Petition for Writ of Certiorari — Joshua Glowacki, Petitioner v. United States

APPENDIX

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A) Neutral

As of: January 23, 2023 4:15 PM Z

United States v. Glowacki

United States Court of Appeals for the Sixth Circuit

January 13, 2023, Filed

File Name: 23a0029n.06

Case No. 22-3279

Reporter

2023 U.S. App. LEXIS 871 *; 2023 FED App. 0029N (6th Cir.); 2023 WL 179887

UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

JOSHUA GLOWACKI, Defendant-Appellant.

Notice: CONSULT 6TH CIR. R. 32.1 FOR CITATION OF

UNPUBLISHED OPINIONS AND DECISIONS.

Prior History: [*!] ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF OHIO.

United States v. Glowacki, 2021 U.S. Dist. LEXTS 202644,

2021 WL 4924082 (N.D. Ohio, Aug. 20, 2021)

Core Terms

probable cause, child pornography, sentence, restitution,

bitcoin, website, dark, subscription, search warrant,

advertisement, site, plea agreement, waived, right to appeal,

district court, good faith, suppression, sexually, motion to

suppress, restitution order, guilty plea, circumstances,

offender, sentencing guidelines, restitution claim,

exploitation, maximum, visited, supervised release, statutory

maximum

Case Summary

Overview

HOLDINGS: [I1]-Search warrant affidavit supported the

magiswrate judge's probable cause finding because even if

defendant's payments were for one-time access to the child

pornography site, rather than for a period of ongoing access as

denoted by a subscription, the salient point was that once

access was granted, the purchaser was likely to claim what

was purchased, and defendant conceded that staleness was not

an issue; [2]-Defendant's waiver in his plea agreement was

valid and therefore barred consideration of the district court's

restitution order because throughout the colloquy, the court

asked defendant if he had any questions, he had none, and the

court thus found defendant competent and capable of entering

la

an informed plea, and that his plea was knowing and

voluntary.

Outcome

The judgment was affirmed.

Counsel: For UNITED STATES OF AMERICA, Plaintiff -

Appellee: Michael A. Sullivan, Assistant U.S. Attorney,

Office of the U.S. Attorney, Cleveland, OH.

For JOSHUA GLOWACKI, Defendant - Appellant: Kenneth

P. Tableman, Grand Rapids, MI.

JOSHUA GLOWACKI, Defendant - Appellant, Pro se,

Youngstown, OH.

Judges: Before: BATCHELDER, STRANCH, and DAVIS,

Circuit Judges.

Opinion by: DAVIS

Opinion

DAVIS, Circuit Judge. Joshua Glowacki pleaded guilty to the

receipt of visual depictions of a minor engaged in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). Prior

to his plea, Glowacki filed a motion to suppress evidence

obtained in a search of his home, or alternatively, for a Franks

hearing. He now appeals from the district court's denial of his

motion to suppress, arguing that the warrant to search his

home was not supported by probable cause. Glowacki also

challenges the district court's restitution order. Because we

find that the warrant was supported by probable cause, or at

least executed in good faith, we AFFIRM the district court's

denial of Glowacki's motion to suppress, and DISMISS his

restitution claims as waived by a valid plea agreement.

1. [*2] BACKGROUND

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A. The Affidavit

In March 2021, a magistrate judge in the Northern District of

Ohio issued a warrant to search Glowacki's residence. The

warrant authorized law enforcement officers to search for

evidence and fruits of violations of: 18 U.S.C. § 2251 (sexual

exploitation of children); 18 U.S.C. § 2252A(a)(2)(A) and

(b)(1) (receipt and distribution of, conspiracy to receive and

distribute, and attempt to receive and distribute child

pomography); and 18 U.S.C. § 2252A(a)(5)(B) and (b)(2)

(knowing possession, access, conspiracy to access, or

attempted access with intent to view child pornography). The

following facts are undisputed and come from FBI Special

Agent Monica Hantz's affidavit in support of the search

warrant. At the time, Hantz had five years of experience in the

FBI and had received training pertaining to child pornography

and child exploitation.

