USA v. Andre Maurice Lewis

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
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Nos. 22-13993, 23-10530
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE MAURICE LEWIS,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:22-cr-00019-PGB-DCI-1
____________________
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2 Opinion of the Court 22-13993
Before R OSENBAUM , GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Andre Lewis pled guilty to and was convicted of enticing a
minor to engage in unlawful sexual activity, in violation of 18
U.S.C. § 2422(b), and was sentenced to life imprisonment. As part
of his sentence, the court also ordered Lewis to pay restitution to
the victim of the offense to cover projected therapy costs. Lewis
appeals the restitution order only, arguing that the government
failed to prove the restitution figure by a preponderance of the ev-
idence.
The government has filed a motion to dismiss Lewis’s appeal
based on the sentence appeal waiver in his plea agreement. Lewis
responds that the restitution order was imposed in violation of the
restitution statute and so, in essence, exceeded the statutory maxi-
mum restitution that could be imposed. We grant the govern-
ment’s motion because Lewis’s appeal waiver is enforceable and
bars his challenge.
We review the validity of a sentence appeal waiver de novo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sen-
tence appeal waiver will be enforced if it was made knowingly and
voluntarily. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir.
1993). The touchstone for assessing whether an appeal waiver was
made knowingly and voluntarily is whether the court clearly con-
veyed to the defendant that he was giving up his right to appeal his
sentence under most circumstances. United States v. Boyd, 975 F.3d
1185, 1192 (11th Cir. 2020). Appeal waivers apply “not only to
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22-13993 Opinion of the Court 3
frivolous claims, but also to difficult and debatable legal issues.”
King v. United States, 41 F.4th 1363, 1367 (11th Cir. 2022) (quotation
marks omitted).
Here, the government has shown, and Lewis does not dis-
pute, that the appeal waiver is enforceable and generally bars a
challenge to the restitution order outside the exceptions listed in
the waiver. See Johnson, 541 F.3d at 1068–69 (holding that an appeal
waiver barred review of a restitution order, which is part of the
sentence). The district court specifically questioned Lewis about
the waiver during the plea colloquy and listed its exceptions. And
Lewis confirmed his understanding of the plea agreement gener-
ally and the appeal waiver in particular. Accordingly, the appeal
waiver bars his challenge unless an exception applies.
Lewis relies on the appeal waiver’s exception for an appeal
raising “the ground that the sentence exceeds the statutory maxi-
mum penalty.” In his view, his argument that the district court
violated the restitution statute, 18 U.S.C. § 2429, by imposing resti-
tution in the absence of sufficient evidence as to the victim’s loss,
is equivalent to a claim “that his sentence exceeds the maximum
allowed by statute.”
In enticement cases, the district court must order the defend-
ant to pay restitution to any victim in the “full amount of the vic-
tim’s losses,” as defined in § 2259. See 18 U.S.C. § 2429(a), (b)(1),
(3). This “full amount” includes “any costs incurred, or that are
reasonably projected to be incurred in the future, by the victim, as
a proximate result of the offenses involving the victim,” such as
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4 Opinion of the Court 22-13993
“medical services relating to physical, psychiatric, or psychological
care.” Id. § 2259(c)(2). Restitution for future therapy costs is ap-
propriate “as long as the award reflects a reasonable estimate of
those costs and is based on record evidence.” United States v. Osman,
853 F.3d 1184, 1190 (11th Cir. 2017). The government must prove
the restitution amount by a preponderance of the evidence using
evidence bearing sufficient indicia of reliability to support its prob-
able accuracy. Id. at 1189.
Here, we reject Lewis’s attempt to evade the appeal waiver
by recasting his argument that the court relied on insufficient evi-
dence in calculating restitution as an argument that the amount of
restitution exceeded the statutory maximum. The restitution stat-
ute does not have a prescribed maximum that could be exceeded.
See 18 U.S.C. §§ 2429, 2259; see also Johnson, 541 F.3d at 1069 (rea-
soning that a restitution order did not exceed the statutory range
because the restitution statute at issue, 18 U.S.C. § 3663, “has no
prescribed statutory maximum”). So Lewis’s appeal does not fall
within the exception for a sentence that “exceeds the maximum al-
lowed by statute.” See Johnson, 541 F.3d at 1069.
Nor did the district court act arbitrarily or for an improper
purpose. See id. at 1068–69 (holding that an appeal waiver applied
where the defendant was not “subjected to the unfettered whim of
the district court, or punished on the basis of a constitutionally im-
permissible factor such as race). Rather, the court applied the pre-
ponderance standard and awarded a relatively modest amount of
restitution—$3,665.36—to cover future therapy costs for one year
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22-13993 Opinion of the Court 5
for the victim of Lewis’s offense.1 In other words, the award, on its
face, appears to fall within the parameters of the restitution statute,
which Lewis does not dispute. While Lewis argues the evidence
on which the court relied to impose that award lacked sufficient
indicia of reliability, such a challenge does not fall within any of the
exceptions to his appeal waiver. Cf. United States v. Grinard-Henry,
399 F.3d 1294, 1297 (11th Cir. 2005) (holding that an appeal waiver
barred a challenge to a sentence based on the district court’s drug-
quantity findings).
Because the appeal waiver is enforceable and no exception
applies, we must enforce the waiver according to its terms and dis-
miss the appeal. See United States v. Bascomb, 451 F.3d 1292, 1294
(11th Cir. 2006) (“We have consistently enforced knowing and vol-
untary appeal waivers according to their terms.”). Therefore, we
GRANT the government’s motion to dismiss.
APPEAL DISMISSED.
1 The district court permitted the victim to reapply for restitution on a yearly
basis under 18 U.S.C. § 3664(d)(5).
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