United States v. Lochard , 555 F. App'x 94 ( 2014 )

12-5115
United States v. Lochard
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 19th day of February, two thousand fourteen.
PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 12-5115
JEFFREY LOCHARD,
Defendant-Appellant.
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FOR APPELLEE: MICHAEL P. CANTY, Assistant United
States Attorney (Susan Corkery,
Assistant United States Attorney,
on the brief), for Loretta E.
Lynch, United States Attorney for
the Eastern District of New York,
Brooklyn, New York.
FOR DEFENDANT-APPELLANT: BRENDAN WHITE, White & White, New
York, New York.
Appeal from the United States District Court for the
Eastern District of New York (Feuerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the sentence of the district court is
VACATED and the case is REMANDED solely with respect to the
issue of restitution to the extent set forth below.
Defendant-appellant Jeffrey Lochard appeals from the
district court's November 28, 2012 order denying his pro se
motion to amend or correct the judgment that was entered after
he pled guilty to one count of access device fraud, in violation
of 18 U.S.C. §§ 1029(a)(2), (c)(1)(A)(i). On April 11, 2012,
the district court sentenced Lochard to thirty-six months'
imprisonment, two years' supervised release, and a $100 special
assessment. Pursuant to the Mandatory Victims Restitution Act,
18 U.S.C. §§ 3663A, 3664 (the "MVRA"), the district court
ordered restitution in the amount of $108,268; the judgment did
not set forth a payment plan or provide for the waiver of
interest. We assume the parties' familiarity with the facts,
procedural history, and issues on appeal.
Lochard was serving his sentence at the Federal
Corrections Institution in Glenville, West Virginia, when he
received a letter from the government dated May 9, 2012,
informing him that payment in full of restitution was due
immediately and that interest would accrue on any unpaid
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balance. Lochard wrote to the district court on October 11,
2011 seeking a payment schedule; the government opposed this
request by letter dated October 24, 2012. On November 19, 2012,
Lochard filed a pro se motion for modification of the judgment
under 18 U.S.C. § 3582(c)(1)(B). He specified that the sole
modification sought was a payment schedule. The district court
denied the motion by memorandum endorsement on November 28,
2012.
Three issues are presented on appeal: first, whether
the appeal is time-barred; second, whether the district court
had jurisdiction to consider Lochard's motion to modify; and
third, whether the district court abused its discretion in
denying Lochard's motion to modify the restitution award to set
forth a payment schedule for restitution.
1. Timeliness
The government argues that the appeal is time-barred
because the judgment was filed on April 30, 2012 and Lochard did
not "file" his notice of appeal until December 11, 2012, when he
mailed the notice of appeal from prison. See Fed. R. App. P.
4(b)(1)(A)(i), 4(c)(1) (requiring notice of appeal to be filed
within 14 days of final judgment, and providing that inmate's
notice of appeal is timely if deposited in institution's
internal mail system on or before last day for filing). But
Lochard does not appeal the underlying April 30, 2012 judgment.
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Rather, as set forth in the notice of appeal, Lochard is
appealing the district court's November 28, 2012 order that
denied Lochard's November 19, 2012 pro se motion for
modification of judgment pursuant to 18 U.S.C. § 3582(c)(1)(B).
Lochard's appeal was thus timely filed.
2. Jurisdiction
The government next argues that the district court
lacked jurisdiction to entertain Lochard's pro se motion. We
disagree. While it is true, as the government notes, that "§
3582 provides for judgment modification only to the extent
'expressly permitted by statute' or by Rule 35," here Lochard is
not seeking modification of "an imposed term of imprisonment"
under § 3582, but rather, he is seeking modification of the
terms of his payment of restitution. A modification of the
terms of payment of restitution is not a modification in
sentence. See United States v. Kyles, 601 F.3d 78, 83-84 (2d
Cir. 2010) (holding that as long as amount of restitution
remains same, alteration in terms of repayment does not alter
sentence).