In October 2020, the FBI served a subpoena on Coinbase, a

cryptocurrency exchange platform, requesting records of

bitcoin addresses associated with dark net sites that advertise

Child Sexual Abuse Material (CSAM). The affidavit

describes the “dark net" as "a part of the deep web that not

only cannot be discovered through a traditional search engine,

but also has been intentionally hidden and is inaccessible [*3]

through standard browsers and methods." Dark net

marketplaces on the dark net allow for vendors to sell illicit

(and occasionally legal) goods. The affidavit further explains

that items purchased through dark net vendors are typically

paid for in bitcoin—a virtual currency circulated over the

internet. Bitcoin addresses are case-sensitive strings of letters

and numbers akin to bank account numbers, to and from

which bitcoin can be sent. Once agents received the

information from Coinbase, they identified a bitcoin account

registered to Glowacki as sending two bitcoin payments on

December 24, 2019, to a bitcoin address ("BTC Address 1")

associated with a dark net website (the "Target URL") that

advertises CSAM. The affidavit identified Glowacki as a

registered sex offender in the state of Ohio who had pleaded

guilty to charges of pandering sexually oriented matter

involving a minor in May 2019.

Open searches for information associated with the BTC

Address 1 revealed that it had previously been publicly

reported on www.bitcoinabuse.com as follows: "TOR site

advertising for child exploitation videos. Below is the ad US $

15 - After payment to the bitcoin address number:

1SWK91Jq47uFAS{BGwvY6SSv6Vc7tEgZf) [*4] write the

transaction number write [sic] to e-mail: videochild@secmail.pro we will send you access." In February

2020, Internet Watch Foundation (IWF), a registered charity

focused on "minimi[zing] the availability of online sexual

abuse content, specifically [CSAMJ]," also identified BTC

Address 1 as involved in "child abuse material." Using

blockchain analysis, investigators determined that the BTC

Address 1 had received 1.75 BTC (approximately $12,000),

and all but 4% of the funds received in the wallet associated

with BTC Address | were sent to a virtual currency exchanger

based in Russia.

In October 2020, investigators visited the Target URL and

found images and videos depicting prepubescent children

engaged in sexual acts and an advertisement for "[a]ccess to

10 + terabytes of child porn private site." The affidavit

disclosed that at the time of the investigators' review, the

Target URL listed a different bitcoin address ("BTC Address

2") than the one utilized by Glowacki. The Target URL

directed users to send bitcoin payment to BTC Address 2 and

follow up with an email to child-video@secmail.pro

containing the transaction ID for access. Notably, in addition

to the child-video@secmail.pro [*5] address, the Target URL

also directed users to video-child@secmail.pro — the same

email address as the one included in the reported

advertisement listing BTC Address | that Glowacki had used.

IWF also identified BTC Address 2 as involved in “child

abuse material.” Further, BTC Address 2 was associated with

the same Russian-based currency exchanger as BTC Address

1.

On the strength of the affidavit, a magistrate judge issued a

warrant to search Glowacki's residence and any computer,

computer media, and mobile computing device located

therein, and to seize all evidence, fruits, and instrumentalities

of the suspected crimes. During the resulting search, officers

seized several electronic items, including Glowacki's cell

phone, which contained images classified as child exploitation

and possible child pornography.

B. Procedural History

In April 2021, a federal grand jury returned a two-count

indictment against Glowacki, charging him with the receipt of

visual depictions of real minors engaged in sexually explicit

conduct, 18 U.S.C. § 2252(a}(2) (Count 1), and possession of

child pornography, 18 U.S.C. § 2252A(a)}(5)(B) (Count 2).

Glowacki moved to suppress the evidence seized in the search

of his home, or in the alternative, for a Franks hearing [*6]

pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674,

57 L. Ed. 2d 667 (1978). He argued that the search warrant

was not supported by probable cause because the affidavit

lacked conclusive evidence that he accessed, viewed,

received, distributed, or produced any child pornography

material from the Target URL.

