United States v. Love ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED DECEMBER 15, 2005
November 29, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 04-30944
consolidated w/ 05-30012
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAULETTE MARIE LOVE,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Louisiana
Before REAVLEY, HIGGINBOTHAM, and GARZA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Defendant Laulette Love challenges the lower court’s
imposition as a condition of supervised release that she pay
restitution previously ordered by a North Carolina federal district
court. We conclude that the imposition of the condition was proper
and affirm.
I
In 2001, defendant Laulette Love pleaded guilty in Louisiana
district court to one count of attempted and two counts of
completed credit card fraud. As part of her plea agreement, she
agreed to pay restitution in accordance with the Victim and Witness
Protection Act (VWPA)1 and the Mandatory Victims Restitution Act
(MVRA),2 statutes respectively allowing and mandating restitution
to victims of specified crimes. The court sentenced her to sixteen
months of imprisonment to be followed by three years of supervised
release. It also ordered her to pay $11,000 in restitution to City
Financial Bank, one of the victims.
After Love completed her prison term and about one year of
supervised release, the Government moved to revoke her release
after she tested positive for drug use, absconded from supervised
released, was convicted of forgery in Washington state, and had not
kept up with her monthly restitution payments. The judge revoked
her release and sentenced her to eighteen months of imprisonment
followed by eighteen months of supervised release. The judge
imposed as a condition of this release not only that Love pay the
remaining restitution previously ordered in this case, but also
that she should pay about $50,000 in unpaid restitution ordered by
a North Carolina federal district court following a credit card
fraud conviction in 1993.3 After detailing Love’s lengthy criminal
history and multiple convictions for fraud, the court stated that
the only reason it was reimposing a term of supervised release was
1
18 U.S.C. §§ 3663.
2
18 U.S.C. §§ 3663A.
3
Love’s supervised release term for that conviction had expired without
revocation even though she had not paid that restitution.
2
to require Love to pay some of the restitution owed. Love appealed
this judgment.
She also filed a motion to correct sentence under FED. R. CRIM.
P. 35, arguing that restitution for losses beyond the scope of
conviction could not be imposed as a condition of supervised
release under § 3563(b)(2), as applied through § 3583(d), the
statute governing conditions of supervised release.4 The district
court denied the motion, holding that it had not ordered
restitution under that part of § 3583(d) allowing it to impose
restitution under § 3563(b)(2), but instead had exercised its power
under the last part of § 3583(d), the catch-all provision allowing
it to impose conditions “it considers to be appropriate,” to order
Love to comply with a previously existing order. Love also
appealed this decision, and, pursuant to her motion, the appeals
were consolidated because they involve essentially the same issue.
II.
The single, narrow issue in this case is whether a court can
impose, as a condition of supervised release, that the defendant
pay the unpaid restitution ordered as part of a sentence by another
4
18 U.S.C. § 3583(d) gives judges discretion to impose as a condition of
supervised release “any condition set forth as a discretionary condition on
probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and
any other condition it considers to be appropriate.” See also United States v.
Del Barrio, ___ F.3d ___ (5th Cir. 2005) (discussing the conditions on
probation).
3
federal court in another federal case.5 Such a question of law is
reviewed de novo.6
A federal court cannot order restitution “except when
authorized by statute.”7 There are two sources of statutory
authority. First, 18 U.S.C. § 3556 provides that a district court
may or shall order restitution as part of a sentence “in accordance
with” the VWPA and the MVRA. In Hughey v. United States,8 the
Supreme Court held that restitution under the VWPA is limited to
loss to victims of the offenses of conviction; in United States v.
Mancillas, this court expanded that limitation to the MVRA,
allowing restitution for losses from the same scheme, conspiracy,
or pattern, in accordance with the statutory language.9 Because
there was no evidence that Love’s North Carolina offenses were part
of the same scheme, conspiracy, or pattern as her underlying
offenses here, the district court could not - and did not - rely on
§ 3556 for the latter, contested order of restitution.
Instead, the court relied on the other statutory authority for
restitution, 18 U.S.C. § 3583, the statute dealing with imposition
5
It is irrelevant that the district court imposed this condition on
supervised release after revoking a previous term of supervised release. A court
after revocation can impose conditions that it did not impose initially, as long
as it had the statutory authority to impose them initially. Johnson v. United
States, 529 U.S. 694, 713 (2000); 18 U.S.C. § 3583(h).
