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United States v. Winans

United States Court of Appeals, Sixth Circuit

March 17, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MICHAEL WINANS, JR., Defendant-Appellant

March 17, 2014, [*]

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:12-cr-20598-1--Sean F. Cox, District Judge.

ON BRIEF: Frank D. Eaman, FRANK D. EAMAN, PLLC, Detroit, Michigan, for Appellant.

Abed Hammoud, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: BATCHELDER, Chief Judge; McKEAGUE, Circuit Judge; OLIVER, District Judge.[**]

OPINION

Page 269

ALICE M. BATCHELDER, Chief Judge.

Appellant Michael Winans, Jr., pleaded guilty to one count of wire fraud under 18 U.S.C. § 1343. He was sentenced to 165 months of incarceration, five years of supervised release, and restitution totaling $4,796,522.00. Winans's plea agreement included a waiver of any right to appeal his conviction or sentence. Winans nonetheless appeals, arguing that the appeal waiver's scope does not extend to the district court's restitution order, and that the restitution order itself exceeds the district court's statutory authority. The government moves for dismissal based on the appeal waiver. Because the appeal waiver in Winans's plea agreement waived any right to appeal the district court's restitution order, we dismiss his appeal.

I.

Winans created the Winans Foundation Trust (" WFT" ) in October 2007 as a vehicle to solicit investments in Saudi Arabian crude oil bonds. He recruited eleven " shareholders" whose job was to solicit investors and funds for the WFT. Winans guaranteed fantastic returns, promising that $1,000-$8,000 initial investments would yield returns of the same amount within sixty days. By December 2007, Winans learned that the bonds were not a legitimate investment, but he kept this information to himself. One thousand two hundred people fell victim to Winans's trick.[1] The money vanished.

A bill of information filed on September 10, 2012, charged Winans with one count of wire fraud in violation of 18 U.S.C. § 1343. Winans's plea agreement stated, " Each individual victim of WINANS' scheme to defraud invested between $1,000 and $7,000 in the Saudi Arabian crude oil bond. As a result, WINANS obtained over $8,000,000 from more than 1,000 victim investors . . . ." The plea agreement calculated the guidelines range at 151-188 months based on the wire fraud count, losses between $7,000,000 and $20,000,000, and the number of victims. The plea agreement stated that " [t]he Court shall order restitution to every identifiable victim of defendant's offense and all other relevant conduct. The victims, and the full amounts of restitution in this case, are to

Page 270

be determined." The agreement also contained a waiver of appeal: " Defendant waives any right he may have to appeal his conviction. If the sentence imposed does not exceed the maximum allowed by Part 3 of this agreement, defendant also waives any right he may have ...


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