United States v. Latimer , 101 F. App'x 370 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-15-2004
USA v. Latimer
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2724
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"USA v. Latimer" (2004). 2004 Decisions. Paper 596.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2724
UNITED STATES OF AMERICA
v.
JAMES ALBERT LATIMER
Appellant
Appeal from the District Court of the Virgin Islands
Division of St. Croix
(D.C. Criminal Action No. 98-cr-0000038-1)
District Judge: Honorable Raymond L. Finch
Argued May 7, 2004
Before: BARRY, AM BRO, and SMITH, Circuit Judges
(Opinion filed June 15, 2004 )
Pamela L. Colon, Esquire (Argued)
36C Strand Street
Christiansted, St. Croix
USVI, 00820
Attorney for Appellant
David M. Nissman
United States Attorney
Carl F. Morey
Assistant U.S. Attorney
Bruce Z. Marshack, Esquire (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820
Attorneys for Appellee
OPINION
AM BRO, Circuit Judge:
James Albert Latimer appeals the decision of the District Court of the Virgin
Islands ordering him to pay almost $59,000 in restitution. We affirm the order of
restitution and remand for the sole purpose of establishing a payment schedule.
I.
Latimer was convicted of three violations of 18 U.S.C. § 1920 (“False statement or
fraud to obtain Federal employee’s compensation”). The District Court sentenced
Latimer to fifteen months imprisonment for each of his three violations, to be served
concurrently, and two years of supervised release. The District Court also imposed a
$300 assessment and ordered restitution in the amount of $81,897.94.
Latimer subsequently filed his first appeal in this case, challenging his sentence
and order of restitution. An earlier panel of our Court affirmed on all issues save one – it
remanded for recalculating the restitution amount. See United States v. Latimer, No. 01-
3238, 54 Fed. Appx. 105, 109-110 (3d Cir. Dec. 18, 2002). On remand, the District Court
ordered Latimer to pay $58,935.75 in restitution to the Office of Workers Compensation.
The District Court, however, failed to establish a regular schedule for restitution
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payments.
Latimer is now before us a second time, again arguing the District Court erred in
ordering restitution because he lacks the ability to pay. We have jurisdiction under
28 U.S.C. § 1291. We exercise plenary review over whether the restitution order is
permissible and review the monetary amount of a particular award for clear error. United
States v. Jacobs, 167 F.3d 792, 795 (3d Cir. 1999) (citations omitted).
II.
Enacted in 1996, the M andatory Victims Restitution Act (“MVRA”) substantially
amended the restitution provisions in the Victims Witness Protection Act (“VWPA”),
18 U.S.C. § 3663 et seq. Courts previously had discretion in ordering restitution. United
States v. Coates, 178 F.3d 681, 683 n.3 (3d Cir. 1999). But the “MVRA makes restitution
mandatory for certain crimes . . . and requires district courts to order the payment of
restitution in the full amount of the victim’s losses ‘without consideration of the
economic circumstances of the defendant.’” Id. at 683 (quoting 18 U.S.C.
§ 3664(f)(1)(A)).
In fact, 18 U.S.C. § 3663A is entitled “Mandatory restitution to victims of certain
crimes.” Section 3663A(a)(1) states that a court “shall order” restitution if the defendant
is convicted of an offense “described in subsection (c).” This subsection includes “any
offense committed by fraud or deceit.” 18 U.S.C. § 3663A(c)(1)(A). By its very nature,
Latimer’s conviction under 18 U.S.C. § 1920 (“False statement or fraud to obtain Federal
employee’s compensation”) is an offense committed by fraud or deceit. Accordingly,
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Latimer’s arguments that the District Court somehow lacked authority to order, or abused
its discretion in ordering, restitution fail. 1
Our review, however, is not complete. The District Court failed to schedule any
restitution payments. Although somewhat unclear, it appears this decision was due to
uncertainty over whether Latimer had sufficient funds to make restitution payments. See
JA at 58 (“I will leave the government to collect the best it can. I will not schedule any
payments, because I’m not convinced that the money is there as has been represented [by
the Government] without some further proof.”).
The District Court’s approach fell short of what the MVRA requires. It provides
that the “court shall . . . specify in the restitution order the manner in which, and the
schedule according to which, the restitution is to be paid.” 18 U.S.C. § 3664(f)(2)
(emphasis added). Upon considering a defendant’s financial resources, projected
earnings and financial obligations, 18 U.S.C. §§ 3664(f)(2)(A)-(C), a sentencing court has
two options. If the defendant is capable of making payments, it has considerable
flexibility in structuring the manner in which that is done. See 18 U.S.C. § 3664(f)(3)(A).
Second, if a defendant is deemed unable to pay the “full amount of a restitution order in
the foreseeable future under any reasonable schedule of payments,” then the sentencing
court may direct him to make nominal periodic payments. 18 U.S.C. § 3664(f)(3)(B).
The District Court, however, may not delegate the matter. See Coates, 178 F.3d at 684
1
Latimer’s reliance on United States v. Copple, 74 F.3d 479 (3d Cir. 1996), is
misplaced. This case was published prior to the effective date of the MVRA.
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(“Since the MVRA mandates that district courts schedule restitution payments after
taking into account the defendant's financial resources, the District Court's failure to do so
here constitutes plain error.”) On remand, the parties should present appropriate
evidence, and the District Court should make the necessary findings and establish a
restitution schedule in accordance with § 3664(f).
*****
In this context, we affirm the decision of the District Court ordering Latimer to pay
restitution. We remand to the District Court for the sole purpose of establishing a
restitution schedule.
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