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2d 493
55 USLW 2382
Appellant Sylvane Hawthorne appeals from the order of the district court
denying appellant's motion for correction of sentence requesting a reduction of
the amount of restitution imposed as a condition of her probationary sentence.
We must decide whether the district court erred in imposing an order of
restitution in the amount of $28,280.00, where the dollar amount charged in the
counts upon which appellant's plea of guilty was tendered was $231.00.
I.
2
On October 30, 1985, the grand jury returned a 69-count indictment against
defendant/appellant Sylvane Hawthorne and two co-defendants. Specifically,
Hawthorne was charged with one count of conspiracy, in violation of 18 U.S.C.
Sec. 371 (1982); thirty counts of making false statements, in violation of 18
U.S.C. Sec. 1001 (1982); nine counts of mail fraud, in violation of 18 U.S.C.
Sec. 1341 (1982); one count of false representation of a Social Security
number, in violation of 42 U.S.C. Sec. 408(g)(2) (1982); and twenty-three
counts of unauthorized possession of food coupon authorizations, in violation of
7 U.S.C. Sec. 2024(b) (1982).
3
II.
5
States v. Kutner, 631 F.Supp. 126 (E.D.Pa.1986) (reviewing the case law
construing section 3651).
6
Appellant contends "that pursuant to 18 U.S.C. Section 3651 and this Court's
decision in U.S. v. Buechler, 557 F.2d 1002 (3d Cir.1977), absent a plea
agreement which specifies restitution in an amount greater than the conviction
as a condition of probation, or the defendant agreeing to such excess restitution,
an order of restitution greater than the conviction is improper." Brief of
Appellant at 4.4 Thus, Hawthorne does not challenge the inference from Woods
and Martin that restitution may properly be imposed in an amount greater than
the losses charged in the indictment counts to which a plea is entered if the
offense charged constitutes part of a unitary scheme.5 Rather, Hawthorne
maintains that those cases
10
Our decisions in Woods and Martin indicate our approval of the broader
conception of the term "offense" in Sec. 3651 that has been accepted in other
circuits. See, e.g., United States v. Davies, 683 F.2d 1052, 1055 (7th Cir.1982)
(offense involved "a continuing scheme to defraud"); Phillips v. United States,
679 F.2d 192, 194 (9th Cir.1982) (in mail fraud cases, offense includes
fraudulent scheme alleged as element of offense); United States v. Tiler, 602
F.2d 30, 34 (2d Cir.1979) (conspiracy to defraud covers actual damages
incurred as result of scheme). Under this broader conception, the district court
may properly order restitution in an amount exceeding that charged in the
particular count(s) to which defendant pleaded guilty. Here, appellant
essentially asks us to condition the exercise of that authority on the defendant's
explicit agreement thereto. We decline to do so. At a minimum, however, a
defendant is entitled to some notice, from the prosecution or the district court,
that restitution may be imposed as a result of his or her plea.7
12
In the instant case, the failure of the district court and the government to inform
Hawthorne of the possibility of restitution cannot be considered to have been
without significance. The plea agreement indicates that, although the
government specifically maintained that it would recommend that Hawthorne
be sentenced to a period of incarceration,8 restitution in any amount was never
raised as a possibility either as part of the sentence or as a condition of
probation. In United States v. Runck, 601 F.2d 968 (8th Cir.1979), the Eighth
Circuit considered the question whether the condition of restitution imposed sua
sponte by the district judge subsequent to a guilty plea substantially altered the
plea agreement and exceeded the role of the judge. Noting that "a plea bargain
severely limits the discretion of a sentencing judge," id. at 970, the court held:
13
While
the condition of restitution of a small amount might be acceptable because it
would not necessarily materially alter the expectations of the parties to the bargain,
restitution of a large amount should have been part of the plea bargain or the
possibility of its inclusion as a condition of probation made known and agreed to by
the bargainers.
14
Id. See also United States v. Garcia, 698 F.2d 31, 36 (1st Cir.1983) ("
[P]articularly where the amount involved is as large as it is here, restitution is a
material condition unlikely to be left to implication. Implying such a condition
[subsequent to the negotiated plea] would work a material change in the plea
bargain.") Runck clearly requires some notice to the defendant of the possible
imposition of restitution. We find this reasoning equally applicable here,
although we conclude that this Court's opinions in Woods and Martin do not
mandate both notice to and agreement from the defendant. Consequently, while
we join the Runck court in requiring notice, we do not believe that our cases
impose a prior agreement requirement on prosecutors or the district courts.
