United States v. Michael Norwood ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-3478
______________
UNITED STATES OF AMERICA
v.
MICHAEL NORWOOD,
Appellant
_______________________
On Appeal from the United States District Court
for the District of New Jersey
(D. N.J. No. 1-96-cr-00232-001)
District Judge: Honorable Robert B. Kugler
__________________________
Argued May 26, 2022
Before: KRAUSE, PHIPPS, Circuit Judges, and STEARNS*,
District Judge
(Filed: September 8, 2022)
Beresford L. Clarke [ARGUED]
Sean E. Andrussier
Lauren Johnson
Karen L. Sheng
Margaret (Emmy) Wydman
*
The Honorable Richard G. Stearns, District Judge for the
District of Massachusetts, sitting by designation.
Duke University School of Law
210 Science Drive
Box 90360
Durham, NC 27708
Court Appointed Amicus Curiae for Appellant
Steven G. Sanders [ARGUED]
Sabrina G. Comizzoli
Mark E. Coyne
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee
_________________
OPINION
_________________
KRAUSE, Circuit Judge
In the nearly four decades since Congress enacted the
Victim and Witness Protection Act of 1982 (“VWPA”), 18
U.S.C. § 3363 (1994), restitution has become ubiquitous in
federal sentencing. Recognizing the importance of making
victims of crimes whole to the extent possible, Congress gave
district courts discretion to order restitution in addition to any
term of imprisonment for certain offenses. But it also
recognized that the obligation to make payments indefinitely
could saddle criminal defendants, especially those poor and
indigent, with insurmountable burdens as they sought to
reintegrate into society while subject to collection,
compounding interest, the looming threat of default, and the
2
collateral consequences that attach to ongoing criminal
liability. The balance it struck in the VWPA was to limit the
duration of a defendant’s restitutionary liability to twenty
years.
A decade later, however, the balance had shifted, and
the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18
U.S.C. § 3663A, made restitution mandatory and extended the
duration of defendants’ payment obligations by decades for
those sentenced after its effective date—even those, like
Appellant Michael Norwood, who had committed their
offenses when the VWPA was still in effect. In this appeal, we
must decide whether retroactively applying the MVRA to
extend the duration of Norwood’s restitutionary liability
violates the Ex Post Facto Clause of the Constitution, U.S.
Const. art. I, § 9, cl. 3. For the reasons that follow, we conclude
that it does, and we will reverse the contrary order of the
District Court.
I. Background
A. Statutory Background
When Congress enacted the MVRA in 1996, it amended
the law governing restitution for criminal defendants in a
number of respects. It also recognized, in doing so, that there
might be constitutional limitations on the Act’s retroactive
application. Congress therefore set an effective date of April
24, 1996, and provided that the MVRA would only apply to
sentencings for convictions occurring on or after that date, and
only “to the extent constitutionally permissible.” 18 U.S.C.
§ 2248 (statutory notes).
3
The statute that governed criminal restitution before the
MVRA was the Victim and Witness Protection Act of 1982.
Under the VWPA, when a court sentenced a defendant
convicted of certain crimes, it had discretion to “order, in
addition to . . . any other penalty authorized by law, that the
defendant make restitution to any victim of such offense.” 18
U.S.C. § 3663(a)(1) (1994). Such restitution orders, in turn,
could be enforced by the United States “in the manner provided
for the collection and payment of fines in subchapter B of
chapter 229 of this title.” Id. at § 3663(h)(1)(A). That
provision referred to 18 U.S.C. § 3613, which provided that a
fine—and thus a restitution order—“is a lien in favor of the
United States upon all property belonging to the person fined,”
and that “[t]he lien arises at the time of the entry of the
judgment and continues until the liability is satisfied, remitted,
or set aside, or until it becomes unenforceable pursuant to the
provisions of subsection (b).” Finally, subsection (b) provided
that “[a] lien becomes unenforceable and liability to pay a fine
expires . . . twenty years after the entry of the judgment.” Id.at § 3613(b)(1). In other words, under the VWPA, when a
criminal judgment imposed a restitution order, it created a lien
by operation of law and started a twenty-year clock running,
and when that clock ran out, two things happened: the lien
became unenforceable, and the defendant’s liability to pay
expired.
On April 24, 1996, Congress enacted the MVRA, which
amended these laws in significant ways. First, the MVRA—
unlike the VWPA—makes restitution mandatory. See 18
U.S.C. § 3663A(a)(1). Second, though the MVRA also
provides for restitution orders to be enforced like fines by
4
creating a lien in favor of the United States,1 it provides that
such liens persist as long as a defendant remains liable to pay.
See id. at § 3613(c). And—most importantly for purposes of
this case—it provides that a defendant’s “liability to pay a fine
shall terminate the later of 20 years from the entry of judgment
or 20 years after the release from imprisonment of the person
fined.” 18 U.S.C. § 3613(b) (emphasis added). In short, under
the MVRA, a restitution lien never becomes unenforceable,
and a defendant’s liability to pay expires not twenty years after
entry of the defendant’s judgment, but twenty years after the
defendant’s release from imprisonment, resulting in a
significantly longer period of liability than under the VWPA.
B. Factual and Procedural Background
Just twelve days before the MVRA took effect,
Appellant Michael Norwood committed a bank robbery in
New Jersey, and was charged with a number of federal crimes.2
1
MVRA § 3663A(d) provides that “[a]n order of
restitution under this section shall be issued and enforced in
accordance with section 3664,” 18 U.S.C. § 3663A(d), and
§ 3664, in turn, points to “subchapter B of chapter 229 of this
title,” meaning the amended version of § 3613, 18 U.S.C. §
3664(m)(1)(A)(i).
2
Specifically, Norwood was charged with one count of
bank robbery, see 18 U.S.C. § 2113(a), one count of armed
bank robbery, see id. at § 2113(d), one count of carjacking, see
id. at § 2119, two counts of using a firearm in relation to a
crime of violence, see id. at § 924(c), and one count of
possession of a firearm by a felon, see id. at §§ 922(g)(1) and
924(e).
5
He was convicted on all six counts and sentenced on May 30,
1997, to life plus twenty-five years in prison. In connection
with his counts of conviction for bank robbery and armed bank
robbery, Norwood’s sentence also included a restitution order
totaling $19,562.87.3 Norwood appealed his conviction, but
we affirmed. See United States v. Norwood, No. 97-5346 (3d
Cir. Feb. 10, 1998).
Because Norwood’s conduct occurred before the
MVRA took effect, his restitution was governed by the VWPA.
Cf. United States v. Edwards, 162 F.3d 87, 88-89 (3d Cir.
1998). This meant that the Government’s lien was set to
become unenforceable, and Norwood’s liability to pay was set
to expire, twenty years after the entry of judgment—on May
30, 2017.
Since his initial sentencing, Norwood has filed several
successful habeas petitions under 28 U.S.C. § 2255 and has
been resentenced three times. Because these proceedings are
central to both parties’ arguments on appeal, we recount them,
and their effects on Norwood’s restitution obligation, in
relevant detail.
First, in 1999, Norwood successfully argued that the
District Court miscalculated the offense level for his count of
conviction for possession of a firearm by a felon. See Norwood
v. United States, No. 1:99-cv-18 (D.N.J. June 29, 1999). The
District Court resentenced Norwood to 327 months
imprisonment on that count, bringing his total term of
imprisonment to 627 months. This resentencing left
3
This amount reflects $15,428.00 in losses to the bank
Norwood robbed and $4,134.87 in losses to the owner and
insurer of the car Norwood stole in the course of the robbery.
6
Norwood’s sentences intact as to all other counts, including the
bank robbery counts for which restitution had been ordered.
Norwood appealed this new sentence, but we denied a
certificate of appealability. See United States v. Norwood,
Nos. 99-5510 & 99-5992 (3d Cir. July 28, 2000).
Second, in 2010, Norwood filed another § 2255 petition
claiming a Double Jeopardy violation on the grounds that his
conviction for bank robbery was a lesser included offense of
his conviction for armed bank robbery. See Norwood v. United
States, 1:10-cv-6744 (D.N.J. Dec. 23, 2010). The District
Court originally dismissed Norwood’s petition as second or
successive, but the Government conceded the Double Jeopardy
issue on appeal, and we remanded. On remand, the District
Court dismissed Norwood’s conviction for bank robbery
entirely and resentenced him on all other counts. There was no
change to his total term of imprisonment, and the sentencing
court expressly stated that “all other conditions of the judgment
of conviction . . . shall remain in full force and effect.” App.
166. The amended judgment also reiterated Norwood’s
obligation to pay restitution.
Third, in 2013, Norwood appealed his new sentence,
arguing that it had been imposed before the Supreme Court
held in United States v. Booker, 543 U.S. 220 (2005), that the
Sentencing Guidelines were not mandatory, and both Norwood
and the Government moved to remand for de novo sentencing,
which we granted by issuing an order vacating Norwood’s
2012 sentencing order. At resentencing, the District Court
reduced Norwood’s sentences on two counts and issued a new
amended judgment. The District Court made no mention of
Norwood’s restitution obligations during the resentencing
hearing, and its amended judgment again simply reiterated the
same restitution obligation that had been in effect since 1997.
7
Norwood appealed this order on other grounds, but we
affirmed. See United States v. Norwood, 566 F. App’x 123,
128 (3d Cir. 2014).
As we trace Norwood’s restitution order along this
complicated procedural journey, it is clear that his restitution
order was not disturbed in any way by his first habeas petition,
which only affected a separate count on which restitution had
not been imposed. His second habeas petition resulted in the
dismissal of one of the two counts on which restitution was
based but had no effect on either Norwood’s term of
imprisonment or his restitution obligation. And though his
third habeas petition resulted in his sentence being reduced, it
also purported to leave his restitution undisturbed.
Like many inmates, Norwood’s personal funds are held
in an inmate trust account maintained by the Bureau of Prisons
(“BOP”), into which friends and family may make deposits.
See 28 C.F.R. § 506.1. As of June 21, 2016, Norwood’s
account had a balance of $6,031.40. When the U.S. Attorney’s
office for the District of New Jersey learned of this balance, it
moved the District Court to authorize the BOP to turn over all
but $100 of those funds to satisfy Norwood’s outstanding
restitution. The ensuing dispute continued until May 30, 2017,
the twenty-year anniversary of Norwood’s original judgment
and restitution order when, under the VWPA, his liability to
pay would have expired and the Government’s lien would have
become unenforceable. Accordingly, Norwood argued that the
Government could no longer enforce his restitution order under
the VWPA, and that applying the MVRA’s longer liability
period would violate the Ex Post Facto Clause.
The District Court disagreed. In February 2020, it
granted the Government’s motion and authorized the BOP to
8
turn over the funds from Norwood’s inmate account. The
District Court held in relevant part that applying the MVRA to
Norwood’s restitution order would not violate the Ex Post
Facto Clause because “the Government’s reliance on the
MVRA’s procedure for ensuring the payment of restitution in
no way increases a criminal defendant’s penalty.” App. 241.
Norwood appealed, and we vacated the District Court’s
order. On the ex post facto issue, we noted that applying the
MVRA’s longer liability period to Norwood’s restitution order
“may indeed raise ex post facto concerns” because doing so
“would increase the duration of his liability and thus, as a
practical matter, might increase the amount that he ultimately
must pay.” App. 252-53 n.1 (emphasis in original). We did
not, however, rule on the ex post facto question because we
observed that doing so might not be necessary if the VWPA
could be construed to allow for the collection of funds from
Norwood’s account. Specifically, we contemplated two
possibilities: first, that “[t]here may be some question whether
the District Court’s amended judgments triggered a new 20-
year period of restitutionary liability under the VWPA,” App.
