April 1, 2019
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. 1:16-cr-00053
â Michael J. Reagan, District Judge.
Easterbrook, Sykes, and Brennan, Circuit Judges.
Brennan, Circuit Judge
an in-chambers conference among court and counsel, Curtis
Johnson's attorney withdrew an objection to the
restitution amount to be paid to the victims of his
client's wire fraud. Johnson was not present. Then, in
open court, Johnson confirmed he no longer disputed
restitution, recognized the plea agreement included an appeal
waiver, pleaded guilty, and was sentenced. Johnson now
challenges his sentence, arguing he did not waive this appeal
and his sentence is unconstitutional because he was not
present when his attorney dropped the restitution objection.
We uphold the appeal waiver and dismiss Johnson's appeal.
almost three years, Johnson managed financial and production
operations for a business that produces hand rails in
Fishers, Indiana owned by the Turtle family. He kept the
books, paid vendors, purchased equipment, and entered into
loan agreements for the company, so he had access to and
signature authority for the company's bank accounts and
the company's credit.
that time Johnson defrauded the company by using its funds
and credit card for personal expenses, including a hot tub
and three "company" cars for his family members. He
wired money directly from the company's bank account into
his personal bank account, and he obtained company loans from
which he skimmed some proceeds.
company discovered Johnson's fraud and fired him, but the
damage was done. The business had to pay back the loans, and
the owners were forced to use personal retirement and college
savings to ward off creditors. The Turtle family ultimately
lost its business.
was indicted on eight counts of wire and mail fraud. He
eventually pleaded guilty to one count of wire fraud in
violation of 18 U.S.C. § 1343. The plea agreement
contained an appeal waiver. It also stated the
government's position that Johnson owed restitution
totaling $211, 428.80, comprised of credit card purchases,
vehicle payments, cash withdrawals, wire transfers, and
diverted loan proceeds. Johnson agreed he owed the victims
restitution, but he disputed the amount.
presentence investigation report adopted the government's
restitution calculation. Johnson never submitted a sentencing
memorandum, and he has never specified his own restitution
figure. At one point he hypothesized that a loss range
between $40, 000 and $95, 000 would result in a lesser
offense level, but ultimately provided no calculation
detailing what he believed that figure should be.
guilty plea and sentencing took place at the same hearing,
during which the victims of Johnson's crime addressed the
court. Before the hearing, the district judge met with
counsel for the government and the defendant in chambers and
off the record. Then, on the record early in the hearing, the
court reviewed the plea agreement with Johnson, noting the
THE COURT: My understanding, in meeting with counsel off the
record, is that the amount of restitution and loss is not in