United States v. Beston

43 F.4th 867

UNITED STATES of America, Plaintiff - Appellee

v.Timothy BESTON, Jr., Defendant - Appellant

No. 21-2186

United States Court of Appeals, Eighth Circuit.

Submitted: February 16, 2022

Filed: August 8, 2022

Counsel who presented argument on behalf of the appellant was Molly C. Quinn, AFPD, of Sioux Falls, SD.

Counsel who presented argument on behalf of the appellee was Dawn M Deitz, AUSA, of Fargo, ND.

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Timothy Beston, Jr. pled guilty to one count of malicious mischief, in violation of 18 U.S.C. §§ 1363, 1153, for driving a stolen vehicle into a lake on the Turtle Mountain Indian Reservation in North Dakota. The district court sentenced Beston to 21 months imprisonment and 3 years supervised release, and it ordered him to pay restitution totaling $30,845.50. On appeal, Beston challenges the restitution amount as violative of the Mandatory Victims Restitution Act (MVRA) and asserts that the government breached his plea agreement. The government moved to dismiss his appeal, citing the waiver of appellate rights in the plea agreement. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §§ 3664(o)(1)(B), 3742(a), we deny the government's motion and vacate the order of restitution.

I.

On March 31, 2020, Bureau of Indian Affairs (BIA) law enforcement received a report of a vehicle driving erratically on the Turtle Mountain Indian Reservation. Law enforcement responded and observed the vehicle but lost track of it after the driver shouted and sped off. Law enforcement subsequently located the vehicle in Lake Schutte. The driver, later identified as Beston, and a female passenger had fled on foot. A cell phone linked to Beston was found near the vehicle. Law enforcement identified the vehicle as a 2019 Nissan Rogue and determined that it had been stolen from the Gateway Chevrolet dealership in Fargo, North Dakota. The vehicle had visible front-end damage, though the record does not reflect whether this damage was present before the vehicle entered the lake. A collision center later found damage to the vehicle's front bumper, cooling system, air conditioner, hood, fender, electrical system, front suspension, and restraint systems. Law enforcement believed that Beston received the vehicle earlier in the month from another individual who had stolen several vehicles in the Fargo-Moorhead area. The record does not reflect whether Beston knew the vehicle was stolen.

A federal grand jury charged Beston with one count of theft in Indian country and one count of malicious mischief. Beston entered a guilty plea to the malicious mischief count pursuant to a written plea agreement. The plea agreement contains a promise by the government to make a non-binding recommendation at sentencing that Beston be ordered to pay $16,950 in restitution. Beston acknowledged in the plea agreement that the district court was required to order restitution, and he agreed to pay restitution as may be ordered. Beston also acknowledged and agreed that the district court would order him to make restitution for all loss caused by his conduct. The plea agreement also contains an express "Waiver of Appeal" provision, which provides:

Defendant acknowledges having been advised by counsel of Defendant's rights to appeal the conviction or sentence in this case ... and to challenge the conviction or sentence collaterally through post-conviction proceedings .... Defendant understands these rights, and in exchange for the concessions made by the United States in this plea agreement, Defendant hereby knowingly and voluntarily waives these rights, except as specifically reserved herein.^{[1 ]} Defendant's waiver of these rights includes, but is not limited to, a waiver of all rights to appeal or to collaterally attack: Defendant's conviction or sentence ... [and] any assessment, restitution, or forfeiture order ....

R. Doc. 23, at 7. At the change of plea hearing, the district court engaged in a colloquy with Beston about his guilty plea and plea agreement. The district court confirmed that Beston understood that it had to order restitution and that the government had agreed to recommend restitution in the amount of $16,950. The district court also referenced the plea agreement's appeal waiver and confirmed Beston's understanding that he would be "waiving [his] right to appeal in this matter." The district court asked if Beston had "any questions about [his] waiver of [his] right to appeal," and Beston answered no. Beston affirmed that he had read and understood the plea agreement. Beston ultimately entered a guilty plea, which the district court accepted, finding that Beston was aware of the consequences of pleading guilty and that his plea was knowing and voluntary.

Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR calculated Beston's United States Sentencing Guidelines range as 18 to 24 months imprisonment. The PSR recommended a restitution order totaling $30,845.50, encompassing Motors Insurance Corporation's restitution request of $24,345.50 and Gateway Chevrolet's restitution request of $6,500 (for its $5,000 deductible and $1,500 recovery fee). A victim impact statement attached to the PSR indicated that Motors Insurance Corporation paid Gateway Chevrolet $24,345.50 on its theft-of-vehicle claim.

At the sentencing hearing, Beston objected to the difference between the restitution amounts outlined in the plea agreement and PSR. Beston argued that the PSR restitution amount was based on the value of the vehicle when it was stolen from Gateway Chevrolet and did not represent the actual loss caused by Beston's conduct, which Beston believed to be $16,950. Beston also mentioned the parties’ "agreed upon amount" in the plea agreement. In response, the government explained that the plea agreement restitution amount was based on "information that we received from Gateway [Chevrolet] at the time" but "admittedly did not take into account the insurance company or the towing bill. So that's something that's partially my fault and I admit that. But the case law does indicate that victims deserve to be made whole." The government acknowledged Beston's "argument and concerns" but continued to explain why the PSR amount was higher, noting "again I didn't contemplate the insurance company when I wrote in that restitution figure." The government also speculated that, if the stolen vehicle had not been driven into the lake, it would not have been damaged to the same extent. The probation officer then shared that the PSR amount was based on information provided by Gateway Chevrolet to the government. Beston concluded by reiterating that the parties had agreed on the restitution amount of $16,950 in the plea agreement. However, at no point during sentencing did the government recommend the $16,950 amount, and Beston never objected to the government's failure to do so. Ultimately, the district court acknowledged the plea agreement's provision requiring the government to recommend the $16,950 amount but overruled Beston's objection to the PSR restitution amount and ordered $30,845.50 in restitution. The district court also sentenced Beston to 21 months imprisonment and 3 years supervised release.

II.

Before we can reach the disputed legality of the district court's restitution order, we must determine whether the government breached the plea agreement such that Beston's appeal may proceed. Beston argues that the government breached the plea agreement by failing to recommend the $16,950 restitution amount at sentencing and instead advocating for the higher amount set forth in the PSR. Beston seeks remand for specific performance of the plea agreement. See United States v. Kelly, 18 F.3d 612, 615-16 (8th Cir. 1994) ("When the government fails to fulfill the terms of a plea agreement, an unsatisfied defendant may seek specific performance or may seek to withdraw his plea."). The government denies breaching the plea agreement and asks this Court to dismiss Beston's appeal based on the plea agreement's appeal waiver.

" ‘If the government breached the plea agreement, [the defendant] may proceed with his appeal despite the appeal waiver.’ Accordingly, ‘the appeal waiver does not prevent us from reviewing [the] claim that the plea agreement was breached.’ " United States v. Brown, 5 F.4th 913, 915 (8th Cir. 2021) (alterations in original) (citations omitted). However, we are limited to plain-error review because Beston failed to object to the government's alleged breach below and instead raises this argument for the first time on appeal. See United States v. Sayles, 754 F.3d 564, 568 (8th Cir. 2014). To prevail on plain-error review, Beston must show: " ‘ "(1) error, (2) that is plain, and (3) that affects substantial rights." ’ ‘If all three conditions are met, we may remedy the error only if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." ’ " United States v. Lovelace, 565 F.3d 1080, 1087 (8th Cir. 2009) (citations omitted).

We first consider whether the government breached the plea agreement. "When a guilty plea is induced by an agreement, the government must abide by its terms." Id. "[I]n determining whether the government has fulfilled its obligations under a plea agreement, we look to the agreement's provisions." United States v. Kramer, 12 F.3d 130, 131 (8th Cir. 1993). "If the government ‘actively advocate[s] for an outcome different from the one it had promised’ to seek, it breaches the plea agreement." United States v. Pierre, 912 F.3d 1137, 1142 (8th Cir. 2019) (alteration in original). Here, Paragraph 18(b) of Beston's plea agreement provides: "At sentencing, the United States will ... [r]ecommend that Defendant be ordered to pay restitution in the amount of $16,950." At the sentencing hearing, however, the government never made this express recommendation. References by the district...