USCA4 Appeal: 20-4604 Doc: 106 Filed: 12/12/2023 Pg: 1 of 15

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4604

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GLENDA TAYLOR-SANDERS,

Defendant - Appellant.

No. 21-4136

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GLENDA TAYLOR-SANDERS,

Defendant - Appellant.

Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:19-cr-00147-RJC-DCK-1)

Argued: September 22, 2023 Decided: December 12, 2023

Before WYNN, QUATTLEBAUM, and HEYTENS, Circuit Judges. USCA4 Appeal: 20-4604 Doc: 106 Filed: 12/12/2023 Pg: 2 of 15

Dismissed by published opinion. Judge Wynn wrote the opinion, in which Judge Quattlebaum and Judge Heytens joined.

ARGUED: David Quentin Burgess, DAVID BURGESS LAW, PC, Charlotte, South Carolina, for Appellant. Julia Kay Wood, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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WYNN, Circuit Judge:

When a criminal defendant’s valid guilty plea includes a waiver of the right to

appeal, this Court generally enforces the waiver by dismissing any subsequent appeal that

raises issues within the scope of the waiver. E.g., United States v. Adams,

(4th Cir. 2016); United States v. Cohen,

(4th Cir. 2006). But we

have established narrow exceptions to that rule. For example, even if an appeal waiver is

valid and applicable, we will review a claim that a district court’s sentence or restitution

order exceeded the court’s statutory authority. Cohen, 459 F.3d at 497–98.

Defendant Glenda Taylor-Sanders challenges several aspects of the sentence and

restitution order that the district court entered following her guilty plea. Each of these

challenges falls squarely within the scope of Taylor-Sanders’s valid appeal waiver, and

none qualifies for an exception that would permit our review. Accordingly, we dismiss

Taylor-Sanders’s appeal in its entirety.

I.

From February 2017 through May 2019, Taylor-Sanders took advantage of her role

as a licensed insurance agent to defraud several trucking companies and the insurance

finance company BankDirect Capital Finance. She defrauded the trucking companies by

misappropriating funds that the companies provided her to pay for their insurance policy

premiums. And she defrauded BankDirect Capital Finance by obtaining loans under the

guise of nonexistent insurance policies. Instead of using the funds she obtained to pay

insurance policy premiums or to pay back BankDirect Capital Finance for the legitimate

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loans it made to the trucking companies, Taylor-Sanders spent the funds on personal

expenditures including cars, football tickets, and mortgage payments.

Predictably, some of the trucking companies’ insurance policies lapsed because

Taylor-Sanders did not pay the insurance premiums. Her scheme unraveled when one

trucking company, DW Express, discovered its insurance policy was canceled for

nonpayment after it tried to file a claim for an April 2019 trucking accident. A grand jury

indicted Taylor-Sanders the next month on four counts of wire fraud under

and two counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1).

On January 22, 2020, with the assistance of counsel, Taylor-Sanders signed a plea

agreement, under which she agreed to plead guilty to one count of wire fraud (Count Four).

She also agreed to pay “full restitution, regardless of the resulting loss amount, to all

victims directly or indirectly harmed by [her] ‘relevant conduct,’ . . . including conduct

pertaining to any dismissed counts or uncharged conduct, regardless of whether such

conduct constitutes an ‘offense’ under

, 3663 or 3663A.” S.J.A. 635

¶ 9a. 1 And she “waive[d] all rights to contest the conviction and sentence in any appeal”

on any grounds other than ineffective assistance of counsel or prosecutorial misconduct.

S.J.A. 636 ¶ 17. In exchange, the Government agreed to dismiss all the remaining counts

against her.

On January 24, 2020, Magistrate Judge David C. Keesler conducted a plea hearing

pursuant to Rule 11 of the Federal Rules of Criminal Procedure. When the magistrate judge

1 Citations to the “J.A.” and “S.J.A.” refer, respectively, to the Joint Appendix and Sealed Joint Appendix filed by the parties in this appeal.