6
United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir. 1992).
7
United States v. Bok, 156 F.3d 157, 166 (2d Cir. 1998).
8
495 U.S. 411, 415 (1990).
9
172 F.3d 341, 343 (5th Cir. 1999).
4
of supervised release. Under § 3583(d), the court is required to
impose certain conditions of supervised release, such as the
condition that the defendant not commit another crime during the
term of release. In addition, that section provides that
The court may order, as a further condition of supervised
release, to the extent that such condition-
(1) is reasonably related to the factors set forth in
section 3553(a)(1), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to
28 U.S. C. 994(a);
any condition set forth as a discretionary condition of
probation in section 3563(b)(1) through (b)(10) and (b)(12)
through (b)(20), and any other condition it considers to be
appropriate.10
One of the discretionary conditions of probation, section
3563(b)(2), authorizes an order of “restitution to a victim of the
offense under section 3556 (but not subject to the limitation of
[the VWPA] or [the MVPA]).” Love argues that the inapplicable
“limitation” to which § 3563(b)(2) refers is the limitation in the
VWPA and the MVPA that those sections apply only to certain crimes,
not the Hughey limitation that restitution must be to victims for
losses resulting from the offenses of conviction. Although this
argument seems correct,11 we need not rule on it because the
10
These requirement are essentially restated in U.S.S.G. § 5D1.3(b).
11
The text of § 3563(b)(2) limits restitution to victims of “the offense,”
a phrase almost identical the VWPA phrase construed by the Court in Hughey.
Furthermore, authorities discussing the nature of the inapplicable “limitation”
mentioned in § 3563(b)(2) focus on the type of crime, not the Hughey limitation.
5
district court explicitly did not rule on it. Rather, it
ostensibly used its discretion under the last part of § 3583(d),
the catch-all provision allowing it to impose “any other condition
it considers to be appropriate.”
Love contends, in a sort of ejusdem generis argument, that the
court cannot order under the catch-all provision what it could not
order under the specific provision.12 She finds support for this
contention in United States v. Cottman, in which the Third Circuit
foreclosed reliance on the catch-all provision to support a
restitution order not permitted by § 3563(b)(2): “[T]he order of
restitution must follow the provisions of § 3563....otherwise, the
‘catch-all’ exception prong of § 3583(d) would swallow the rule.”13
The Government cites three cases which it argues disagree with
Cottman. Only one is arguably on point,14 United States v. Daddato,
See U.S.S.G. § 5E1.1(a)(2) (restitution may be ordered even “if the offense is
not an offense for which restitution is authorized...but otherwise meets the
criteria for an order of restitution under that section”); United States v.
Dahlstrom, 180 F.3d 677, 686 (5th Cir. 1999) (noting that even if restitution is
not permitted for the underlying crime under the VWPA, “a district court may
order restitution within the context of supervised release”); United States v.
Bok, 156 F.3d 157, 166-67 (2d Cir. 1998). Finally, numerous circuit courts have
expressly held that the Hughey limitation applies to § 3563(b)(2). See Gall v.
United States, 21 F.3d 107, 109-110 (6th Cir. 1994); United States v. Romines,
204 F.3d 1067, 1068-69 (11th Cir. 2000); United States v. Rosser, No. 91-5856,
1992 WL 113384, at *1 (4th Cir. May 29, 1992) (unpub.) (the Government conceded
the issue).
12
The Government does not argue, and there is no reason to think, that any
of the probation conditions other than § 3563(b)(2) could apply.
13
142 F.3d 160, 169-70 (3d Cir. 1998).
14
The other two are Bok, 156 F.3d at 166, and Dahlstrom, 180 F.3d at 686.
As we described, see supra note 11, these cases held that the “enumerated crime
limitation” of the VWPA and the MVRA does not apply to § 3563(b)(2), not that the
Hughey limitation does not apply to § 3563(b)(2). They do not address the
6
and that case may not disagree with Cottman after all.15 In any
event, again, we need not address this issue because the district
court held that, even if Cottman were the rule in this circuit, the
court here did not make a separate order of restitution, it merely
ordered that Love pay previously ordered restitution - a general
condition on supervised release proper under the catch-all
provision and not addressed by the specific provision. Whether
that characterization of the order is correct is the heart of this
case.
To explain its characterization, the district court cited
United States v. Howard, in which the district court ordered
restitution as part of a sentence for bank fraud and later, upon
revocation of supervised released, ordered payment of the unpaid
holding of Cottman.