253-54; and second, that “there may be some question whether
Norwood’s funds would remain subject to his restitutionary
obligation even under the VWPA because the Government
timely sought them before his liability expired,” App. 254. We
remanded to the District Court to address these questions and
then to “address what, if anything, remains of Norwood’s ex
post facto challenge.” App. 255.
On remand, the District Court did not consider the ex
post facto question. Instead, it held that the Government could
enforce its lien against Norwood under the VWPA because it
filed its motion to do so before May 30, 2017. The District
Court based its holding on the MVRA’s version of § 3613,
9
which provides that restitution liens shall be treated “as if the
liability of the person fined were a liability for tax assessed
under the Internal Revenue Code of 1986.” 18 U.S.C.
§ 3613(c). Under the relevant portion of the tax code, “[i]f a
timely proceeding in court for the collection of a tax is
commenced, the period during which such tax may be
collected by levy shall be extended and shall not expire until
the liability for the tax . . . is satisfied or becomes
unenforceable.” 26 U.S.C. § 6502(a) (emphasis added).
Based on this language, the District Court concluded that
collection was proper insofar as the Government commenced
its enforcement action before May 30, 2017, and thus there was
no ex post facto issue.
Norwood appealed on several grounds, not the least of
which being that § 6502(a)’s enforcement mechanism—upon
which the District Court relied—was only incorporated by the
MVRA, and not the VWPA. Because this case presented a
variety of complicated statutory and constitutional issues, and
because Norwood has elected to proceed pro se, we appointed
amicus counsel.4
II. Jurisdiction and Standard of Review
The District Court had jurisdiction over Norwood’s
criminal case under 18 U.S.C. § 3231. We have jurisdiction
4
We express our gratitude to Sean E. Andrussier and
the student advocates of the Duke University School of Law’s
Appellate Litigation Clinic for accepting this matter pro bono,
and we commend them for their excellent briefing and
argument. Lawyers who act pro bono fulfill the highest service
that members of the bar can offer to the legal profession.
10
under 28 U.S.C. § 1291. Because this case presents only
questions of law, both constitutional and statutory, our review
of those issues is de novo. See United States v. Tyson, 947 F.3d
139, 142 (3d Cir. 2020); Radiowala v. Att’y Gen., 930 F.3d
577, 581 (3d Cir. 2019).
III. Discussion
Before we consider whether retroactive application of
the MVRA’s liability period to Norwood’s restitution order
poses an ex post facto problem, we must first resolve whether
the VWPA itself allows for the Government’s enforcement
effort. If the Government can collect under the VWPA, then
there would be no need for us to consider the retroactive effect
of applying the MVRA. But for the reasons that follow, we
conclude that the Government’s lien is unenforceable under the
VWPA, so an ex post facto analysis of the MVRA’s
application is necessary. We address first the VWPA, then
explain why retroactive application of the MVRA here would
be unconstitutional.
A. The VWPA Does Not Permit the
Government’s Collection
1. The VWPA Applies to Norwood’s
Restitution Lien
As an antecedent question, we asked the parties to
address whether the VWPA’s twenty-year liability period
applies to a defendant’s obligation to pay restitution. To
resolve this question, we must carefully distinguish between a
defendant’s underlying restitution order and the particular
mechanism through which that order may be enforced.
11
The VWPA provides for three ways to enforce a
restitution order. First, the United States may enforce the order
“in the manner provided for the collection and payment of fines
in [18 U.S.C. § 3613].” 18 U.S.C. § 3663(h)(1)(A) (1994).
Second, the United States may enforce the order “in the same
manner as a judgment in a civil action.” Id. Third, the order
may be enforced “by a victim named in the order to receive the
restitution, in the same manner as a judgment in a civil action.”
Id. at § 3663(h)(1)(B). Here, neither the Government nor any
victim sought to enforce Norwood’s restitution order as if it
were a civil judgment, likely because doing so would have
been futile,5 and instead opted to enforce Norwood’s restitution
order as a fine.
5
Under Federal Rule of Civil Procedure 69(a), money
judgments are generally enforced by writs of execution, and
the procedure for such writs “must accord with the procedure
of the state where the court is located” and any applicable
federal statutes. The relevant federal statute, 28 U.S.C. § 3201,
provides that “[a] judgment in a civil action shall create a lien
on all real property of a judgment debtor.” This means that
both the Government and a victim may only create a lien
against a defendant’s real property—of which Norwood has
none. Understandably, the Government did not pursue this
route, but even if it did, Norwood’s obligation to pay would
still have expired on May 30, 2017. Once a judgment lien is
created under § 3201, it “is effective, unless satisfied, for a
period of 20 years” unless it is renewed by “filing a notice of
renewal in the same manner as the judgment is filed.” 18
U.S.C. § 3201(c). Under New Jersey law, too, money
judgments expire after 20 years unless revived by a court
proceeding. See N.J. Stat. Ann. 2a:14-5. The Government, of
12
As discussed above, § 3613 created a lien to enforce
Norwood’s restitution order, which arose “at the time of the
entry of the judgment,” id. at § 3613(a), and which “[became]
unenforceable . . . twenty years after the entry of the
judgment,” id. at § 3613(b)(1). Based on this statutory text,
several Courts of Appeals have either assumed or held
explicitly that the VWPA’s twenty-year liability period applies
to a defendant’s obligations under a restitution lien. See United
States v. Delano, 981 F.3d 1136, 1138-40 (10th Cir. 2020);
United States v. Blackwell, 852 F.3d 1164, 1166 (9th Cir. 2017)
(per curiam); United States v. Ridgeway, 489 F.3d 732, 736-37
(5th Cir. 2007); United States v. Rostoff, 164 F.3d 63, 67 (1st
Cir. 1999); United States v. Berardini, 112 F.3d 606, 611 (2d
Cir. 1997); United States v. Fuentes, 107 F.3d 1515, 1533 n.33
(11th Cir. 1997). While we have not squarely addressed this
question, we see no reason to break from our sister circuits.
The VWPA clearly incorporates § 3613’s enforcement
scheme, and there is no textual basis to suggest that it failed to
incorporate that scheme’s liability period. Accordingly,
Norwood’s restitution lien, and his obligation to pay it, is
subject to the VWPA’s liability period.
2. The 2013 Amended Judgment Did Not
Reset Norwood’s Liability Period
The VWPA provides that the lien created by a
restitution order “becomes unenforceable and liability to pay a
fine expires [] twenty years after the entry of the judgment.”
18 U.S.C. § 3613(b)(1) (emphasis added). Norwood contends
that the relevant “judgment” is his original 1997 judgment in
course, neither created nor renewed any judgment lien against
Norwood.
13
which his restitution order was imposed, meaning the order
became unenforceable in May 2017.
The Government, however, argues that the relevant
“judgment” is the 2013 amended judgment.6 If so, then
Norwood would remain liable until 2033. Under this view,
when we vacated Norwood’s 2012 sentencing order and
remanded for de novo resentencing, his original judgment and
restitution order were voided, meaning that the only
“judgment” that currently requires him to pay restitution is the
6
The Government does not argue that either Norwood’s
1999 amended judgment or his 2012 amended judgment are
relevant for purposes of the VWPA’s liability period. We may
safely disregard these judgments as well, as neither could have
conceivably disturbed Norwood’s restitution obligation in any
way. As discussed above, Norwood’s restitution obligation
was imposed based on his counts of conviction for bank
robbery and armed bank robbery. His 1999 resentencing,
however, was limited to his count of conviction for possession
of a firearm by a felon and did not affect any other count.
Likewise, while Norwood’s 2012 resentencing vacated his
bank robbery charge as a lesser included offense of his armed
bank robbery charge, it left intact his entire sentence for the
greater offense, including the restitution order; indeed, the
District Court was clear that “all other conditions of the
judgment of conviction . . . shall remain in full force and
effect.” App. 165-66. Accordingly, only the 2013
resentencing, which reduced Norwood’s sentence on his armed
bank robbery count, had the potential to affect his underlying
restitution obligation. As we explain, however, even the 2013
resentencing did not reset Norwood’s original restitution order.
14
2013 amended judgment. Though the Government’s argument
appears solid at first glance, it collapses upon closer scrutiny.
a. Our 2013 Order Did Not Vacate
Norwood’s Original Restitution
Order
The Government’s argument depends on our having
vacated Norwood’s original restitution order in 2013 and the
District Court imposing a new one on remand; if that did not
occur, then Norwood’s original 1997 order is still in effect, and
the VWPA’s twenty-year liability would have run from that
date. Upon inspection, we conclude that our 2013 Order did
not vacate Norwood’s restitution order.
At the outset, we note that our 2013 Order did not
purport to disturb Norwood’s underlying sentence and stated
only that the 2012 “sentencing order of the District Court is
hereby VACATED.” App. 179. That 2012 sentencing order,
moreover, did not purport to impose any restitution obligation
on Norwood; rather, it provided that his restitution obligation
from his prior sentence would “remain in full force and effect.”
App. 166. It would be strange, indeed, to conclude that
vacating an order that purported to make no changes to
Norwood’s restitution obligation somehow had the effect of
vacating the undisturbed restitution. The more natural reading
is that both the District Court’s 2012 Order and our 2013 Order
were limited to the custodial components of Norwood’s
sentence and had no effect on his restitution order.
The Government disagrees and contends that because
both Norwood and the Government moved for a de novo
resentencing in 2012, our 2013 amended judgment must have
automatically voided and replaced every component of
15
Norwood’s earlier judgments, including restitution. What
matters, however, is not the scope of resentencing that was
requested, but the scope of what we actually ordered. On that
front, our 2013 order was silent as to the scope of resentencing
and, as discussed above, vacated only the District Court’s 2012
sentencing order, not its underlying judgment.
When a remand is silent as to the scope of resentencing,
our sister circuits are divided. For some, the default rule is that
resentencing is de novo absent explicit instructions to the
contrary from the appellate court. See, e.g., United States v.
Jennings, 83 F.3d 145, 151 (6th Cir. 1996), amended by 96
F.3d 799 (6th Cir. 1996); United States v. Cornelius, 968 F.2d
703, 705-06 (8th Cir. 1992); United States v. Ponce, 51 F.3d
820, 826 (9th Cir. 1995); United States v. Smith, 930 F.2d
1450, 1456 (10th Cir. 1991); United States v. Stinson, 97 F.3d
466, 468-69 (11th Cir. 1996). For others, the default rule is the
opposite, with resentencing assumed to be limited to those
facts and issues made relevant by the remand unless the
appellate court instructs otherwise. See, e.g., United States v.
Whren, 111 F.3d 956, 960 (D.C. Cir. 1997); United States v.
Wallace, 573 F.3d 82, 88 & n.5 (1st Cir. 2009); United States
v. Lee, 358 F.3d 315, 321 (5th Cir. 2004); United States v.
Husband, 312 F.3d 247, 250-52 (7th Cir. 2002). The Second
Circuit’s default rule is that a vacatur of conviction is presumed
to require a de novo resentencing, while a vacatur of a sentence
is presumed to produce a limited resentencing. See United
States v. Quintieri, 306 F.3d 1217, 1228 n.6 (2d Cir. 2002).