15
In Woods we held that, where "the likelihood of a restitution order and its
extent were fully explained ... by the district court before accepting the plea,"
the defendant could not later vitiate his plea on the ground that restitution was
inconsistent with the terms of the plea agreement. 775 F.2d at 83, 86-87.
Similarly, considering the effect of the enactment of the Victim and Witness
Protection Act of 1982, 18 U.S.C. Sec. 3579 (1982) on the district court's
responsibility under Federal Rule of Criminal Procedure 11(c)(1)9 to ensure
that the defendant understands the consequences of his or her plea, the
Advisory Committee to the 1985 amendment of Rule 11(c)(1) observed:
16
Because
this new legislation contemplates that the amount of the restitution to be
ordered will be ascertained later in the sentencing process, this amendment to Rule
11(c)(1) merely requires that the defendant be told of the Court's power to order
restitution. The exact amount or upper limit cannot and need not be stated at the time
of the plea.
17
18
imposed, the government must in the course of negotiating the plea, inform the
defendant of the possibility that restitution will be required, so as to afford the
defendant a full opportunity to assess adequately all the consequences prior to
entering a plea of guilty. In the absence of a provision for restitution in the plea
agreement, the district court must, prior to accepting the plea, inform the
defendant of the possibility of its imposition before a subsequent order of
restitution in an amount exceeding that charged in the count(s) to which the
defendant pleaded may be sustained. Because neither the government nor the
district court in the instant case informed Hawthorne of the possibility of
restitution prior to her plea agreement, the order for restitution exceeding the
amount in the counts to which she pled guilty cannot stand.
II.
19
20
We recognize, however, that the district court may have imposed a different
sentence on Count 33 were restitution in the first instance unavailable as an
option. Under the terms of the plea agreement, the district court could have
sentenced Hawthorne to a maximum of five years imprisonment and a five
thousand dollar ($5,000) fine on Count 33.14 Instead, the court suspended
execution of a five year term of imprisonment, conditioned probation on
restitution, and imposed no fine. Hawthorne insists, however, that due to double
jeopardy considerations "[t]his Court can only remand this matter to the District
Court so that it can modify the sentence to impose restitution in accordance
with the amounts stated in the counts to which a guilty plea was entered." Letter
Brief of Appellant at 2 (Nov. 10, 1986) (emphasis added). Appellant
In United States v. Busic, 639 F.2d 940 (3d Cir.1981), this Court conducted an
exhaustive review of the law of double jeopardy. As we noted in Busic,
contrary to appellant's contention, it is well settled that "correction of an illegal
sentence by resentencing does not implicate double jeopardy rights." Id. at 94647 (citing United States v. Denson, 603 F.2d 1143, 1148 (5th Cir.1979)(en
banc)). Our disposition of this case simply does not implicate double jeopardy
considerations. Moreover, the district court's authority on remand to "conform
the sentence to the provisions of the plea bargain," American Bag & Paper
Corp., supra, contemplates the authority to impose the maximum sentence,
absent the excised illegality, that could have properly been imposed in the first
instance. Thus, although the district court, if it elects to impose restitution, is
limited to that amount charged in the counts to which Hawthorne entered a
plea, the court may impose a fine of up to five thousand dollars ($5,000) and a
term of imprisonment up to five years if such penalties are appropriate at the
time of resentencing. 15 Accordingly, the decision of the district court will be
reversed, and the case will be remanded to the district court for resentencing on
Count 33 in accordance with this opinion.
see Jt.App. at 72-75, and is applicable only to offenses occurring after the Act's
effective date of January 1, 1983. See United States v. Martin, 788 F.2d 184,
188-89 (3d Cir.1986)
3
In holding that "[a]t a minimum, ... a defendant is entitled to some notice ... that
restitution may be imposed," see infra at 12, we implicitly reject this broad
claim of appellant
The plea agreement provided that, "in exchange for the defendant['s] plea[ ] of
guilty, the government will, at time of sentencing, move to dismiss all
remaining charges in the indictment.... The government ... specifically asserts
that it will recommend to the Court that Sylvane Hawthorne be sentenced to a
period of incarceration and is free to fully set forth its reasons. There are no
other terms or conditions of this plea agreement." Jt.App. at 5. In addition the
agreement advised that "Sylvane Hawthorne faces a maximum penalty of 15
years imprisonment, a $25.00 fine, and a $50 assessment to the Victim/Witness
Fund." Id. at 8. Restitution, however, was never mentioned in the context of the
plea
Furthermore, at the Change of Plea Sentencing proceeding, appellant
Hawthorne represented her full understanding of the plea agreement to be as
follows: "At trial they request that I go to jail." Change of Plea Sentencing,
Transcript at 8. According to this record, the first mention of restitution was at
the time it was imposed. Jt.App. at 50-51.