15
996 F.2d 903, 904 (7th Cir. 1993). In Daddato, the court ordered the
defendant pay $3,650 in “buy money” back to the Government as a condition of
supervised release. The court upheld the order under the catch-all provision of
§ 3583(d) while noting that the Government was obviously not a “victim” of a
convicted crime (meaning that restitution could not have been ordered pursuant
to § 3563(b)(2) if the Hughey limitation applied). But the court focused on the
nature of repaid “buy money” as money going to the Government to pay the cost of
investigation, holding that repaid buy money was not normal restitution as
envisaged by the statute which led to the Hughey limitation. It even considered
repayment of buy money a kind of “community service.” In other words, the court
did not consider the district court to be ordering something under the catch-all
provision that was expressly excluded under the specific provision. Furthermore,
in holding that the statute which led to Hughey did not “occupy the field” of
criminal restitution in general, the court focused on the fact that the statute
dealt with compensating victims - implicitly holding that it did occupy the field
of criminal restitution to victims, as is the case here. In short, the court in
Daddato simply held that a district court could order the repayment of buy money
as a condition of supervised release under the catch-all provision - not that a
court could order restitution to a victim as a condition of supervised release
under the catch-all provision when it could not do so under the specific
provision dealing with restitution.
7
restitution previously ordered. In rejecting an ex post facto
challenge by the defendant, this court held that the “district
court did not impose a second restitution order, but merely
recognized the prior imposition of restitution which had not been
paid when the supervised release was revoked.”16 Love argues that
her case is different from Howard’s in a critical respect: in
Howard, the same district court which convicted him ordered him to
pay restitution previously ordered in the same case for the same
offense. Here, by contrast, the court ordered Love to pay
restitution ordered in different jurisdiction in a different case
for a different offense. She argues that her case, unlike
Howard’s, implicates the concern addressed in Cottman: use of the
catch-all provision to circumvent the Hughey restriction of
restitution to victims of the underlying offense. She also argues
that the Government in United States v. Miller conceded the
position she advances here.17
Moreover, Love argues, affirming the district court here would
16
220 F.3d 645, 647 (5th Cir. 2000).
17
No. 03-11217, 2005 WL 768757 (5th Cir. Apr. 6, 2005). The question in
Miller was how to construe the language in United States v. Stout, 32 F.3d 901,
904 (5th Cir. 1994), that “[s]entencing courts are permitted to impose
restitution as a condition of supervised release to the extent agreed to by the
government and the defendant in a plea agreement.” Miller argued that a court
could not order restitution as a condition of supervised release in the absence
of a plea agreement. The Government took the more narrow position that agreement
to restitution as a condition of supervised release in a plea agreement was
required only where restitution was foreclosed by statute because it was for
conduct beyond the counts of conviction. The court avoided the issue by deciding
that, even if the defendant’s consent in a plea agreement was required, Miller
had so consented.
8
be constitutionally troubling. Both Article III, Section 2 and the
Vicinage Clause of the Sixth Amendment mean that she could not have
been prosecuted in the Louisiana district court for her North
Carolina crimes, meaning that the lower court here could not have
issued the original restitution order. She argues that allowing a
district court to enforce a criminal order it could not issue is
improper. Furthermore, she contends that ordering her to pay
restitution in the North Carolina case effects double jeopardy.18
We agree with the district court that its order was not a new
order of restitution, and thus proper under § 3583(d). It is
critical to remember that our task here is to interpret a statute -
does the catch-all provision in § 3583(d) authorize the order at
issue, or does it not? Love makes a good ejusdem generis argument,
but the strong countervailing evidence of statutory intent,
combined with the broad text of the catch-all provision, outweigh
that instructive canon. It is clear that Congress thinks people on
supervised release must not commit other crimes,19 and it would be
contempt for Love not to pay the restitution ordered by the North
18
She points out that the probation officer and prosecutor in her North
Carolina case allowed her supervised release to expire without attempting to
revoke it. Arguing that one of the purposes of the Double Jeopardy Clause is to
provide repose to the defendant, see United States v. Rodriguez, 612 F.2d 906,
921 (5th Cir. 1980), she contends that the lower court’s order here effectively
revives an expired possibility of incarceration. But see infra note 20
(discussing whether her obligation to pay had expired and whether she could be
incarcerated by the North Carolina court for contempt for failure to pay).