The district court determined that the search warrant affidavit

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was supported by probable cause and that a Franks hearing

was not warranted. Glowacki subsequently entered into a plea

agreement with the government and, in accordance with its

terms, pleaded guilty to Count 1. In the plea agreement, he

broadly waived the right to appeal both his conviction and his

sentence. However, the agreement specifically preserved his

right to appeal the denial of his motion to suppress and for a

Franks hearing, any punishment in excess of the statutory

maximum or any sentence exceeding the maximum of the

range determined under the Sentencing Guidelines, and

claims of ineffective assistance of counsel or prosecutorial

misconduct. The agreement further stipulated that "[t}he

Court may order Defendant to pay restitution as a condition of

the sentence, probation, and/or supervised release."

After Glowacki executed the plea agreement and entered his

guilty plea, but before [*7] sentencing, a victim identified in

one of the photographs that Glowacki possessed submitted a

victim impact statement and a restitution request under the

pseudonym “Lily.” Pursuant to the Mandatory Restitution for

Sexual Exploitation of Children Act, 18 U.S.C. § 2259, after

determining the full amount of a victim's losses incurred or

projected to be incurred as a proximate result of the offenses,

district courts are required to order a defendant to pay a

victim restitution in an amount reflecting the defendant's

relative role in causing the victim's losses, but no less than

$3,000. 18 U.S.C. § 2259(b), (c)(2). Lily identified her full

economic losses to total $6,008,536.29, including medical

costs, future counseling expenses, educational and vocational

counseling needs, and lost past and future earnings. She

requested restitution from Glowacki in the amount of

$10,000.

At sentencing, Glowacki objected to the amount of the

restitution request, arguing that there was _ insufficient

evidence in terms of proximate cause to justify the $10,000

amount pursuant to Paroline v. United States, 572 U.S. 434,

449, 134 S. Ct. 1710, 188 L. Ed. 2d 714 (2014). Glowacki

requested that the court impose only the minimum restitution

of $3,000. The court overruled his objection and ordered

Glowacki to pay Lily's requested $10,000 restitution. It

further sentenced him to the statutory minimum [*8} of 15

years' imprisonment, followed by 15 years of supervised

release. Glowacki now appeals both the district court's denial

of his motion to suppress and the restitution order.

Because the search warrant was supported by probable cause,

we AFFIRM the district court's denial of Glowacki's motion

to suppress. We DISMISS his restitution claim as waived by

his valid plea agreement.

LEXIS 871, *6

Il. DISCUSSION

A. Motion to Suppress

Glowacki argues that the warrant authorizing the search of his

home was not supported by probable cause because the

statement that he sent bitcoin to a bitcoin address associated

with a child pomography site was not sufficient to support a

reasonable inference that he possessed child pornography. He

further claims that the affidavit's failure to state that he had

viewed or downloaded child pornography or accessed a child

pornography website was fatal to a finding of probable cause

and good faith. The government maintains that the affidavit

was sufficient alone to establish probable cause, and that even

if it was not, the good faith exception should prevent

suppression.

1. Standard of Review

The Fourth Amendment establishes that a search warrant may

not issue without a finding of probable cause. [*9] U.S.

Const. amend. IV. Probable cause exists where "the facts and

circumstances are such that a reasonably prudent person

would be warranted in believing that an offense had been

committed and that evidence thereof would be found on the

premises to be searched." Peffer v. Stephens, 880 F.3d 256,

263 (6th Cir. 2018) (quoting Greene v. Reeves, 80 F.3d 1101,

1106 (6th Cir. 1996)). A finding of probable cause does not

require certainty or a preponderance of the evidence. //linois

v. Gates, 462 U.S. 213, 235, 238, 103 S, Ct. 2317, 76 L. Ed.

2d 527 (1983). Rather, the task of the issuing magistrate is

"simply to make a practical, common-sense decision whether,

given all the circumstances set forth in the affidavit before

him... there is a fair probability that contraband or evidence

of a crime will be found in a particular place.” Jd. at 238.

