United States v. John Acord

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 16-20820
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHN PATRICK ACORD,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CR-20-2

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

John Patrick Acord, proceeding pro se, appeals his conviction and
sentence for securities fraud, in violation of 15 U.S.C. §§ 77q(a), 77x, and aiding
and abetting in violation of 18 U.S.C. § 2. Acord argues that (1) his guilty plea
is not knowing or voluntary; (2) the waiver provision contained in the plea
agreement is invalid; (3) the Government breached the plea agreement; (4) the
district court’s findings with regard to the length of his involvement in the

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 15, 2020

Lyle W. Cayce
Clerk
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2
conspiracy, his role in the conspiracy, and the relevant conduct underlying the
guidelines calculations are erroneous; (5) the Sentencing Guidelines were
improperly calculated; and (6) the restitution order was unauthorized and the
amount of restitution was incorrect.
Acord did not object in the district court to the court’s omission of § 2
when reviewing the elements of the offense. When a defendant allows an error
in a guilty-plea colloquy to pass without objection, this court reviews for plain
error only. United States v. Vonn, 535 U.S. 55, 59 (2002). A plain error is a
forfeited error that is clear or obvious and affects the defendant’s substantial
rights. United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). When those
elements are shown, this court has the discretion to correct the error only if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
“Aiding and abetting is not a separate offense, but it is an alternative
charge in every indictment, whether explicit or implicit.” United States v. Neal,
951 F.2d 630, 633 (5th Cir. 1992). To the extent that Acord argues that the
district court erred by including § 2 in the judgment, his argument is
unavailing. The factual basis set forth in the plea agreement demonstrates
that Acord and his codefendant worked in concert to commit the acts
underlying the criminal offense for their pecuniary advantage. See United
States v. Delagarza–Villarreal, 141 F.3d 133, 140 (5th Cir. 1997). To the extent
that Acord argues the omission of an explanation of the elements of a violation
of § 2 during the plea colloquy resulted in an unknowing and involuntary guilty
plea, his argument is unavailing. Even if this court were to assume that the
district court committed a clear or obvious error by failing to explicitly advise
Acord regarding § 2, the error does not warrant reversal under either the third
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or fourth prongs of the plain error analysis. See Ellis, 564 F.3d at 377; U.S.S.G.
§ 1B1.3(a)(1).
The Government argues that Acord’s appeal waiver bars review of his
challenges to his prison sentence under the Guidelines, but it is not seeking
enforcement of the waiver with respect to Acord’s challenge to the restitution
order. Acord knowingly and voluntarily waived his right to appeal. See United
States v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014). The Government did not
breach the plea agreement, as alleged by Acord. Consequently, we will not
consider the guidelines-focused sentencing issues raised by Acord.
We review for plain error Acord’s challenge to the legality of the district
court’s restitution order. See Ellis, 564 F.3d at 377. “A federal court cannot
order restitution except when authorized by statute.” United States v.
Espinoza, 677 F.3d 730, 732 (5th Cir. 2012) (internal quotation marks and
citation omitted). Pursuant to 18 U.S.C. § 3556, “[t]he court, in imposing a
sentence on a defendant who has been found guilty of an offense shall order
restitution in accordance with [18 U.S.C.] section 3663A, and may order
restitution in accordance with [18 U.S.C.] section 3663.” Section 3663A is the
Mandatory Victims Restitution Act (MVRA), and § 3663 is the Victim and
Witness Protection Act (VWPA), which is the “MVRA’s discretionary
counterpart.” United States v. Maturin, 488 F.3d 657, 660 (5th Cir. 2007); see
18 U.S.C. §§ 3663, 3663A. Neither statute authorizes a restitution award for
violations of Title 15. See §§ 3663(a)(1)(A), 3663A(c)(1).
In accordance with 18 U.S.C. § 3583(d), a district court may order
restitution as a condition of supervised release “regardless of the limitations
set out in § 3663(a).” United States v. Dahlstrom, 180 F.3d 677, 686 (5th Cir.
1999); U.S.S.G. § 5E1.1(a)(2) (same). However, there is no indication in the
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record that the district court considered whether to award restitution as a
condition of supervised release.
The erroneous restitution order affects Acord’s substantial rights
because it makes him jointly and severally liable for more than $8 million
dollars in losses by the victims absent statutory authorization for that penalty.
See Ellis, 564 F.3d at 377. Furthermore, the imposition of a restitution order
imposed without consideration of whether it complies with statutory
requirements undermines the fairness, integrity, and public reputation of
judicial proceedings. See United States v. Winchel, 896 F.3d 387, 389-90 (5th
Cir. 2018); Ellis, 564 F.3d at 377.
Accordingly, we vacate the district court’s restitution order and remand
for proceedings consistent with this opinion. Because we vacate the restitution
order, we do not reach Acord’s claims regarding the amount and nature of the
restitution award. The judgment is affirmed in all other respects.
AFFIRMED IN PART; DISMISSED IN PART; VACATED IN PART
AND REMANDED FOR FURTHER PROCEEDINGS.
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