19
See 18 U.S.C. § 3583(d) (stating that a mandatory condition of
supervised release is that the defendant not commit another crime); U.S.S.G. §
5D1.3(a)(1) (same).
9
Carolina district court.20 Furthermore, Congress has stated that
parents on supervised release must obey previously existing child
support orders issued by any court - a condition almost identical
to the one here.21 While it is probable that the catch-all
provision would not allow a court to order in the first instance
restitution for which Congress implicitly has denied authorization
by now allowing it under § 3563(b)(2), the catch-all provision does
allow a court to order compliance with a previously existing order,
a practice of which Congress has specifically indicated approval.22
We are not persuaded by Love’s constitutional arguments. As
the Government points out, no one has successfully challenged the
20
Love argues that her obligation to pay the North Carolina restitution
expired when her North Carolina supervised release expired, meaning there could
be no contempt. This appears incorrect. See United States v. Berardini, 112
F.3d 606, 611 (2d Cir. 1997); United States v. Rostoff, 164 F.3d 63, 65 (1st Cir.
1999); but see United States v. O’Brien, 109 Fed. Appx. 49 (6th Cir. 2004);
United States v. Webb, 30 F.3d 687, 691-92 (6th Cir. 1994) (Jones, J.
concurring). She also argues that the federal contempt statute, 18 U.S.C. § 401,
limits a court’s ability to punish contempt to contempt of its own authority.
This misses the point. If the restitution order survived the expiration of her
supervised released, it would still be a violation of the law for Love not to pay
the previously ordered restitution, even if only the North Carolina court could
punish her for that offense. The lower court here, by ordering Love to comply
with the order of another court, was simply ordering her to obey the law.
Finally, we note again that the purpose here is to determine how to interpret §
3583(d) - it would not change our conclusion if Love’s failure to pay was not
contempt.
21
18 U.S.C. § 3563(b)(20); U.S.S.G. § 5D1.3(c)(4). Love argues that the
analogy to child support orders is self-defeating in that, because both the
Sentencing Guidelines and § 3563(b)(20) expressly authorize such a condition, it
highlights the lack of such express authorization for the condition here. But
if there were an express condition allowing for the order here, then no analogy
would be needed - analogies have logical force precisely because they require an
inferential step.
22
Although the Government’s concession in Miller is not controlling, we
note that it is inapplicable here because we hold that the lower court did not
impose a new order of restitution.
10
imposition of the child support condition on constitutional
grounds.23 More importantly, we disagree with her contention,
critical to both of her arguments, that the court below was
punishing Love for her North Carolina crimes. The court was
setting a condition of supervised release for her present crimes,
which constitutes punishment for those crimes. All conditions of
supervised release restrict a defendant’s freedom, and a defendant
who has committed crimes in the past may have her freedom
restricted more than a first-time offender. Treating a defendant
with a record differently than a defendant without a record does
not necessarily mean that you are subjecting the former to double
jeopardy or somehow trying the defendant in an improper venue.24
Having rejected Love’s ejusdem generis argument, we note that
a condition imposed under the catch-all provision must still
satisfy the factors in § 3583(d)(1)-(3) - that it is related to a
23
Love’s argument that, because child support orders in states in the
Fifth Circuit are a civil matter, there is no Article III or Sixth Amendment
problem for the child support condition on supervised release, is unconvincing
because in some states the non-payment of child support orders is criminal.
Thus, one can imagine a state criminal order to pay child support followed by the
imposition in federal court of a condition of supervised release that the parent
follow the criminal order. But Love’s argument that, because child support
orders are always state orders, there is no Double Jeopardy problem for the child
support condition on supervised release, is correct.
24
See United States v. Witte, 515 U.S. 389, 400 (1995) ("In repeatedly
upholding such recidivism statutes [such as three-strikes laws], we have rejected
double jeopardy challenges because the enhanced punishment imposed for the later
offense is not to be viewed as either a new jeopardy or additional penalty for
the earlier crimes, but instead as a stiffened penalty for the latest crime[.]");
United States v. Conner, 886 F.2d 984, 985 (8th Cir. 1989) (upholding the Armed
Career Criminal Act against a Double Jeopardy challenge), cert. denied, 493 U.S.
1089 (1990); United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995) (same).
11
punitive goal, is no greater than necessary, and is consistent with
a policy statement of the Sentencing Commission. Because Love does
not challenge on appeal the district court’s application of those
factors, we do not address the issue.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
12