Court filing

Eleventh Circuit Opinion Dismissing Appeal — United States v. Daniel Joseph Tisone

Filed November 13, 2023 in U.S. v. Daniel Tisone; one of 7 filings from this case.

What This Document Is

The Eleventh Circuit's disposition of Tisone's direct appeal: the court grants the government's motion to dismiss the appeal pursuant to the appeal waiver in Tisone's Amended Plea Agreement, without reaching the merits of his sentencing challenge.

Factual Summary

Tisone appealed his 87-month sentence, arguing the district court clearly erred by relying on intended losses (rather than actual losses) in calculating the guidelines loss amount. The government moved to dismiss based on the plea agreement's appeal waiver. The opinion recites the full procedural history: the Indictment's 18 counts; the Amended Plea Agreement's terms (guilty plea to Counts 2, 8, 14, 18; $2,617,447.17 restitution; asset forfeiture; government recommendations including a 3-level acceptance-of-responsibility adjustment and non-opposition to a low-end guideline sentence; and Tisone's waiver of appeal except for four narrow exceptions — sentence exceeding the guideline range as calculated by the court, exceeding the statutory maximum, violating the Eighth Amendment, or a government appeal of the sentence). It confirms the PSI calculated $10,792,154.17 in intended loss (actual loss of ~$2,617,477.17 plus unfunded/denied loan-application amounts), producing an initial guideline range of 108-135 months; the district court overruled Tisone's actual-vs-intended-loss objection, adopted the PSI's guideline calculation, then granted the government's §5K1.1 motion for a further 2-level reduction, yielding an 87-108 month range, and imposed 87 months. On appeal, Tisone separately argued the government breached the plea agreement by arguing for the intended-loss figure despite not expressly stipulating to it in the factual basis — an argument the court rejected because the agreement contained no such express promise and reserved the government's right to report all information about Tisone's conduct. The court found the appeal waiver knowing and voluntary (citing the change-of-plea colloquy, Docket 106) and none of the four exceptions applicable, and granted the government's motion to dismiss.

Key Facts

Confirms the $10,792,154.17 intended-loss figure underlying the PSI's initial 108-135 month guideline range — the first document in review to state this exact figure, corroborating (and quantifying) the guideline-range discussion in Dockets 92, 108, and 90.
Confirms the appeal-waiver colloquy at the change-of-plea hearing (Docket 106) as the evidentiary basis for enforcing the waiver.
Rejects a plea-breach argument on the ground that the Amended Plea Agreement (Docket 54) contains no express stipulation limiting the government to an actual-loss argument, and its "entire agreement" clause forecloses any implied promise to that effect.
Disposition: appeal DISMISSED pursuant to the appeal waiver (not decided on the merits of the loss-calculation argument).

Source Caveats

Extraction was clean and complete.
Extracted text may omit formatting, pagination, footnotes, or citations in full; use the source file for exact quotations.

No. 2:22-cr-00039-SPC-NPM · Doc. 120 · 2023-11-13 · Docket on CourtListener

Full text

Case 2:22-cr-00039-SPC-NPM Document 120 Filed 11/15/23 Page 1 of 9 PageID 1077
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UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

David J. Smith For rules and forms visit
Clerk of Court www.ca11.uscourts.gov

November 15, 2023

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 23-10715-CC
Case Style: USA v. Daniel Tisone
District Court Docket No: 2:22-cr-00039-SPC-NPM-1

Electronic Filing
All counsel must file documents electronically using the Electronic Case Files ("ECF") system,
unless exempted for good cause. Although not required, non-incarcerated pro se parties are
permitted to use the ECF system by registering for an account at www.pacer.gov. Information
and training materials related to electronic filing are available on the Court's website.

Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been
entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with
FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for
filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise
provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is
timely only if received in the clerk's office within the time specified in the rules. Costs are
governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for
attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested
Persons a complete list of all persons and entities listed on all certificates previously filed by
any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be
reheard must be included in any petition for rehearing or petition for rehearing en banc. See
11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming
compensation for time spent on the appeal no later than 60 days after either issuance of mandate
or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via
the eVoucher system. Please contact the CJA Team at (404) 335-6167 or
cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher
system.
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Clerk's Office Phone Numbers
General Information: 404-335-6100 Attorney Admissions: 404-335-6122
Case Administration: 404-335-6135 Capital Cases: 404-335-6200
CM/ECF Help Desk: 404-335-6125 Cases Set for Oral Argument: 404-335-6141

OPIN-1 Ntc of Issuance of Opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 23-10715
Non-Argument Calendar
____________________

UNITED STATES OF AMERICA,
Plaintiﬀ-Appellee,
versus
DANIEL JOSEPH TISONE,

Defendant-Appellant.

____________________

Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:22-cr-00039-SPC-NPM-1
____________________
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2 Opinion of the Court 23-10715

Before JORDAN, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM:
Daniel Tisone appeals his 87-month sentence for wire fraud,
bank fraud, illegal monetary transactions, and possession of ammu-
nition by a felon. The government responds by moving to dismiss
this appeal pursuant to the appeal waiver in Tisone’s plea agree-
ment. For the following reasons, we GRANT the government’s
motion to dismiss this appeal pursuant to the appeal waiver.
I.
A federal grand jury returned an indictment charging Tisone
with wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts
One through Four); bank fraud, in violation of 18 U.S.C. §§ 1344
and 2 (Counts Five through Ten); aggravated identity theft, in vio-
lation of 18 U.S.C. §§ 1028A(a)(1) and 2 (Counts Eleven and
Twelve); illegal monetary transactions, in violation of 18 U.S.C.
§§ 1957 and 2 (Counts Thirteen through Seventeen); and posses-
sion of ammunition by a felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(Count Eighteen).
Pursuant to an amended written plea agreement, Tisone
agreed to plead guilty to Counts 2, 8, 14, and 18 and to make resti-
tution of at least $2,617,447.17 to the victims of the offenses and to
forfeit certain assets. The government agreed to: dismiss the in-
dictment’s remaining counts; not charge Tisone with any other
known offenses; recommend to the district court that he be sen-
tenced within his applicable U.S. Sentencing Guidelines range as
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23-10715 Opinion of the Court 3

determined by the court; recommend that Tisone receive a
three-level adjustment for acceptance of responsibility under
U.S.S.G. § 3E1.1(a)-(b); and not oppose Tisone’s request for a sen-
tence at the low end of the guideline range. The government re-
served its right to report all information concerning Tisone’s back-
ground, character, and conduct, to provide relevant factual infor-
mation, including the totality of Tisone’s criminal activities, if any,
not limited to the counts to which he pled, to respond to comments
made by Tisone or his counsel, and to correct any misstatements
or inaccuracies. The government also reserved the right to defend
any decision the court made with regard to his sentence, even if it
were inconsistent with its recommendations in the agreement. Ti-
sone agreed to waive his right to appeal his sentence, including the
ground that the court erred in determining the applicable guideline
range, except he retained the right to appeal if his sentence ex-
ceeded the guideline range as calculated by the district court, ex-
ceeded the statutory maximum, or violated the Eighth Amend-
ment.
Both in the plea agreement and at his change-of-plea hear-
ing, Tisone confirmed that he understood the plea agreement, had
discussed it with his attorney, and was pleading freely and volun-
tarily. Tisone admitted that he was in fact guilty, that the facts in
the factual basis were true, and that the government “would be
able to prove those specific facts and others beyond a reasonable
doubt.” Tisone signed the agreement and initialed every page of
the agreement. Tisone and his counsel also stated that Tisone un-
derstood the terms of the agreement. In a report and
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4 Opinion of the Court 23-10715

