Review of Restitution, Forfeiture Amounts Precluded By Appeal Waiver

US v. Boutcher: Boutcher was involved in a “short sale” real estate scheme and eventually pleaded guilty to conspiracy to commit bank fraud. As part of his plea agreement, he waived his right to appeal “any sentence within the statutory maximum,” restitution of at least $7500, and agreed to forfeit all “fraud-related” assets while waiving “all constitutional and statutory challenges to forfeiture in any manner, including direct appeal.” The parties argued about the proper amounts of restitution and forfeiture at sentencing, with the court ultimately imposing obligations of both of over $227k.

Boutcher appealed the district court’s restitution and forfeiture orders, but the Fourth Circuit dismissed the appeal on the Government’s motion. Boutcher did not argue that the appeal waiver was invalid, but that the issues he raised were outside its scope. The court disagreed. As to restitution, the court held that the district court’s clerical error of referencing a restitution act that does not exist did not deprive it of authority to impose restitution. As to the amount, while the means used by the district court might have been erroneous, it was precisely the kind of error (“merely a legal error”) that is covered by the waiver. As to forfeiture, the plain language of the plea agreement prevented Boutcher from seeking review of it.