Dolan v. United States ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DOLAN v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 09–367. Argued April 20, 2010—Decided June 14, 2010
Petitioner Dolan pleaded guilty to assault resulting in serious bodily
injury and entered into a plea agreement, which stated that the Dis
trict Court could order restitution for his victim. Dolan’s presentence
report also noted that restitution was required, but did not recom
mend an amount because of a lack of information on hospital costs
and lost wages. The Mandatory Victims Restitution Act provides
that “if the victim’s losses are not ascertainable by the date that is 10
days prior to sentencing,” the court “shall set a date for the final de
termination of the victim’s losses, not to exceed 90 days after sentenc
ing.” 18 U. S. C. §3664(d)(5). On July 30, the District Court held a
sentencing hearing and imposed a sentence of imprisonment and su
pervised release. On August 8, the court entered a judgment, stating
that restitution was “applicable” but leaving open the amount of res
titution given that no information had yet “been received regarding
possible restitution payments.” On October 5, 67 days later, an ad
dendum documenting the restitution amount was added to the pre
sentence report. The court did not set a hearing until February 4,
about three months after the 90-day deadline had expired. At the
hearing, Dolan argued that because that deadline had passed, the
law no longer authorized restitution. Disagreeing, the court ordered
restitution, and the Tenth Circuit affirmed.
Held: A sentencing court that misses the 90-day deadline nonetheless
retains the power to order restitution—at least where, as here, that
court made clear prior to the deadline’s expiration that it would order
restitution, leaving open (for more than 90 days) only the amount.
Pp. 3–15.
(a) To determine the consequences of a missed deadline where, as
here, the statute does not specify them, this Court looks to the statu
2 DOLAN v. UNITED STATES
Syllabus
tory language, to the relevant context, and to what they reveal about
the deadline’s purposes. A “jurisdictional” deadline’s expiration pre
vents a court from permitting or taking the action to which the stat
ute attached the deadline. The prohibition is absolute. It cannot be
waived or extended for equitable reasons. See John R. Sand &
Gravel Co. v. United States, 552 U. S. 130, 133–134. Other deadlines
are “claims-processing rules,” which do not limit a court’s jurisdiction,
but regulate the timing of motions or claims brought before the court.
Unless a party points out that another litigant has missed such a
deadline, the party forfeits the deadline’s protection. See, e.g., Kon
trick v. Ryan, 540 U. S. 443, 454–456. In other instances, a deadline
seeks speed by creating a time-related directive that is legally en
forceable but does not deprive the judge or other public official of the
power to take the action even if the deadline is missed. See, e.g.,
United States v. Montalvo-Murillo, 495 U. S. 711, 722. In light of its
language, context, and purposes, the statute at issue sets forth this
third kind of limitation. The fact that a sentencing court misses the
90-day deadline, even through its own or the Government’s fault,
does not deprive the court of the power to order restitution. Pp. 3–5.
(b) Several considerations lead to this conclusion. First, where, as
here, a statute “does not specify a consequence for noncompliance
with” its “timing provisions,” “federal courts will not” ordinarily “im
pose their own coercive sanction.” United States v. James Daniel
Good Real Property, 510 U. S. 43, 63. A statute’s use of “shall” alone,
see §3664(d)(5), does not necessarily bar judges from taking the ac
tion to which the missed deadline refers. Second, the statute places
primary weight on, and emphasizes the importance of, imposing res
titution upon those convicted of certain federal crimes. See §3663A.
Third, the statute’s procedural provisions reinforce this substantive
purpose. They reveal that the statute seeks speed primarily to help
crime victims secure prompt restitution, not to provide defendants
with certainty as to the amount of their liability. Fourth, to read the
statute as depriving the sentencing court of the power to order resti
tution would harm the victims, who likely bear no responsibility for
the deadline’s being missed and whom the statute seeks to benefit.
That kind of harm to third parties provides a strong indication that
Congress did not intend a missed deadline to work a forfeiture. See
Brock v. Pierce County, 476 U. S. 253, 262. Fifth, the Court has in
terpreted similar statutes, such as the Bail Reform Act of 1984, simi
larly. See Montalvo-Murillo, supra, at 721. Sixth, the defendant nor
mally can mitigate potential harm by telling the court that he fears
the deadline will be, or just has been, missed, and the court will
likely set a timely hearing or take other statutorily required action.
Pp. 5–10.
Cite as: 560 U. S. ____ (2010) 3
Syllabus
(c) This Court has not understated the potential harm to a defen
dant of a missed deadline. Petitioner claims that because the sen
tence will not be a “final judgment” for appeal purposes without a de
finitive determination of the restitution amount, to delay that
determination beyond the deadline is to delay his ability to appeal.
