United States v. Michael Stivers ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-1180 & 20-2664
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL STIVERS,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 16-cr-232 — Jane Magnus-Stinson, Judge.
____________________
ARGUED APRIL 14, 2021 — DECIDED MAY 7, 2021
____________________
Before MANION, ST. EVE, and KIRSCH, Circuit Judges.
ST. EVE, Circuit Judge. Michael Stivers pled guilty to receiv-
ing, possessing, and distributing child pornography. At his
sentencing hearing, the district court sentenced him to 300
months’ imprisonment. Because the parties disputed the res-
titution amount, the court deferred its restitution decision and
allowed the parties to submit additional briefing on the issue.
Stivers did not object to this course of action. Months later,
once the briefs were submitted, the court entered a written
2 Nos. 20-1180 & 20-2664
order overruling Stivers’s objections to the government’s pro-
posed restitution calculation and ordering Stivers to pay
$3,000 in restitution.
On appeal Stivers maintains that the district court violated
Federal Rule of Criminal Procedure 43 by ordering restitution
in his absence. Rule 43(a)(3) provides that “the defendant
must be present at … sentencing.” From that language, Stivers
infers that a criminal defendant must be present when a court
orders restitution, on the theory that restitution is part of a
sentence. See United States v. Johnson, 934 F.3d 716, 719 (7th
Cir. 2019).
We need not decide whether Stivers is correct about the
scope of Rule 43 because Rule 43 does not apply to the resti-
tution order in this case. The district court ordered restitution
under the Mandatory Restitution for Sexual Exploitation of
Children Act, 18 U.S.C. § 2259. Restitution awards under this
Act are subject to the procedures of 18 U.S.C. § 3664. See
§ 2259(b)(3). Relevant here, § 3664(d)(5) permits a court to de-
lay the “final determination of the victim’s losses” for up to
“90 days after sentencing” if the losses are “not ascertainable”
ten days before sentencing. See also Dolan v. United States, 560
U.S. 605, 608 (2010) (holding the 90-day deadline is non-juris-
dictional). Stivers does not contend that victim losses were as-
certainable ten days before his sentencing. Thus, “the district
court’s delay in determining the amount of restitution was ex-
pressly authorized by statute.” United States v. Ferguson, 831
F.3d 850, 853 n.1 (7th Cir. 2016).
To reconcile § 3664(d)(5) with his reading of Rule 43(a)(3),
Stivers suggests that a court must hold a second “sentencing”
hearing for its delayed restitution decision. But another sec-
tion of the statute forecloses this strained interpretation of the
Nos. 20-1180 & 20-2664 3
rule–statute interplay. Section 3664(c) specifically provides
that “[t]he provisions of this chapter, chapter 227, and Rule
32(c) of the Federal Rules of Criminal Procedure shall be the
only rules applicable to proceedings under this section.” (Em-
phasis added.)
It is well settled that Congress can supersede federal rules
by statute, so long as it “clearly expresse[s]” its intent to do
so. In re Gen. Motors Corp. Engine Interchange Litig., 594 F.2d
1106, 1135 n.50 (7th Cir. 1979); accord Robbins v. Pepsi-Cola
Metro. Bottling Co., 800 F.2d 641, 643 (7th Cir. 1986) (per cu-
riam). “Although repeals by implication are not favored, we
do not believe that Congress must explicitly state that a pro-
cedural rule is superseded in order to ‘clearly express’ that
proposition.” Robbins, 800 F.2d at 643.
Here, § 3664(c) supersedes Rule 43(a)(3) based on the plain
language of the statute. In 1995—long after Rule 43(a)(3) was
adopted—Congress amended § 3664 to authorize delayed
restitution orders. See S.Rep. No. 104–179, p. 19–21 (1995);
§ 3664(d)(5). In doing so, it also amended the statute to une-
quivocally provide that Rule 32(c) was “the only” federal rule
applicable to such orders. § 3664(c). By “explicitly stat[ing]”
that no other federal rules applied, Congress clearly ex-
pressed its intent to suspend the requirements of Rule 43(a)(3)
for restitution orders entered under § 3664. Robbins, 800 F.2d
at 643. The upshot is that Rule 43(a)(3) does not apply to the
restitution order in this case. See United States v. Vanhorn, 296
F.3d 713, 721 (8th Cir. 2002) (holding that the “explicit lan-
guage” of § 3664(c) rendered Federal Rule of Criminal Proce-
dure 35(c) inapplicable to a restitution order).
The parties’ appellate briefing focused primarily on the
scope of Rule 43 and harmless error, so we ordered
4 Nos. 20-1180 & 20-2664
supplemental briefing on whether § 3664(c) renders Rule
43(a)(3) inapplicable to the restitution order in this case. In his
supplemental brief, Stivers contends that, even if § 3664(c) sig-
nals an intent to supersede Rule 43(a)(3), another statutory
provision applicable to restitution orders—18 U.S.C.
§ 3553(c)—parallels Rule 43 by requiring a district court to
pronounce a defendant’s sentence (which, according to Sti-
vers, includes restitution) in open court. Relying on the sup-
posed tension between § 3553(c) and § 3664(c), Stivers submits
that § 3664(c) is ambiguous as to whether it supersedes Rule
43(a)(3). He adds that, under the constitutional-avoidance
canon, we should interpret § 3664(c) in a way that avoids a
potential conflict between the statute and the federal Consti-
tution. The premise of this last argument is that ordering res-
titution in a defendant’s absence may be unconstitutional. Cf.
United States v. Agostino, 132 F.3d 1183, 1200 (7th Cir. 1997)
(noting that Rule 43(a) “has as its source the Confrontation
Clause of the Sixth Amendment and the Due Process Clause
of the Fifth and Fourteenth Amendments”).
Stivers’s supplemental arguments do not alter our conclu-
sion that Rule 43(a)(3) is inapplicable here. To the extent Sti-
vers contends that § 3553(c) creates an ambiguity in § 3664(c),
we disagree. Section 3664(c) clearly suspends the operation of
Rule 43(a)(3) to restitution orders under that section. Section
3553(c) says nothing about Rule 43, so it does not create any
ambiguity as to whether § 3664(c) supersedes the rule. See Jen-
nings v. Rodriguez, 138 S. Ct. 830, 836 (2018) (observing that the
constitutional-avoidance canon applies only “when statutory
language is susceptible of multiple interpretations”). To the
extent Stivers now relies on § 3553(c) and the Constitution as
independent grounds for relief, we do not consider his argu-
ments. In his original appellate briefing, Stivers relied
Nos. 20-1180 & 20-2664 5
exclusively on Rule 43(a)(3). Our request for supplemental
briefing on whether Rule 43(a)(3) applies did not give Stivers
license to transform his appeal and seek relief on grounds he
never raised in his original briefing.
Because Rule 43(a)(3) does not apply in this case, Stivers is
not entitled to relief for the district court’s supposed violation
of it. We need not address the government’s argument that
any Rule 43 violation was harmless error.
AFFIRMED