In U.S. v. Johnson, No. 08-10029 (Aug. 28, 2008), the Court held that the defendant, in his appeal waiver, waived his right to challenge an order requiring him to pay $30,000 in restitution, even though the district court entered this order 39 months after his sentence was imposed, well past the 90-day deadline of 18 U.S.C. § 3664(d)(5).
The Court noted that the untimeliness of the district court’s action did not give rise to a claim that it lacked subject matter jurisdiction, because the 90-day period, like a statute of limitations, was subject to equitable tolling, and was therefore not jurisdictional. Hence, the defendant could waive his right to appeal the district court’s order. Moreover, the 39-month delay did not constitute an "extreme circumstance" which would defeat an appeal waiver, in part because the defendant’s plea agreement recognized his responsibility for a loss of $30,000. The Court recognized that different circumstances might lead to a different result, and it did not intend to give district courts "free reign" to disregard the 90-day deadline.