United States v. Carl Kieffer, 794 F.3d 850 (7th Cir. 2015). · Go Syfert
United States v. Carl Kieffer, 794 F.3d 850 (7th Cir. 2015). Cases Citing This Book View Copy Cite
9 citation events (9 in the last 25 years) across 4 distinct courts.
Strongest positive: Bracco Diagnostics Inc. v. Maia Pharmaceuticals, Inc. (cafc, 2020-12-17)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Bracco Diagnostics Inc. v. Maia Pharmaceuticals, Inc.
Fed. Cir. · 2020 · confidence medium
Cir. 2012) (rejecting a party’s argument that it did not stipulate to a certain fact because the wording of the stipulation “suggests otherwise, and it is to that stipulation [the party] is bound”); United States v. Penland, 370 F. App’x 381, 383 (4th Cir. 2010) (re- jecting party’s attempt to disavow “unambiguous language set forth in the [s]tipulation”); United States v. Kieffer, 794 F.3d 850, 852 (7th Cir. 2015) (asserting that a party “may not disavow [its] stipulations by quibbling over seman- tics”).
discussed Cited as authority (rule) Merritt v. United States
C.D. Ill. · 2019 · confidence medium
See Buggs v. United States, 153 F.3d 439, 444 (7th Cir. 1998) (holding that the Government had waived the petitioner’s procedural default by not arguing that the petitioner’s claim was procedurally defaulted); United States v. Kieffer, 794 F.3d 850, 852 (7th Cir. 2015) (holding that the Government had waived reliance on the defendant’s appeal waiver in the parties’ plea agreement by submitting a brief that did not address the appeal waiver).
cited Cited as authority (rule) United States v. Deandre Anderson
unknown court · 2017 · confidence medium
Burns, 843 F.3d at 689 ; United States v. Yihao Pu, 814 F.3d 818, 831 (7th Cir. 2016); United States v. Kieffer, 794 F.3d 850, 854 (7th Cir. 2015).
cited Cited as authority (rule) United States v. Yihao Pu
7th Cir. · 2016 · confidence medium
United States v. Kieffer, 794 F.3d 850, 854 (7th Cir.2015).
discussed Cited as authority (rule) United States v. Lashone Owens
7th Cir. · 2016 · confidence medium
The waiver would seem to cover this matter, cf. United States v. Woods, 581 F.3d 531, 533, 536 (7th Cir.2009); United States v. Monroe, 580 F.3d 552, 555-56, 559 (7th Cir.2009), but the government’s choice to forgo asserting it relieved Owens of his promise not to seek a reduction, see United States v. Kieffer, 794 F.3d 850, 852 (7th Cir.2015); United States v. Adigun, 703 F.3d 1014, 1022 (7th Cir.2012).
discussed Cited "see" United States v. Mark Comer
8th Cir. · 2024 · signal: see · confidence high
See United States v. Kieffer, 794 F.3d 850, 853 (7th Cir. 2015) (per curiam) (stating that while the district court may have intended to order restitution as only a condition of supervised release, the judgment went further by requiring payment upon incarceration); see also United States v. Johnson, 529 U.S. 53, 57-59 (2000) (concluding that a supervised release term does not commence until the individual is released from imprisonment).
cited Cited "see" United States v. Tiana Williams
7th Cir. · 2016 · signal: see · confidence high
See United States v. Kieffer, 794 F.3d 850, 852 (7th Cir.2015); Eske, 925 F.2d at 207 .
cited Cited "see" United States v. Jeffery P. Miller
7th Cir. · 2016 · signal: see · confidence high
See United States v. Kieffer, 794 F.3d 850, 852 (7th Cir. 2015) (government’s silence about appeal waiver can waive reliance on it).
cited Cited "see" United States v. Miller
7th Cir. · 2016 · signal: see · confidence high
See United States v. Kieffer, 794 F.3d 850, 852 (7th Cir.2015) (government’s silence about appeal waiver can waive reliance on it).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Carl F. KIEFFER, Defendant-Appellant
14-2653, 14-2652, 14-2650.
Court of Appeals for the Seventh Circuit.
Jul 27, 2015.
794 F.3d 850
Angela Scott, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee., Thomas C. Gabel, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.
PerCuriam.
Cited by 9 opinions  |  Published  |  criminal
1 passages pin-cited by 2 cases
Pinpoint authority: bottom 91%
Citer courts: E.D. Louisiana (2)
PER CURIAM.