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asked Taylor-Sanders whether she had carefully reviewed the plea agreement with her

lawyer, Taylor-Sanders responded, “Not as much as I would like.” J.A. 80. The magistrate

judge then granted defense counsel’s request for a recess to further discuss the plea

agreement with Taylor-Sanders.

Following a thirty-minute recess, Taylor-Sanders confirmed that she had an

adequate opportunity to review the plea agreement and the corresponding factual basis

document with counsel and was ready to proceed. She confirmed that she understood “that

the right to appeal [her] conviction and/or [her] sentence has been expressly waived in [her]

Plea Agreement.” J.A. 82.

However, when the magistrate judge asked Taylor-Sanders if she understood and

agreed with the factual basis document, Taylor-Sanders again waivered, claiming that some

facts within the document were “incorrect.” J.A. 84. The magistrate judge responded that

he would end the hearing for the day to allow Taylor-Sanders and her counsel to “have

some further conversation about” the plea deal.

Defense counsel informed the court that

Taylor-Sanders had changed her mind again and “wishe[d] to go through with the plea.”

J.A. 85. But the magistrate judge ended the hearing, stating, “I think the record is now

muddied enough that you guys are going to have to talk about it.” J.A. 85.

Eighty minutes later, the magistrate judge reconvened the hearing. He explained

that, because he had not intended to resume the hearing that day, he wanted to “make an

appropriate record about what we’re doing and why we’re doing it.” J.A. 86. Defense

counsel announced that she and the Government had submitted a revised factual basis

document that addressed Taylor-Sanders’s previous concerns. And defense counsel noted

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that she had reviewed the amended document with Taylor-Sanders, who “intend[ed] to

enter her guilty plea [that] afternoon.” J.A. 87.

To ensure that the plea was knowing and voluntary, the magistrate judge

reconducted much of the Rule 11 colloquy that he had begun earlier. Taylor-Sanders

confirmed that she intended to plead guilty, understood that the decision to plead guilty

was entirely hers, and had an adequate opportunity to review the plea documents and

discuss possible defenses with counsel. She confirmed that she understood and agreed with

the plea documents, that no one had threatened, intimidated, or forced her to enter the guilty

plea, and that she understood all parts of the proceeding. She also confirmed that she was

satisfied with her counsel’s services, had no further questions or statements, and still

wished to plead guilty.

After this colloquy, the magistrate judge found that Taylor-Sanders’s plea was

knowing and voluntary and that Taylor-Sanders understood the charges and potential

penalties and consequences of her plea. Finally, the magistrate judge found that the plea

was supported by an independent factual basis. As such, he accepted the plea and

recommended that the district court enter judgment.

Four months later, in May 2020, Taylor-Sanders moved to withdraw her guilty plea,

asserting “she was told she had no choice but to plead guilty” and that “her plea was not

knowing and voluntary because ‘she did not fully understand the interplay between what

her guideline range could be versus the final sentence.’” J.A. 107 (quoting Motion to

Withdraw Plea, No. 3:19-cr-00147-RJC-DCK-1 (W.D.N.C. May 22, 2020), ECF No. 43).

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She also asserted her legal innocence, arguing that she never acted with the requisite intent

to defraud.

Evaluating the motion, the district court found that “[a] proper Rule 11 hearing was

conducted,” during which Taylor-Sanders “testified under oath that she understood the

maximum penalty she faced, that she understood the terms of her Plea Agreement, that no

additional promises had been made to her, that she was satisfied with her attorney, and that

[the] Amended Factual Basis was true.” J.A. 113. The court therefore denied Taylor-

Sanders’s motion to withdraw, concluding that Taylor-Sanders’s claim was “not credible”

and that she had “failed to establish a fair and just reason to justify withdrawal of her guilty

plea.” J.A. 110–11.

In October 2020, the district court conducted Taylor-Sanders’s sentencing hearing.

The Government presented testimony from an FBI agent about the insurance fraud

investigation and testimony from a DW Express employee regarding the severe financial

impact of Taylor-Sanders’s fraud on DW Express’s business. Taylor-Sanders took the

stand and again disputed her guilt, claiming that the allegedly fictitious loans were not

fabricated and that DW Express was responsible for the lapse in its insurance coverage.