In United States v. Miller, we adopted our own rule,
holding that when a defendant’s conviction is vacated on
appeal, de novo resentencing is appropriate if one or more of
the sentences on the underlying convictions are
interdependent. See 594 F.3d 172, 180 (3d Cir. 2010). This
16
approach follows from our Court’s endorsement of the
“sentencing package doctrine,” which recognizes that, because
a sentencing court will often “craft a disposition in which the
sentences on the various counts form part of an overall plan,”
when one or more convictions is vacated, the resentencing
court “should be free to review the efficacy of what remains in
light of the original plan, and to reconstruct the sentencing
architecture upon remand . . . if that appears necessary in order
to ensure that the punishment still fits both crime and
criminal.” United States v. Davis, 112 F.3d 118, 122 (3d Cir.
1997).
We have not yet addressed precedentially whether
Miller and the sentencing package doctrine applies where, as
here, part of a defendant’s sentence is vacated while leaving
the underlying convictions undisturbed. See United States v.
Grant, 9 F.4th 186, 200 (3d Cir. 2021) (en banc). There are
strong, commonsense arguments for extending Miller’s
reasoning to vacated sentences. Our precedent recognizes that
there is “a strong likelihood that the district court will craft a
disposition in which the sentences on the various counts form
part of an overall plan,” Davis, 112 F.3d at 122, and such a
careful plan may be upset just as surely by a vacated sentence
as by a vacated conviction, see Grant, 9 F.4th at 215 (Ambro,
J., concurring) (“[I]t makes little difference whether the
conviction for [one count] is vacated or only its sentence.
Either way, the assumption on which the court relied to craft
its sentence on [a separate count] no longer holds.”).
We need not decide today whether to extend Miller to
vacated sentences, however, because even if the sentencing
package doctrine applied here, there is no indication that
Norwood’s restitution had any bearing on the rest of his
sentence, or vice versa. We have stressed that “the sentencing
17
package doctrine should be confined to cases in which the
sentences on the underling counts were interdependent.”
Miller, 594 F.3d at 180 (citations omitted) (emphasis in
original). Whether two sentences are interdependent turns on
whether they “result in an aggregate sentence” as opposed to
“sentences which may be treated discretely.” United States v.
Murray, 144 F.3d 270, 273 n.4 (3d Cir. 1998). Thus, we may
not simply presume that sentences are interdependent, but must
examine the specific sentences at issue to determine whether
they are distinct or intertwined.
This interdependence inquiry is most commonly
applied to the custodial components of a sentence. In Miller,
for example, we held that sentences on two counts of
conviction that had been grouped together under the
Sentencing Guidelines produced an aggregate sentence. See
594 F.3d at 180-81. This was so because, under the Guidelines,
offenses that are grouped together are treated as having the
offense level of the most serious offense. See U.S.S.G.
§ 3D1.3(b). As a result, when one of the underlying
convictions was vacated, “the District Court could not rely on
a discrete sentence previously imposed for [the remaining]
offense,” and instead had to “ungroup the two offenses and
determine the base offense level applicable” to the remaining
offense. Miller, 594 F.3d at 181.
Here, the question is whether Norwood’s term of
imprisonment and restitution order were similarly
interdependent such that the sentencing package doctrine
should apply. We have not squarely addressed the
interdependence of the custodial and non-custodial
components of a sentence imposed on a single count. To be
sure, there are likely some cases in which a restitution order
may be a significant factor in a sentencing court’s
18
determination of a custodial sentence. See 18 U.S.C.
§ 3553(a)(7) (listing “the need to provide restitution to any
victims of the offense” as one factor to be considered at
sentencing”). But this will not always be so, even for
components of a sentence imposed for the same count of
conviction. In Davis, for example, we explained that a fine and
restitution imposed for the same count of conviction were not
interdependent where “[t]he fine did not have to be added to
ensure that the sentence was legally correct.” 112 F.3d at 122
n.5. (citing United States v. DeLeo, 644 F.2d 300, 302 (3d Cir.
1981)).
Applying Miller’s interdependence test here, there is no
evidence to suggest that Norwood’s custodial sentence on his
armed bank robbery charge was in any way intertwined with
his restitution order. In his original 1997 sentencing hearing,
the Court based its decision to sentence Norwood to 300
months’ imprisonment for armed bank robbery primarily on
the violent nature of his crimes and the low likelihood of
rehabilitation. The Court did not suggest that Norwood’s
restitution obligations factored into the calculation of his
custodial sentence in any way.7 Likewise, when the District
Court resentenced Norwood in 2013 and reduced his term of
imprisonment on the armed bank robbery count, it again based
its decision primarily on the seriousness of Norwood’s crimes,
7
The same is true of Norwood’s 1999 resentencing
hearing, which the Court expressly “limited solely to the term
of imprisonment to be imposed on” the firearm possession
count and left Norwood’s restitution undisturbed. See
Norwood v. United States, No. 99-18 at *22-23 (D.N.J. June
29, 1999).
19
his recidivism, and his rehabilitation to date. The Court made
no mention of restitution except to say that it would remain
undisturbed. On this record, then, we cannot say that
Norwood’s prison sentence and restitution were so
interdependent as to require de novo resentencing, nor can we
say that that District Court ever purported to treat the two as
part of the same sentencing package.
But even if de novo resentencing had been appropriate
with respect to Norwood’s restitution order, this does not mean
that every component of Norwood’s sentence was necessarily
voided and replaced. De novo resentencing is not automatic
vacatur. Rather, as we explained in Miller, de novo
resentencing simply means that “issues concerning the first
sentence that were previously waived may be raised in the first
instance if warranted by the second sentence” if those
sentences are interdependent, not that the court must do so. See
594 F.3d at 179. And the record here is clear that, even if the
District Court had discretion to consider Norwood’s restitution
order at resentencing, it did not do so.
The Government disagrees and contends not only that
Norwood’s 2013 resentencing must have been de novo, but
also that we must treat that resentencing as voiding Norwood’s
original restitution order. The Government raises two
arguments on this front, neither of which we find persuasive.
First, the Government argues that every de novo
resentencing, by definition, “wipe[s] the slate clean.” Gov. Br.
25. The Government pulls this language from the Supreme
Court’s decision in Pepper v. United States, 562 U.S. 476, 507
(2011). But Pepper does not stand for the proposition that
every de novo resentencing necessarily vacates each
component of an earlier sentence. Rather, it stands for the
20
proposition that when a court engages in de novo resentencing,
it is not bound by its prior determinations. Pepper involved a
defendant who had been sentenced twice to 24 months’
imprisonment on methamphetamine charges; both times, the
sentencing court had applied a 40% downward variance on the
sentence based on the defendant providing substantial
assistance to the Government. See id. at 481-84; U.S.S.G.
§ 5K1.1. When Pepper was resentenced de novo for a third
time the court only applied a 20% downward variance for his
assistance, which Pepper challenged as violating the law-of-
the-case doctrine. See Pepper,562 U.S. at 485-87. The
Supreme Court rejected this argument, holding that even if “the
original sentencing court’s decision to impose a 40-percent
departure was at one point law of the case,” a de novo
resentencing “effectively wiped the slate clean” with respect to
that prior decision. Id. at 507. In other words, Pepper stands
only for the noncontroversial point that de novo review
requires courts to consider all legal issues anew.
Second, the Government focuses on the fact that
Norwood appealed the 2013 amended judgment—including
his restitution order—and that we heard that appeal. This is
significant, the Government argues, because, under Federal
Rule of Appellate Procedure 4(b)(1)(A)(1), a criminal
defendant may only file a notice of appeal within fourteen days
of the entry of the judgment to be challenged, so we could not
have exercised appellate jurisdiction over Norwood’s
restitution challenge unless his 2013 resentencing had
produced a new restitution judgment.
That argument, however, misses a critical point: Rule
4(b) is not jurisdictional. See Virgin Islands v. Martinez, 620
F.3d 321, 328 (3d Cir. 2010). Rather, it is a claim-processing
rule that we may consider only “[u]pon proper invocation of
21
the rule” by the opposing party.8 Id. at 328-29. Our
jurisdiction over appeals from a criminal sentence is in fact
governed by 28 U.S.C. § 1291 (appeals from final judgments
of District Courts) and 18 U.S.C. § 3742 (appeals from
criminal sentences), at least where those two are not in conflict.
See United States v. Rodriguez, 855 F.3d 526, 530-33 (3d Cir.
2017). Here they are not.
The District Court’s sentence was clearly a final
judgment, meaning § 1291 is satisfied, and all that § 3742
requires is that a defendant challenge a sentence on the grounds
that it (1) violated the law, (2) improperly applied the
sentencing guidelines; (3) exceeded the guideline range; or (4)
was plainly unreasonable. See 18 U.S.C. § 3742(a). Norwood
appealed his restitution order on the ground that it was an abuse
of discretion to not consider his ability to pay, which clearly
satisfies § 3742. Neither § 1291 nor § 3742 includes any time
limit. Accordingly, our exercise of jurisdiction over
Norwood’s restitution challenge would have been proper even
if Norwood were challenging his original 1997 restitution
order.
We decline to construe our 2013 order as disturbing
Norwood’s restitution order for a second, independent reason,
which is that we had no jurisdiction to do so. Norwood’s 2012
sentence was the result of a habeas petition filed by Norwood
under 28 U.S.C. § 2555 challenging his sentence on Double
Jeopardy grounds. See Norwood v. United States, 1:10-cv-
8
Here, as in Martinez, the Government never raised
Rule 4(b) in its appellate brief, despite raising other arguments
as to Norwood’s restitution claims. See Brief of Appellees,
United States v. Norwood, 2013 WL 6837466 at *41-45 (3d
Cir. Dec. 19, 2013).
22
6744 (D.N.J. Dec. 23, 2010). This is significant because, as
Amicus points out, § 2255 petitions are limited to attacks on
custodial sentences. We have consistently held that challenges
to restitution and other monetary penalties are not cognizable
under the federal habeas statutes. See United States v. Ross,
801 F.3d 374, 380 (3d Cir. 2015) (“[T]he monetary component
of a sentence is not capable of satisfying the ‘in custody’
requirement of federal habeas statutes.”) (citation omitted);
Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (per
curiam) (“The payment of restitution or a fine, absent more, is
not the sort of ‘significant restraint on liberty’ contemplated in
the ‘custody’ requirement of the federal habeas corpus
statutes.”).
We note, however, that most of the cases cited by
Amicus involved petitioners who were not in custody at all at
the time of their habeas petitions, either because their terms of
imprisonment had concluded or because they had never been
imprisoned at all. In those cases, the question of the
availability of habeas relief was simple—no custody, no
jurisdiction. Here, though, Norwood was in custody when he
filed his 2012 habeas petition, and he successfully challenged
his confinement. The question, then, is whether a federal court
may provide relief on an otherwise noncognizable restitution
claim once it has been joined with a cognizable challenge to a
custodial component of a defendant’s sentence. Today, we
hold that the answer is no.
In reaching this conclusion, we are guided by the text of
the federal habeas statutes, which not only limit who may bring
a habeas petition by requiring that a prisoner be “in custody”
to bring a habeas petition, but also limit the type of relief that
may be sought by requiring that a petition be brought by a
petitioner “claiming the right to be released.” 28 U.S.C.
23
§ 2255(a) (emphasis added). Because amending or setting
aside a restitution order does not constitute any form of
“release,” the federal habeas statutes simply do not provide for
that form of relief.
This remains true even if a defendant may properly
bring a habeas challenge to a custodial component of their
sentence. As several of our sister circuits have correctly held,
the federal habeas statutes provide no basis for treating a
restitution challenge brought by a confined person any
differently from one brought by a person not in custody. See
Kaminski v. United States, 339 F.3d 84, 88-89 (2d Cir. 2003);
Smullen v. United States, 94 F.3d 20, 26 (1st Cir. 1996); United
States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994).
