United States of America v. Ankur Agarwal

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2890
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UNITED STATES OF AMERICA
v.
ANKUR AGARWAL,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-19-cr-00770-01)
District Judge: Honorable Susan D. Wigenton
____________
Submitted under Third Circuit LAR 34.1(a)
November 8, 2021
Before: HARDIMAN, MATEY, and SCIRICA, Circuit
Judges.
(Filed: February 3, 2022)

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Tor B. Ekeland
Tor Ekeland Law, PLLC
30 Wall Street
8th Floor
New York, NY 10005
Counsel for Appellant
Rachael A. Honig
Mark E. Coyne
Richard J. Ramsay
John F. Romano
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellee
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
In this appeal, Ankur Agarwal asks us to vacate or
modify the 94-month sentence he received after he pleaded
guilty to aggravated identity theft and violations of the
Computer Fraud and Abuse Act (CFAA). Agarwal argues his
plea was unknowing because he could not have reasonably
foreseen the nearly $3,000,000 in losses that would be
attributed to his CFAA violations. The record demonstrates
otherwise. Agarwal signed the plea agreement aware that the

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loss amount was disputed and waived the right to appeal his
sentence. We will affirm.
I
Agarwal was a contract network engineer and had
security credentials that granted him access to the corporate
offices and internal networks of several telecommunications
companies. By early 2017, Agarwal’s contract with two
companies had ended, but his credentials remained active. For
over a year, Agarwal repeatedly used his credentials without
authorization to enter the companies’ offices, log into their
networks, and monitor their activities.
But that’s not all. To maintain access to one company’s
internal computers, he installed key-logging software to obtain
the usernames and passwords of other employees. He installed
unauthorized hardware onto the company’s network, which he
then used to access the network remotely. And he installed
computer code that enabled him to surreptitiously transfer
information related to technology the company was
developing. Agarwal also began using a vacant office on the
company’s premises without authorization. From there he
accessed the company’s network, studied the company’s
software, reviewed email, and made personal phone calls.
Agarwal also infiltrated the network of a second
company. He obtained employees’ login credentials and
transferred information about technology the company was
developing. To gain access to the company’s premises, he used
the personal identification information of another person and
induced the company to create an access badge in that person’s
name.

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The companies eventually learned of Agarwal’s
unauthorized activities and devoted significant resources to
investigate and remediate the breaches. Cybersecurity
employees reviewed months of computer logs and probed
compromised email accounts to determine the extent of
Agarwal’s misfeasance. Company lawyers investigated the
legal implications of the intrusion to determine whether trade
secrets were stolen or contracts were breached. Security
employees reviewed video footage and replaced equipment
related to office access. And employee productivity suffered
because compromised user accounts and computers were
temporarily taken offline to limit further damage.
Agarwal monitored the investigations, even listening-in
on a conference call during which company employees
discussed their efforts to find him. In April 2018, when it
became clear he would be discovered, Agarwal resorted to
desperate tactics to avoid detection—donning disguises,
swapping vehicles, even filing a false police report. He was
eventually taken into custody and fully cooperated with law
enforcement. Agarwal maintains he did not sell or otherwise
financially profit from the personal or technology information
he obtained.
Agarwal waived indictment and pleaded guilty to one
count of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1), and two counts under the CFAA for
intentionally accessing a protected computer without
authorization and obtaining information valued at more than
$5,000, in violation of 18 U.S.C. §§ 1030(a)(2) and
1030(c)(2)(B)(iii). The plea agreement stated that sentencing
was “within the sole discretion of the sentencing judge” and
that the statutory maximum prison sentence was twelve years
(five years for each CFAA violation, plus a mandatory two-

