United States v. Burnette ( 2005 )

United States Court of Appeals
For the First Circuit
No. 02-1814
UNITED STATES,
Appellee,
v.
CHERYL A. BURNETTE,
Defendant, Appellant.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Cheryl A. Burnette on supplemental brief pro se.
Peter E. Papps, Assistant United States Attorney, and Thomas
P. Colantuono, United States Attorney, on supplemental brief for
appellee.
September 9, 2005
Lipez, Circuit Judge. In United States v. Burnette, 375
F.3d 10 (1st Cir. 2004), we affirmed Cheryl Burnette's conviction
for wire fraud, 18 U.S.C. § 1343, and impersonation of a federal
employee, 18 U.S.C. § 912. We also affirmed her sentence, which
included 24 months of imprisonment and three years of supervised
release, with the special condition that she pay almost $50,000 in
restitution. Burnette then sought further review in the United
States Supreme Court. The Supreme Court vacated judgment and
remanded the case to us for reconsideration in light of United
States v. Booker, 125 S. Ct. 738 (2005), which was decided after we
affirmed Burnette's conviction and sentence. See Burnette v.
United States, 125 S. Ct. 1406 (2005). We invited supplemental
briefing on whether the case should be remanded to the district
court for resentencing in accordance with Booker.
Noting that she has already finished serving her prison
term and has begun serving her term of supervised release, Burnette
only poses Booker challenges to the restitution order and
conditions of supervised release.1 Burnette failed to preserve
either claim in the district court by arguing that the sentence was
unconstitutional.2 See United States v. Antonakopoulos, 399 F.3d
1Burnette has waived any challenge to her sentence of
incarceration, stating specifically in her brief that she does not
want us to revisit that issue.
2
In a supplemental brief, Burnette asserts that she preserved
her Booker claim by arguing "in the District and the Circuit that
the Guidelines and PSI Report were unconstitutional." The two
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68, 76 (1st Cir. 2005) ("The argument that a Booker error occurred
is preserved if the defendant below argued Apprendi or Blakely
error or that the Guidelines were unconstitutional.").
On appeal, Burnette's challenge to the conditions of
supervised release is so inadequately developed that we deem it
waived. See United States v. Bongiorno, 106 F.3d 1027, 1034 (1st
Cir. 1997) (noting that "[w]e have steadfastly deemed waived issues
raised on appeal in a perfunctory manner, not accompanied by
developed argumentation").3 We review her Booker challenge to the
restitution order, which is somewhat more developed, for plain
error. See Antonakopoulos, 399 F.3d at 75. To establish plain
error, an appellant must point to (1) an error (2) that is plain
and that both (3) affects substantial rights and (4) seriously
affects the fairness, integrity or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 732, 736
(1993).
Burnette asserts that under the logic of Booker and the
line of cases that preceded it, "restitution can be imposed only
documents that Burnette cites as evidence that she preserved her
claim, however, do not appear to include any argument that the
Guidelines were unconstitutional. In the absence of any other
indication that Burnette challenged the constitutionality of her
sentence in the district court, we treat her claim as unpreserved.
3
Without authorization, Burnette submitted a reply brief which
we will not consider. Burnette was bound by the terms of our order
inviting one supplemental brief from each party. We do note,
however, that the reply brief did not contain any argumentation on
the issue of supervised release.
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for an amount that has been proven to the Jury beyond a reasonable
doubt or admitted by the defendant," and thus that the district
court committed plain error when it imposed a restitution order
based on its own loss calculation. We have not yet considered the
applicability of Booker to the statutory provisions governing
restitution orders.4 Several of our sister circuits, however, have
ruled that restitution orders imposed pursuant to statute do not
implicate Booker for a variety of reasons, including the fact that
there is no statutory maximum for such orders. See, e.g., United
States v. Miller, F.3d , 2005 WL 1993936, at *1 (8th Cir.
Aug. 19, 2005); United States v. Sosebee, F.3d , 2005 WL
1941286, at *8-9 (6th Cir. Aug. 12, 2005); United States v.
Rattler, 2005 WL 1670257, at *1 (4th Cir. July 19, 2005)
(unpublished); United States v. Bussell, 414 F.3d 1048, 1060 (9th
Cir. 2005); United States v. George, 403 F.3d 470, 473 (7th Cir.
2005); cf. Booker, 125 S. Ct. at 764 (recognizing that the
forfeiture statute remains "perfectly valid" post-Booker). Indeed,
no circuit has held that Booker applies to restitution orders.5
4
Although Antonakopoulos included a challenge to the amount of
a restitution order, that challenge was based on the accuracy of
the court's loss calculation rather than on constitutional
principles. See 399 F.3d at 83-84 and n.13 ("The defendant
presents no serious claim of Booker error as to restitution.").
5
But see Susan R. Klein, The Return of Federal Judicial
Discretion in Criminal Sentencing, 39 Val. U. L. Rev. 693, 722
n.138 (2005) (arguing that the logic of Booker extends to
restitution orders imposed under the Mandatory Victim's Restitution
Act, 18 U.S.C. § 3663A).
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This case does not require us to decide the restitution
issue definitively. To prevail on her claim, Burnette must
demonstrate not only that there was an error, but that the error
was plain. Even if there is an argument to be made that the
district court erred in imposing the restitution order (and we are
not suggesting that it did), that error certainly was not plain,
and henceforth Burnette's claim fails.6
Accordingly, we direct the entry of judgment affirming both
the conviction and the sentence.
So ordered.
6
Burnette also complains about two issues unrelated to
sentencing: her conviction based on the admission of certain
evidence, and her unhappiness with appellate counsel. These claims,
unlike her Booker claims, do not rest on an intervening change in
the law. Rather, she seeks to relitigate issues which we have
already decided. Although we have the power to "reexamine an issue
that lies beyond the circumference of the Supreme Court's specific
order" -- in this case, further consideration in light of Booker --
"[t]his power is to be exercised . . . only when its invocation is
necessary to avoid extreme injustice." United States v. Estevez,
F.3d , 2005 WL 1969745, at *3 (1st Cir. Aug. 17, 2005)
(internal quotation marks omitted). There is no injustice in
refusing to reexamine a carefully considered decision based on the
same arguments that we have already rejected.
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