While our review of the district court's “logic" is de novo, our

review of probable cause itself is more deferential. See United

States v. Tagg, 886 F.3d 579, 586 (6th Cir. 2018). That is,

"the court reviewing a warrant does not write on a blank slate.

A judicial officer who issues a warrant 'should be paid great

deference." Jd. (quoting Gafes, 462 U.S. at 236). On review,

we are tasked only with ensuring that the magistrate had a

“substantial basis for . . . concluding that probable cause

existed" based on the "totality of the circumstances." Gates,

462 U.S. at 236, 238 (cleaned up). We will uphold the denial

of a motion to suppress "if the district court's

conclusion [*10] can be justified for any reason." United

States v. Moorehead, 912 F.3d 963, 966 (6th Cir. 2019)

(quoting United States v. Pasquarille, 20 F.3d 682, 685 (6th

Cir. 1994)).

To deter police misconduct, the exclusionary rule bars the

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introduction of evidence obtained in violation of the Fourth

Amendment. Warden v. Hayden, 387 U.S. 294, 304-05, 87 S.

Ct. 1642, 18 L. Ed. 2d 782 (1967). But even if the magistrate

judge did not have a substantial basis for finding probable

cause, suppression is not appropriate where executing officers

relied on the search warrant in good faith. United States v.

Leon, 468 U.S. 897, 922-23, 104 S. Ct. 3405, 82 L. Ed. 2d

677 (1984) (establishing the good-faith exception to the

exclusionary rule).

2. Probable Cause

In disputing probable cause, Glowacki faults the search

warrant affidavit for failing to establish that: (1) the Target

URL received the bitcoin he sent or gave him access to the

site, (2) he subscribed or visited the Target URL, or (3) he

downloaded, kept, or otherwise possessed material from the

Target URL. The government counters that requiring such

information would call for certainty in the probable cause

analysis, where it has no place. As a practical matter, it is not

necessary to individually rebut Glowacki's allegations of

missing information since we judge the adequacy of the

affidavit based on “what it does contain, not on what it lacks,

or on what a critic might say should have been added." United

States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc).

We have previously held that evidence [*1!1] of a sex

offender's subscription to a child pornography website, as

demonstrated by payment through a financial account,

combined with evidence tying the offender to the place(s) to

be searched, was sufficient to support probable cause. See

United States v. Frechette, 583 F.3d 374, 379-81 (6th Cir.

2009). The government argues that the circumstances here are

sufficiently analogous to those in Frechette to support the

same conclusion. In Frechette, we reversed the district court's

suppression of evidence, finding sufficient probable cause to

support the underlying search where the warrant affidavit

definitively established that the defendant, a registered sex

offender, paid $79.95, the exact amount required for a onemonth subscription, to a commercial child pornography site

using an email address and PayPal account connected to his

name and residence. /d. at 377, 379-80. The Frechefre court

explained that "if someone spends $80 for something, it is

highly likely that person will use it--whether it is a tie, a

video game, or a subscription to a pornographic website." 583

F.3d at 380. The decision cited "the fact{s] that the defendant

had viewed the splash page that contained pornographic

images of children, set up an account with PayPal on the same

day, and transferred the exact amount of funds needed

from (*12] his debit card to the PayPal account to pay for the

subscription" as making it “all the more likely he would

access what he paid to view." /d. at 381.

The government also cites United States v. Wagers for the

similar proposition that "evidence that a person has visited or

subscribed to websites containing child pornography supports

the conclusion that he has likely downloaded, kept, and

otherwise possessed the material." 452 F.3d 534, 540 (6th Cir.

2006). In Wagers, we found probable cause to support a

search warrant where records obtained from child

pornography websites' billing services revealed that the

defendant purchased subscriptions for one to two months of

membership to multiple websites, in combination with his

prior child pornography convictions. 452 F.3d at 536-37. The

court relied on facts showing that the defendant subscribed to

the offending sites to make the reasonable inference that he

took additional, incriminating steps. Jd. at 540; see also

United States v. Paull, 551 F.3d 516, 519, 522-23 (6th Cir.

