United States v. Whitaker

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 12, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-51548
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JON MARK WHITAKER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CR-60-ALL
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Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jon Mark Whitaker appeals his conviction for mail fraud and
the resulting order to pay restitution in the amount of
$450,028.29. Whitaker argues that the Government failed to
establish federal jurisdiction because the mailing of
insufficient funds checks to suppliers and subcontractors did not
further his scheme to defraud. He also contends that the
district court erred in ordering restitution at an amount higher
than the statutory maximum fine. The Government responds by

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No. 06-51548
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seeking to enforce Whitaker’s appeal waiver and contends that his
challenge to the amount of restitution is barred from review.
Whitaker’s argument that the Government failed to establish
federal jurisdiction is without merit. The Government alleged
that Whitaker knowingly mailed insufficient funds checks to
suppliers and subcontractors defrauding them of their services
and delaying the discontinuation of their work so as to continue
to perpetrate fraud on the home buyers. The mailings were
integral to the fraud and without them Whitaker’s scheme “would
have come to an abrupt halt.” Schmuck v. United States, 489 U.S.
705, 712 (1989).
Whitaker’s appeal waiver was knowing and voluntary, and
therefore, the waiver is enforced. See United States v.
Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992). As such, we do
not address the merits of Whitaker’s challenge to the amount of
restitution.
Accordingly, the judgment of the district court is AFFIRMED.

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