Moreover, as several Courts of Appeals have observed,
entertaining challenges to restitution orders as part of habeas
petitions would allow defendants to circumvent the clear limits
of the federal habeas statutes and invite meritless challenges to
custody simply to bring restitution challenges in through the
back door. See United States v. Hatten, 167 F.3d 884, 887 (5th
Cir. 1999); Barnickel v. U.S., 113 F.3d 704, 706 (7th Cir.
1997); Smullen, 94 F.3d at 25-26. Accordingly, when the
District Court resentenced Norwood in 2012, it lacked
jurisdiction to amend or set aside his restitution order.
Likewise, when Norwood appealed the 2012 sentencing order,
we reviewed the issues raised in his § 2255 petition de novo,
meaning we also lacked jurisdiction to disturb his restitution
order. We therefore read our 2013 Order as having been
limited to the custodial components of Norwood’s sentence.
In sum, neither we nor the District Court had
jurisdiction to disturb Norwood’s restitution order pursuant to
a § 2255 petition, and even if we did, there is no evidence in
24
the record either that Norwood’s restitution order and prison
sentence were so interdependent as to make de novo review of
his restitution order appropriate or that the District Court ever
purported to disturb Norwood’s restitution obligations.
Norwood’s original 1997 restitution order was therefore not
disturbed by his 2013 resentencing and has remained in effect
through May 30, 2017.
b) A New Restitution Order Would
Not Have Reset Norwood’s
Restitution Lien or Liability
Period
The Government places great emphasis on its argument
that Norwood’s 2013 resentencing resulted in a new restitution
order. But as discussed above, what matters in this case is not
Norwood’s underlying restitution order, but rather the lien that
the Government seeks to enforce.
Under the VWPA, a court may impose a restitution
order when sentencing a defendant for certain crimes. See 18
U.S.C. § 3663(a)(1) (1994). But that restitution order cannot
be enforced directly; instead, the VWPA provides that
restitution orders may be enforced by the United States “in the
manner provided for the collection and payment of fines” in
§§ 3612 and 3613. Id. § 3663(h)(1). Under those provisions,
a restitution order is treated as a fine, which by operation of
law instantly creates “a lien in favor of the United States upon
all property belonging to the person fined” which “arises at the
time of the entry of the judgment.” Id. § 3613(a). That lien
“becomes unenforceable and liability to pay a fine expires . . .
twenty years after the entry of the judgment.” Id. § 3613(b).
The most natural reading of these provisions is that the
judgment that created the lien—here, Norwood’s original 1997
25
judgment—is the same one from which the twenty-year
liability period runs.
The Government, however, challenges this reading and
argues instead that the VWPA’s twenty-year liability period
resets any time a restitution order is amended or re-entered.
For this to be the case, one of two things must be true: either
(1) the term “entry of the judgment” as used in § 3613(a) to
refer to when a lien arises must mean something different than
the term “entry of the judgment” as used in § 3613(b) to refer
to when the liability period begins to run; or (2) the imposition
of a new or amended judgment must automatically void a
defendant’s lien and replace it with a new one. But neither
bears out.
First, there is no reason to read the term “entry of the
judgment” as referring to two different judgments
simultaneously. It is a “standard principle of statutory
construction . . . that identical words and phrases within the
same statute should normally be given the same meaning.”
G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 617 (3d
Cir. 2015) (quoting Powerex Corp. v. Reliant Energy Servs.,
Inc., 551 U.S. 224, 232 (2007)). In addition, the use of the term
“the judgment”—as opposed to “a judgment” or “any
judgment”—strongly implies that § 3613 refers to a single
judgment.
Second, nothing in the VWPA’s text compels the
conclusion that imposing a new restitution order automatically
replaces a restitution lien. Section 3613(a) provides that a lien
“continues until the liability is satisfied, remitted, or set aside,
or until it becomes unenforceable pursuant to the provisions of
subsection (b).” These are the only ways to terminate a lien
under the VWPA, and none occurred here. Norwood’s lien
26
was never satisfied, nor had it become unenforceable at the
time of resentencing in 2013, and the “remitted” language in
§ 3613(a) appears inapplicable to liens created by restitution
orders because courts lack statutory authority to remit a
restitution order.9 See United States v. Roper, 462 F.3d 336,
340 (4th Cir. 2006). That leaves only the possibility that
Norwood’s restitution order was somehow “set aside” by the
2013 resentencing. But for the reasons discussed above, there
is no indication that the lien against Norwood—which, at least
with respect to the individual victims owed restitution, is a
constitutionally-protected property interest, see, e.g., United
States v. Perry, 360 F.3d 519, 525-26 (6th Cir. 2004)—was
“set aside” or otherwise disturbed by the resentencing court.
More importantly, the VWPA’s text and our precedent
make clear that the VWPA’s twenty-year liability period runs
from the date of the original restitution order, even if that order
is later vacated. Section 3612—which, like § 3613, is
incorporated by the VWPA10—provides for, inter alia, the
9
It is not surprising that some parts of § 3613 are
inapplicable to restitution liens because § 3613 provides a
general mechanism for the enforcement of fines, which the
VWPA simply borrows.
10
Specifically, § 3663(h)(1)(a) of the VWPA provides
that restitution may be enforced “in the manner provided for
the collection and payment of fines in subchapter B of chapter
229 of this title.” (emphasis added). While § 3613 refers to
the “satisfaction”—that is, payment—of fines, § 3612 refers to
the “collection” of fines and restitution. Indeed, an earlier
version of § 3663(h) sought to refer to §§ 3612 and 3613
27
calculation of interest on fines and restitution. Specifically,
§ 3612(f) provides that “[t]he defendant shall pay interest on
any fine or restitution of more than $2,500, unless the fine is
paid in full before the fifteenth day after the date of the
judgment” and that “[i]nterest on a fine shall be computed . . .
from the first day on which the defendant is liable for interest.”
18 U.S.C. § 3612(f) (1994) (emphasis added). Thus, § 3612(f),
like § 3613, explicitly ties the running of the interest clock to
the entry of the judgment.
The VWPA’s interest-accrual provision is nearly
identical to the one found in the general post-judgment interest
statute, which provides that “interest shall be calculated from
the date of the entry of the judgment.” 28 U.S.C. § 1961(a)
(emphasis added). In Loughman v. Consol-Pennsylvania Coal
Co., 6 F.3d 88 (3d Cir. 1993), we held that vacating and re-
entering a judgment did not reset the interest clock because
what mattered for purposes of calculating post-judgment
interest was when “liability and damages, as finally
determined, were ascertained and established.” Id. at 98. So
long as that basis for liability is “never upset” by subsequent
judgments, we explained, interest must run from the original
date. Id.Applying that same reasoning here—and we should,
given the textual similarities between § 1961 and § 3612(f)—
it is clear that the basis for Norwood’s restitutionary liability
was established in his original 1997 judgment and that it was
never disturbed. First, the basis for Norwood’s liability is his
conviction for armed bank robbery, which has never been
explicitly, though there appears to have been a scrivener’s
error. See Ridgeway, 489 at 737 n.9.
28
altered. Second, the amount of Norwood’s restitution has
never been modified in any way.11 Third, at every stage of the
litigation, the sentencing courts were clear that Norwood’s
restitutionary obligations remained in place and were
undisturbed. All of this suggests that, under Loughman,
interest on Norwood’s restitution began running from his
original 1997 judgment.12 And because a lien under § 3613(a),
like interest under § 3612(f), is tied to the same “judgment,” it
follows that Norwood’s lien would also remain undisturbed
and that the liability period under § 3613(b) also began running
11
It is not clear that this would even be relevant under
Loughman. There, the amount of damages was repeatedly
challenged and modified in subsequent amended judgments,
but we were clear that all that mattered was the original “basis
for liability.” See Loughman, 6 F.3d at 98-99.
12
Amicus makes a similar argument by analogy to
Federal Rule of Civil Procedure 60, which requires that
requests for relief from a judgment be made within one year
from the judgment challenged. See Fed. R. Civ. P. 60(b)-(c).
While we have not addressed the applicability of Loughman’s
reasoning to a Rule 60 motion precedentially, the Eighth
Circuit in Jones v. Swanson applied similar logic to hold that
whether an amended judgment reset Rule 60’s one-year clock
turned on whether the matter at issue was resolved by the
original judgment and remained “unaffected by the [] decision
amending the judgment.” 512 F.3d 1045, 1049 (8th Cir. 2008).
Though we need not decide today whether Loughman’s
reasoning applies to a Rule 60 motion, the Eighth Circuit’s
reasoning persuades us that the more modest extension of
Loughman to § 3612(f)’s interest provision is sound.
29
in 1997. To conclude otherwise would require us to read the
term “entry of the judgment” differently throughout the
VWPA. For the reasons discussed above, we see no basis for
doing so.
Finally, in light of the dispute over which “judgment”
counts for purposes of § 3613, the parties have sparred back
and forth over the relevance of the Supreme Court’s decision
in Magwood v. Patterson, 561 U.S. 320 (2010). Magwood
interpreted the statutory jurisdictional bar against “second or
successive” habeas petitions under 28 U.S.C. §§ 2244 and
2254 in the context of a defendant who had previously brought
a successful challenge to his sentence and then sought, after
resentencing, to challenge his new sentence on grounds that
would have been available at his earlier challenge. See id. at
323-27. The Court, after a thorough analysis of § 2254’s text,
concluded that where “there is a new judgment intervening
between the two habeas petitions, . . . an application
challenging the resulting new judgment is not ‘second or
successive’ at all.” Id. at 341-42 (citation omitted). ).
Magwood was limited to a challenge to a new sentence
following an intervening resentencing and left open the
question of whether a challenge to an underlying and
undisturbed conviction also would not be “second or
successive” following resentencing. See id. 342.
We answered that question in the affirmative in Lesko
v. Secretary Pennsylvania Department of Corrections, 34 F.4th
211 (3d Cir. 2022), where we confirmed, as we anticipated in
Romansky, that in a sentencing package context, i.e., where a
court “‘undertake[s] a de novo resentencing as to all counts of
conviction if any count is vacated on appeal,’” the resentencing
then “‘constitute[s] a new judgment as to every count of
conviction,’” id. at 225 (quoting Romansky v. Superintendent
30
Greene SCI, 933 F.3d 293, 300 (3rd Cir. 2019)). We held, in
other words, that “[r]esentencing creates a new judgment [for
purposes of § 2254] as to each count of conviction for which a
new or altered sentence is imposed, while leaving undisturbed
the judgments for any counts of conviction for which neither
the sentence nor the conviction is changed.” Id. at 224.
Both Magwood and Lesko, however, are inapposite
here. First, both opinions interpreted the term “judgment” in
the habeas context, which is not implicated here.13 Second,
both Magwood and Lesko turned on the existence of an
intervening judgment, but as we explained in Loughman,
whether or not there is an intervening judgment does not
necessarily change when interest or liability begins to run.
Thus, even if, under Magwood and Lesko, Norwood’s
resentencing produced a new “judgment,” that would not
change the fact that his interest and liability both run from the
original 1997 judgment.
