United States v. Starkie ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4415
REGAN THOMAS STARKIE,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CR-97-128)
Argued: December 4, 1998
Decided: January 7, 1999
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
HERLONG, United States District Judge for the
District of South Carolina, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Thomas Norman Cochran, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Douglas Can-
non, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attor-
ney, Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
After pleading guilty to bank larceny in violation of 18 U.S.C.A.
§ 2113(b) (West Supp. 1998), Regan Thomas Starkie was sentenced
to twelve months imprisonment and ordered to pay $13,275 in restitu-
tion and a $100 special assessment. On appeal, Starkie contends only
that the district court erred by transferring the $500 used to secure his
bail to the United States Attorney to satisfy immediately a portion of
his criminal monetary penalties. Finding no error, we affirm.
I.
On May 28, 1997, Regan Thomas Starkie was indicted by a federal
grand jury for his involvement in breaking into an automatic teller
machine (and taking over $84,000) in violation of 18 U.S.C.A.
§ 2113(a) (West Supp. 1998). At his detention hearing, Starkie was
ordered released on a $10,000 surety bond. Rosa Cooper, Starkie's
mother, was listed as surety. A $500 cash deposit was made to secure
the bond, and a receipt was issued to Starkie stating that the funds
were received "from" him.
On July 16, 1997, a superseding indictment was filed, charging
Starkie with bank larceny in violation of 18 U.S.C.A. § 2113(b) (West
Supp. 1998). On July 17, 1997, Starkie pleaded guilty to the supersed-
ing indictment. On October 2, 1997, the district court sentenced Star-
kie pursuant to the guideline governing property offenses. See U.S.
Sentencing Guidelines Manual § 2B1.1 (1995). Due to the amount of
money involved, the district court set Starkie's base offense level at
twelve. See U.S.S.G. § 2B1.1(b)(1)(I). Because the district court
found that the offense involved more than minimal planning, it
increased Starkie's base offense level an additional two levels. See
U.S.S.G. § 2B1.1(b)(4). Finally, because Starkie accepted responsibil-
ity for the instant offense, the district court reduced his base offense
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level by two levels. See U.S.S.G. § 3E1.1. With an adjusted base
offense level of twelve and a criminal history category of I, Starkie's
guideline range was ten to sixteen months. The district court sen-
tenced Starkie to a twelve month term of imprisonment.
In addition to a term of imprisonment, the district court ordered
Starkie to pay a special assessment of $100 and $13,275 in restitution,
at the rate of $250 per month during his three-year period of super-
vised release:
The defendant, of course, will pay a special assessment of
$100. The defendant will pay restitution in the amount of
$13,275. Such shall be paid during the course of his three
years of supervised release . . . at the rate of $250 per month
unless changed by this Court.
(J.A. at 47-48.) On October 21, 1997, the district court entered its
written judgment, which did not conform to its oral pronouncements
regarding restitution payment:
Payments of the total fine and other criminal monetary pen-
alties shall be due as follows: in full immediately[.]
(J.A. at 61.) Starkie filed a timely notice of appeal with this Court.
On appeal, this Court upheld the two-level increase under
§ 2B1.1(b)(4) for more than minimal planning. We, however,
remanded the case to the district court with instructions to correct its
written judgment to reflect the oral sentence. See United States v.
Starkie, 139 F.3d 896 (4th Cir. 1998) (unpublished) (Starkie I). In
particular, this Court noted the well-settled rule that "[w]hen there is
a conflict between a written order of sentence and an oral sentence,
the latter is controlling." Id.On remand, the Government filed a motion pursuant to 28
U.S.C.A. § 2044. Section 2044 provides as follows:
On motion of the United States attorney, the court shall
order any money belonging to and deposited by or on behalf
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of the defendant with the court for the purposes of a crimi-
nal appearance bail bond (trial or appeal) to be held and paid
over to the United States attorney to be applied to the pay-
ment of any assessment, fine, restitution, or penalty imposed
upon the defendant. The court shall not release any money
deposited for bond purposes after a plea or a verdict of the
defendant's guilt has been entered and before sentencing
except upon a showing that an assessment, fine, restitution
or penalty cannot be imposed for the offense the defendant
committed or that the defendant would suffer an undue
hardship. This section shall not apply to any third party
surety.
28 U.S.C.A. § 2044 (West 1994). Starkie filed a response in opposi-
tion to the Government's motion on May 7, 1998. In his response,
Starkie argued that under this Court's mandate, he was under no obli-
gation to begin restitution repayment until after his release from cus-
tody.
On May 18, 1998, the district court granted the Government's
motion. As a result, the clerk of court applied the $500 cash deposit
used to secure Starkie's bail as full payment of the $100 special
assessment and as partial payment of the restitution owed by Starkie.
On June 3, 1998, the district court entered an amended order pursuant
to the mandate of this Court in Starkie I. The section of the written
judgment entitled "Schedule of Payments" states that "[t]he [district]
court will credit the defendant for all payments previously made
toward any criminal monetary penalties." (J.A. at 79.) Moreover, in
conformity with the oral sentence, the written judgment now reads:
The special assessment may be paid as directed by the
Bureau of Prisons under the Inmate Financial Responsibility
Program. Upon defendant's release from incarceration, he
shall pay $250.00 per month (unless the monthly amount is
changed by the Court at that time) toward restitution until
the full amount is paid.
(J.A. at 79.) This appeal followed.
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II.
On appeal, Starkie argues that the district court erred in three
respects when it granted the Government's motion to transfer the
$500 used to secure bail. First, Starkie contends that the district
court's order violated the "mandate rule." Second, Starkie asserts that
the Government's motion was untimely and foreclosed by waiver.
Finally, Starkie alleges that the bail funds on deposit did not belong
to him.1 We address each argument in turn.
