United States v. Kimball Richards , 472 F. App'x 523 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-56313
Plaintiff - Appellant, D.C. No. 2:09-cv-08209-R-PLA
v.
MEMORANDUM *
KIMBALL DEAN RICHARDS,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted February 14, 2012
Pasadena, California
Before: FARRIS and W. FLETCHER, Circuit Judges, and HELLERSTEIN,
Senior District Judge.**
The United States (“Appellant”) appeals from an order of the district court
granting Kimball Dean Richards’s (“Appellee”) motion to dismiss Appellant’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for Southern New York, sitting by designation.
action to collect the restitution ordered by Appellee’s judgment of conviction.
Appellant contends that the district judge erred by relying on the statute of
limitations with respect to liability for restitution that was in effect at the time of
Appellee’s conviction rather than the later amendment of the statute of limitations
in effect at the time the district court granted Appellee’s motion. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and review questions of law regarding
the application of restitution statutes de novo. United States v. Berger, 574 F.3d
1202, 1204 (9th Cir. 2009). We assume familiarity with the record. We reverse
and remand.
On April 30, 1990, Appellee was sentenced on multiple felony counts of
bank fraud, mail fraud, and wire fraud. The judgment ordered a sentence of 15
years custody and also ordered restitution. Appellee was released from
imprisonment on January 8, 1999.
The government may enforce a judgment of restitution. 18 U.S.C. §
3613(a). At the time the judgment was entered, pursuant to the Victim and
Witness Protection Act of 1982 (the “VWPA”), Appellee’s liability to pay
restitution terminated upon his death or twenty years after entry of judgment. See
18 U.S.C. § 3613(b) (1990). However, pursuant to the Mandatory Victim
Restitution Act of 1996 (the “MVRA”), the statute was amended such that liability
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to pay restitution terminates “the later of 20 years from the entry of judgment or 20
years after the release from imprisonment of the person fined, or upon the death of
the individual fined.” 18 U.S.C. § 3613(b).
The district court held that the VWPA applied and that Appellee’s liability
for restitution had terminated, since more than twenty years had elapsed from the
entry of judgment on April 30, 1990. However, the statute of limitations with
respect to liability for restitution is procedural. Absent congressional intent to the
contrary, the district court is required to apply the law in effect at the time of its
decision. Thus, the district court should have applied the MVRA, not the VWPA.
See Landgraf v. USI Film Prods., 511 U.S. 244, 275 & nn. 28-29 (1994); Friel v.
Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1985) (per curiam). Pursuant
to the MVRA, Appellee’s liability for restitution has not terminated.
Appellee’s argument that application of the MVRA would violate the Ex
Post Facto Clause of the Constitution is without merit, for an expansion of the
period in which Appellee is liable for restitution does not increase Appellee’s
punishment. See United States v. Gianelli, 543 F.3d 1178, 1183 (9th Cir. 2008).
Appellee has waived his claims with respect to the validity of the restitution order
by failing to challenge the restitution order on direct appeal. See, e.g., id. at 1184.
REVERSE AND REMAND.
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