United States v. Charles Austin ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 13, 2013
Decided August 14, 2013
Before
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12-3175
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 CR 128-1
CHARLES AUSTIN,
Defendant-Appellant. Rubén Castillo,
Judge.
ORDER
Charles Austin sold 372 grams of crack to confidential informants in a series of
transactions, and he was paid a total of $11,290. He pleaded guilty to distributing crack,
21 U.S.C. § 841(a)(1), and was sentenced to imprisonment for a period of 84 months to
be followed by a 5 year term of supervised release. At the sentencing hearing, the
district judge announced that as a condition of his supervised release, Austin would be
required to repay the “buy money” that the government used to build its case against
him, with installment payments allowed until the repayment was completed. However,
when the written Judgment was issued, (using AO Form 245B), in addition to
specifying the “buy money” repayment as a special condition of supervised release, it
No. 12-3175 Page 2
also specified that the “buy money” was to be repaid immediately. Austin contends (and
the government agrees) that the court should have ordered repayment only upon his
release, and only as a condition of supervised release. We remand with instructions to
the district court to modify the judgment.
In his written plea agreement, Austin agreed that as a condition of any term of
supervised release he would repay the funds that the government had given its
informants to buy drugs from him during its investigation. The district court accepted
Austin’s guilty plea and sentenced him to seven years’ imprisonment followed by five
years’ supervised release. After discussing the standard conditions of supervised
release, the district court recited several “additional” conditions including that Austin
repay the government’s buy money:
While you are on supervised release, you cannot commit any
other federal, state, or local crime. You shall comply with the
standard conditions that are adopted by this Court and shall
comply with the following additional conditions.
…
You shall repay to the United States the buy money in the
amount of $11,290, and that should be paid. If it isn’t paid by
the time you are released, it shall be paid in equal monthly
installments of at least 10% of your net monthly income until
it is totally paid off.
The court memorialized this condition in its written judgment, which listed
repayment of the buy money as a special condition of supervision. In the judgment’s
Schedule of Payments, however, the court added special instructions directing Austin to
repay the $11,290 in buy money “immediately,” with any unpaid balance to be paid off
in monthly installments of at least 10 percent of his monthly income.
Austin appeals, maintaining that the district court lacked authority to order that he
repay the government’s buy money immediately. He asks that we either vacate the
judgment and remand for further proceedings or modify the judgment to require
repayment only after he begins his term of supervised release. The government agrees
with Austin’s assessment and suggests that we modify the judgment for the sake of
judicial economy.
The district court erred in ordering Austin to repay the government’s buy money
immediately. Under the supervised release statute, 18 U.S.C. § 3583, a district court may
impose monetary penalties as a condition of supervised release, but it may not require a
defendant to make payments until his period of supervised release begins. See States v.
No. 12-3175 Page 3
Hassebrock, 663 F.3d 906, 924 (7th Cir. 2011); United States v. Cook, 406 F.3d 485, 489 (7th
Cir. 2005). It is true that a defendant can choose to pay an monetary obligation before it
is due, such as the one imposed here, but that would have to be voluntary and cannot
be required by the court. Here, the district court unambiguously identified repayment
as a condition of Austin’s supervised release, and it therefore lacked authority to order
immediate repayment. Moreover, even if the district court had intended to impose
repayment as a form of restitution (which is subject to immediate payment) under the
Victim and Witness Protection Act, 18 U.S.C. §§ 1512–1515, 3663, 3664, repayment of
buy money is not restitution because the government’s expenses are not “losses” and
the government is not a “victim” of the crimes it investigates. See United States v.
Anderson, 583 F.3d 504, 509 (7th Cir. 2009); Cook, 406 F.3d at 489; United States v. Brooks,
114 F.3d 106, 108 (7th Cir. 1997); United States v. Daddato, 996 F.2d 903, 905–06 (7th Cir.
1993); United States v. Cottman, 142 F.3d 160, 169–70 (3d Cir. 1998); United States v.
Khawaja, 118 F.3d 1454, 1460 (11th Cir. 1997); United States v. Gibbens, 25 F.3d 28, 36 (1st
Cir. 1994); United States v. Meacham, 27 F.3d 214, 218 (6th Cir. 1994); United States v.
Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir. 1990).
Although we may modify the judgment to correct sentencing errors, see 28 U.S.C.
§ 2106; United States v. Gutierrez Ceja, 711 F.3d 780, 783–84 (7th Cir. 2013); United States v.
Boyd, 608 F.3d 331, 335 (7th Cir. 2010), it is unclear from the record whether the district
court’s error was merely typographical or if the court believed the law authorizes
immediate repayment. Accordingly, and because the court may choose to alter the
terms of supervised release in lieu of immediate repayment, we VACATE the
conditions of supervised release portion of the judgment and REMAND to the district
court for further proceedings consistent with this opinion.