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United States v. Keele

United States Court of Appeals, Fifth Circuit

June 2, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RICKY J. KEELE, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas.

For United States of America, Plaintiff - Appellee: Brian W. McKay, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX.

For Ricky J. Keele, Defendant - Appellant: Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX.

Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.

OPINION

Page 753

CARL E. STEWART, Chief Judge:

IT IS ORDERED that the opinion previously filed in this case, United States v. Keele, No. 12-10551, 742 F.3d 192 (5th Cir. Jan. 7, 2014), is WITHDRAWN. The following opinion is substituted therefor:

Defendant-Appellant Ricky J. Keele pled guilty to a superseding information that charged him with removing property to prevent seizure and aiding and abetting in violation of 18 U.S.C. § § 2232(a) and 2. The district court sentenced Keele and ordered restitution. Despite the general appeal waiver provision contained in his plea agreement, Keele now challenges the district court's restitution order, arguing that it was not encompassed by his appeal waiver. We dismiss.

FACTS

Keele was charged in a superseding bill of information with helping Matthew Simpson dispose of, transfer and conceal a $1,500,000 cashier's check from Citizens Bank of Texas in order to prevent the funds from being seized by the Government. Keele waived his right to an indictment and entered into a written agreement to plead guilty to the superseding information. The plea agreement set maximum sentencing exposure at 24 months and included restitution to the victims arising from " all relevant conduct" and was not limited to the conduct arising from the offense of conviction alone. The plea agreement also contained an appeal waiver which stated that Keele waived the right to appeal his conviction and sentence except in the case of a sentence in excess of the statutory maximum, an involuntary

Page 754

plea or appeal waiver, or ineffective assistance affecting the voluntariness of the plea or appeal waiver.

The presentence report (" PSR" ) described a long term, complex conspiracy, perpetrated by Keele, Simpson, Michael Faulkner and sixteen other co-defendants, to defraud telecommunication companies of property and services and to defraud individual victims of money, property, and services. Five victim impact statements referenced in Keele's PSR contained losses totaling $3,691,102.70. However, according to the second, third and fourth superseding information, the aggregate loss of all victims of the conspiracy was estimated to be between $15,000,000 and $20,000,000.

The district court sentenced Keele to twenty-four months' imprisonment and ordered him to pay $3,691,102.70 in restitution to the victims under the Mandatory Victim Restitution Act (" ...


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