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year term for identity theft that could not run concurrently with
the CFAA sentences). App. 41.
Under the United States Sentencing Guidelines
(USSG), the recommended prison term is influenced heavily
by the loss suffered by the victims. USSG § 2B1.1(b)(1).
Accordingly, Agarwal “reserve[d] the right to take any position
with respect to [the] loss amount at sentencing.” App. 48. The
plea agreement also provided that, so long as the District Court
accepted certain factual stipulations, Agarwal “voluntarily and
expressly waive[d] all right to appeal or collaterally attack his
conviction, sentence, or any other matter relating to this
prosecution,” subject to exceptions for “the sentencing court’s
determination of [Agarwal’s] criminal history” or if an “aspect
of the sentence . . . falls outside of any applicable statutory
minimum or maximum.” App. 48–49.
The District Court accepted the plea after a lengthy
colloquy, during which Agarwal acknowledged that, while
“both [he and the government] . . . can make the arguments as
to what they feel . . . is the appropriate [G]uidelines offense
level, . . . [a]t the end of the day, [the court] determine[s] what
that [G]uideline[s] level is,” App. 67, and “that once [he]
enter[ed] the plea [he] can’t take it back because [he doesn’t]
like or agree with the sentence.” App. 60.
Based on detailed documentation from the companies,
the United States Probation Office in its Presentence
Investigation Report (PSR) calculated the loss to be over
$3,000,000, most of which was for salary expenses for
employee time spent investigating and remediating the
breaches. Because the loss was greater than $1,500,000, the
resulting offense level was 27, yielding a Guidelines range of
70 to 87 months’ imprisonment for the CFAA

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violations. USSG Ch. 5, Pt. A (Sentencing Table). After
receiving the PSR, Agarwal did not seek to withdraw his plea;
instead, consistent with the plea agreement, he disputed the
loss amount. He filed a presentencing memorandum and
argued at sentencing that salaries of company employees
should be excluded from the loss calculation. In his view, the
actual loss was potentially less than $550,000, which would
lower the offense level by as many as four levels and reduce
the upper range of the Guidelines by 30 months. See
USSG § 2B1.1(b)(1)(G)–(I); USSG Ch. 5, Pt. A (Sentencing
Table).
The District Court was unpersuaded by Agarwal’s
argument and found that the loss exceeded $1,500,000. The
Court sentenced Agarwal to 70 months’ imprisonment for the
CFAA violations, at the bottom of the Guidelines range.
Adding the mandatory two-year sentence for aggravated
identity theft resulted in a total sentence of 94 months’
imprisonment. While Agarwal contested the loss amount
before the District Court, he never suggested that the
uncertainty in the loss calculations made his plea unknowing.
He makes that argument for the first time in this appeal,
requesting vacatur of his judgment and sentence, or a
modification of the CFAA sentences to reflect a lower loss
amount.
II
The District Court had jurisdiction under 28 U.S.C.
§ 3231 and we have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). The parties dispute the applicable

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standard of review where, as here, the defendant argues for the
first time on appeal that his plea was unknowing.
III
“[A] guilty plea is a grave and solemn act . . . accepted
only with care and discernment.” Brady v. United States, 397
U.S. 742, 748 (1970). Because a guilty plea is not merely “an
admission of past conduct,” but also a waiver of important
constitutional rights, it must be knowing and voluntary. Id. at
748. So district courts engage the defendant in a lengthy
colloquy “to ensure that he understands the law of his crime in
relation to the facts of his case, as well as his rights as a
criminal defendant,” and has entered the plea voluntarily, free
from unlawful threats or promises. United States v. Vonn, 535
U.S. 55, 62 (2002); Fed. R. Crim. P. 11(b).
A defendant’s ability to withdraw a guilty plea wanes as
the case proceeds. Before the trial court has accepted the plea,
the defendant has considerable flexibility; he may withdraw
the plea “for any reason or no reason.” Fed. R. Crim. P.
11(d)(1). But “[o]nce a court accepts a defendant’s guilty plea,
the defendant is not entitled to withdraw that plea simply at his
whim.” United States v. Jones, 336 F.3d 245, 252 (3d Cir.
2003). After the trial court accepts the plea and before
sentencing, a defendant must show a “fair and just reason” for
withdrawal. Fed. R. Crim. P. 11(d)(2)(B); see Jones, 336 F.3d
at 252. At this stage, the defendant bears a “substantial
burden.” United States v. Siddons, 660 F.3d 699, 703 (3d Cir.
2011) (citing United States v. King, 604 F.3d 125, 139 (3d Cir.
2010)). “[A] shift in defense tactics, a change of mind, or the
fear of punishment are not adequate reasons” for withdrawal.
Id. (quoting Jones, 336 F.3d at 252).