In sum, whether Norwood’s 2013 resentencing resulted
in a new restitution order is immaterial. It is his lien, not his
restitution order, that the Government seeks to enforce. Under
the VWPA, both the twenty-year liability window and the
accrual of interest are tied to the same event—“the entry of the
judgment”—which, under Loughman, is the original 1997
judgment that established the basis of Norwood’s restitutionary
liability. It is thus clear from the VWPA’s text and our
precedent that the VWPA’s twenty-year liability period began
13
We were clear in Lesko that our holding should not
be construed as extending to uses of the term “judgment” in
other statutes. Lesko, 34 F.4th at 225 n.7.
31
to run from the date of Norwood’s original 1997 judgment such
that it expired and became unenforceable on May 30, 2017.
c) Imposing a Second Period of
Restitutionary Liability for the
Same Conduct Would Raise
Double Jeopardy Concerns
We are also guided in our decision to reject the
Government’s reading of the VWPA by the canon of
constitutional avoidance. We have long held that “courts are
‘obligated to construe [a] statute to avoid [serious
constitutional] problems” if such a saving construction is fairly
possible. Castro v. U.S. Dep’t Homeland Sec., 835 F.3d 422,
435 (3d Cir. 2016) (quoting I.N.S. v. St. Cyr, 533 U.S. 289,
299-300 (2001)). And here, imposing a new twenty-year
liability period on Norwood would raise serious concerns
under the Double Jeopardy Clause. U.S. Const. amend. V, cl.
2.
When Norwood was convicted in 1997, he was
sentenced to pay a set amount of restitution with a fixed period
of liability, during which a maximum of twenty years of
interest could accrue. The Government argues that Norwood’s
2013 resentencing effectively wiped out his original liability
period and replaced it with a fresh twenty-year period, with no
credit given for the seventeen years he had already spent
subject to liability.
But imposing the same penalty twice for a single
offense without giving credit for the portion of a sentence
already satisfied is the very definition of a Double Jeopardy
violation. The Supreme Court has long held that the Double
Jeopardy Clause “absolutely requires that punishment already
32
exacted must be fully ‘credited’ in imposing sentence upon a
new conviction for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 718-19 (1969). This means that when a
defendant is resentenced to a term of imprisonment, “the
second sentence must be reduced by the time served under the
first.” Id. at 719. That is why, for example, it would violate
the Double Jeopardy Clause to resentence Norwood to a term
of imprisonment without crediting him for the seventeen years
he had already spent incarcerated before his 2013 resentencing,
or to impose a new restitution order without crediting Norwood
for the amount of money he had already paid towards his
restitution obligation.14 But that reasoning appears to apply
just as well to the duration of restitutionary liability imposed
on Norwood.
First, as we discuss in greater detail below, being
subject to restitutionary liability is a form of punishment. We
have recognized that restitution, like a term of imprisonment,
is a criminal penalty. See United States v. Leahy, 438 F.3d 328,
335 (3d Cir. 2006) (en banc) (“[R]estitution ordered as part of
a criminal sentence is criminal rather than civil in nature.”);
United States v. Palma, 760 F.2d 475, 479 (3d Cir. 1985)
(orders of restitution under the VWPA are criminal penalties);
United States v. Edwards, 162 F.3d 87, 91 (3d Cir. 1998)
(orders of restitution under the MVRA are criminal penalties).
A liability period is an integral and inextricable part of that
punishment; under the VWPA, once the liability period ends,
a defendant’s restitution obligation expires, leaving only an
unenforceable dollar amount. In this way, the VWPA’s period
14
As of the Government’s motion to collect on
Norwood’s inmate account on June 23, 2016, Norwood had
paid off $2,228.87 of his restitution.
33
of liability is analogous to a term of imprisonment or
supervised release; it is a specific period of time, fixed by law,
during which a convicted person’s rights are adjusted as part
of a criminal penalty. Increasing that period beyond what “the
legislature intended” implicates the Double Jeopardy Clause.
Missouri v. Hunter, 459 U.S. 359, 366 (1983).
Second, increasing the liability period will almost
always increase the total amount of restitution that can be
collected from a defendant. As we noted in our 2020 order
remanding this case on the ex post facto issue, “increase[ing]
the duration of [Norwood’s] liability” would “as a practical
matter . . . increase the amount that he ultimately must pay.”
App. 252-53 n.1. Increasing Norwood’s liability period would
also increase the total amount of interest owed beyond the
twenty years set by the VWPA, as under Loughman his interest
accrues from the entry of his original 1997 judgment.
Third, extending Norwood’s liability period without
crediting him for the seventeen years spent subject to liability
is at odds with the principles that animate our Double Jeopardy
jurisprudence. Doing so would frustrate his legitimate
expectation that the time he had already spent subject to
liability was behind him. A defendant may not have a
legitimate expectation in the finality of his sentence where the
law explicitly provides for the possibility that a sentence may
be later increased, see United States v. DiFrancesco, 449 U.S.
117, 137 (1980), but a defendant does have a legitimate
expectation of finality with respect to the portion of a sentence
already satisfied, see Pearce, 395 U.S. at 718-19. Moreover,
as we noted in United States v. DeLeo, the fairness component
of the Double Jeopardy Clause is also concerned with whether
“a defendant may be deterred from calling the court’s attention
to an error for fear of subjecting himself to greater
34
punishment.” 644 F.2d at 302. This is exactly the case here—
the Government violated Norwood’s rights under Booker, and
Norwood should not have to accept a second period of liability
as a condition of vindicating his constitutional rights.
The risks of a Double Jeopardy violation under the
Government’s interpretation of the VWPA are grave and thus
wisely avoided by the reading we adopt today. Cf. Castro, 835
F.3d at 435.
3. The Government’s Collection Efforts
Did Not Prevent Norwood’s Lien from
Becoming Unenforceable
Having explained why the VWPA’s twenty-year
liability period runs from the date of the original judgment that
gave rise to a restitution order unless the basis for restitution
liability is later disturbed, we turn to the next question: whether
the Government may nonetheless enforce an expired restitution
order by commencing collection before the liability period
ends.
This issue touches on the subtle yet important
distinction between two types of statutory periods: durational
periods and limitations periods. In United States v. Davis, 52
F.3d 781 (8th Cir. 1995), the Eighth Circuit neatly summed up
the difference in the context of another tax lien statute, 26
U.S.C. § 6324(a)(1): “If the period is durational, the
government has ten years to enforce the lien before it expires.
If the period is limitational, the government has ten years to
file its complaint.” Id. at 781. Thus, we must determine
whether the VWPA’s twenty-year liability period defines the
duration of Norwood’s lien—in which case, it was rendered
unenforceable on May 30, 2017—or whether it merely limits
35
when the Government may commence enforcement—in which
case, the Government’s timely enforcement action would
allow for collection to continue even after the twenty-year
period lapsed. We first consider the reasoning put forth by the
District Court before turning to the Government’s new
arguments attempting to cast the VWPA’s liability period as
limitational.
a) The District Court’s Reasoning
The District Court based its decision on 18 U.S.C. §
3613(c), which provides that a lien created by a restitution
order operates “as if the liability of the person fined were a
liability for a tax assessed under the Internal Revenue Code of
1986.” App. 6. The Court thus looked to the relevant portion
of the tax code, 26 U.S.C. § 6502(a), which provides that “[i]f
a timely proceeding in court for the collection of a tax is
commenced, the period during which such tax may be
collected by levy shall be extended and shall not expire until
the liability for the tax (or judgment against the taxpayer
arising from such liability) is satisfied or becomes
unenforceable.” App. 6-7 (emphasis in original). Based on
this language, the District Court concluded that, because the
Government’s motion to collect on Norwood’s lien was filed
before the lien expired, “the United States [was] entitled to
seek foreclosure of its lien.” App. 7 (quoting United States v.
Pegg, No. 16-60289-CIV, 2016 WL 5234616, at *2 (S.D. Fla.
Sept. 22, 2016)).
There are two reasons why this analysis is mistaken, as
even the Government concedes on appeal. First, despite the
fact that this case was remanded on an ex post facto challenge
based on the potentially impermissible retroactive application
of the MVRA, the District Court cited the MVRA version of
36
§ 3613. The VWPA version of § 3613—which was in effect
at the time of Norwood’s crimes—did not provide for
enforcement of restitution orders via the mechanism for
enforcing tax liens. Compare 18 U.S.C. § 3613(a) (1994) with
18 U.S.C. § 3613(c) (2000). The MVRA amended § 3613 to
provide for additional enforcement mechanisms, including §
6502(a). But that mechanism would not have been available
to the Government under the VWPA version of § 3613(b),
which enumerated specific circumstances under which the
VWPA’s liability period could be extended or suspended: (1)
“by a written agreement between the person fined and the
Attorney General;” and (2) “during any interval for which the
running of the period of limitations for collection of a tax
would be suspended pursuant to” certain specific provisions of
the tax code, none of which included the tax code provision
relied upon by the District Court.15 18 U.S.C. § 3613(b)
(1994). By applying the MVRA version of § 3613
retroactively to Norwood’s restitution obligation, the District
15
The VWPA version of § 3613 incorporates “6503(b),
6503(c), 6503(f), 6503(i), or 7508(a)(1)(I) of the Internal
Revenue Code of 1986 (26 U.S.C. 6503(b), 6503(c), 6503(f),
6503(i), [] 7508(a)(1)(I)), [and] section 513 of the Act of
October 17, 1940, 54 Stat. 1190.” 18 U.S.C. § 3613(b) (1994).
These provisions relate to periods during which assets are in
“control or custody” of a court (26 U.S.C. § 6503(b)), the
taxpayer is outside the United States (§ 6503(c)), assets of third
parties have been wrongfully seized (§ 6503(f)), liability for
PFIC earning taxes has been suspended (§ 6503(i)), or the
taxpayer is serving in the armed forces (§ 7508(a)(1)(A)). The
reference to the Act of October 17, 1940, relates to taxes on
sugar. None have anything to do with collection actions.
37
Court thus increased his criminal punishment and merely
replaced one ex post facto problem with another.
Second, even if 26 U.S.C. § 6502(a) did apply to
Norwood’s restitution obligations under the VWPA, the
Government still would have been unable to collect after the
liability period expired. Section 6502(a) provides that a timely
collection proceeding will extend “the period during which
such tax may be collected” until the tax “is satisfied or becomes
unenforceable.” The District Court read this language to mean
that the Government’s motion to collect on Norwood’s lien
prevented his liability from expiring. The flaw in that logic is
that § 6502 explicitly provides that, even if the Government
tolls a lien by commencing a collection action, that lien will
still expire when “the liability for the tax . . . becomes
unenforceable,” 26 U.S.C. § 6502(a), and the VWPA version
of § 3613(b) provides that a restitution lien “becomes
unenforceable” after twenty years. In short, even under
§ 6502(a) the Government would not be able to collect.16
16
The District Court cited a district court case out of
Florida, in which the court held that the Government’s filing of
a collection action eight days before the twenty-year liability
period expired prevented the lien from expiring and allows the
Government to proceed. See United States v. Pegg, No. 16-
60289-CIV, 2016 WL 5234616, at *2 (S.D. Fla. Sept. 22,
2016). The Pegg court did not address the VWPA’s
unenforceability provision because it was interpreting the
MVRA version of § 3613, which never renders a lien
“unenforceable,” but simply describes when a defendants’
liability terminates. See 18 U.S.C. § 3613(b).
38
b) The Government’s New
Arguments
Recognizing the District Court’s error in relying upon
§ 6502(a), the Government offers up alternative reasons for
why commencing its collection effort before the end of
Norwood’s twenty-year liability period prevented his
restitution lien from becoming unenforceable. None is
persuasive.
