United States v. Howard ( 2000 )

Revised August 15, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31137
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JENNIFER TURNER HOWARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
July 27, 2000
Before POLITZ, JONES and STEWART, Circuit Judges
POLITZ, Circuit Judge:
Jennifer Turner Howard appeals the sentence imposed upon revocation of her
supervised release, contending that the district court erred in ordering restitution
without considering her present or future ability to pay. We affirm.
BACKGROUND
In 1994, Howard pleaded guilty to one count of bank fraud, in violation of
18 U.S.C. § 1344, and was sentenced to 33 months’ imprisonment, five years’
supervised release, and restitution in the amount of $26,773.72. That conviction
and sentence was not appealed. On February 23, 1998, during the term of her
supervised release, the probation officer sought revocation of her supervised release
citing Howard’s: (1) failure to submit monthly supervision reports; (2) leaving a
detoxification center without approval of the probation office; (3) failure to notify
the probation office of termination of her employment; (4) using narcotics for
which she did not have a prescription; and (5) failure to attend a substance abuse
group therapy session.
Thereafter, Howard was indicted for bank fraud in violation of 18 U.S.C. §
1344. The indictment alleged that in January and February of 1998, Howard stole
two purses, used identification cards contained therein, and forged signatures to
open bank accounts at Bank One and Louisiana Bank and Trust. Howard pleaded
guilty to the bank fraud charge, waived the right to a separate hearing for the
revocation of supervised release, and agreed to the revocation based on the indicted
conduct. For the second bank fraud conviction, Howard was sentenced to 24
months’ imprisonment, three years’ supervised release, and restitution of
2
$6,273.63. Based on the revocation of supervised release, Howard was sentenced
to 36 months’ imprisonment, to run consecutively to the bank fraud sentence, and
ordered to pay the as yet unpaid restitution from the first bank fraud conviction.
Howard timely appealed.
ANALYSIS
An order of restitution is governed by the Victim and Witness Protection Act
of 1982 (VWPA).1 The VWPA required that the district court consider a
defendant’s financial circumstances and ability to pay before ordering restitution.
In 1996 Congress enacted the Mandatory Victims Restitution Act (MVRA), which
amended the VWPA to provide that “the court shall order restitution to each victim
in the full amount of each victim’s losses as determined by the court and without
consideration of the economic circumstances of the defendant.”2 The sole
consideration to be given a defendant’s ability to pay is factored into the court’s
determination of “the manner in which, and the schedule according to which, the
defendant will satisfy the restitution order.”3 The MVRA applies to convictions
occurring on or after April 24, 1996.
1
18 U.S.C. §§ 3663-3664.
2
18 U.S.C. § 3664(f)(1)(A).
3
18 U.S.C. § 3664(f)(2).
3
Howard complains that in imposing the restitution order in connection with
the revocation of her supervised release, the district court applied the MVRA and,
thus, violated the Ex Post Facto Clause because the restitution was based on
conduct that occurred prior to enactment of the statute. Constitutional challenges
to a federal statute are reviewed de novo.4 There being no objection to the order of
restitution at sentencing, we review for plain error.5 We recently have held that
retroactive application of the MVRA violates the Ex Post Facto Clause.6 We
conclude, however, that no Ex Post Facto violation occurred in the case at bar.
The restitution order resulting from the first bank fraud conviction was not
imposed as a condition of Howard’s supervised release.7 Rather, it was ordered as
a separate sentencing component of the first judgment of conviction. 8 “Were
restitution simply a term of supervised release or probation, it could not be due
4
United States v. Bailey, 115 F.3d 1222 (5th Cir. 1997).
5
United States v. Rodriguez, 15 F.3d 408 (5th Cir. 1994).
6
United States v. Richards, 204 F.3d 177 (5th Cir. 2000), reh’g and reh’g en
banc denied, 211 F.3d 595, petition for cert. filed (June 20) (No. 99-2049).
7
18 U.S.C. § 3583(d).
8
18 U.S.C. §§ 3551, 3556.
4
prior to the commencement of such a term.”9 That is not, however, the factual
situation at bar. Howard was not ordered to pay any additional amounts under the
1994 conviction but, rather, was directed to pay the amount still due and owing.
For purposes of the Ex Post Facto Clause, 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. 10
The judgment appealed is AFFIRMED.
9
United States v. Webb, 30 F.3d 687, 690 (6th Cir. 1994) (citing United
States v. Angelica, 859 F.2d 1390 (9th Cir. 1988)).
10
Webb, 30 F.3d at 690 (“[A] district court’s decision to revoke supervised
release does not affect the obligation to pay restitution if such obligation was [not
imposed as a condition of the supervised release].”).
5