2009) (finding probable cause where affidavit detailed the

defendant's subscriptions to websites advertising child

pornography); Tagg, 886 F.3d at 584, 587-88 (finding that

affidavit stating that defendant accessed child pornography

website and clicked on over 160 hyperlinks advertising child

pomography established probable cause (*13] despite not

stating he viewed or accessed any illegal files).

Without question, the affidavit here contains less direct

evidence. For instance, there is no direct evidence of a

"subscription" to a child pornography website or reference to

the specific amount that Glowacki paid to BTC Address 1.

Instead, the affidavit lays out circumstantial evidence that

requires inferences that Glowacki purchased access to, then

accessed child pornography material. There is direct evidence

that Glowacki was convicted of pandering sexually oriented

material involving a minor; that he is a registered sex

offender; that approximately seven months after his

convictions, he submitted cryptocurrency payments via

computer to a bitcoin address that has received about $12,000

using a virtual currency exchanger that does not respond to

legal process; and that he was linked to the place to be

searched. There is circumstantial evidence that BTC Address

1 to which he sent his payments was reported by a bitcoin

abuse website as a "TOR site advertising for child

exploitation videos" and provided instructions on how to

access child pornography material; that a second intemet

safety organization separately identified [*14] BTC Address

1 as an address involving child abuse material; that BTC

Address | is associated with a URL on the dark net, which,

when visited by investigators, revealed over a dozen images

depicting apparent child pornography material; and that based

on information from the aforementioned bitcoin abuse

website, the URL provided the same email contact

information that was in a dark net advertisement that listed

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BTC Address 1, to which Glowacki sent his payment.

The district court found that the totality of circumstances set

forth in the affidavit supported the magistrate judge's probable

cause finding, and we do too. We have previously described

the “dark web"! as "a sophisticated, anonymous intemet

network used both by criminals and by other individuals who,

for whatever reason, do not want to be identified." Jagg, 886

F.3d at 582. As noted in the search warrant affidavit,

cryptocurrency, which allows for the anonymous exchange of

currency, is the preferred method of payment. Frechette,

Wagers, and Paull each involved conduct that occurred over

twelve years ago, a time when cryptocurrency was in its

infancy and few had heard of dark net marketplaces. Thus, it

is not so surprising that the evidence set forth in those

cases ([*15] included direct evidence of child pornography

subscriptions. Since then, the internet has evolved, leaving

many transactions either partially or totally untraceable. But

the reasoning in Wagers and Frechette that "evidence thal a

person has visited or subscribed to websites containing child

pornography supports the conclusion that he has likely

downloaded, kept, and otherwise possessed the material"

remains apt here. Wagers, 452 F.3d at 540; see also Frechette,

583 F.3d at 379. While the evidence of Glowacki's payment

for access is less direct than the evidence of subscriptions in

the noted decisions, it has probative value. And to the extent

that Glowacki seeks to distinguish his situation based on the

absence of a "subscription" in the traditional sense,? his

efforts are unavailing. The advertisements associated with the

Target URL did not specify how long a user would maintain

access after payment. But even if Glowacki's payments were

for one-time access rather than for a period of ongoing or

recurring access as denoted by a subscription, that distinction

is of no moment, because the salient point of Frechetfe,

' The terms "dark net" and "dark web" may be used interchangeably.

See, e.g., United States v. Sterlingov, $73 F. Supp. 3d 28. 31 (D.D.C.

2021) (using the terms “darknet" and “dark web" interchangeably;

Dep't of Just., Commentary to Manual § [9-100.000A] (2018)

(same); Dep't of Just., Off. of Pub. Affs., Press Release: AlphaBay,

the Largest Online ‘Dark Market.' Shut Down (July 20, 2017) (same),

available at https://www.justice.gov/opa/pr/alphabay-largest-onlinedark-market-shut-down.

2Merriam-Webster defines “subscription” as “an arrangement for

providing, receiving, or making use of something of a continuing or

periodic nature especially on a prepayment plan: such as a purchase

by prepayment for a certain number of regular deliveries of

something (such as issues of a periodical) or for a certain period of

access to or use of something (such as an online service)."