But a defendant who knows that restitution will be ordered and is
aware of the amount can usually avoid additional delay by asking for
a timely hearing; if the court refuses, he could seek mandamus. And
in the unlikely instance that delay causes the defendant prejudice, he
remains free to ask the appellate court to take that fact and any
other equitable considerations into account on review. This does not
mean that the Court accepts petitioner’s premise that a sentencing
judgment is not “final” until the restitution amount is determined.
Although that question need not be decided here, strong arguments
favor the appealability of the initial judgment irrespective of the de
lay in determining the restitution amount. A judgment imposing
“ ‘discipline’ ” may still be “freighted with sufficiently substantial in
dicia of finality to support an appeal.” Corey v. United States, 375
U. S. 169, 174. And several statutes say that a “judgment of convic
tion” that “includes” “imprisonment” is a “final judgment.” E.g., 18
U. S. C. §3582(b). Moreover, §3664(o) provides that a “sentence that
imposes an order of restitution,” such as the later restitution order
here, “is a final judgment.” Even assuming that the rule of lenity
could be applied to a statutory time provision in the criminal context,
here there is no statutory ambiguity sufficiently grievous to warrant
its application in this case. Muscarello v. United States, 524 U. S.
125, 139. Pp. 10–15.
571 F. 3d 1022, affirmed.
BREYER, J., delivered the opinion of the Court, in which THOMAS,
GINSBURG, ALITO, and SOTOMAYOR, JJ., joined. ROBERTS, C. J., filed a
dissenting opinion, in which STEVENS, SCALIA, and KENNEDY, JJ.,
joined.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–367
_________________
BRIAN RUSSELL DOLAN, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 14, 2010]
JUSTICE BREYER delivered the opinion of the Court.
This case concerns the remedy for missing a statutory
deadline. The statute in question focuses upon mandatory
restitution for victims of crimes. It provides that “the
court shall set a date for the final determination of the
victim’s losses, not to exceed 90 days after sentencing.” 18
U. S. C. §3664(d)(5). We hold that a sentencing court that
misses the 90-day deadline nonetheless retains the power
to order restitution—at least where, as here, the sentenc
ing court made clear prior to the deadline’s expiration that
it would order restitution, leaving open (for more than 90
days) only the amount.
I
On February 8, 2007, petitioner Brian Dolan pleaded
guilty to a federal charge of assault resulting in serious
bodily injury. 18 U. S. C. §§113(a)(6), 1153; App. 17. He
entered into a plea agreement that stated that “restitution
. . . may be ordered by the Court.” Id., at 18. The presen
tence report, provided to the court by the end of May,
noted that restitution was required. But, lacking precise
information about hospital costs and lost wages, it did not
2 DOLAN v. UNITED STATES
Opinion of the Court
recommend a restitution amount. Id., at 27.
On July 30, the District Court held Dolan’s sentencing
hearing. The judge sentenced Dolan to 21 months’ impris
onment along with 3 years of supervised release. Id., at
38. The judge, aware that restitution was “mandatory,”
said that there was “insufficient information on the record
at this time regarding possible restitution payments that
may be owed,” that he would “leave that matter open,
pending the receipt of additional information,” and that
Dolan could “anticipate that such an award will be made
in the future.” Id., at 39–40. A few days later (August 8)
the court entered a judgment, which, among other things,
stated:
“Pursuant to the Mandatory Restitution Act, restitu
tion is applicable; however, no information has been
received regarding possible restitution payments that
may be owed. Therefore, the Court will not order res
titution at this time.” Id., at 49 (boldface deleted).
The probation office later prepared an addendum to the
presentence report, dated October 5, which reflected the
views of the parties, and which the judge later indicated
he had received. Id., at 54. The addendum documents the
“total amount of restitution” due in the case (about
$105,000). Id., at 52. Its date, October 5, is 67 days after
Dolan’s July 30 sentencing and 23 days before the stat
ute’s “90 days after sentencing” deadline would expire.
§3664(d)(5).
The sentencing court nonetheless set a restitution hear
ing for February 4, 2008—about three months after the
90-day deadline expired. As far as the record shows, no
one asked the court for an earlier hearing. At the hearing,
Dolan pointed out that the 90-day deadline had passed.
Id., at 54–55. And he argued that the law no longer au
thorized the court to order restitution. Id., at 60–64.
The court disagreed and ordered restitution. See
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
Memorandum Opinion and Restitution Order in No. CR
06–02173–RB (D NM, Apr. 24, 2008), App. to Pet. for Cert.
