3742: “[a] sentence that imposes an order of
restitution is a final judgment notwithstanding the fact that
such a sentence can be subsequently appealed and modified
under section 3742.” 18 U.S.C. § 3664(o)(1)(B) (emphases
added). But the appellant’s plea agreement defines sentence
without reference to restitution—at the very least, it is
ambiguous as to whether “sentence” includes restitution. Cf.
United States v. Anderson, 545 F.3d 1072, 1078 (D.C. Cir.
2008) (“‘In determining whether any particular plea
agreement has been breached, we look to the reasonable
understanding of the parties and resolve any ambiguities in
the agreement against the government.’”) (quoting United

5

Section 3742(a) provides that a defendant may appeal a sentence
if it
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect
application of the sentencing guidelines; or
(3) is greater than the sentence specified in the
applicable guideline range to the extent that the
sentence includes a greater fine or term of
imprisonment, probation, or supervised release
than the maximum established in the guideline
range, or includes a more limiting condition of
probation or supervised release under section
3563(b)(6) or (b)(11) than the maximum
established in the guideline range; or
(4) was imposed for an offense for which there is
no sentencing guideline and is plainly
unreasonable.

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States v. Rodgers, 101 F.3d 247, 253 (2d Cir. 1996)).6
Because the plea agreement cites only section 3742, which, as
noted, does not mention restitution, we believe the appellant
did not knowingly waive his right to appeal the restitution
award.
The government also points to out-of-circuit authority
that, it contends, establishes that waiver of the right to appeal
a sentence waives the right to appeal restitution as well. See,
e.g., United States v. Cohen, 459 F.3d 490, 497 (4th Cir.
2006) (“[A]s a general rule, a defendant who has agreed ‘[t]o
waive knowingly and expressly all rights, conferred by 18
U.S.C. § 3742, to appeal whatever sentence is imposed,’ . . .
has waived his right to appeal a restitution order.”). But other
out-of-circuit cases have held that waiver of the right to
appeal a “sentence” does not apply to “restitution” under the
language of the plea agreement. United States v. Oladimeji,
463 F.3d 152, 157 (2d Cir. 2006) (no waiver because plea
agreement indicated “sentence” referred to imprisonment
only); United States v. Sistrunk, 432 F.3d 917, 918 (8th Cir.
2006) (no waiver under plea agreement stating: “the
defendant hereby waives all rights conferred by [18 U.S.C.
§ 3742] to appeal his sentence, unless the Court sentences the
defendant above offense level 10”); United States v. Zink, 107
6

The government cites United States v. Monzel, in which we stated
(in part relying on 18 U.S.C. § 3664(o)(1)(B)) that a restitution
order is part of a sentence. 641 F.3d 528, 541 (D.C. Cir. 2011)
(“Amy is asking the court to revisit her restitution award, which is
part of Monzel’s sentence.”) (emphasis in original). We recognize
that, due to section 3664(o)(1)(B)’s reference to section 3742,
“sentence” as used in section 3742 includes restitution. To avoid
this type of problem in the future, the government should consider
including, in the appeal waiver section of the plea agreement,
express waiver of the right to appeal restitution.

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F.3d 716, 718 (9th Cir. 1997) (plea agreement indicated
reference to “any sentence” was to sentence calculated under
Sentencing Guidelines). In one of the cases cited by the
government, the Seventh Circuit emphasized that, while it
found the waiver in that case included restitution, its “analysis
[was] guided foremost by the facts before [it].” United States
v. Worden, 646 F.3d 499, 504 (7th Cir. 2011).
Similarly, we are guided by the facts before us. We
conclude that based on the language of the appellant’s plea
agreement, his Rule 11 colloquy and the rule of construction
that ambiguity in a contract is construed against the drafter,
the appellant did not knowingly waive his right to appeal the
restitution order.
B.
Having established that the challenge to the restitution
order has not been waived, we proceed to determine the
merits of that challenge. We review a restitution order for
abuse of discretion, United States v. Fair, No. 09–3120, 2012
WL 5457679, at *2 (D.C. Cir. Nov. 9, 2012), and we examine
the factual findings underpinning the order for clear error,
United States v. Bryson, 485 F.3d 1205, 1208 (D.C. Cir.
2007).
Because the appellant pleaded guilty to 18 U.S.C. § 1591,
the district court was required to impose restitution under 18
U.S.C. § 1593. See 18 U.S.C. § 1593(a). Under section 1593,
the order of restitution “shall be issued and enforced in
accordance with [18 U.S.C. §] 3664 in the same manner as an
order under section 3663A.” 18 U.S.C. § 1593(b)(2). Section
3663A is part of the Mandatory Victims Restitution Act
(MVRA). Under the MVRA, “[a]ny dispute as to the proper
amount or type of restitution shall be resolved by the court by
the preponderance of the evidence” with the government

