United States v. Jeffrey Parker ( 2020 )

NONPRECEDENTIAL DISPOSITION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
Argued November 10, 2020
Decided November 16, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-3541
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 3:19-cr-00111-jdp-1
JEFFREY J. PARKER,
Defendant-Appellant. James D. Peterson,
Chief Judge.
ORDER
On August 16, 2019, Jeffrey Parker walked into the Summit Credit Union in
Portage, Wisconsin, pulled out a gun, shouted “hands up,” zip-tied some employees,
robbed the place of $11,312.99 (including $55.00 worth of stamps), and fled in a silver
Ford Fusion. Police quickly located the Fusion on the road. A high-speed chase ensued
and ended when Parker crashed into a FedEx truck. The officers pulled Parker from the
car, arrested him, and found $143.00 on his person. They also searched the vehicle.
Among other incriminating evidence, the officers discovered a pillowcase containing
No. 19-3541 Page 2
$11,314.00 (including $55.00 worth of stamps).1 The government seized the money (and
stamps).
Parker was charged with committing bank robbery by force, violence, and
intimidation in violation of 18 U.S.C. § 2113(a). He pled guilty on October 3, 2019, and
agreed to pay restitution for losses relating to the offense. Parker and the government
couldn’t agree to the amount of restitution, however, so it was left to the district court to
determine.
At the sentencing hearing on December 19, 2019, the district court concluded that
restitution was appropriate in the following amounts: $11,312.99 to the credit union;
$13,188.66 to the insurer of the FedEx truck; and $1,000.00 to the truck’s owner—all
totaling $25,501.65. The district court stated that it would impose “the restitution to the
credit union” and that “the money seized will be credited to that restitution.” Moments
later, the court reiterated that “[a]s of the date of the hearing, I believe law enforcement
has recovered $11,457 from the defendant at the time of his arrest, and that has been
credited toward restitution.” At no point did Parker object to the restitution to the credit
union.
The court’s written judgment likewise ordered Parker “to pay mandatory
restitution in the amount of $25,501.65,” with $11,312.99 of it going to the credit union.
Yet again, the judgment stated that “[a]s of the date of this hearing, law enforcement
recovered $11,457 from the defendant at the time of his arrest that has been applied
toward restitution.” The court sentenced Parker to 132 months’ imprisonment, with
restitution payments to begin after his release.
On December 27, 2019, Parker filed this appeal. The only question on appeal is
whether the district court erred by ordering that $11,312.99 in restitution was due to the
credit union while the government still held the $11,457.00 recovered from Parker upon
his arrest. Because Parker did not object to this portion of the district court’s order, we
review for plain error. See United States v. Dridi, 952 F.3d 893, 898 (7th Cir. 2020).
Parker argues that federal law required the district court to order the
government to return the recovered money to the credit union rather than include that
amount in the restitution order. See 18 U.S.C. § 3663A(b)(1)(A) (district court must order
“return [of] the property to the owner of the property”); id. § 3663A(b)(1)(B) (only when
1 The $1.01 discrepancy between the amount found in the pillowcase and the amount discerned to have
been stolen after an audit of the teller drawers is presumably due to a rounding error.
No. 19-3541 Page 3
return of the property is “impossible, impracticable, or inadequate” may the court
require the defendant to pay the value of the property lost). In support, Parker points to
United States v. Anderson, in which the district court ordered Anderson to pay restitution
of an amount that the government recovered but did not prove was “unreturnable” to
the victim bank. 866 F.3d 761, 768 (7th Cir. 2017). In that case, we held that the district
court committed plain error because “the order of restitution, by obligating Anderson to
repay the value of those proceeds, erroneously exceed[ed] the proven loss.” Id.
However, in the case now before us, we conclude that the district court did not
commit plain error. Here, the district court clearly stated multiple times that the amount
recovered by law enforcement “has been credited toward restitution.” That means what
it says. And as far as we can tell, the district court, Parker, and the government all
understood that Parker would not ultimately be required to pay restitution to the credit
union because the government would return the seized money. That was not the
situation in Anderson, where the government had no intention of returning the
recovered proceeds and the court’s order “obligat[ed] Anderson to repay the value of
those proceeds.” Id. So, for all its similarities, Anderson is nevertheless inapposite. We
cannot say that there was any “error that was plain” and that “affected the defendant’s
substantial rights.” Dridi, 952 F.3d at 899.
We learned during oral argument, however, that the government had returned
the money while this appeal was pending. Counsel for Parker told us that the money
“has been given to the Clerk’s Office and returned.” Counsel for the government told us
that “the money was returned through the Clerk of Court’s Office,” and he also said
that the current “summary of debt balances … states that the $11,312.99 was applied to
the restitution going towards the Summit Credit Union,” and further, that the
additional money found on Parker was put toward the remainder of the restitution
owed.
Everybody agrees, then, that the money has been returned. That is, at bottom,
what Parker wants. (Appellant’s Br. at 9 (“[L]aw enforcement should be required to
return that property to the bank … .”).) Parker’s appeal is therefore moot in that respect;
we can’t instruct the district court to order the government to return money that it has
already returned. Cf. United States v. Balint, 201 F.3d 928, 936 (7th Cir. 2000) (holding
that the appeal “became moot when [a] codefendant … paid the restitution bill in full.”).
However, Parker also wants the district court to amend its order to make it
absolutely clear (particularly to the Bureau of Prisons) that payment of restitution to the
credit union has been satisfied. (Appellant’s Br. at 9 (“[N]o restitution should be
No. 19-3541 Page 4
ordered against Mr. Parker regarding that property.”).) Now that the money has been
returned by the government to the clerk of the district court, an order by the district
court reflecting the current status of restitution seems to be the only relief that can be
provided.2
We therefore AFFIRM the district court’s order of restitution when entered and
REMAND with instructions that the district court confer with counsel for Parker and
the government and thereafter enter an updated order reflecting that restitution to the
credit union has been satisfied.
2 We wondered at oral argument why this technical issue was not dealt with in the district court. Parker’s
counsel told us that Parker did not move the district court for relief because this appeal was already
pending. But we don’t see any obstacle that would have prevented the district court from promptly
resolving this issue in the first instance. E.g., United States v. Hudson, 908 F.3d 1083, 1085 (7th Cir. 2018)
(“[W]e remind future litigants of Rule 35(a) of the Federal Rules of Criminal Procedure, which provides,
‘the court may correct a sentence that resulted from arithmetical, technical, or other clear error’ within 14
days of sentencing. This appeal might have been avoided had the written judgment been reviewed
promptly and the inconsistencies brought to the district court’s attention.”). And a motion before the
district court would have suspended the time to file an appeal. See United States v. Ibarra, 502 U.S. 1, 6
(1991) (a motion to reconsider filed within the time for appeal suspends the finality of a decision in
criminal litigation); United States v. Rollins, 607 F.3d 500, 501–02 (7th Cir. 2010) (same).