United States v. Beaird

* 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 27, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-21106
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN M. BEAIRD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-633-1
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Before GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pursuant to a written agreement, John M. Beaird pleaded
guilty to one count of wire fraud, and aiding and abetting, in
violation of 18 U.S.C. §§ 1343 and 2. The district court
sentenced him to the statutory maximum prison term of 60 months,
imposed a three-year supervised-release term, and ordered him to
pay a total of $465,806 in restitution. Of the restitution
ordered, $200,000 in attorney’s fees and litigation expenses,
associated with assistance to the FBI in the investigation of

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Beaird’s offense, was to be paid to Camden Capital Mortgage, Inc.
(“Camden”). Beaird now appeals.
For the first time on appeal, Beaird contends that his
sentence was improperly increased under the Sentencing Guidelines
based on facts that were not charged in his indictment, not
submitted to a jury, and not admitted by him. Citing a line of
authority running from Apprendi v. New Jersey, 530 U.S. 466
(2000), to United States v. Booker, 125 S. Ct. 738 (2005), he
maintains that this violated his Sixth Amendment jury-trial
right. The record reflects, however, that Beaird knowingly and
voluntarily waived his right to appeal his sentence, pursuant to
a waiver provision in his plea agreement. Such waiver provisions
remain valid in the aftermath of Booker. See United States v.
Cortez, No. 04-10152, 2005 WL 1404944 (5th Cir. June 16, 2005).
For purposes of waiver-of-appeal provisions, Booker does not
alter the meaning of the term “statutory maximum,” which we
afford its “natural and ordinary meaning of ‘the upper limit of
punishment that Congress has legislatively specified for
violations of a statute.’” Id. (citing United States v. Rubbo,
396 F.3d 1330, 1334-35 (11th Cir. 2005)). We uphold the waiver
with respect to Beaird’s Booker challenge and his Sentencing
Guidelines arguments.
For the first time on appeal, Beaird argues that the
district court erred in ordering him to pay restitution to
Camden, in the form of attorney’s fees and other litigation
expenses, that amounted to “consequential” damages. It is true

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that a victim cannot recover “consequential” damages as
restitution in a criminal case. See United States v. Onyiego,
286 F.3d 249, 256 (5th Cir. 2002). Both Beaird and the
Government, however, overlook the fact that the district court
applied 18 U.S.C. § 3663A(b)(4) of the Mandatory Victims
Restitution Act (“MVRA”) of 1996. The plain language of 18
U.S.C. § 3663A(b)(4) directs the sentencing court in certain
cases, including fraud cases, to require the defendant to
“reimburse the victim for . . . other expenses incurred during
participation in the investigation or prosecution of the
offense.” Because that is precisely what the district court did
in Beaird’s case, no plain error is evident. See United States
v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc);
United States v. Olano, 507 U.S. 725, 732 (1993).
For the first time on appeal, Beaird contends that the
district court erred by not sua sponte continuing his sentencing
hearing when a third PSR addendum was filed only six days before
the scheduled hearing. He argues that he was prejudiced by not
having time to verify and object to the information in the
addendum, which allegedly resulted in a 13-level offense-level
increase under the Guidelines. Because the third addendum dealt
only with Camden’s request for restitution, however, Beaird’s
contention is not supported by the record, and he cannot show
plain error as to this claim. See Calverley, 37 F.3d at 162-64.
The judgment of the district court is AFFIRMED.

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