Subscription, Merriam-Webster, https:/Avww.merriamwebster.com/dictionary/subscription (last visited January 2, 2023).

Wagers, and Paull is that once access is granted, the

purchaser is likely to claim (Ze. come into possession of) what

was purchased, and Glowacki (*16] concedes that staleness is

no issue here.

Likewise, Glowacki's assertion that BTC Address 1 was

associated with two other pornography websites does not

advance his cause. As the district court pointed out, these

additional sites were also marked as containing child

pornography—an unhelpful fact for Glowacki to highlight.

But even if BTC Address 1 could have been associated with

legal purposes, that argument has little traction as we have

made clear that “probable cause ‘does not require officers to

rule out a suspect's innocent explanation for suspicious facts."

Tagg, 886 F.3d at 586 (quoting District of Columbia v.

Wesby, 138 S. Ct. 577, 588, 199 L. Ed. 2d 453 (2018)). That

is, we do not assess "whether particular conduct is ‘innocent

or ‘guilty, but rather "the degree of suspicion that attaches to

particular types of noncriminal acts." Wesby, 138 S. Ct. at 588

(quoting Gates, 462 U.S. at 244 n.13). To the extent that BTC

Address 1 might have been associated with alternative,

innocent websites or services, Glowacki's prior criminal

history involving child pornography was properly considered

in evaluating an already suspicious exchange. Wagers, 452

F.3d at 541 ("[A] ‘person of reasonable caution’ would take

into account predilections revealed by past crimes or

convictions as part of the inquiry into probable cause.")

(internal [*17] quotations and citations omitted); see R. 37-3

{ 23 (Glowacki previously pleaded guilty to pandering

sexually oriented matter involving a minor). Having

submitted his payment, and considering the connection

between the payment address and the illicit URL identified in

the search warrant affidavit, it was reasonable to conclude that

he likely received what he paid for — child pornography

materials. The parts of the transaction that may have been lost

to the secrecy and protection of the dark net do not undermine

this finding.

3. Good Faith Exception

Even if we were to conclude that the affidavit fell short,

suppression would not be warranted here because the agents

acted in good faith in executing the warrant. The Supreme

Court in United States v. Leon held that the exclusionary rule

will not apply even where a warrant is later deemed invalid if

the search was executed by officers acting in “objectively

reasonable reliance” on a warrant issued by a detached and

neutral magistrate. 468 U.S. at 922. But Zeon outlined four

exceptions where suppression is still appropriate: when (1) the

magistrate judge was misled by information in the affidavit

and the affiant knew the information was false or recklessly

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disregarded [*18] the truth; (2) the magistrate judge

abandoned their detached neutral role; (3) the warrant was so

lacking in any indicia of probable cause that official belief in

its existence is unreasonable; or (4) the warrant was so

facially deficient that it could not reasonably be presumed

valid. Id. at 923. Glowacki asserts that the third exception

applies here. Under this exception, we inquire whether a

“reasonably well trained officer" would have "no reasonable

grounds for believing that the warrant was properly issued."

Id. Affidavits falling within this exception have come to be

known as “bare-bones affidavits," i.e., ones which "contain[]

only ‘suspicions, beliefs, or conclusions, without providing

some underlying factual circumstances regarding veracity,

reliability, and basis of knowledge." United States v.

Laughton, 409 F.3d 744, 748 (6th Cir. 2005) (quoting United

States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996)). Stated

otherwise, a bare-bones affidavit is a conclusory affidavit that

“states only the affiant's belief that probable cause existed."

United States v. Finch, 998 F.2d 349, 352 (6th Cir. 1993)

(cleaned up).