The Government begins by pointing to Dolan v. United
States, in which the Supreme Court interpreted a provision of
the MVRA requiring a sentencing court to “set a date for the
final determination of the victim’s losses, not to exceed 90 days
after sentencing.” 560 U.S. 605, 613 (2010) (quoting 18
U.S.C. § 3664(d)(5)). In Dolan, the sentencing court attempted
to hold a restitution hearing after the 90-day period had lapsed,
and the defendant argued that the MVRA no longer authorized
the court to impose restitution. See id. at 609. The Supreme
Court disagreed, however, and held that the MVRA did not
prevent a court from imposing restitution after 90 days—in
other words, that the statutory period did “not deprive a judge
. . . of the power to take action to which the deadline applies if
the deadline is missed.” Id. at 611.
The Government reads Dolan as standing for the broad
proposition that a missed statutory deadline will not prevent
the Government from acting with respect to restitution. But
that reading is mistaken. The Dolan Court was clear that many,
if not most, statutory deadlines do in fact carry with them
consequences that limit or strip the Government of its ability
to act once a deadline has passed, see id. at 610-11, and that the
MVRA’s 90-day deadline was an exception to this general
rule. It reached that conclusion based on distinct textual
39
features of the MVRA deadline. For example, while statutes
like the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), require
dismissal of an indictment for a missed deadline, the MVRA
deadline did not “specify a consequence for noncompliance”
with the 90-day period. Dolan, 560 U.S. at 611 (citation
omitted). To the contrary, another MVRA provision permitted
victims to petition for an amended restitution order even after
the deadline had passed. See id. at 613.
Such features, however, are conspicuously absent from
the VWPA, which instead imposes an explicit and severe
consequence: that “[a] lien becomes unenforceable” after the
twenty-year deadline passes. 18 U.S.C. § 3613(b) (1994)
(emphasis added). That unenforceability provision, combined
with the separate provision governing the expiration of a
defendant’s obligation to pay, makes clear that when the
Government fails to complete its collection effort within
twenty years, it may no longer enforce its lien. If any doubt
remained, the VWPA enumerates specific circumstances under
which its liability period may be extended or suspended, and
an enforcement action by the Government is not among them.
See id. In short, Dolan is inapposite here.
The Government next analogizes to caselaw in the
probation and supervised release context, pointing out that
where a defendant commits a violation so close to the end of
their supervision that it would be impracticable for the
Government to hold a revocation hearing before the period
expires courts have allowed for revocation hearings to be held
after the expiration date so long as sufficient process was
issued before that date.
From this, the Government urges a general principle
that it may enforce the laws so long as it moves to do so before
40
the end of a statutory period. But we are not trading in general
principles; we are interpreting a statute, and in each of the cases
cited by the Government, the relevant statute implicitly, if not
explicitly, authorized revocation hearings after the relevant
expiration date. See, e.g., United States v. Barton, 26 F.3d 490,
491 (4th Cir. 1994) (holding that 18 U.S.C. § 3583(e)(3)
permitted courts to hold revocation hearings after the release
period ended based on an explicit reference to the Federal
Rules of Criminal Procedure, which included a “reasonable
time” standard for holding revocation hearings); United States
v. Neville, 985 F.2d 992, 995 (9th Cir. 1993) (same); United
States v. Bazzano, 712 F.2d 826, 835 (3d Cir. 1983) (en banc)
(holding that 18 U.S.C. § 3653, by providing that probation
revocation hearings would occur “[a]s speedily as possible
after arrest,” impliedly allowed for hearings outside of the
statute’s five-year period); Franklin v. Fenton, 642 F.2d 760,
763 (3d Cir. 1980) (holding that 18 U.S.C. § 4213(b)
“implicitly approved” of deferring a warrant for revocation of
parole until after the parole period expired when it provided
that “a warrant may be suspended pending disposition of a
charge”).
The VWPA, on the other hand, could not be more
explicit that no further action is authorized after its liability
period expires: the lien becomes “unenforceable.” 18 U.S.C. §
3613(b) (1994). This language makes clear that the VWPA’s
liability window is not a limitations period that exists simply
to encourage the Government to act promptly—rather, it is a
durational period that furthers the important interest of finality
by demarcating a clear end to the defendant’s liability after
twenty years, whether or not the Government has commenced
collection.
41
Finally, in a last-ditch policy argument, the Government
contends that construing the VWPA’s twenty-year liability
period to make it harder for the Government to collect on
restitution liens frustrates the important goal of providing
restitution to victims of crime. That, however, is an argument
for passing the MVRA, not for judicially amending the
VWPA’s clear text.
B. Applying the MVRA to Extend Norwood’s
Liability Period Would Violate the Ex Post
Facto Clause
Having determined that the VWPA cannot be construed
to permit the Government to enforce Norwood’s restitution
obligation, we must now decide whether application of the
MVRA to extend Norwood’s liability period violates the Ex
Post Facto Clause.
1. The MVRA Is a Penal Statute Being
Applied Retroactively to Norwood
To establish an Ex Post Facto Clause violation,
Norwood must show that (1) “there was a change in the law or
policy that has been given retrospective effect,” and (2) the law
“disadvantaged” him by either altering the definition of
criminal conduct or increasing the punishment for the crime.
Newman v. Beard, 617 F.3d 775, 784 (3d Cir. 2010) (citation
omitted). A law applies retroactively where it “attaches legal
consequence to a crime committed before the law took effect.”
Weaver v. Graham, 450 U.S. 24, 31 (1981).
Here, there is no question that application of the MVRA
would give it retroactive effect. Congress enacted the MVRA
on April 24, 1996, twelve days after Norwood committed his
42
crimes. See Edwards, 162 F.3d at 88-89 (holding that the
MVRA was applied retroactively to a defendant who was
sentences after the MVRA’s passage but whose crimes
occurred before the MVRA was enacted). But would its
application disadvantage Norwood by increasing the
punishment for his crime? To answer this question, we first
lay out the relevant background principles, and then consider
the retroactive effect of applying the MVRA’s liability period
to two aspects of Norwood’s restitution obligation: the amount
of restitution owed, and the duration of his liability.
2. General Ex Post Facto Principles
The Ex Post Facto Clause provides that “[n]o . . . ex post
facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3. This
Clause, which “the Framers ranked [] among the Constitution’s
most fundamental guarantees,” Holmes v. Christie, 14 F.4th
250, 258 (3d. Cir. 2021), furthers vital liberty interests in
several ways. It constrains legislatures by prohibiting them
from “enacting arbitrary and vindictive” laws targeting
disfavored groups, id. (quoting Miller v. Florida, 482 U.S. 423,
429-30 (1987), abrogated on other grounds by Cal. Dep’t of
Corr. v. Morales, 514 U.S. 499, 506-07 n.3 (1995)), and by
“confining [them] to penal decisions with prospective effect,”
and “leaves the application of existing penal law” to the
judicial and executive branches, id. (quoting Weaver, 450 U.S.
at 29 n.10). It also ensures that individuals have “fair warning”
as to the penal consequences of particular conduct, Weaver,
450 U.S. at 28, and that defendants “know the range of
punishments” that are possible “during the adjudication of their
case, so that they can plea bargain and strategize effectively.”
Mickens-Thomas v. Vaughn, 321 F.3d 374, 391-92 (3d Cir.
2003).
43
The essence of an Ex Post Facto Clause violation is that
a law “increase[s] the punishment” for a crime after the fact.
Garner v. Jones, 529 U.S. 244, 249 (2000). Since the
Founding, the nature of criminal punishment has evolved; so,
too, has our understanding of the Ex Post Facto Clause. At the
Founding, for example, “long prison sentences were unusual,
and parole was almost unknown.” Holmes, 14 F.4th at 258.
But as parole and other forms of supervised release became
widespread, we recognized that the Ex Post Facto Clause
necessarily applies to laws that affect the availability of early
release and thus carry a “‘significant’ risk of increasing a
[defendant’s] time behind bars.” Id. (quoting Morales, 514
U.S. at 508). Likewise, courts have responded to the prolific
rise of criminal restitution by extending the Ex Post Facto
Clause’s guarantee. Both we and the Supreme Court have long
recognized that restitution, including under the MVRA and the
VWPA, is a criminal penalty. See Pasquantino v. United
States, 544 U.S. 349, 365 (2005); Leahy, 438 F.3d at 335;
Palma, 760 F.2d at 479; Edwards, 162 F.3d at 91.
To decide if a change in law will increase the
punishment for a crime, certainty is not required; rather, a
defendant must show only that the legal change creates “a
significant risk of increasing the measure of punishment
attached to the covered crimes.” Garner, 529 U.S. at 250(citation omitted). We do not take a formalistic approach to
this inquiry; rather, “a challenged rule’s constitutionality
hinges on its effect, not its form.” Holmes, 14 F.4th at 264.
For this same reason, we do not draw distinctions between
substantive or procedural rules; we look only to the effect of a
rule on a given punishment. See id. at 264-65. We also do not
require that a law alter the sentence as written; it is enough if a
change in the law poses a significant risk of increasing the
44
portion of a sentence that a defendant will actually be made to
satisfy. See Garner, 529 U.S. at 251, 255.
Our caselaw in the ex post facto context identified two
other principles that are relevant here. In Mickens-Thomas, we
considered a 1996 amendment to Pennsylvania’s Parole Act
that changed the substantive criteria for considering parole
applications by increasing the weight assigned to public safety
concerns. See 321 F.3d 377-78, 385-86. We held that this
amendment violated the Ex Post Facto Clause as applied
because, even though there had been no change in the
petitioner’s formal term of imprisonment, the added emphasis
on public safety hurt his chances of obtaining release and thus
had the practical effect of increasing the portion of his sentence
that he would actually serve. See id. at 392-93. Mickens-
Thomas reflects the reality that defendants make strategic
decisions based on their understanding of the availability of
future parole, and that a prisoner is “entitled to know . . . his or
her chances of receiving early release.” Id. at 392.
In Edwards, we held that retroactively applying the
MVRA’s mandatory restitution provision to a defendant who
was unable to pay violated the Ex Post Facto Clause because,
under the VWPA, courts were required to consider a
defendant’s ability to pay, meaning that the defendant “would,
in all likelihood, not be held accountable for the full amount”
but for application of the MVRA. 162 F.3d at 88-89.
With these principles in mind, we consider the
consequences of retroactively applying the MVRA to
Norwood as to both the amount of his restitution and the
duration of his liability.
3. The Amount of Restitution
45
When Norwood committed his crimes in 1996, the
VWPA provided notice that the punishment of restitution,
though discretionary, was a potential consequence of his
conduct. But the VWPA also placed two clear limits on the
amount of restitution that a defendant would ultimately have to
pay. First, the VWPA’s twenty-year liability period, coupled
with its interest provision, established a numerical limit on the
amount that could be owed: the principal plus a maximum of
twenty years of interest. Second, the VWPA’s liability period
created a durational limit on the amount of funds that could be
collected: after twenty years, a restitution lien would become
unenforceable and a defendant’s future earnings would be
exempt from collection going forward. For a defendant like
Norwood, who from the start owed more in restitution than he
would likely ever be able to pay, this was significant; it meant
that he could reasonably expect that the Government would
only be able to collect on whatever funds he acquired over the
course of twenty years while incarcerated, likely much less
than the amount listed in his restitution order.
Under the MVRA, of course, the math is very different.