Carl Kieffer robbed the Bank of O’Fal-lon in O’Fallon, Illinois, on October 15, 2013. He fled by car and led police offi- • cers on a high-speed chase. The officers lost sight of him temporarily but later found him hiding in a cornfield. Mr. Kief-fer confessed to robbing the bank, and the police retrieved the $3,330 he had stolen. Mr. Kieffer also confessed that he had robbed six other banks (five outside Illinois) during the previous two months. At[*852] the time of his arrest, he faced charges for only two of those robberies, however, one in Lusk, Wyoming, and another in Charlotte, Michigan. Mr. Kieffer agreed to plead guilty to those robberies, and the cases were transferred to the Southern District of Illinois and consolidated with Mr. Kieffer’s prosecution for the robbery in O’Fallon. See Fed.R.Crim.P. 20. Mr. Kieffer pleaded guilty to all three robberies, see 18 U.S.C. § 2113(a), and he signed a stipulation acknowledging his confession to committing the four uncharged robberies.

At sentencing the district court calculated a total offense level of 28 and criminal history category of V, yielding a guidelines imprisonment range of 130 to 162 months. The total offense level was reached by separately calculating the offense levels for all seven bank robberies, see U.S.S.G. § lB1.2(c), and then applying a multiple-count adjustment, see id. § 3D1.4. Mr. Kieffer received concurrent twenty-year sentences — the statutory maximum on each count, see 18 U.S.C. § 2113(a). The court also ordered Mr. Kieffer to pay $10,615 in restitution to the banks he robbed in Wyoming and Michigan, plus an additional $21,230 to the banks in the four uncharged robberies.

On appeal, Mr. Kieffer challenges a portion of his restitution order as well as the calculation of his guidelines imprisonment range. He does not challenge separately the reasonableness of his sentence, however, assuming the guidelines range is properly calculated.

We begin by making two threshold points. First, as part of his plea agreement, Mr. Kieffer agreed to relinquish his appeal rights except that he could challenge “the reasonableness of the sentence” if “the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court.” [1] Neither issue presented by these appeals falls within that narrow exception, which, typically, would constrain our review. See United States v. Worden, 646 F.3d 499, 502-04 (7th Cir.2011). But the Government’s brief is silent about Mr. Kieffer’s appeal waiver, so the Government has waived reliance on that waiver. United States v. Adigun, 703 F.3d 1014, 1022 (7th Cir.2012). Second, at sentencing Mr. Kieffer did not object to the guidelines calculations or the order of restitution, so the parties agree that our review is limited to plain error.

As for the merits, Mr. Kieffer first argues that the district court overstated his total offense level by including the four uncharged robberies when applying the multiple-count adjustment of § 3D1.4. He denies stipulating that he committed those robberies and argues that, instead, he stipulated only to confessing that he committed those offenses when questioned by the FBI.

Mr. Kieffer may not disavow his stipulations by quibbling over semantics. To establish a factual basis for his guilty pleas, Mr. Kieffer stipulated to the facts underlying the three charged robberies. At the same time, he stipulated that the Government could prove beyond a reasonable doubt that he had “admitted [to] robbing” the four other banks and that “the FBI has confirmed that [he] robbed” those other banks. [2] This stipulation is sufficiently specific to establish Mr. Kieffer’s commission of the four uncharged robberies, and thus for a sentencing court to include those robberies when applying the multiple-count adjustment. See U.S.S.G. § lB1.2(e); United States v. Shutic, 274[*853] F.3d 1123, 1124-25 & n. 1 (7th Cir.2001); United States v. Brown, 14 F.3d 337, 339, 341 (7th Cir.1994); United States v. Eske, 925 F.2d 205, 207 (7th Cir.1991). Accordingly, the district court did not commit any error — much less plain error — in calculating Mr. Kieffer’s imprisonment range.

Mr. Kieffer next argues that the district court lacked authority to order him to pay restitution to the banks in the uncharged robberies because those banks were not victims of the offenses of conviction. The Government counters that “discretionary” restitution was properly ordered as a condition of supervised release because the uncharged robberies were included as additional counts of conviction when calculating Mr. Kieffer’s guidelines range. [3]

The Government’s argument suffers from two shortcomings, the first of them factual. The district court may have intended to impose restitution for the uncharged robberies only as a condition of supervised release, but the judgments of conviction go further. Each judgment does order total payment of $21,230 to the four banks as a condition of supervised release. Yet those judgments also impose total restitution of $31,845 (the unrecov-ered losses from all seven robberies) as “criminal monetary penalties” payable “immediately.” [4] Conditions of supervised release do not have immediate effect.