47a. The Court of Appeals affirmed. 571 F. 3d 1022(CA10 2009). And, in light of differences among the
Courts of Appeals, we granted Dolan’s petition for certio
rari on the question. Compare United States v. Cheal, 389
F. 3d 35 (CA1 2004) (recognizing court’s authority to enter
restitution order past 90 days) and United States v. Balen
tine, 569 F. 3d 801 (CA8 2009) (same), with United States
v. Maung, 267 F. 3d 1113 (CA11 2001) (finding no such
authority), and United States v. Farr, 419 F. 3d 621 (CA7
2005) (same).
II
A
There is no doubt in this case that the court missed the
90-day statutory deadline “for the final determination of
the victim’s losses.” §3664(d)(5). No one has offered any
excuse for the court’s doing so. Nor did any party seek an
extension or “tolling” of the 90 days for equitable or for
other reasons. All the information needed to determine
the requisite restitution amount was available before the
90-day period had ended. Thus, the question before us
concerns the consequences of the missed deadline where,
as here, the statute does not specify them.
In answering this kind of question, this Court has
looked to statutory language, to the relevant context, and
to what they reveal about the purposes that a time limit is
designed to serve. The Court’s answers have varied de
pending upon the particular statute and time limit at
issue. Sometimes we have found that the statute in ques
tion imposes a “jurisdictional” condition upon, for example,
a court’s authority to hear a case, to consider pleadings, or
to act upon motions that a party seeks to file. See, e.g.,
Bowles v. Russell, 551 U. S. 205 (2007). But cf. Kontrick v.
Ryan, 540 U. S. 443, 455 (2004) (finding bankruptcy rule
4 DOLAN v. UNITED STATES
Opinion of the Court
did not show legislative intent to “delineat[e] the classes of
cases” and “persons” properly “within a court’s adjudica
tory authority”); see also Reed Elsevier, Inc. v. Muchnick,
559 U. S. ___, ___ (2010) (slip op., at 5–6) (discussing use
of term “jurisdictional”). The expiration of a “jurisdic
tional” deadline prevents the court from permitting or
taking the action to which the statute attached the dead
line. The prohibition is absolute. The parties cannot
waive it, nor can a court extend that deadline for equitable
reasons. See John R. Sand & Gravel Co. v. United States,
552 U. S. 130, 133–134 (2008).
In other instances, we have found that certain deadlines
are more ordinary “claims-processing rules,” rules that do
not limit a court’s jurisdiction, but rather regulate the
timing of motions or claims brought before the court.
Unless a party points out to the court that another litigant
has missed such a deadline, the party forfeits the dead
line’s protection. See, e.g., Kontrick v. Ryan, supra, at
454–456 (60-day bankruptcy rule deadline for creditor’s
objection to debtor discharge); Eberhart v. United States,
546 U. S. 12, 19 (2005) (per curiam) (7-day criminal rule
deadline for filing motion for a new trial).
In still other instances, we have found that a deadline
seeks speed by creating a time-related directive that is
legally enforceable but does not deprive a judge or other
public official of the power to take the action to which the
deadline applies if the deadline is missed. See, e.g.,
United States v. Montalvo-Murillo, 495 U. S. 711, 722
(1990) (missed deadline for holding bail detention hearing
does not require judge to release defendant); Brock v.
Pierce County, 476 U. S. 253, 266 (1986) (missed deadline
for making final determination as to misuse of federal
grant funds does not prevent later recovery of funds);
Barnhart v. Peabody Coal Co., 537 U. S. 149, 171–172
(2003) (missed deadline for assigning industry retiree
benefits does not prevent later award of benefits).
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
After examining the language, the context, and the
purposes of the statute, we conclude that the provision
before us sets forth this third kind of limitation. The
fact that a sentencing court misses the statute’s 90-day
deadline, even through its own fault or that of the Gov
ernment, does not deprive the court of the power to order
restitution.
B
Several considerations lead us to this conclusion. First,
where, as here, a statute “does not specify a consequence
for noncompliance with” its “timing provisions,” “federal
courts will not in the ordinary course impose their own
coercive sanction.” United States v. James Daniel Good
Real Property, 510 U. S. 43, 63 (1993); see also Montalvo-
Murillo, supra, at 717–721. Cf., e.g., Speedy Trial Act, 18
U. S. C. §3161(c)(1); §3162(a)(2) (statute specifying that
missed 70-day deadline requires dismissal of indictment);
Zedner v. United States, 547 U. S. 489, 507–509 (2006)
(“The sanction for a violation of the Act is dismissal”).
We concede that the statute here uses the word “shall,”
§3664(d)(5), but a statute’s use of that word alone has not
always led this Court to interpret statutes to bar judges
(or other officials) from taking the action to which a
missed statutory deadline refers. See, e.g., Montalvo-
Murillo, supra, at 718–719 (use of word “shall” in context
of bail hearing makes duty “mandatory” but does not
mean that the “sanction for breach” is “loss of all later
powers to act”); Brock, supra, at 262 (same in context of
misuse of federal funds); Barnhart, supra, at 158–163
(same in context of benefits assignments). See also Re
gions Hospital v. Shalala, 522 U. S. 448, 459, n. 3 (1998)
(same in respect to federal official’s reporting date).
