United States v. Williams

10 F.4th 965

UNITED STATES of America, Plaintiff - Appellee,

v.Alan Alonzo WILLIAMS, Defendant - Appellant.

No. 19-1229

United States Court of Appeals, Tenth Circuit.

FILED August 23, 2021

Beale Tejada of Crane & Tejada, P.C., Denver, Colorado (Keith Bradley and Corey McGehee of Squire Patton Boggs LLP, Denver, Colorado and Phoenix, Arizona on the briefs), for Defendant-Appellant.

Elizabeth S. Ford Milani, Assistant United States Attorney (Jason Dunn, United States Attorney, and Paul Farley, Assistant United States Attorney, on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, BALDOCK, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

Alan Williams pleaded guilty to a single count of bank fraud under 18 U.S.C. § 1344 and stipulated to restitution tied to that count and two other soon-to-be-dismissed bank-fraud counts. The government got its conviction, and Williams limited his sentencing exposure and possible future charges. Now Williams steps back from his bargain, seeking to keep what benefits him (his favorable plea deal) while contesting the very restitution he stipulated was owed. And though he didn't raise the issue below, he now contests the district court's apportionment of that total restitution between WebBank and Wells Fargo Bank, as recommended by the Presentence Report (PSR).

To raise these challenges, Williams must first overcome the appeal waiver included in his Plea Agreement. We conclude that the appeal waiver does not bar his total-restitution challenge. In this circumstance, the Plea Agreement allows Williams to appeal the apportionment of the total restitution and the substantive reasonableness of his prison sentence as well. Addressing the merits of Williams's challenges, we affirm.

BACKGROUND

The government charged Williams with a scheme that encompassed four bank-fraud counts, which were based on two loans and an attempted loan from WebBank. Though Williams pleaded guilty to just the first count, in the next section, we review the facts underlying Williams's entire bank-fraud scheme as charged in the Indictment, as memorialized in the Plea Agreement, and as set out without objection in the PSR.

I. Factual Background

Williams co-owned and operated his family's vending-machine business, Williams Vending Company, Inc. (WVC). The business sold, leased, operated, and repaired vending machines. Because Williams was a convicted felon and still on parole, he was ineligible to obtain bank loans, which he desired mostly for his personal use. Determined to obtain a loan, he recruited a part-time employee of WVC, described by the district court as Ms. X, to participate in fraudulently obtaining loans purportedly for WVC. He scripted her role as being the president and sole owner of WVC. In enticing Ms. X into his scheme, Williams knowingly exploited her need for money to feed a crack-cocaine addiction.

Williams's bank-fraud preparations began a year before he first applied for a loan from WebBank. In November 2006, he filed documents with the Colorado Secretary of State that falsely identified Ms. X as WVC's owner. In these filings, he claimed that Ms. X had invested significantly in WVC and managed the company for years. Then in January 2007, he caused Ms. X to fraudulently obtain a $900,000 loan to purchase a residence in Denver, Colorado, at which she neither resided nor intended to reside. And in May 2007, he opened three WVC bank accounts over which Ms. X had "sole signature authority," though Williams in fact controlled the accounts. R. vol. 4 at 268.

With this foundation for the bank-fraud scheme in place, in late 2007, Williams caused Ms. X to fraudulently apply to WebBank for an $800,000 Small Business Administration loan. He had her act as the applicant and personal guarantor for the loan. In addition, he had her falsely claim to be WVC's president and sole owner, to have "years of management experience" at WVC and elsewhere, to earn a substantial salary at WVC, to have "substantial assets," and to reside at the mentioned Denver residence. Id. at 269. He also provided various documents to WebBank, signed or purportedly signed by Ms. X. And he further falsely represented that WVC would use the loan funds to fulfill certain government contracts, to pay existing debt, and for working capital. In support of these representations, he provided a fraudulent vending contract with Peterson Air Force Base and a fraudulent purchase order with Ross Vending.

In December 2007 and January 2008, WebBank approved the loan, issuing eleven checks payable jointly to WVC and a named creditor of WVC. The amount ultimately disbursed was $787,574.58. Though WebBank imposed a condition on the loan that the co-payee creditors sign the checks, none did so. Instead, Williams fraudulently endorsed the checks and deposited them in a WVC bank account without paying any creditors in full as the loan required. He spent the loan proceeds mostly on himself and not for the promised business purposes.