10
12
The government's sole concern on this appeal appears to be that restitution for
all the losses caused by Hawthorne's offenses be imposed, for the government
has expressed no dissatisfaction with the remaining aspects of Hawthorne's
sentence. Nor has it, in anticipation of this Court's possible rejection of the
restitution order on Count 33, suggested any other modification of appellant's
sentence other than the imposition of restitution on Count 26
In United States v. Paul, 783 F.2d 84 (7th Cir.1986), the Seventh Circuit
considered whether the district court could properly transfer a restitution order,
imposed in violation of Sec. 3561, from one count of embezzlement on which
imprisonment was also imposed, to another count of embezzlement for which
no imprisonment had been imposed. The Seventh Circuit held that the district
court properly shifted the restitution to the second count to which Paul had
pleaded guilty. See id. at 87. Two factors distinguish Paul from this appeal.
First, in Paul both the original count on which restitution was imposed and the
second count to which the restitution order was moved charged the defendant
with the same offense, embezzlement. Here, Counts 26 and 33 charge appellant
with mail fraud and false representation of a Social Security number,
respectively. More important for the purposes of this appeal, in Paul the district
court specifically informed the defendant that " 'in addition to a maximum
sentence ... I can impose upon you the requirement that you make restitution up
to the amount approved by the government. Asked whether she understood,
Mrs. Paul replied affirmatively." Id. at 86. Hawthorne never received such
notice.
13
"suggested that restitution cannot exceed $231.00, ... [and requested] that the
current sentence of th[e district c]ourt be corrected to reflect the lesser amount
of restitution." Joint App. at 57. Thus, if on remand Hawthorne's plea is
enforced, the maximum restitution that may be properly imposed--whether as a
condition of probation or as part of a sentence--is two-hundred and thirty one
dollars ($231.00).
14
(3d Cir.1983); or merged offenses, see United States v. Marino, 682 F.2d 449
(3d Cir.1982). In addition, since Busic, at least two other Circuits have
expressed reservations as to the propriety of increasing the penalty on an
unchallenged legal sentence to compensate for a vacated illegal sentence where
the sentences involved were not interdependent. See United States v. Jefferson,
760 F.2d 821, 824 n. 1 (7th Cir.1985) ("We do not decide here whether, in a
context ... in which the various counts are not interrelated[,] ... increasing the
sentence on one count to compensate for a vacated illegal sentence would
violate due process under [North Carolina v.] Pearce, [395 U.S. 711, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969) ]; McClain v. United States, 676 F.2d 915, 918
(2d Cir.1982) (accepting this Court's holding in Busic that "the Double
Jeopardy Clause does not prohibit, on resentencing after an appeal by defendant
of a sentence on one count and vacatur of the entire sentence, imposition of a
higher sentence on the remaining count," with the qualification that "what we
have said above is in no way addressed to a situation involving concurrent or
non-interlocking sentences"). Although what constitutes an interrelated
sentence was not defined by this Court in Busic, the Jefferson court recognized
an interrelatedness where "the evidence for the illegal counts was also the
evidence for the legal counts." 760 F.2d at 824 n. 1. Because we will remand
for resentencing only as to Count 33, we need not address this issue.
15
See United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328
(1980), where the Court stated, inter alia, that "the Double Jeopardy Clause
does not require that a sentence be given a degree of finality that prevents its
later increase." Id. at 137, 101 S.Ct. at 438; see also Bozza v. United States, 330
U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818 (1947); A. Campbell,
Law of Sentencing Sec. 59, pp. 196-98 (1978 & Supp.1986)
Of course, upon remand the district court must resentence in accordance with
the due process considerations enunciated by the Supreme Court in North
Carolina v. Pearce. See 395 U.S. 711, 723-26, 89 S.Ct. 2072, 2079-81, 23
L.Ed.2d 656 (1969).