The district court found that the Government’s witnesses were credible, that the

documents it submitted were consistent with the factual basis document and Presentence

Investigation Report, and that the evidence “overwhelmingly establishe[d] a factual basis”

for Taylor-Sanders’s guilty plea. J.A. 238. In contrast, the district court found that Taylor-

Sanders’s testimony was not credible, noting Taylor-Sanders was “thoroughly impeached

by her prior misstatements in other arenas.” J.A. 238. The district court further found that

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Taylor-Sanders had “engaged in a pattern of fraudulent activity over a lengthy period of

time involving multiple businesses in which she received funds to obtain insurance

policies, and on multiple occasions either failed to turn those funds over or . . . didn’t apply

for the insurance policy at all” and instead “used those funds for personal benefit and to

make Ponzi payments so that she could keep the fraudulent scheme alive.” J.A. 248.

The district court adopted the Presentence Investigation Report’s calculation of

Taylor-Sanders’s offense level as 25, including a two-point increase for causing DW

Express substantial financial hardship and another two-point increase for unauthorized use

of a means of identification. Since Taylor-Sanders had a criminal history category of I, the

district court calculated her Guidelines sentencing range as 57 to 71 months. It then

sentenced Taylor-Sanders to 66 months’ imprisonment, within that range, and entered

judgment.

In December 2020, the Government requested more than $700,000 in total

restitution. It sought $242,092.47 of restitution for harm to BankDirect Capital Finance.

And for DW Express, the Government requested:

1) $125,363.80 for the value of the totaled truck and interest payments owed on a loan that financed the truck;

2) $21,821.25 for the loss of the flatbed trailer destroyed in the accident;

3) $62,874.59 for the total value of loan payments DW Express made to Taylor-Sanders that she failed to transfer to BankDirect Capital Finance;

4) $120,030.68 for towing fees, storage fees, cleanup costs, and destroyed cargo expenses that DW Express incurred because of the accident; and

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5) $139,847.09 for the profits DW Express lost from April 2019 through April 2020 because it could not use the destroyed truck and trailer, 2

for a total of $469,937.41.

On March 10, 2021, the district court ordered Taylor-Sanders to pay restitution in

the amounts the Government requested.

Taylor-Sanders now raises several challenges to her guilty plea, sentence, and

restitution order. 3 She argues that her guilty plea was not knowing and voluntary because

of the stops and starts during her Rule 11 colloquy, that the district court miscalculated her

offense level, and that the district court made several errors when awarding DW Express

restitution. Among Taylor-Sanders’s challenges to the restitution award is a claim that the

district court lacked authority under the Mandatory Victims Restitution Act to award

restitution for DW Express’s lost profits.

II.

A.

At the outset, we must determine whether Taylor-Sanders’s guilty plea and plea

waiver were valid. United States v. Blick,

, 168–69 (4th Cir. 2005). While

Taylor-Sanders’s plea agreement contained an appeal waiver, the existence of such a

waiver does not bar our review of the validity of the guilty plea and plea waiver. See United

States v. Wessells,

(4th Cir. 1991).

2 The Government estimated lost profits as the profits earned from a similar truck in the previous year. 3 Taylor-Sanders timely appealed her conviction, sentence, and restitution order. We have jurisdiction pursuant to

.

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“[W]e review the acceptance of a guilty plea under the harmless error standard.”

United States v. Williams,

(4th Cir. 2016). “Under harmless error review,

‘[a]ny deviation from the requirements of Rule 11 is reversible unless the government

demonstrates that it was harmless.’” United States v. Martinez,

(4th Cir.

2002) (alteration in original) (quoting United States v. Lyons,

, 1322 n.1 (D.C.

Cir. 1995).

Rule 11 requires that, before accepting a guilty plea, a district court “must ensure

that the defendant understands the nature of the charges to which the plea is offered, any

mandatory minimum penalty, the maximum possible penalty, and the various rights the

defendant is relinquishing by pleading guilty.” Williams,

. The district court

must also “determine that the plea is voluntary and that there is a factual basis for the plea.”