But Williams wanted more. In April 2008, WebBank approved a second loan, this for $300,000, with Ms. X again acting as the applicant and personal guarantor. This time, Williams falsely represented that WVC needed to purchase vending machines and trucks to serve three major apartment complexes. As proof, he provided a fraudulent vending contract with a property-management company and a fraudulent purchase order for vending machines. In May 2008, WebBank wired the loan proceeds to a WVC account. Williams again mostly spent the money on himself, including the purchase of two new Mercedes Benz cars.

Still unsatisfied, a couple of months later, Williams went back to WebBank for more money. In June 2008, WebBank lent another $60,000 on the second loan, for a total amount disbursed of $359,253.70. When applying this time, using Ms. X as before, Williams fraudulently represented that WVC needed to purchase service trucks. In support, he submitted fake invoices from a truck vendor. WebBank issued a check jointly payable to WVC and the vendor. But again, Williams fraudulently endorsed the check and then deposited it in a WVC account he could access. As before, he did not use the loan proceeds for WVC purposes.

And a couple of months later, Williams tried for even more. In August 2008, WebBank denied a last request from him for a third, $550,000 loan (though not because WebBank had yet uncovered the fraud). To support this request, Williams again used Ms. X as before and falsely stated that WVC needed to purchase equipment so that it could qualify to be Denver public schools’ exclusive vending-machine servicer. Among the application documents, he provided additional fraudulent documents, seeking to lead WebBank into believing that WVC had reduced its outstanding liabilities.

In January 2009, WebBank discovered the fraud. At this time, the amounts disbursed on the $800,000 and $360,000 loans remained unpaid, meaning that the principal unpaid balances on the loans were $787,574.58 and $359,253.70, respectively. Together, the balances totaled $1,146,828.28.

II. Procedural Background

Based on this conduct, the government indicted Williams on four counts of bank fraud under 18 U.S.C. §§ 1344 and 2(b). Williams pleaded guilty to Count One, which related to the $800,000 loan, and the government successfully moved to dismiss the remaining counts. The dismissed counts related to the $300,000 loan, the $60,000 modification to it, and the $550,000 attempted loan. In the Plea Agreement, the parties stipulated to a total amount of restitution of $1,146,828.28 (the unpaid principal on the two loans). In doing so, the parties referenced the operative statute—the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A, which mandates restitution to victims of certain crimes, including bank fraud. Id. § 3663A(c)(1)(ii) ; see United States v. Bowling , 619 F.3d 1175, 1187 (10th Cir. 2010) (ruling that the MVRA requires "[a] district court sentencing an individual convicted of bank fraud" to impose restitution).

In the PSR, the probation officer recommended that the court apportion the stipulated restitution of $1,146,828.28 between two listed victims—WebBank for $936,828.28, and Wells Fargo for $210,000. Williams didn't object.¹ The court awarded the total restitution and apportioned it as recommended. In doing so, the court adopted the PSR's extensive fact findings, which included many stipulated facts included in the Plea Agreement.

The PSR explained the reason for recommending the apportionment of $210,000 to Wells Fargo. It noted that in 2011, WebBank had sued Wells Fargo "based on Wells Fargo's negotiation of WebBank's checks despite the fact they bore forged endorsements."² R. vol. 4 at 272. The PSR noted that "[t]he lawsuit was settled with Wells Fargo Bank agreeing to pay WebBank $210,000." Id. It recommended the parties’ stipulated total-restitution amount of $1,146,828.28, "[p]ursuant to 18 U.S.C. § 3663A." Id. at 296.

At the sentencing hearing, the district court addressed Williams's objections to the PSR, none of which pertained to restitution. Afterward, the court turned to restitution, noting that "Mr. Williams is essentially broke, financially unable presently or prospectively to pay a fine or interest on restitution." R. vol. 8 at 35. Thus, the court imposed no fine and waived any interest on restitution. The court then adopted the PSR's recommended total restitution and its apportionment between "the two victims identified in the sentencing recommendation[.]"³ Id. Next, the court found that "[a]s a proximate result of Mr. Williams[’s] criminal conduct in committing the crime of conviction, WebBank ... ha[d] suffered pecuniary losses of $936,828.28, and Wells Fargo Bank ... ha[d] suffered pecuniary losses totaling $210,000, making total restitution of $1,146,828.28."⁴ Id. Neither party objected or asked for additional findings.

Now, Williams has changed his mind about his restitution stipulation, challenging the...