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bearing the burden to establish the amount of loss suffered by
the victim. 18 U.S.C. § 3664(e).
Section 1593 requires that the defendant pay the victim
“the full amount of the victim’s losses,” id. § 1593(b)(1),
defined as the sum of two components: (1) ill-gotten gains
plus (2) the “full amount of the victim’s losses,” defined as
“(A) medical services relating to physical, psychiatric, or
psychological care; (B) physical and occupational therapy or
rehabilitation; (C) necessary transportation, temporary
housing, and child care expenses; (D) lost income; (E)
attorneys’ fees, as well as other costs incurred; and (F) any
other losses suffered by the victim as a proximate result of the
offense.” 18 U.S.C. § 2259(b)(3) (incorporated by reference
in 18 U.S.C. § 1593(b)(3)).
The losses set forth in the second component of the
definition—the “full amount of the victim’s losses”—must be
proximately caused by the defendant’s conduct. United States
v. Monzel, 641 F.3d 528, 535, 538 (D.C. Cir. 2011)
(defendant who possessed single image of victim was not
proximate cause of victim’s loss which was “due in large part
to her knowledge that each day, untold numbers of people
across the world are viewing and distributing images of her
sexual abuse” and “she would have suffered tremendously
from her sexual abuse regardless of what Monzel did”); see
also 18 U.S.C. § 3663A(a)(2) (defining “victim” as “a person
directly and proximately harmed”). In other words, the
defendant should not be required to pay restitution for harm
he did not cause. This does not mean, however, that the
defendant must be the sole cause of the harm. See Monzel,
641 F.3d at 538 (suggesting entire liability for harm may be
imposed on defendant if two or more causes produce single
result and either one cause would be sufficient alone to
produce result or each cause is essential to harm).

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Nor must the amount of restitution be proven with
exactitude. As we have explained, “determining the dollar
amount of a victim’s losses attributable to the defendant will
often be difficult” and “such a determination will inevitably
involve some degree of approximation,” which is “not fatal.”
Id. at 540. “Rather, the district court’s charge is ‘to estimate,
based upon facts in the record, the amount of [the] victim’s
loss with some reasonable certainty.’” Id. (quoting United
States v. Doe, 488 F.3d 1154, 1160 (9th Cir. 2007) (section
2259 does not require “mathematical precision”)).
Finally, the appellant makes several arguments that the
district court abused its discretion. First, he argues that the
district court did not properly take into account the fact that
the four minors had been involved in prostitution or other
traumatic events before their contact with him. We disagree.
Missar testified that he attempted to determine “what would
somebody who had just that experience with [appellant]
need.” A 461-62. And he acknowledged that, while the
victims had suffered trauma before being prostituted by the
appellant, his abuse was the “proximate” or “most significant
cause” and the treatment he recommended would be
necessary even if the victims had had no previous trauma. A
380-84.
Second, the appellant contends that the court erred by
failing to find that the victims were in fact interested in
seeking Missar’s recommended treatment. Not so. We
compensate a victim with restitution, that is, money—whether
she chooses to use the money in a particular way is up to her.
See United States v. Frazier, 651 F.3d 899, 904 (8th Cir.
2011) (purpose of restitution under MVRA is to “make
victims of crime whole” by “fully compensat[ing]” them for
their losses) (quotation marks omitted).

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Third, the appellant complains that the district court
improperly calculated similar damages amounts for each
victim despite the fact that each victim prostituted for
significantly different lengths of time; specifically, S.H. for
approximately 914 days, T.S. for approximately 1159 days,
M.S. for approximately fourteen days and A.L. for four days.
Missar explicitly addressed this point, however, by explaining
that the psychological harm from PTSD takes only a short
time to occur. See, e.g., A 360 (“[T]he psychological impact
and trauma that each of the girls sustained within the first few
days . . . really set the stage for a traumatic reaction in their
brain that is likely to carry on for, in my opinion, the rest of
their lives.”); A 420 (“[C]ertainly the longer that the trauma
went on, the more significant the trauma is, but in terms of
meeting a particular threshold of being traumatic, if you will,
they are equivalent, in my opinion.”). The district court did
not abuse its discretion in accepting Missar’s explanation.
Fourth, the appellant contends that the district court’s
calculation of his ill-gotten gains is improper because (1) the
court relied primarily on grand jury testimony; (2) according
to various studies, the testimony of child sexual abuse victims
is inherently unreliable; and (3) the victims’ testimony
regarding the amount of ill-gotten gains was “frankly
unbelievable,” particularly because he has little money today.
Appellant Br. 12-18. We disagree. There is no per se rule
prohibiting a district court from relying on grand jury
testimony at sentencing; in fact, the court may rely on such
testimony so long as it has “sufficient indicia of reliability.”
See In re Sealed Case, 246 F.3d 696, 699-700 (D.C. Cir.
2001) (quotation marks omitted). Nor do we agree that the
victims’ testimony was unbelievable. The victims gave
detailed grand jury testimony and each victim’s testimony
was consistent with the others’. Thus, the district court did not
abuse its discretion in relying on their grand jury testimony.

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For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.

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