Norwood’s lien would accrue interest through his entire term
of imprisonment, plus an additional twenty years after that, and
the Government would also be able to collect on any future
funds Norwood might obtain for decades following his
eventual release. In effect, Norwood would almost certainly
end up owing a greater total amount and paying a greater
portion of that amount than he would under the VWPA.17
17
Our dissenting colleague contends that the additional
accrual of interest is not a form of punishment because this
interest merely reflects the time-value of Norwood’s restitution
obligation and is necessary to ensure that victims are not short-
46
A change in law that increases the amount of restitution
a defendant will ultimately have to pay violates the Ex Post
Facto Clause. See Edwards, 162 F.3d at 89-92. And a law can
also violate the Ex Post Facto Clause by increasing the portion
of a sentence that a defendant will ultimately have to satisfy.
See Mickens-Thomas, 321 F.3d at 392-93. Together, these
cases stand for the proposition that a law violates the Ex Post
Facto Clause if it increases either a defendant’s total restitution
obligation or the portion of that obligation they must ultimately
pay.
The Government disagrees and would have us look only
at the total amount of restitution as printed on Norwood’s
changed by delayed payment. We agree that one of the
purposes of the MVRA’s interest provisions is to make victims
whole. But the fact that interest, like restitution generally, has
compensatory purposes does not “detract from its status as a
form of criminal penalty when imposed as an integral part of
sentencing.” Edwards, 162 F.3d at 92. The dissent errs by
examining Norwood’s interest from the perspective of his
victims; for Ex Post Facto purposes, we must adopt the
perspective of the defendant and ask whether applying the
MVRA’s greater interest creates a “significant risk” of
increasing his punishment—i.e., the amount of restitution he
may be made to pay. Holmes, 14 F. 4th at 258. Moreover, when
deciding if such a risk exists, we are required to look beyond
the form that a rule takes and to focus instead on its effect. See
id. at 264. Here, regardless of the label attached to the increase
in Norwood’s restitution obligation—“interest” or a
“penalty”—the effect from Norwood’s perspective is the same:
he must pay more under the MVRA than under the VWPA.
47
judgment, with no mind to interest, future collections, or the
practical effects that applying the MVRA would have. The
cases on which it relies, however, do not convince us.
First, the Government points to courts which have held
that retroactive application the MVRA’s liability period does
not violate the Ex Post Facto Clause because they have likened
the liability period to a statute of limitations. See United States
v. Blackwell, 852 F.3d 1164, 1166 (9th Cir. 2017) (per curiam);
United States v. Glenn, No. 21-5010, 2021 WL 5873144, at *2
(10th Cir. Dec. 13, 2021); United States v. Rosello, 737 F.
App’x 907, 909 (11th Cir. 2018); United States v. Richards,
472 F. App’x 523, 524-25 (9th Cir. 2012). This is significant
because increases to statutes of limitations do not implicate the
Ex Post Facto Clause so long as they only apply to unexpired
limitations periods. See Stogner v. California, 539 U.S. 607,
618 (2003); United States v. Richardson, 512 F.2d 105, 106
(3d Cir. 1975).
But the MVRA’s liability period is not a statute of
limitations. The liability period and a statute of limitations
have very different legal effects. A statute of limitations
creates a procedural bar to seeking a remedy or prosecuting a
crime but does not extinguish a plaintiff’s underlying rights or
the crime itself, as evidenced by the fact that a statute of
limitations is an affirmative defense that can be waived. See
United States v. Oliva, 46 F.3d 320, 325 (3d Cir. 1995). The
MVRA, in contrast, expressly extinguishes a defendant’s
liability once the liability period has run. See 18 U.S.C.
§ 3613(b).
The MVRA’s liability period also serves a different
purpose than a statute of limitations. A statute of limitations
ensures cases are brought while evidence is still ripe, a purpose
48
already served by the statutes of limitations that apply to
Norwood’s underlying crimes. See Stogner, 539 U.S. at 615.
In contrast, the purpose of the MVRA’s liability period, like
the VWPA’s, has nothing to do with evidentiary concerns and
aims instead to place a clear temporal limit on a defendant’s
liability. The cases cited by the Government comparing the
MVRA’s liability period to a statute of limitations are therefore
unhelpful.
Next, the Government argues, based on precedent
distinguishing between “procedural” and “substantive” rules,
that purely procedural changes in law do not implicate the Ex
Post Facto Clause at all. See, e.g., Blackwell, 852 F.3d at 1166;
United States v. Phillips, 303 F.3d 548, 551 (5th Cir. 2002).
But both we and the Supreme Court have refused “to define the
scope of the [Ex Post Facto] Clause along an axis
distinguishing between laws involving ‘substantial
protections’ and those that are merely ‘procedural.’” Holmes,
14 F.4th at 265 (quoting Carmell v. Texas, 529 U.S. 513, 539
(2000)). Instead, we look to whether the rule has the practical
effect of increasing a defendant’s punishment. Id. In any
event, the distinction between procedure and substance is
immaterial here because the MVRA’s enforcement mechanism
is not procedural. Like the VWPA, the MVRA creates an
enforceable property interest in the form of a lien, which in turn
creates corresponding substantive legal rights and obligations.
Finally, the cases cited by the Government fixate on
whether the amount of restitution as memorialized in a
judgment remains unchanged. See, e.g., Blackwell, 852 F.3d
at 1166. But that singular focus does not account for interest,
which will contribute, under the MVRA, to increase the total
amount Norwood will owe. It is also contrary to our case law,
which holds that changes to parole criteria can violate the Ex
49
Post Facto Clause even if they leave a formal sentence
unaltered so long as their practical effect is to increase the
portion of that sentence that a defendant is likely to serve. See
Mickens-Thomas, 321 F.3d at 392-93. This same logic applies
here: a change in law that has the practical effect of increasing
either the total amount of a defendant’s restitution or the
portion of a defendant’s restitution that they must ultimately
pay violates the Ex Post Facto Clause.
Here, retroactive application of the MVRA would (1)
allow the Government to collect on the funds at issue here,
which Norwood would otherwise not have to pay; (2) increase
the total amount of Norwood’s restitution obligation by
subjecting him to decades of additional interest; and (3)
increase the portion of Norwood’s restitution that he must
ultimately pay by permitting the Government to seek collection
over a greater period of time, including on future income that
would otherwise never be subject to collection under the
VWPA. Each one of these constitutes a retroactive increase in
Norwood’s punishment in violation of the Ex Post Facto
Clause.
4. The Duration of Restitutionary
Liability
We recognize, too, that being subject to restitutionary
liability is its own form of criminal punishment, independent
of the amount a defendant owes, such that extending the
duration of a defendant’s liability period may itself violate the
Ex Post Facto Clause.
While the Government tries to characterize the
MVRA’s liability period as simply limiting the Government’s
ability to collect on a restitution order, that argument ignores
50
how the MVRA actually operates. When a defendant is
sentenced to pay restitution, the MVRA creates a lien—a
property interest—in favor of the Government and imposes on
the defendant a punitive legal obligation—i.e., a punishment.18
That punishment continues until the lien “is satisfied, remitted,
set aside, or is terminated” at the end of the liability period. 18
U.S.C. § 3613(c). Thus, any extension of the liability period is
a de facto increase of a criminal punishment.
The punitive nature of restitutionary liability under the
MVRA is also apparent from the collateral consequences that
attach to criminal restitutionary liability.19 Under both the
18
The Government urges us to distinguish between the
imposition of restitution, which it concedes is a form of
punishment, and enforcement of that restitution. But
imposition of restitution is meaningless without enforcement,
and both are integral components of a defendant’s punishment.
Similarly, the Government argues that, while the imposition of
restitution may be sufficiently punitive in nature to trigger the
Ex Post Facto Clause, the Clause should not apply to the
collection of restitution because collection is primarily
compensatory in nature. We were clear in Edwards, however,
that “the compensatory purposes of criminal restitution [do
not] detract from its status as a form of criminal penalty
when imposed as an integral part of sentencing.” 162 F.3d
at 92. That is true of both the imposition of restitution and
its collection.
19
The Government protests that we should not consider
the existence of collateral consequences imposed by other state
and federal statutes because the key issue is whether Congress
intended for the MVRA’s liability period to be punitive in
51
VWPA and the MVRA, for instance, an unpaid restitution
obligation instantly becomes an added condition of parole or
supervised release. See 18 U.S.C. § 3663(g) (1994); 18 U.S.C.
§ 3664 (1994). And in many states, having an outstanding
criminal restitution liability means being denied the right to
vote, see, e.g., Fla. Stat. § 98.0751(2)(a)(5)(a), to serve on a
jury, see, e.g., S.D. Codified Laws §§ 23A-27-18, 23A-27-35,
or to run for office, see, e.g., N.C. Const. art. VI, § 8, along with
suspension of one’s driver’s license, see, e.g., N.J. Stat. Ann.
§ 2C:46-2, or the right to own a firearm, see, e.g., Utah Code
Ann. §§ 77-40a-303, 76-10-503, 77-18-114; see also Cortney
E. Lollar, What Is Criminal Restitution?, 100 Iowa L. Rev. 93,
98, 129 (2014). In addition, for many who struggle to pay off
their restitution obligations, the threat of future incarceration
looms. See id. at 128 (describing a pattern of judges deeming
failures to pay restitution “willful” and sentencing individuals
to prison). The Government’s answer is that a defendant may
nature. But we presume that Congress was aware of the
existence of an extensive set of collateral consequence—
attaching only to criminal restitutionary liability—when it
enacted the MVRA and extended the period of liability for
what it understood to be a criminal punishment. Likewise, our
dissenting colleague contends that the potential of collateral
consequences attaching to Norwood’s restitutionary liability is
irrelevant because Norwood brings an as-applied challenge and
has not identified any specific collateral consequence to which
he will be subjected. That observation, however, misses the
mark. Our point is not that restitution in connection with
sentencing can become a form of criminal punishment when
collateral consequences attach; it is that rather, that collateral
consequences can attach because that restitution is a form of
criminal punishment in the first place.
52
escape these consequences simply by paying off their
restitution, but this would be cold comfort for the many
defendants who, like Norwood, may never be able to pay off
their restitution. For these defendants, punishment would
continue until the statutory liability period expires.
With this in mind, retroactive application of the MVRA
to Norwood would increase his punishment by subjecting him
to additional decades of liability, supervision, and collateral
consequences, even if he ultimately never paid a cent more
than he would have under the VWPA. This extension, like his
increased financial obligations, is a retroactive increase in
punishment that is forbidden by the Ex Post Facto Clause.
V. Conclusion
As the nature of criminal punishment evolves, the
fundamental promise of the Ex Post Facto Clause endures.
Criminal restitution—including both the amount owed and the
duration of liability—is a form of criminal punishment subject
to that same promise. Here, where the plain text of the VWPA
cannot be construed to permit the Government’s efforts to
enforce Norwood’s restitution order, the Ex Post Facto Clause
prevents the Government from doing so by retroactively
applying the MVRA’s liability period to increase the duration
of his restitutionary liability. We will therefore reverse the
decision of the District Court and remand with instructions to
deny the Government’s motion to authorize the BOP to turn
over the funds in Norwood’s inmate account.
53
PHIPPS, Circuit Judge, dissenting.
In 1996, Michael Norwood stole a car and robbed a bank in
Old Bridge, New Jersey. For those crimes, he received an
initial prison sentence of life plus twenty-five years, which was
later reduced through subsequent amendments so that his
scheduled release is in October 2031. His sentence also
required that he pay restitution in the amount of $19,562.87.