While Lochard's pro se request was made under 18
U.S.C. § 3582(c)(1)(B), the authority to impose or modify a
restitution schedule post-sentence stems from 18 U.S.C. § 3664
and its antecedents. See Kyles, 601 F.3d at 83, 86. Because
pro se litigants are generally entitled to liberal construction
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of their pleadings, however, Lochard's motion should be analyzed
under 18 U.S.C. § 3664. See Green v. United States, 260 F.3d
78, 83 (2d Cir. 2001) ("It is well settled that pro se litigants
generally are entitled to a liberal construction of their
pleadings, which should be read to raise the strongest arguments
that they suggest.") (internal quotation marks omitted).
In Kyles, we held that 18 U.S.C. § 3663(f) permitted
the district court to modify an incarcerated defendant's
restitution payment schedule five years after the order of
restitution was filed, "identify[ing] no legitimate expectation
of finality in a particular payment schedule." 601 F.3d at 84.
Lochard's motion for a restitution payment schedule, filed seven
months after his judgment of sentence, was properly before the
district court. We therefore reject the government's argument
that the district court lacked jurisdiction to consider a
request for a restitution payment schedule.
From the record before us, we cannot discern whether
the district court denied Lochard's pro se motion because it
believed that it lacked jurisdiction. That would have been
error, but we are unable to tell whether that is what happened.
On this basis alone, we would vacate the district court's denial
of Lochard's pro se request. See United States v. Smith, 174
F.3d 52, 59 (2d Cir. 1999) (remanding district court's
sentencing determination for additional findings because if
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could not "determine from the record the basis of the district
court's ruling") (citing United States v. Reed, 49 F.3d 895, 901
(2d Cir. 1995)). But there is also uncertainty, even assuming
the district court reached the merits.
3. The Merits
Kyles was decided under the Victim and Witness
Protection Act ("VWPA"), not the MVRA, which is at issue here.
The MVRA codified the district court's authority to modify
restitution payment schedules at 18 U.S.C. § 3664. Unlike the
VWPA, however, the MVRA includes an express provision that if a
defendant experiences "a material change in [his] economic
circumstances," the district court may "adjust the payment
schedule" of a restitution order "as the interests of justice
require." 18 U.S.C. § 3664(k).
Under the MVRA, therefore, a district court may adjust
a payment schedule when a defendant demonstrates that his
ability to pay restitution has changed. See United States v.
Grant, 235 F.3d 95, 99-101 (2d Cir. 2000) (affirming district
court's order under § 3664(k) requiring defendant to make
restitution payments while in prison, upon discovery of
additional funds in defendant's inmate account). Here, it is
unclear whether the district court denied Lochard's motion on
the ground that Lochard failed to demonstrate a change in
economic circumstances as provided for in § 3664(k) or whether
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the district court even considered the question. Lochard's pro
se motion for a payment schedule was denied simply with a check
mark next to the box "denied" in a rubber-stamped memorandum
endorsement. Such a denial does not permit us to draw any
conclusions about the district court's rationale.
Nor can we discern whether the district court denied
Lochard's application because it believed that § 3664(k)
precluded the imposition of a payment schedule absent a change
in economic circumstances. This is an open question and we
leave it to the district court to resolve this issue in the
first instance if it determines it needs to reach the issue.
See, e.g., United States v. Bowles, No. 98 Cr. 1281 (DLC), 2003
WL 21396691, at *1 (S.D.N.Y. June 16, 2003) (granting
defendant's request to suspend restitution payments for duration
of defendant's prison term because his "physical and mental
health problems [which he suffered from at sentencing but failed
to disclose to the district court] prevented him from being able
to work while incarcerated"); see also United States v. Brennan,
650 F.3d 65, 135-36 (2d Cir. 2011) (noting "better practice" is
to remand case for district court to make factual determinations
that may "avoid[] unnecessary . . . adjudication").
In light of Lochard's pro se status, on remand the
district court shall accord Lochard the opportunity to be heard
with respect to these issues. We therefore vacate the district
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court's denial of Lochard's motion and remand so that the
district court may consider (1) whether Lochard has demonstrated
or can demonstrate a change in economic circumstances as
contemplated by § 3664(k), and (2) whether the district court
can nonetheless impose a restitution schedule absent any such
showing.
We have considered the government's remaining
arguments and find them to be without merit. Accordingly, we
VACATE and REMAND for the district court to consider Lochard's
motion anew.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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