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After a sentence has been imposed, withdrawal
becomes even harder—“the plea may be set aside only on
direct appeal or collateral attack.” Fed. R. Cr. P. 11(e). This
rule “create[s] an incentive to file withdrawal motions before
sentenc[ing], not afterward.” Vonn, 535 U.S. at 72. And it
encourages a defendant “to think through a guilty plea before
[a] sentence is imposed,” and “tends to separate meritorious
second thoughts . . . [from] mere sour grapes over a sentence
once pronounced.” Id. Finally, it “concentrates plea litigation
in the trial courts, where genuine mistakes can be corrected
easily, and promotes the finality required in a system as heavily
dependent on guilty pleas as ours.” Id.
“[C]oncern with finality” has “special force with respect
to convictions based on guilty pleas.” United States v.
Timmreck, 441 U.S. 780, 784 (1979).
[I]f a plea of guilty could be retracted with ease
after sentence, the accused might be encouraged
to plead guilty to test the weight of potential
punishment, and withdraw the plea if the
sentence were unexpectedly severe. The result
would be to undermine respect for the courts and
fritter away the time and painstaking effort
devoted to the sentencing process.
United States v. Stayton, 408 F.2d 559, 561 n.4 (3d Cir. 1969)
(citation and quotation omitted). Indeed, a lesser standard risks
“degrad[ing] the otherwise serious act of pleading guilty into
something akin to a move in a game of chess.” United States v.
Hyde, 520 U.S. 670, 677 (1997).
The deferential standards governing appellate review of
guilty plea challenges reflect our system’s strong interest in

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finality. We review a trial court’s order denying a defendant’s
motion to withdraw his plea for abuse of discretion. King, 604
F.3d at 139. And when the basis for withdrawal of the plea is
an alleged defect in the Rule 11 plea colloquy, objections not
made in the trial court are subject to plain error review. United
States v. Dixon, 308 F.3d 229, 233–34 (3d Cir. 2002) (citing
Vonn, 535 U.S. at 58–59). The silent defendant carries the
burden on appeal for good reason: otherwise, “[a] defendant
could simply relax and wait to see if the sentence later struck
him as satisfactory; if not, his Rule 11 silence would have left
him with clear but uncorrected Rule 11 error to place on the
Government’s shoulders.” Vonn, 535 U.S. at 73. “[T]he value
of finality requires defense counsel to be on his toes, not just
the judge, and the defendant who just sits there when a mistake
can be fixed cannot just sit there when he speaks up later on.”
Id.
Where, as here, the defendant challenges the validity of
a guilty plea for the first time on direct appeal without alleging
a Rule 11 error, we have not articulated the standard of review
that applies. See, e.g., United States v. Schweitzer, 454 F.3d
197, 202–03, 203 n.4 (3d Cir. 2006) (finding defendant’s plea
was knowing and voluntary without identifying the standard of
review). But whether the defendant alleges a particular Rule 11
defect or claims his plea was invalid for another reason, the
same interests in finality apply. We thus review Agarwal’s
claim that his plea was unknowing due to the uncertainty in the

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loss amount—a claim he did not make before the trial court—
for plain error.1
IV
Under plain error review, we have discretion to correct
an error when the defendant establishes (1) the district court
committed error, (2) the error is clear and obvious, and (3) the
error affected the defendant’s substantial rights. Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904 (2018). If these
1 The Tenth Circuit has similarly applied plain error review to
challenges to plea validity first made on direct appeal. See, e.g.,
United States v. Vidal, 561 F.3d 1113, 1118–19 (10th Cir.
2009) (“review[ing] for plain error” because defense “counsel
never made an express objection [to the trial court] challenging
the validity of [the] plea” and “never filed any motions to
withdraw the plea”). Other circuits have invoked different
standards, left the standard of review unspecified, or declined
to entertain the challenge. See, e.g., United States v. Frye, 402
F.3d 1123, 1126–27 (11th Cir. 2005) (reviewing “[t]he
voluntariness of a guilty plea . . . de novo” (citation omitted));
United States v. Glinsey, 209 F.3d 386, 397 (5th Cir. 2000)
(finding defendant’s plea knowing and voluntary based on the
record without specifying the standard of review); United
States v. Rodriguez-Morales, 647 F.3d 395, 398 (1st Cir. 2011)
(electing “not [to] resolve” what standard of review applies to
a challenge to the validity of a guilty plea since the defendant’s
“claim fails under any of the applicable standards”); United
States v. Umanzor, 617 F.3d 1053, 1060 (8th Cir. 2010)
(declining to consider a challenge to the voluntariness of a plea
made for the first time on direct appeal).

