United States v. Maharaj

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-20990
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL MOTILAL MAHARAJ,
Defendant-Appellant,
_________________________
Appeals from the United States District Court
for the Southern District of Texas
m 4:04-CR-79-1
_________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Michael Maharaj appeals his sentence im-
posed pursuant to a plea agreement in which
he pleaded guilty of conspiracy to defraud the
government under 18 U.S.C. § 286 by making
false, fictitious, or fraudulent claims for federal
income tax refunds. Maharaj argues that the
district court affected his substantial rights by
failing to notify him of its authority to order
restitution and by imposing a sentence above
the maximum indicated at his plea hearing.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 14, 2006
Charles R. Fulbruge III
Clerk

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2
Because the district court did not commit plain
error, we affirm.
I.
The plea agreement provided, inter alia, that
the maximum statutory penalty for violating
§ 286 is $250,000 and that any fine or restitu-
tion would be due immediately. The agreement
also contained an appeal waiver, which
provided that Maharaj surrendered his right to
appeal his sentence unless the court imposed
(1) a sentence above the statutory maximum or
(2) an upward departure from the sentencing
guidelines that was not requested by the gov-
ernment.
At rearraignment, the court advised Maharaj
that he was subject to a maximum of 10 years’
imprisonment and/or a fine of $250,000, a max-
imum of 3 years’ supervised release, and a
special assessment of $100. The court did not
advise that it had authority to order him to pay
restitution. The court read Maharaj the appeal
waiver. Maharaj represented that he had read
and that he understood the terms of the plea
agreement, and he signed the agreement on the
record.
The pre-sentence report indicated that Ma-
haraj would be required, inter alia, to make
restitution. The court sentenced Maharaj to 78
months’ imprisonment, 3 years’ supervised re-
lease, a fine of $125,000.00, restitution jointly
and severally with his co-defendants of
$225,238.92, and a $100 special assessment.
II.
A defendant may waive his right to an appeal
in a written plea agreement if the waiver is
informed and voluntary. United States v. Bay-
mon, 312 F.3d 725, 727 (5th Cir. 2002). A
defendant is not bound by an appeal waiver
where the government does not seek
enforcement of the waiver provision.1 In its
brief, the government states that it does not
seek enforcement of the waiver.
Maharaj argues he is entitled to a reduction
in his required payment from $350,338.92 to
$250,000.00, the maximum amount indicated
at his rearraignment hearing, because the court
failed to advise him, in violation of Federal
Rule of Criminal Procedure 11(b)(1)(K), that
he might be required to pay restitution.2 Be-
cause Maharaj raises this issue for the first
time on appeal, we review for plain error.3
Under plain error review, the defendant
must show that the district court (1) commit-
ted error (2) that was plain and (3) affected his
substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). Even if we find plain
error, we retain discretion whether to correct
it and generally will decline to do so unless it
“seriously affects the fairness, integrity or pub-
lic reputation of judicial proceedings.”4
1 See United States v. Story, 439 F.3d 226, 231
(5th Cir. 2006) (“In the absence of the govern-
ment’s objection to [the defendant’s] appeal based
on his appeal waiver, the waiver is not binding be-
cause the government has waived the issue.”).
2 See FED. R. CRIM. P. 11(b)(1)(K) (stating that
“the court must inform the defendant of, and
determine that the defendant understands . . . the
court’s authority to order restitution”).
3 United States v. Vonn, 535 U.S. 55, 59 (2002)
(holding that a defendant who fails to raise rule 11
error at trial “has the burden to satisfy the
plain-error rule”).
4 United States v. McIntosh, 280 F.3d 479, 482
(5th Cir. 2002) (quoting Olano, 507 U.S. at 736
(internal quotations omitted)).

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3
Because the district court violated rule 11 by
not informing Maharaj of its authority to order
restitution, the court committed error that was
plain. See Olano, 507 U.S. at 732. Maharaj
relies on United States v. Glinsey, 209 F.3d 386
(5th Cir. 2000), and United States v. Powell,
354 F.3d 362 (5th Cir. 2003), to claim that the
error affected substantial rights because the to-
tal amount of liability imposed exceeded the
amount that the court advised him would fol-
low as a result of his guilty plea.
We have stated, when conducting harmless
error review, that substantial rights are violated
under rule 11 if “the defendant’s knowledge
and comprehension of the full and correct infor-
mation would have been likely to affect his
willingness to plead guilty.” United States v.
Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en
banc). In Glinsey, 209 F.3d at 396, in circum-
stances nearly identical to these, we adjusted
the sentence by the difference between the
amount the court imposed and the amount it
warned the defendant he could receive. We
stated that the defendant “is not prejudiced so
long as his liability does not exceed the maxi-
mum amount that the court informed him could
be imposed as a fine.” Id. at 395.5
Even assuming that Glinsey controls as to
what affects substantial rights in the context of
plain-error review, we would not find plain er-
ror here. First, Maharaj’s written plea agree-
ment, unlike Glinsey’s, specificallymentions the
possibility of restitution. See id. at 394. Ma-
haraj indicated he read and understood the
terms, and he signed the agreement on the rec-
ord. He also received notice of the possibility
of restitution in his pre-sentence report.6
Second, Maharaj was held jointly and sev-
erally liable with his co-defendants for the full
amount of restitution, a fact that decreases the
likelihood that he would be held personally
responsible for payment in excess of $250,-
000.00. See id. at 392 (implying Glinsey was
solely responsible for restitution). Third, Glin-
sey merely stands for the proposition that a
judgment equal to the amount announced at
the plea colloquy cannot, by definition, affect
a defendant’s substantial rights, because the
defendant received fair notice of that amount
under rule 11. See id. at 395. It does not fol-
low that a judgment above the notified amount
necessarily affects substantial rights. Glinsey’s
sentence was substantially further above the
notified amount than is Maharaj’s. See id. at
395 (noting the additional imposition of
$266,317.06). Fourth, and most importantly
in the context of plain error review, because
Maharaj did not object to the rule 11 violation
at trial, we are not persuaded that he would
not have pleaded guilty but for the error.
Finally, even if Maharaj had established
plain error, this case does not present facts
that “seriously affect[] the fairness, integrity or
public reputation of judicial proceedings.”
McIntosh, 280 F.3d at 482. In particular, the
fact that Maharaj received notice of the possi-
5 See also Powell, 354 F.3d at 370 (stating that
failure to disclose the possibility of restitution
“could be harmful error when the quantum of that
restitution exceeds the liability amount used by the
court in notifying the defendant as to the conse-
quences of his guilty plea.”).
6 Maharaj notes that in Powell the defendant
had also received notice of restitution in his plea
agreement and pre-sentence report. See id. at 367.
But Powell does not control, because the court had
no occasion to modify the judgment, given that the
amount ultimately imposed was less than the
amount announced to the defendant during the plea
colloquy. See id. at 369.

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4
bility of restitution in his pre-sentence report
and written plea agreement convinces us that
the district court afforded him adequate due
process.
AFFIRMED.

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