United States of America v. Alexzander Michael Carneal, also known as Jesicam, also known as Jesicashea, also…

United States Court of Appeals
For the Eighth Circuit
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No. 23-1627
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United States of America
Plaintiff - Appellee
v.
Alexzander Michael Carneal, also known as Jesicam, also known as Jesicashea,
also known as Alexander Michael Carneal
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 20, 2023
Filed: January 25, 2024
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Alexzander Michael Carneal pleaded guilty to distribution of child
pornography. He appeals the district court’s1 restitution order.
1 The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

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I.
Carneal was indicted on one count of sexual exploitation of children, in
violation of 18 U.S.C. §§ 2251(a) and 2251(e), and two counts of distribution of
child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). He
pleaded guilty to one of the distribution counts and, as part of his Plea Agreement,
he agreed to pay restitution.
On March 30, 2021, Carneal was sentenced to 151 months of imprisonment
and 20 years of supervised release. But the amount of restitution he would be
required to pay was not determined at that time, because one of the twenty-one
victims identified before sentencing had only recently come to the government’s
attention, and she asked for more time to compile her statement and restitution
request. The district court was told that the government and Carneal would be
“coming back and approaching th[e] Court for restitution,” and the court agreed that
it would amend the Judgment in accordance with a restitution finding to be
determined at a later date.
In February 2022, the government sent Carneal a proposed stipulation
regarding restitution. It included $3,000 for each of the twenty-one victims. In
August 2022, however, Carneal informed the government he was no longer willing
to enter a stipulation as to restitution, so the government filed a motion asking the
court to determine restitution.
On March 14, 2023, the district court held a hearing on the government’s
motion. Carneal asserted that he should not have to pay restitution because, in his
view, the government’s request was untimely. The court disagreed and ordered
Carneal to make restitution in the amount of $63,000, with $3,000 for each victim.
Carneal timely appealed the restitution order.

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II.
As an initial matter, Carneal concedes that, in his Plea Agreement, he
“waive[d] his right to appeal any assessment, forfeiture, or restitution order
associated with his sentence.” He alleges, however, that the government breached
the agreement when it requested restitution too late.
The government breaches a plea agreement when it “‘actively advocate[s] for
an outcome different from the one it had promised’ to seek.” United States v. Pierre,
912 F.3d 1137, 1142 (8th Cir. 2019) (quoting United States v. Fowler, 445 F.3d
1035, 1038 (8th Cir. 2006)). Thus, we first must address the issue of breach, because
“‘[i]f the government breached the plea agreement,’ [Carneal] may proceed with his
appeal ‘despite the appellate waiver.’” Id. at 1142 (quoting United States v.
Quebedo, 788 F.3d 768, 775 (8th Cir. 2015)). We review this issue de novo. United
States v. Collins, 25 F.4th 1097, 1100 (8th Cir. 2022) (“We review de novo questions
regarding the interpretation and enforcement of a plea agreement.” (citation
omitted)).
Carneal’s Plea Agreement contained a provision titled Restitution and
Disclosure of Assets. In relevant part, the provision said: “Carneal agrees that, if
victims are identified and come forward before he is sentenced, the Government may
seek mandatory restitution within 60 days of discovering new losses, as provided in
18 U.S.C. § 3664(d)(5).” Carneal interprets this language to mean that the
government was required to finalize and seek restitution within 60 days of learning
about the twenty-first victim. The time between Carneal’s sentencing hearing—by
which time all sides were aware of the twenty-first victim—and when the
government proposed the stipulations regarding restitution was appreciably more
than 60 days. Thus, according to Carneal, the government breached the Plea
Agreement by requesting restitution outside this 60-day period.
“We generally interpret the meaning of the terms in [a plea] agreement
according to basic principles of contract law.” United States v. Thomas, 58 F.4th