But Norwood has paid only a portion of that restitution, leaving
the crime victims undercompensated for over 26 years.1
Shortly after Norwood committed his crimes in 1996, but
before he received his sentence in 1997, Congress enacted the
Mandatory Victims Restitution Act, which extended the
preexisting twenty-year period for charging interest on and
collecting restitution awards.2 Congress specified that the
1
See 18 U.S.C. § 3663(c)(3)(A) (2018) (providing for the
payment of restitution “to the State entity designated to
administer crime victim assistance in the State in which the
crime occurred”); United States v. Bach, 172 F.3d 520, 523
(7th Cir. 1999) (explaining that the MVRA “enables the tort
victim to recover his damages in a summary proceeding
ancillary to a criminal prosecution”).
2
Compare Mandatory Victims Restitution Act of 1996, Pub.
L. No. 104-132, § 207, 110 Stat. 1214, 1238 (Apr. 24, 1996)
(codified at 18 U.S.C. § 3613(b) (2018)) (providing that
restitution liability “shall terminate” “20 years from the entry
of judgment or 20 years after the” person liable is released from
prison, whichever is later), with Victim and Witness Protection
Act of 1982, Pub. L. No. 97-291, § 5(a), 96 Stat. 1248, 1255
(Oct. 12, 1982) (codified at 18 U.S.C. § 3663(h)(1)(A) (1994),
and incorporating 18 U.S.C. § 3613(b)(1) (1994)) (providing
that “[a] lien becomes unenforceable and liability to pay a fine
expires . . . twenty years after the entry of the judgment”).
1
MVRA should apply to convictions like Norwood’s.3 But
Norwood argues that, as applied to him, the MVRA violates
the Constitution’s Ex Post Facto Clause. See U.S. Const. art. I,
§ 9 cl. 3.
For Norwood’s ex post facto challenge to succeed, the
MVRA must create a “‘significant’ risk” of increasing his
punishment. Holmes v. Christie, 14 F.4th 250, 258 (3d Cir.
2021) (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499,
508 (1995)).4 Using that effects test, the Majority Opinion
holds that the MVRA poses two such significant risks. I
respectfully disagree.
First, the Majority Opinion concludes that the MVRA
increases Norwood’s punishment by allowing a higher
“numerical limit” for the amount of money that he has to pay
in restitution. Maj. Op. at III.B.3. At first, the Majority
Opinion’s position may have appeal: by affording the
3
See Pub. L. No. 104-132, § 211, 110 Stat. 1214, 1241
(Apr. 24, 1996) (stating that the MVRA shall apply to
“sentencing proceedings in cases in which the defendant is
convicted on or after the [Act’s] date of enactment”); 18 U.S.C.
§ 2248 (statutory notes).
4
See also Peugh v. United States, 569 U.S. 530, 550 (2013)
(“Our ex post facto cases . . . have focused on whether a change
in law creates a ‘significant risk’ of a higher sentence[.]”);
Garner v. Jones, 529 U.S. 244, 255 (2000) (explaining that a
legal change violates the Ex Post Facto Clause when it creates
“a significant risk of increasing [the defendant’s]
punishment”); Mickens-Thomas v. Vaughn, 321 F.3d 374, 391
(3d Cir. 2003) (“[T]he Ex Post Facto clause prohibit[s] the
application of post-conviction laws to prisoners that would
result in a significant increase in the chances of prolonged
incarceration.” (citing Garner, 529 U.S. at 251)).
2
government more time (in Norwood’s case, twenty years from
his release from prison) to charge interest and collect
restitution, including through liens, it is likely that Norwood
will pay more money than he would under the preexisting cut-
off (twenty years from the date of his sentence).5 But that
analysis ignores arguably the biggest effect associated with
money – its time value.
Due to considerations of opportunity cost and often
inflation, money is worth more in the present than in the
future.6 That is true here as $19,562.87 was more valuable in
1996 than in 2016, when the twenty-year collection term of the
prior statute expired.7
5
Compare Mandatory Victims Restitution Act of 1996, Pub.
L. No. 104-132, § 207, 110 Stat. 1214, 1238 (Apr. 24, 1996)
(codified at 18 U.S.C. § 3613(b) (2018)), with Victim and
Witness Protection Act of 1982, Pub. L. No. 97-291, § 5(a),
96 Stat. 1248, 1255 (Oct. 12, 1982) (codified at 18 U.S.C.
§ 3663(h)(1)(A) (1994)).
6
See, e.g., Lawrence Lokken, The Time Value of Money Rules,
42 Tax L. Rev. 1, 10–11 (1986) (describing ‘time value of
money’ as “compensation for the use of money in every
deferred payment transaction,” which accounts for the reality
that “the right to $1,000 in 10 years is worth less than $1,000
presently in hand”); see also generally, Pamela Peterson Drake
& Frank J. Fabozzi, Foundations and Applications of the Time
Value of Money (1st ed. 2009).
7
For example, the annual average Consumer Price Index rose
from 156.9 in 1996 to 240.0 in 2016. See Databases, Tables
& Calculators by Subject, U.S. Bureau of Labor Statistics,
https://data.bls.gov/timeseries/CUUR0000SA0?years_option
=all_years (last visited Sept. 1, 2022).
3
The charging of a non-usurious interest rate offsets the loss
in value of a restitution award over time,8 and that is not
punitive.9 Here, by extending the period for charging interest
and collecting restitution, the MVRA ensures only that
Norwood does not receive a windfall from his criminal activity
by having to pay later-in-time amounts that are not worth as
much as if they had been paid earlier.10 Thus, even if Norwood
makes payments for a longer period of time and is subject to
liens along the way, that does not mean that he will have to pay
a value greater than that imposed by his initial sentence. Put
differently, because paying more money later under the MVRA
does not increase the value of Norwood’s initial restitution
8
See Gov’t of V.I. v. Davis, 43 F.3d 41, 47 (3d Cir. 1994)
(“Lost interest translates into lost opportunities, as it reflects
the victim’s inability to use his or her money for a productive
purpose.”); Catharine M. Goodwin, Federal Criminal
Restitution § 7:11 (Aug. 2022 update) (explaining that
“interest is simply a proxy for lost opportunity and represents
time-value of the victim’s money”).
9
See United States v. Sleight, 808 F.2d 1012, 1020 (3d Cir.
1987) (affirming the inclusion of post-judgment interest in a
restitution order because “[o]nce a fine or penalty has been
reduced to a judgment, it does not differ in essence from a
judgment arising out of civil proceedings”).
10
See id. at 1021 (explaining that, if the individual ordered to
pay restitution “were not required to pay post-judgment
interest, he would have an economic incentive to delay such
payment until the last possible opportunity,” a result that
“seems inconsistent with the purposes that impelled Congress
to provide for restitution,” at least one of which is to make the
victim whole).
4
liability, it does not present a significant risk of increased
punishment.11
Rather than appreciating the effect of the time value of
money, the Majority Opinion looks to ex post facto
jurisprudence concerning the duration of incarceration. See
Maj Op. III.B.2 (relying on Garner, 529 U.S. 244; Holmes,
14 F.4th 250; and Mickens-Thomas, 321 F.3d 374). Yet those
cases do not address monetary obligations. And they are
distinguishable from this context because time affects
incarceration and money inversely: as the period of
incarceration increases, so does the punishment, but as the
period for repayment of a monetary sum increases, the burden
of the obligation decreases. Thus, accounting for the time
value of money, the MVRA does not pose a significant risk of
increasing the real value of Norwood’s restitution liability.
The Majority Opinion’s second rationale relates to the
effect of the MVRA’s extended time period for collecting
restitution in combination with various other laws that impose
limitations on persons with outstanding criminal restitution
obligations. See Maj. Op. III.B.4. But Norwood brings an as-
applied challenge, and none of the laws identified by the
Majority Opinion have any effect on the application of the
MVRA that Norwood disputes: the government’s reliance on
11
Because the MVRA did not alter Norwood’s initial
restitution liability, this case is distinguishable from United
States v. Edwards, 162 F.3d 87 (3d Cir. 1998). That case,
unlike this one, implicated the MVRA’s mandatory restitution
provision, 18 U.S.C. § 3663A, which by making restitution
mandatory, presented a significant risk of increased initial
restitution liability for a criminal defendant who may not
otherwise have been sentenced to restitution. See id. at 89–90.
5
the MRVA to collect $5,931.40 from Norwood’s inmate trust
account.
Even considering the broader collateral consequences that
the Majority Opinion identifies, none pose a significant risk of
increased punishment to Norwood. The Majority Opinion cites
laws from Florida, South Dakota, North Carolina, and Utah,
but Norwood is scheduled to be imprisoned in New Jersey until
2031. Nothing in the record suggests that those laws from
other states would ever have any effect on him, much less that
they would pose a significant risk of increasing his
punishment.12 Nor would the New Jersey statute13 that
suspends driving privileges for persons with unpaid restitution
obligations have any impact on Norwood for the next nine
years while he is incarcerated. And even if that statute in
combination with the MVRA did pose a significant risk of
increased punishment to Norwood later (an argument Norwood
never makes), the remedy would be to invalidate the MVRA’s
application in only that respect. Finally, the sole federal
collateral consequence identified by the Majority Opinion is
the condition on Norwood’s supervised release that he pay the
amount of unpaid restitution. But such a condition of
supervised release is not new: it predates the MVRA.14 And
12
See Fla. Stat. § 98.0751(2)(a)(5)(a) (relating to the right to
vote); S.D. Codified Laws §§ 23A-27-18, 23A-27-35 (relating
to the right to serve on a jury); N.C. Const. art. VI, § 8 (relating
to the right to run for office); Utah Code Ann. §§ 77-40a-303,
76-10-503, 77-18-114 (relating to the right to own a firearm).
13
See N.J. Stat. Ann. § 2C:46-2.
14
Compare Mandatory Victims Restitution Act of 1996, Pub.
L. No. 104-132, § 203, 110 Stat. 1214, 1227 (Apr. 24, 1996)
(codified at 18 U.S.C. § 3563 (2018)), with Victim and
Witness Protection Act of 1982, Pub. L. No. 97-291,
6
even so, there is not a significant risk that Norwood would be
in violation of that condition if he did not have the resources to
make the payment.15 Thus, even if these collateral
consequences had any relationship to Norwood’s challenge to
the collection of money from his inmate trust account, they
would still suffer from two fatal flaws: they “rest[] on
speculation,” Garner, 529 U.S. at 256, and they produce
nothing more than “some ambiguous sort of ‘disadvantage,’”
Morales, 514 U.S. at 506 n.3 (quoting Lindsey v. Washington,
301 U.S. 397, 401 (1937); Weaver v. Graham, 450 U.S. 24, 29
(1981); and Miller v. Florida, 482 U.S. 423, 433 (1987)).
In sum, the MVRA, as applied to Norwood, does not offend
the Ex Post Facto Clause, and I would affirm the judgment of
the District Court.
§ 3579(g), 96 Stat. 1248, 1255 (Oct. 12, 1982) (codified at
18 U.S.C. § 3663(g) (1994)); see also 18 U.S.C. § 3613A(a)(1)
(2018) (“Upon a finding that the defendant is in default on a
payment of . . . restitution, the court may . . . revoke probation
or a term of supervised release, modify the terms or conditions
of probation or a term of supervised release, resentence a
defendant pursuant to section 3614, . . . or take any other action
necessary to obtain compliance with the order of a fine or
restitution.”).
15
See 18 U.S.C. § 3613A(a)(2) (requiring that the court, before
modifying or revoking a term of supervised release, consider
the defendant’s “financial resources” and “willfulness in
failing to comply with the . . . restitution order”).
7