Glowacki contends that "[n]o reasonable officer could rely on

the affidavit here because of the missing links—no

subscription to the illicit website, no visiting the site, no

downloading from the site." Appellant's Br. at 12-13. He cites

only our (*19] decisions in Paull and Wagers as instances in

which we have required more to uphold a search warrant. But

those cases do not offer persuasive evidence in the context of

a good-faith analysis; both cases concerned findings of

probable cause. The standard required for a finding of good

faith is less demanding than that of probable cause. United

States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en

banc) ("If a lack of a substantial basis also prevented

application of the Leon objective good faith exception, the

exception would be devoid of substance."); see also United

States v. Brown, 828 F.3d 375, 385-86 (6th Cir. 2016)

("Although the good-faith standard is less demanding than the

standard for probable cause, the affidavit still must draw some

plausible connection to the residence."). The facts presented

in the affidavit here—the affiant's training and experience, the

nature of the dark net and cryptocurrency, Glowacki's recent

prior conviction and status as a sex offender, and his payment

to a bitcoin address listed in an advertisement for access to

child exploitation videos on the dark net—were not "so vague

as to be conclusory or meaningless." Carpenter, 360 F.3d at

596.

As such, the affidavit here fits comfortably within the good

faith exception, and would still preclude the suppression of

evidence obtained during execution of (*20] the search

warrant.

B. Restitution

6a

Glowacki next claims that the district court's imposition of

$10,000 in restitution was improper. The government submits

that, as a threshold matter, Glowacki waived any challenge to

his restitution claim in the valid appellate waiver within his

plea agreement. We agree.

This court reviews de novo the question of whether a

defendant waived his right to appeal his sentence in a valid

plea agreement. United States v. Stubbs, 279 F.3d 402, 411

(6th Cir. 2002). "[A] defendant in a criminal case may waive

any right, even a constitutional right, by means of a plea

agreement." United States v. Winans, 748 F.3d 268, 270 (6th

Cir. 2014) (alteration in original) (quoting United States v.

McGilvery, 403 F.3d 361, 362 (6th Cir. 2005)). "In deciding

the scope of the appellate waiver, we use ordinary contract

law principles and construe any ambiguities against the

government." United States v. Fowler, 956 F.3d 431, 436 (6th

Cir. 2020) (citing United States v. Bowman, 634 F.3d 357,

360 (6th Cir. 2011)). A valid waiver must be both knowing

and voluntary. Winans, 748 F.3d at 270 (citing United States

v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001)). In arguing

that this court should reach the merits of his restitution claim,

Glowacki asserts that his appeal of the restitution order is

outside of the scope of his waiver and that his agreement to

waive claims regarding restitution was not knowing.

1. Scope of Waiver

The threshold question is whether Glowacki's restitution

claim on appeal was contemplated by his plea agreement. See

Fowler, 956 F.3d at 436. The substance [*21] of his claim on

appeal is that (1) the district court did not appropriately assess

his role in causing Lily's losses, and (2) the determination was

only appropriate for a jury.

Under the terms of Glowacki's plea agreement, he broadly

waived his right to challenge his conviction or sentence on

appeal. The agreement expressly states that Glowacki was

advised by counsel of his rights to appeal the conviction or

sentence in his case, including the appeal rights conferred by

18 U.S.C. § 3742. In relevant part, the law provides that "[a]

defendant may file a notice of appeal in the district court for

review of an otherwise final sentence" if that sentence:

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of

the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable

guideline range to the extent that the sentence includes a

greater fine or term of imprisonment, probation, or

supervised release than the maximum established in the

guideline range, or includes a more limiting condition of

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2023 U.S. App. LEXIS 871, *21

probation or supervised release under section 3563(b)(6)

or (b)(11) than the maximum established in the guideline

range; or

(4) was imposed for an offense for which there is

no [*22] sentencing guideline and _ is _ plainly

unreasonable.

18 U.S.C. § 3742(a). Glowacki "expressly and voluntarily

waive[d] those rights," preserving only the right to appeal (1)

the district court's denial of his motion to suppress or for a

Franks hearing; (2) any punishment in the excess of the

statutory maximum or any sentence to the extent it exceeds

the maximum of the range determined by the Sentencing

Guidelines; and (3) claims of ineffective assistance of counsel

or prosecutorial misconduct. In a section outlining maximum

penalties and consequences of pleading guilty, the agreement

specified that "[t]he Court may order Defendant to pay

restitution as a condition of the sentence, probation, and/or

supervised release."