More importantly, an order of restitution for the uncharged robberies is not sustainable even as a special condition of supervised release. The Government is incorrect in asserting that the guidelines instructions for incorporating uncharged offenses into the defendant’s total offense level have any bearing on the legality of a restitution order. See United States v. Locke, 759 F.3d 760, 765-66 (7th Cir.2014) (distinguishing roles of sentencing guidelines and restitution statutes); United States v. McGee, 612 F.3d 627, 635-36 (7th Cir.2010) (same). The Government cites no case on point to support its assertion, and we have not found one.

District judges may order restitution only if there is a statutory basis to do so. United States v. Westerfield, 714 F.3d 480, 489 (7th Cir.2013); United States v. Webber, 536 F.3d 584, 601 (7th Cir.2008). Restitution as a condition of supervised release, which the district court apparently intended to order in this case, is governed by 18 U.S.C. § 3583(d), which authorizes sentencing judges to impose conditions listed as discretionary conditions of. probation in 18 U.S.C. § 3563(b)(2). See United States v. Hassebrock, 663 F.3d 906, 923 (7th Cir.2011); United States v. Batson, 608 F.3d 630, 634-35 (9th Cir.2010). Section 3563(b)(2) authorizes restitution to the extent permitted by 18 U.S.C. § 3556, which, in turn, directs sentencing courts to follow the mandates of the statutes governing mandatory and discretionary restitution, 18 U.S.C. § § 3663, 3663A, without being confined to particular offenses, see United States v. Frith, 461 F.3d 914, 919—20 (7th Cir.2006); Batson, 608 F.3d at 633-34. The restitution statutes authorize restitution only for victims of an offense of conviction unless the defendant consents to pay restitution to other persons as part of a plea agreement, which Mr. Kieffer did not do. See 18 U.S.C. § 3663(a)(1)(A), (a)(3); id. § 3663A(a)(3); Hughey v. United States, 495 U.S. 411, 416, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990); Frith, 461 F.3d at 919-20; United States v. Wells, 177 F.3d 603, 608-09 (7th Cir.1999). This limitation applies even when restitution is imposed only as a condition of supervised[*854] release. See Frith, 461 F.3d at 919-20; Batson, 608 F.3d at 636-37; United States v. Varrone, 554 F.3d 327, 333-34 (2d Cir.2009). Mr. Kieffer did not consent as part of his plea agreement to pay restitution to other persons, and the banks from the uncharged robberies are not “tied to the specific conduct of conviction.” Frith, 461 F.3d at 921. The restitution awarded therefore is illegal. See id.; see also United States v. Menza, 137 F.3d 533, 537 (7th Cir.1998) (explaining that restitution may be awarded “to any victim of the ... offense of conviction”).

We will correct this plain error, however, only if it affects Mr. Kieffer’s substantial rights and seriously impugns the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Butler, 777 F.3d 382, 387-88 (7th Cir.2015). Compelling Mr. Kieffer to pay $21,230 — a substantial sum — without any legal authority affects his substantial rights, and so we exercise our discretion to vacate the disputed award of restitution. See United States v. Locke, 643 F.3d 235, 248 (7th Cir.2011); United States v. Allen, 529 F.3d 390, 397 (7th Cir.2008); United States v. Alburay, 415 F.3d 782, 789 (7th Cir.2005); United States v. Randle, 324 F.3d 550, 558 (7th Cir.2003).

Accordingly, in each appeal the judgment is AFFIRMED, except that the award of restitution to the banks involved in the uncharged robberies is VACATED. The cases are REMANDED for entry of corrected judgments providing for no restitution in Case No. 13-CR-30251-MJR, $7,015 payable to Lusk State Bank in Case No. 14-CR-30051-MJR, and $3,600 payable to Fifth Third Bank in Case No. 14-CR-30052-MJR.

1

. R.31 at 10-11.

2

. R.32 at 4-5.

3

. Appellee's Br. 25.

4

. R.40 at 5-6.