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conditions are met, we will correct the error if it “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 1905 (citations and quotations omitted).
The record in this case shows that Agarwal’s plea was made
knowingly and voluntarily; Agarwal has failed to establish any
error, much less one that is plain.
The unambiguous language of the plea agreement and
Agarwal’s responses during the plea hearing show he was
aware he faced up to twelve years in prison. The plea
agreement advised Agarwal that each CFAA violation “carries
a statutory maximum prison sentence of five years,” and the
aggravated identity theft charge “carries a statutory mandatory
sentence of two years[],” exposing him to up to twelve years’
imprisonment. App. 41. The agreement reiterated that
Agarwal’s sentence was “within the sole discretion of the
sentencing judge,” who could impose a sentence “up to and
including the statutory maximum term.” Id. And Agarwal
affirmed during the colloquy that he reviewed the plea, was
aware of “the maximum penalties associated with the offenses
to which he [was] entering a plea of guilty,” and understood
that the District Court had “the discretion to impose the
sentence that [it felt was] appropriate.” App. 61, 70.
By expressly “reserv[ing] the right to take any position
with respect to loss amount at sentencing” in his plea
agreement, Agarwal acknowledged that the crucial CFAA loss
was disputed. App. 48. He told the District Court at the plea
hearing that he and the Government could not “reach a
conclusion on the [G]uideline[s] range, so we left it open,” and
affirmed his understanding that both he and the Government
could “make . . . arguments as to what . . . the appropriate
[G]uidelines offense level [was],” but that the final
determination of the offense level was for the Court. App. 67.

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Agarwal’s counsel also understood the precise nature of the
loss dispute—whether internal employee salaries should be
included in the loss calculation—and argued in his
presentencing memorandum and at sentencing that salaries
should be excluded.
In sum, the fact that the District Court determined a
loss—and imposed a sentence—higher than Agarwal proposed
does not make his plea unknowing. “[A]ll that the law requires
is that the defendant be informed of his/her exposure in
pleading guilty. The law does not require that a defendant be
given a reasonably accurate ‘best guess’ as to what his/her
actual sentence will be.” United States v. Mustafa, 238 F.3d
485, 492 n.5 (3d Cir. 2001). If Agarwal believed he had been
misled after learning of the Government’s loss calculations in
the PSR, he could have—and should have—moved to
withdraw his plea then, when he would have been required to
present only a “fair and just reason” for withdrawal. See Fed.
R. Crim. P. 11(d)(2)(B). Because he failed to do so, he cannot
now persuasively argue his plea was unknowing merely
because he is disappointed or surprised that the District Court
credited the Government’s calculations rather than his own.
V
Agarwal’s fallback position is that we modify his
CFAA sentences to run concurrently and reduce their length to
reflect a lower loss amount. But Agarwal expressly waived his
right to appeal his sentence, so long as the sentence fell within
the maximum term specified. “We decline to exercise
jurisdiction over the appeal where the issues on appeal fall
within the scope of the waiver and the defendant knowingly
and voluntarily agreed to the waiver, unless ‘enforcing the
waiver would work a miscarriage of justice.’” United States v.

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Saferstein, 673 F.3d 237, 242 (3d Cir. 2012) (quoting United
States v. Corso, 549 F.3d 921, 927 (3d Cir. 2008)).
Agarwal does not challenge the validity of the appellate
waiver apart from the challenge to his guilty plea. We have
rejected Agarwal’s claim that his plea was unknowing, and the
record shows that the appellate waiver was likewise knowing,
voluntary, and applicable to his sentence. Nor has Agarwal
shown that enforcing the waiver results in any “miscarriage of
justice”—an exception to enforcement “applied sparingly and
without undue generosity.” United States v. Wilson, 429 F.3d
455, 458 (3d Cir. 2005) (quoting United States v. Teeter, 257
F.3d 14, 26 (1st Cir. 2001)). Accordingly, we will not review
the merits of his sentencing challenge. See United States v.
Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007).
VI
The District Court told Agarwal that he faced up to
twelve years in prison. His 94-month sentence was more than
four years less than the statutory maximum. Agarwal’s
unsuccessful attempt to persuade the District Court that the loss
he caused was less than $1,500,000 did not render his valid
plea unknowing or involuntary. We will affirm the judgment
of the District Court.

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