“[I]n the absence of extraordinary circumstances, the truth of sworn statements made

during a Rule 11 colloquy is conclusively established.” United States v. Lemaster,

, 221–22 (4th Cir. 2005). Accordingly, a properly conducted Rule 11 colloquy raises

“a strong presumption that the plea is final and binding.” United States v. Bowman,

(4th Cir. 2003) (quoting United States v. Lambey,

(4th

Cir. 1992) (en banc)).

“Generally, if a district court questions a defendant regarding the waiver of appellate

rights during [a properly conducted] Rule 11 colloquy and the record indicates that the

defendant understood the full significance of the waiver,” we will also hold that the appeal

waiver is valid. United States v. Thornsbury,

(4th Cir. 2012); see also

United States v. Boutcher,

(4th Cir. 2021) (“A ‘valid’ appeal waiver is

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one entered by the defendant knowingly and intelligently, a determination that [the Court]

make[s] by considering the totality of the circumstances.”).

Here, the magistrate judge conducted a proper Rule 11 colloquy. The magistrate

judge confirmed that Taylor-Sanders had reviewed the charge with counsel, understood the

contents and possible consequences of her plea agreement, and was voluntarily pleading

guilty. When Taylor-Sanders twice expressed concerns about the plea agreement or factual

basis document, the magistrate judge provided a recess for her to convene with counsel and

make any necessary changes to the plea agreement before proceeding.

While Taylor-Sanders claims the interruptions in the colloquy show her plea was

not knowing or voluntary, they in fact demonstrate the opposite. The magistrate judge took

great care in ensuring that Taylor-Sanders received the time she needed to fully understand

the terms and consequences of her guilty plea. If the magistrate judge had ignored Taylor-

Sanders’s hesitations and continued the colloquy uninterrupted, that may have raised

questions about Taylor-Sanders’s knowingness. That the magistrate judge instead

addressed her uncertainties by pausing the proceedings demonstrates that the process,

though bumpy, constituted a full and proper Rule 11 colloquy. Accordingly, we hold that

Taylor-Sanders’s guilty plea is valid and binding.

We also conclude that Taylor-Sanders’s appeal waiver was valid. The plea

agreement unequivocally states that Taylor-Sanders waived “all rights to contest the

conviction and sentence in any appeal” except for claims of ineffective assistance of

counsel and prosecutorial misconduct. S.J.A. 636 ¶ 17. And during the Rule 11 colloquy,

the magistrate judge explained the appeal waiver and Taylor-Sanders affirmed that she

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understood it. Since Taylor-Sanders’s appeal waiver was included in her plea agreement

and addressed during the Rule 11 colloquy, and since the plea agreement was valid, her

appeal waiver is also valid.

B.

Because Taylor-Sanders’s plea agreement included a valid appeal waiver, we next

consider whether the issues she raises on appeal fall within the scope of the waiver. In

doing so, we interpret the plea agreement via basic principles of contract law, but “with a

greater degree of scrutiny than we would evaluate a contract in a civil context.” Boutcher,

. “Nonetheless, courts cannot rewrite agreements or construe ambiguities

when none exists.”

at 608–09.

“[R]estitution is . . . part of [a] criminal defendant’s sentence.” Cohen,

. And Taylor-Sanders’s appeal waiver broadly and unambiguously bars claims

regarding Taylor-Sanders’s conviction and sentence. When an issue falls within the scope

of a valid appeal waiver, we generally enforce the waiver by declining to hear the covered

issues. Adams,

. Each of the issues Taylor-Sanders raises on appeal

regarding calculation of her offense level or restitution fall within that broad waiver, so we

must dismiss her appeal.

To be sure, there are narrow circumstances in which we will not enforce an appeal

waiver that is otherwise applicable. See United States v. Broughton-Jones,

(4th Cir. 1995) (“[E]ven valid appeal waivers will not bar appellate review of every

sentence.” (citing United States v. Marin,

(4th Cir. 1992))); Marin,

(“[A] defendant who waives his right to appeal does not subject himself to

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being sentenced entirely at the whim of the district court.”). One exception permits us to

review claims that the district court’s sentence or restitution order exceeded the court’s

statutory authority. Cohen, 459 F.3d at 497–98. Taylor-Sanders attempts to frame one issue

on appeal—her appeal regarding the district court’s order of restitution for DW Express’s

lost profits—as falling under this exception. We are not persuaded.