A.
As this Court has noted, "[f]ew legal precepts are as firmly estab-
lished as the doctrine that the mandate of a higher court is ``controlling
as to matters within its compass.'" United States v. Bell, 5 F.3d 64,
66 (4th Cir. 1993) (quoting Sprague v. Ticonic Nat'l Bank, 307 U.S.
161, 168 (1939)). Indeed, it is indisputable that a lower court gener-
ally is "bound to carry the mandate of the upper court into execution
and [may] not consider the questions which the mandate laid at rest."
Sprague, 307 U.S. at 168. Because this "mandate rule" is merely a
"specific application of the law of the case doctrine," United States
v. Bell, 988 F.2d 247, 251 (1st Cir. 1993), it compels compliance on
remand with the dictates of a superior court and forecloses relitigation
of issues expressly or impliedly decided by the appellate court. In
addition, the rule forecloses litigation of issues decided by the district
court but foregone on appeal or otherwise waived, for example,
because they were not raised in the district court. See id. at 250. Thus,
when this Court remands for further proceedings, a district court
must, except in rare circumstances, "``implement both the letter and
spirit of the . . . mandate, taking into account[our] opinion and the
circumstances it embraces.'" Id. (quoting United States v. Kikumura,
947 F.2d 72, 76 (3d Cir. 1991)).
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1 During oral argument, counsel for Starkie also argued that the district
court erred in granting the Government's motion because the Govern-
ment made the motion only to penalize Starkie for bringing a successful
appeal. To the extent this claim is even properly before us, see Canady
v. Crestar Mortgage Corp., 109 F.3d 969, 973 (4th Cir. 1997) (holding
that issues raised, but not briefed, are deemed waived on appeal), we find
it to be without merit.
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For the reasons that follow, we conclude that the district court's
order directing the Clerk to apply the $500 deposited in the Registry
of the district court towards payment of the money owed by the
defendant does not conflict with this Court's mandate in Starkie I.
This Court instructed the district court to amend its written sentence
so that it complied with its oral sentence. The district court's oral sen-
tence, however, did not address whether Starkie's $500 deposit could
be applied towards his restitution and special assessment. Thus, it was
not an issue on appeal in Starkie I. As a result, it could not be an issue
expressly or impliedly covered by the mandate.
Indeed, as the Government notes, Starkie has not been asked to
make one of the $250 monthly payments that, according to the oral
sentence, are to be made upon his release from prison. Rather, the
$500 was already deposited in the district court's registry and subject
to § 2044. According to the plain language of§ 2044, the district
court must transfer the funds on the motion of the United States Attor-
ney. Therefore, the issue of applying the funds only arises once the
Government files a § 2044 motion. Here, it is undisputed that motion
was not made until the case was remanded. As a result, it was not an
issue on appeal in Starkie I.
B.
Next, Starkie asserts that the Government's motion was untimely
and foreclosed by waiver. By its own terms, § 2044 does not contain
a deadline within which the Government must file a motion to trans-
fer bail funds. Because the district court may release the funds after
sentencing, the Government would be wise to make its motion prior
to that time. Nevertheless, the only mention of a time frame in the
statute is the requirement that the motion must be made after the
imposition of an assessment, fine, restitution, or penalty on the defen-
dant. Because the Government complied with the dictates of the stat-
ute, we hold that its motion was not untimely.
C.
If a third party paid the bail funds, the district court may not, pursu-
ant to § 2044, transfer the funds to satisfy the payment of any assess-
ment, fine, restitution, or penalty imposed upon the defendant. On
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appeal, Starkie alleges, for the first time, that the Government did not
assert (or establish) that the bail funds on deposit belonged to him.
We disagree with both arguments.
First, the Government did assert that Starkie owned the bail funds
in question. In its § 2044 motion, the Government specifically stated
that "Starkie . . . executed an Appearance Bond .. . in the amount of
$500," and that Starkie "deposited with the Registry of this Court the
sum of $500." (J.A. at 66-67.)
Second, substantial evidence supports the Government's claim that
the $500 belonged to Starkie rather than his mother. For example, the
receipt for the $500 was given to Starkie and shows that the money
was from him. Although Rosa Cooper's name appears on the Appear-
ance Bond as surety, the receipt is the legal document that verifies
ownership of the money on deposit. Indeed, by putting his name on
the receipt, the Clerk gave Starkie, not his mother, the legal right to
reclaim the money after his appearance in Court. Moreover, in Star-
kie's response to the Government's § 2044 motion, he twice asserted
ownership of the $500:
On June 17, 1997, the Defendant executed an appearance
bond and deposited with the Court registry $500.00 in sup-
port of that bond.
(J.A. at 70.)
[T]he defendant objects to the Government's motion to
apply his $500.00 bond money to either obligation.
(J.A. at 72 (emphasis added).)2 Because the receipt indicates that the
$500 belonged to Starkie and because Starkie asserted ownership of
the $500 in his response to the Government's motion,§ 2044 applies
to the money in question.
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2 During oral argument counsel for Starkie argued, for the first time,
that the assertions of ownership made by Starkie in his response to the
Government's motion were simple drafting errors. Because counsel
could have raised the argument in his reply brief, we will not consider
it at this late juncture.
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III.
Finally, Starkie contends that even if the district court had the
authority to transfer the bail funds to the United States Attorney to
satisfy immediately a portion of his criminal monetary penalties, the
amended judgment of the district court is still erroneous and must be
corrected to reflect the full payment of the $100 special assessment
and the partial payment of the restitution order. We disagree. In the
amended judgment, the district court specifically stated that it would
"credit the defendant for all payments previously made toward any
criminal monetary penalties." (J.A. at 79.) As a result, there is no need
to remand.
IV.
For the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED
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