It is undisputed that "restitution is a part of [a defendant's]

sentence." Winans, 748 F.3d at 271. And "we have repeatedly

read a waiver of the right to appeal a sentence as including a

restitution order." United States. v. Riccardi, 989 F.3d 476,

489 (6th Cir. 2021) (collecting cases). In Riccardi, this court

held that a defendant's waiver of the right to appeal her

conviction and sentence foreclosed a challenge to the court's

calculation of restitution. /@ As here, the Riccardi waiver

broadly covered the right to appeal any sentence, with only

specific narrow exceptions, including (1) sentences [*23]

exceeding the maximum recommended under the Sentencing

Guidelines, or (2) in excess of the statutory maximum. 989

F.3d at 489-90. We explained that restitution did not fall

within the first waiver exception because "restitution is not

‘imprisonment,' and "the guidelines do not provide restitution

‘ranges."" /d. at 490 (quoting United States v. Sharp, 442 F.3d

946, 952 (6th Cir. 2006)). As to the second exception, we

emphasized that it is well established in this circuit that

restitution does not affect any statutory maximum penalty. /d

(quoting United States v. Bradley, 969 F.3d 585, 591-92 (6th

Cir. 2020)); United States v. Sosebee, 419 F.3d 451, 461 (6th

Cir. 2005); Sharp, 442 F.3d at 952.

Because restitution is a part of a sentence and is not

contemplated within the Sentencing Guidelines or implicated

in statutory maximum penalties, Glowacki's restitution claim

fell within the scope of his broad waiver.

2. Knowing Waiver

Glowacki argues, alternatively, that because the agreement

Ta

failed to include a range of restitution, he was not aware of

the attendant consequences, making his waiver unknowing

and its enforcement unfair. An appellate waiver "is effective

only if understood by the defendant." Sharp, 442 F.3d at 949.

We evaluate the knowing and voluntary nature of a waiver

within a plea agreement "by examining the district court

record, particularly the written plea agreement and the

colloquy at the change of plea hearing." United States v.

Ferguson, 669 F.3d 756, 765 (6th Cir. 2012) [*24] .

The agreement here clearly contemplated the court's order of

restitution as a consequence of pleading guilty. Glowacki

does not contend that the applicable language was capable of

any alternative interpretation. The fact that a range was not

specified does not render the terms any less clear, and if

Glowacki wished to reserve his right to appeal the restitution

order, he was free to negotiate those terms prior to entering

the agreement. See United States v. Rafidi, 730 F. App'x 338,

342 (6th Cir. 2018). Moreover, "[t]he wisdom of the bargain

struck is not for us to judge; our task is to enforce the terms of

agreements freely and knowingly entered into." United States

v. Grundy, 844 F.3d 613, 617 (6th Cir. 2016) (rejecting

defendant's argument that “his appeal waiver should not be

enforced on policy grounds because it would ‘subject him[] to

being sentenced entirely at the whim of the district court.").

Glowacki's agreement laid out the narrow circumstances

permitting appeal. He initialed each page of the agreement. At

the plea colloquy the court walked through the agreement by

paragraph and reiterated to Glowacki that "there may be

restitution depending on the victims. If there [are] any victims

identified who are pictured in any images you may have

viewed, then restitution may be ordered by the Court.” [*25]

Glowacki confirmed that he understood. The court then

explained that under the agreement, Glowacki was waiving

his right to appeal or challenge his sentence of conviction in

any way and listed each of the stipulated exceptions to that

waiver. Glowacki again confirmed his understanding.

Throughout the colloquy, the court asked Glowacki if he had

any questions. He had none. The district court thus found

Glowacki fully competent and capable of entering an

informed plea, and that his plea was knowing and voluntary.

We agree and hold that Glowacki's waiver in his plea

agreement is valid and enforceable, and therefore bars

consideration of the district court's restitution order.

It. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

denial of Glowacki's motion to suppress and DISMISS his

challenge to the restitution order.

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