We have stated that this exception permits “appellate review of a sentence imposed

in excess of the maximum penalty provided by statute or based on a constitutionally

impermissible factor such as race.” Marin,

. But in doing so, we have

distinguished claims that a sentence is “illegal” because the district court lacked the

authority to issue the sentence (which remain reviewable despite an appeal waiver) from

claims that a sentence was “imposed in violation of law” because it has otherwise merely

“been touched by a legal error” (in which case we will enforce the appeal waiver).

Thornsbury,

.

For example, if the district court imposes a term of imprisonment that exceeds the

statutory maximum, the resulting sentence is illegal as beyond the court’s authority, and

our review will not be barred by an appeal waiver. See Marin,

. But while

a district court’s failure to consider a nonfrivolous argument at sentencing might mean that

a sentence is imposed in violation of law, that is a legal error, the appeal of which can be

barred by an appeal waiver. See United States v. McGrath,

(4th Cir.

2020).

In the restitution context, we have applied this exception to review claims that a

district court lacked the authority to order restitution at all. See Broughton-Jones,

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at 1147 (“Because a restitution order imposed when it is not authorized by the [Victim and

Witness Protection Act] is no less ‘illegal’ than a sentence of imprisonment that exceeds

the statutory maximum, appeals challenging the legality of restitution orders are similarly

outside the scope of a defendant’s otherwise valid appeal waiver.”). But we held in United

States v. Boutcher that when a district court commits legal error by valuing restitution as

the amount of a defendant’s profit rather than of a victim’s loss, that error falls within the

scope of an appeal waiver because it challenges the amount of restitution rather than the

court’s authority to impose restitution at all. Boutcher,

(citing Cohen, 459

F.3d at 497–500).

Here, the restitution order included $139,847.09 for a year of DW Express’s lost

profits. This amount was calculated based on the profits from a truck similar to the totaled

truck in the year preceding the wreck, on the theory that, but for Taylor-Sanders’s fraud,

DW Express would have quickly replaced the wrecked truck and trailer with insurance

proceeds and continued to enjoy profits from their use. Taylor-Sanders argues that this

portion of the restitution order exceeded the scope of the court’s authority because “[t]he

plain language in 18 U.S.C. § 3663A(b)(1) does not authorize a district court to order

restitution for lost income in cases involving property.” Opening Br. at 24.

Taylor-Sanders’s argument is foreclosed by our decision in Boutcher. 4 Just like the

defendant in Boutcher, Taylor-Sanders does not dispute that the Mandatory Victims

Restitution Act permits restitution for the offense for which she was convicted. And this

4 We express no opinion on the merits of Taylor-Sanders’s interpretation of § 3663A(b)(1) and instead limit our analysis to whether the issue was waived.

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case and Boutcher involve a claim that the district court misinterpreted the definition of

restitution in § 3663A(b)(1) and by doing so erroneously increased the amount of

restitution it ordered. Taylor-Sanders has not offered, and we cannot discern, any reason to

distinguish the legal error claimed in Boutcher from that claimed here. Accordingly, we

must also dismiss Taylor-Sanders’s lost-profits claim. 5

III.

We conclude that each of Taylor-Sanders’s claims on appeal are barred by the

appeal waiver in her guilty plea. Therefore, her appeal is

DISMISSED.

5 In addition to dismissing the appeal as to Taylor-Sanders’s sentencing and restitution claims, we dismiss her appeal related to claims for ineffective assistance of counsel and prosecutorial misconduct. Taylor-Sanders raised those two issues without any substantive argument to avoid procedural default in the event of a post-conviction challenge. “A party waives an argument by failing to present it in its opening brief or by failing to develop its argument—even if its brief takes a passing shot at the issue.” Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017) (cleaned up). Because Taylor- Sanders fails to raise substantive arguments on these issues, we dismiss them as waived.

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