Augustus Okoye was indicted on identity fraud and wire fraud charges for using his brother’s identity to secure five fraudulent mortgages, resulting in a 21-month prison sentence and a restitution order of $454,207 to two mortgage companies. Okoye contested the restitution aspect of his sentence on appeal, asserting that his appeal waiver did not cover it. The court determined that the waiver clearly included restitution, leading to the dismissal of Okoye's appeal.
In 2006, facing foreclosure, Okoye fraudulently obtained a $600,000 mortgage from First NLC using his brother's identity, which he used to pay off his mortgage and illicitly pocketed $74,520. Following this, he secured four more loans totaling $438,750 from Taylor Bean for condos, making no payments and negatively impacting his brother's credit. Okoye's fraudulent activities were revealed through an affidavit he provided, leading to his prosecution.
On January 25, 2010, he pleaded guilty to three wire fraud counts and one count of identity fraud, in exchange for not being charged with aggravated identity theft. His plea agreement outlined potential penalties, including substantial prison time and restitution, and explicitly stated that restitution would be a key part of any sentencing recommendation. Additionally, the agreement included a waiver of appeal provision, stating that Okoye would not appeal or challenge any sentence of 27 months or less, including the restitution order.
During a March 23, 2010 change-of-plea hearing, the district court judge clarified Okoye's understanding of his plea agreement, particularly regarding the sentencing recommendations and appeal waiver. The judge emphasized that appeal waivers are enforceable if the defendant receives consideration, which was the case here as the government dropped aggravated identity theft charges and recommended a reduced prison term. At the subsequent sentencing hearing on August 8, 2010, the court accepted the government's request for a downward departure, sentencing Okoye to 21 months in prison and ordering him to pay restitution of $108,851 to First NLC and $345,356 to Taylor Bean. Okoye contested First NLC's restitution, arguing it was dissolved without a successor-in-interest, thus creating uncertainty about the owed amount and recipient. The court responded by issuing a conditional restitution order, allowing 90 days for the government to prove First NLC's victim status.
Okoye appealed on August 9, 2012, after a final restitution order was entered in favor of Morgan Stanley Capital Holdings, LLC as First NLC's successor. His appeal included challenges to the restitution order, but the initial question was whether his appeal fell within the waiver-of-appeal provision in his plea agreement. The court noted that Okoye did not dispute the validity of the plea agreement and interpreted the waiver under basic contract principles. Although Okoye argued that the waiver was ambiguous regarding restitution due to inconsistent use of the term "sentence," the court found that a holistic reading of the agreement clearly included restitution as part of the sentence. Therefore, Okoye was bound by his agreement and could not claim uncertainty regarding the waiver's application to restitution. The court concluded that both parties must adhere to the terms of the plea agreement.
Okoye argues that the waiver-of-appeal provision's wording, particularly the qualification of "sentence" by "prison," implies a limited interpretation of "any sentence" that should exclude restitution. However, he fails to provide a compelling rationale to overcome the legal principle of expressio unius est exclusio alterius, which suggests that the inclusion of specific terms indicates the exclusion of others. The analysis indicates no basis to conclude that "prison" was intended to be excluded from the phrase "any sentence." Furthermore, Okoye's interpretation conflicts with established precedent, which recognizes restitution as part of a sentence, and aligns with positions taken by other circuits regarding plea agreements that explicitly include restitution. As a result, by waiving his right to appeal the sentence, Okoye also waived the right to appeal the restitution order. The appeal is therefore dismissed, reinforcing that when a plea agreement explicitly outlines restitution as part of the sentence, it strengthens the rationale for barring any related appeal.