recommendation, the magistrate judge recommended that the dis-
trict court accept the guilty plea, and the district court adopted the
report.
A probation officer subsequently prepared a presentence in-
vestigation report (“PSI”). Of relevance here, the PSI reported that
Tisone was being held accountable for $10,792,154.17 in intended
loss. It reached this figure by adding to the actual loss of approxi-
mately $2,617,477.17 the amount of intended losses based on funds
sought in loan applications that were never approved.
At the sentencing hearing, the district court confirmed that
Tisone had an opportunity to read over the PSI with his attorney.
Tisone stated that he did not object to the factual accuracy of the
PSI and only objected to the application of the guidelines based on
the loss calculation. Tisone argued that it was in the district court’s
discretion to only hold him responsible for actual loss and not the
intended loss. The government responded that it supported the
PSI’s calculation using the intended loss.
The district court overruled Tisone’s objection and adopted
the PSI guideline calculations and calculated a guideline range of
108 to 135 months. The district court stated that it listened to coun-
sel’s argument and Tisone’s statement, reviewed the PSI and sen-
tencing memoranda, and considered the guideline range and the 18
U.S.C. § 3553(a) factors. The court then granted the government’s
§ 5K1.1 motion and decreased his offense level two more levels,
resulting in a guideline range of 87 to 108 months. The district
court ultimately sentenced Tisone to 87 months of imprisonment
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23-10715 Opinion of the Court 5

and 3 years of supervised release on all counts to run concurrently.
The court accepted the plea agreement and dismissed the remain-
ing counts on the government’s motion. And Tisone did not object
to the sentence.
II.
In his initial brief, Tisone argues that the district court clearly
erred by relying on intended losses in determining the applicable
guidelines loss amount. In response, the government moves to dis-
miss Tisone’s appeal because he waived his right to appeal his sen-
tence and because his challenge to the applicable loss amount does
not fall within any exception to the appeal waiver. Tisone, how-
ever, contends that the government breached the plea agreement
by arguing in support of the PSI’s proposed intended loss amount
despite excluding those facts from the plea agreement.
We review the validity of a sentence appeal waiver de novo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sen-
tence appeal waiver will be enforced if it was made knowingly and
voluntarily. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir.
1993). To establish that the waiver was made knowingly and vol-
untarily, the government must show either that: (1) the district
court specifically questioned the defendant about the waiver dur-
ing the plea colloquy; or (2) the record makes clear that the defend-
ant otherwise understood the full significance of the waiver. Id.
The “touchstone” for assessing whether an appeal waiver was
made knowingly and voluntarily is whether the court “clearly con-
veyed to the defendant that he was giving up his right to appeal his
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6 Opinion of the Court 23-10715

sentence under most circumstances.” United States v. Boyd, 975 F.3d
1185, 1192 (11th Cir. 2020) (alterations adopted) (quoting Bushert,
997 F.2d at 1351). And the district court need not discuss all the
exceptions to the waiver. See id.
Generally, a sentence appeal waiver does not bar a defend-
ant’s claim that the government breached the very plea agreement
that purports to bar him from appealing his sentence. United States
v. Puentes-Hurtado, 794 F.3d 1278, 1284 (11th Cir. 2015). In consid-
ering whether there has been a breach of a plea agreement, this
Court’s first step is to “determine the scope of the government’s
promises.” United States v. Malone, 51 F.4th 1311, 1319 (11th Cir.
2022). But a plea agreement’s unambiguous meaning controls.
United States v. Copeland, 381 F.3d 1101, 1106 (11th Cir. 2004).
We grant the government’s motion to dismiss this appeal
pursuant to the appeal waiver in Tisone’s plea agreement and find
that the plea agreement is enforceable. First, Tisone cannot raise a
substantial claim that the government breached the plea agree-
ment, as the government did not expressly stipulate that it would
only argue for the actual losses in the plea agreement’s factual ba-
sis. Further, the agreement stated that the government reserved
the right to report all information about Tisone’s conduct to the
court. And there could not have been any implied agreement re-
garding the loss amount because there was no express promise in
the plea agreement and the end of the agreement acknowledged
that no other promises had been made. Second, the appeal waiver
is enforceable because Tisone knowingly and voluntarily waived
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23-10715 Opinion of the Court 7

his right to appeal his sentence. See Bushert, 997 F.2d at 1351; Boyd,
975 F.3d at 1192. At the change-of-plea hearing, the magistrate
judge confirmed that Tisone had reviewed the plea agreement
with his attorney and understood the terms of the agreement. The
magistrate judge also specifically questioned Tisone about the ap-
peal waiver and stated that, “other than these four exceptions,” Ti-
sone was waiving his right to appeal. We conclude that none of
those four exceptions are applicable here.
Accordingly, the government’s motion to dismiss this ap-
peal pursuant to the appeal waiver in Tisone’s plea agreement is
GRANTED.

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