United States v. Owens

In United States v. Owens, No. 23-20093 (5th Cir. Mar. 15, 2024) (unpublished), the Fifth Circuit rejected the defendant’s argument that his restitution order was improper because, when he pled guilty, he had been improperly advised under Federal Rule of Criminal Procedure 11(b)(1)(K) about the district court’s authority to order restitution.

Before Owens pled guilty, a magistrate judge advised him that he could face a fine of up to $500,000, but the judge did not advise him of the district court’s authority to order restitution. At sentencing, the district court imposed no fine but $627,971 in restitution. On appeal, Owens asked the Fifth Circuit to reduce his restitution figure to $500,000, in line with the advisement he had received when he pled guilty.

The Fifth Circuit agreed that “[t]he magistrate judge’s failure to notify Owens that the district court had the authority to order restitution was clear and obvious error.” But it declined to give him relief because “the error did not affect [his] substantial rights.”

Under United States v. Baldon, 457 F. App’x 393, 397 (5th Cir. 2012) (per curiam), the court considers several factors, including (1) “the difference between the maximum possible fine of which the defendant was advised at rearraignment and the total amount of restitution and finds imposed by the district court at sentencing”; (2) “whether the plea agreement advised the defendant of the court’s authority to order restitution and, if so, whether the defendant acknowledged that he had read and understood the plea agreement during the rearraignment”; and (3) “whether the defendant was jointly and severally liable with codefendants for making restitution.”

As for the first factor, the $127,971 difference between the judgment amount and the guilty-plea warning was “significantly smaller than the multi-million dollar differences” that have favored defendants in prior cases. See United States v. Patel, 786 F. App’x 452, 453–54 (5th Cir. 2019) (per curiam); United States v. Baldon, 457 F. App’x 393, 397 (5th Cir. 2012) (per curiam).

The other two factors “further indicate[d] that the … error did not affect Owens’s substantial rights.” In his PSR and at his sentencing, Owens was advised of the restitution amount, and he did not object or move to withdraw his guilty plea. His restitution obligation was also joint and several with his codefendants. And finally, on appeal, Owens did not argue that he would not have pled guilty had the magistrate judge given him the correct advice regarding restitution. As a result, he failed the third prong of the plain-error test, which required him to show “a reasonable probability that, but for the Rule 11 error, he would not have pleaded guilty.”