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964, 971 (8th Cir. 2023) (quoting Collins, 25 F.4th at 1100). “This involves
‘discern[ing] the intent of the parties as expressed in the plain language of the
agreement when viewed as a whole.’” Id. (alteration in original) (quoting United
States v. Lara-Ruiz, 681 F.3d 914, 919 (8th Cir. 2012)). Pursuant to Carneal’s Plea
Agreement, “if victims are identified and come forward before” Carneal’s
sentencing, the government was permitted to “seek mandatory restitution within 60
days of discovering new losses.” There is no dispute that the victims were identified
and had come forward prior to sentencing. The question, then, is whether there were
“new losses” that the government was required to seek within 60 days of discovery.
The critical term—“new losses”—is not expressly defined in the Plea Agreement.
But the Agreement says that the government may seek mandatory restitution within
60 days of discovering new losses “as provided in 18 U.S.C. § 3664(d)(5).” So,
looking to the Plea Agreement to determine the parties’ intent, see Thomas, 58 F.4th
at 971, we are directed to § 3664(d)(5).
Section 3664(d)(5) “permits a belated award of restitution in two
circumstances.” United States v. Zaic, 744 F.3d 1040, 1042 (8th Cir. 2014). Carneal
argues the second is at issue here.2 It allows that:
2 The first circumstance is when “the victim’s losses are not ascertainable
[within] 10 days prior to sentencing, the attorney for the Government . . . shall so
inform the court, and the court shall set a date for the final determination of the
victim’s losses, not to exceed 90 days after sentencing.” 18 U.S.C. § 3664(d)(5).
Still, a district court has discretion to award restitution after 90 days. Dolan v. United
States, 560 U.S. 605, 608 (2010). While “a delay in ordering restitution might . . .
prejudice a defendant and threaten his due process rights,” Zaic, 744 F.3d at 1043
(citing Dolan, 560 U.S. at 616–17), Carneal does not show how this is the case here.
While he makes conclusory references to due process issues related to the alleged
breach, the record shows that Carneal had ample notice at sentencing of the number
of victims to whom he would be expected to pay restitution, and he did not object to
the government’s request—or the district court’s granting—of additional time to
confirm the final restitution amount upon receipt of the last victim’s restitution
application. See id.

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If [a] victim subsequently discovers further losses, the victim shall have
60 days after discovery of those losses in which to petition the court for
an amended restitution order. Such order may be granted only upon a
showing of good cause for the failure to include such losses in the initial
claim for restitutionary relief.
§ 3664(d)(5) (emphasis added). This statutory language clarifies that “new losses”
(the term used in the Plea Agreement) means “further losses” (the term used in the
statute).
Twenty-one victims were identified and came forward before Carneal was
sentenced. Before sentencing, twenty of them submitted restitution requests and
documentation to support their losses. Because these victims made no requests for
“an amended restitution order,” there is no indication that “new” losses—as in,
“further” or “other than the former” losses3—were “discover[ed]” for any of these
victims. As to the twenty-first victim, she came to the government’s attention less
than ten days before sentencing and requested more time to put together her
restitution packet. Her losses, like the other twenty victims’ losses, also were not
“subsequently discover[ed] further losses,” see § 3664(d)(5), and thus not “new.”
She merely needed more time to put together her request for losses known at the
time of sentencing.
3 This understanding of “new losses” also aligns with dictionary definitions of
“new.” See Thomas, 58 F.4th at 971 (interpreting plea agreement by consulting
dictionary); New, Black’s Law Dictionary (11th ed. 2019) (observing “new” can
mean “recently come into being;” “recently discovered;” or “changed from a former
state”); New, Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/new (last visited Jan. 3, 2024) (observing “new” can mean
“having recently come into existence;” “having been seen, used, or known for a short
time;” or “being other than the former or old”). Additionally, by conflating
“identified” losses with “new” losses, Carneal’s interpretation implies that the word
“new” in the plea agreement is surplusage. This weighs against his proposed reading.
See Brazil v. Auto-Owners Ins. Co., 3 F.4th 1040, 1043–44 (8th Cir. 2021) (quoting
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
176–77 (2012)).

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In sum, when the government asked Carneal to enter a stipulation as to
restitution in February 2022, it did not approach him with “new” losses. Rather, the
stipulation sought resolution of the victims’ original and only “losses.” The
government did not breach the Plea Agreement.
III.
Because the government did not breach the Plea Agreement, we turn to the
appeal waiver, an issue we review de novo. See Pierre, 912 F.3d at 1143. “When
reviewing a purported waiver, we must confirm that the appeal falls within the scope
of the waiver and that both the waiver and the plea agreement were entered into
knowingly and voluntarily.” Id. (quoting United States v. Andis, 333 F.3d 886, 889–
90 (8th Cir. 2003) (en banc)). However, “[w]e will not ‘enforce an otherwise valid
waiver if to do so would result in a miscarriage of justice.’” Id. (quoting Andis, 333
F.3d at 891).
Carneal waived “his right to appeal any . . . restitution order associated with
his sentence.” His current challenge falls squarely within the scope of this waiver.
He does not argue the waiver or Plea Agreement was entered into unknowingly or
involuntarily—indeed, he is seeking to enforce the Plea Agreement—and he has not
explained how enforcing the appeal waiver would result in a miscarriage of justice.
Thus, the Plea Agreement’s waiver applies and should be enforced.
Because Carneal’s appeal of the restitution order is precluded by the waiver
in his Plea Agreement, we dismiss his appeal.4
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4 We also strike Carneal’s Pro Se Motion for Inclusion, as Carneal is
represented by counsel.

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