Second, the statute’s text places primary weight upon,
and emphasizes the importance of, imposing restitution
upon those convicted of certain federal crimes. Amending
6 DOLAN v. UNITED STATES
Opinion of the Court
an older provision that left restitution to the sentencing
judge’s discretion, the statute before us (entitled “The
Mandatory Victims Restitution Act of 1996”) says
“[n]otwithstanding any other provision of law, when sen
tencing a defendant convicted of [a specified] offense . . . ,
the court shall order . . . that the defendant make restitu
tion to the victim of the offense.” §3663A(a)(1) (emphasis
added); cf. §3663(a)(1) (stating that a court “may” order
restitution when sentencing defendants convicted of other
specified crimes). The Act goes on to provide that restitu
tion shall be ordered in the “full amount of each victim’s
losses” and “without consideration of the economic circum
stances of the defendant.” §3664(f)(1)(A).
Third, the Act’s procedural provisions reinforce this
substantive purpose, namely, that the statute seeks pri
marily to assure that victims of a crime receive full resti
tution. To be sure speed is important. The statute re
quires a sentencing judge to order the probation office to
prepare a report providing “a complete accounting of the
losses to each victim, any restitution owed pursuant to a
plea agreement, and information relating to the economic
circumstances of each defendant.” §3664(a). The prosecu
tor, after consulting with all identified victims, must
“promptly provide” a listing of the amount subject to resti
tution “not later than 60 days prior to the date initially set
for sentencing.” §3664(d)(1) (emphasis added). And the
provision before us says:
“If the victim’s losses are not ascertainable by the date
that is 10 days prior to sentencing, the attorney for
the Government or the probation officer shall so in
form the court, and the court shall set a date for the
final determination of the victim’s losses, not to ex
ceed 90 days after sentencing.” §3664(d)(5).
But the statute seeks speed primarily to help the victims
of crime and only secondarily to help the defendant. Thus,
Cite as: 560 U. S. ____ (2010) 7
Opinion of the Court
in the sentence following the language we have just
quoted, the statute continues:
“If the victim subsequently discovers further losses,
the victim shall have 60 days after discovery of those
losses in which to petition the court for an amended
restitution order.” Ibid.
The sentence imposes no time limit on the victim’s subse
quent discovery of losses. Consequently, a court might
award restitution for those losses long after the original
sentence was imposed and the 90-day time limit has ex
pired. That fact, along with the Act’s main substantive
objectives, is why we say that the Act’s efforts to secure
speedy determination of restitution is primarily designed
to help victims of crime secure prompt restitution rather
than to provide defendants with certainty as to the
amount of their liability. Cf. S. Rep. No. 104–179, p. 20
(1995) (recognizing “the need for finality and certainty in
the sentencing process,” but also stating that the “sole due
process interest of the defendant being protected . . . is the
right not to be sentenced on the basis of invalid premises
or inaccurate information”); see also ibid. (“[J]ustice can
not be considered served until full restitution is made”).
Fourth, to read the statute as depriving the sentencing
court of the power to order restitution would harm those—
the victims of crime—who likely bear no responsibility for
the deadline’s being missed and whom the statute also
seeks to benefit. Cf. §3664(g)(1) (“No victim shall be re
quired to participate in any phase of a restitution order”).
The potential for such harm—to third parties—normally
provides a strong indication that Congress did not intend
a missed deadline to work a forfeiture, here depriving a
court of the power to award restitution to victims. See
Brock, 476 U. S., at 262 (parties concede and court as
sumes that official can “proceed after the deadline” where
“inaction” would hurt third party); see also 3 N. Singer &
8 DOLAN v. UNITED STATES
Opinion of the Court
J. Singer, Sutherland on Statutory Construction §57:19,
pp. 73–74 (7th ed. 2008) (hereinafter Singer, Statutory
Construction) (missing a deadline does not remove power
to exercise a duty where there is no “language denying
performance after a specified time,” and especially “where
a mandatory construction might do great injury to persons
not at fault, as in a case where slight delay on the part of a
public officer might prejudice private rights or the public
interest” (footnote omitted)).
Fifth, we have previously interpreted similar statutes
similarly. In Montalvo-Murillo, 495 U. S. 711, for exam
ple, we considered the Bail Reform Act of 1984, which
states that a “judicial officer shall hold a hearing” to de
termine whether to grant bail to an arrested person and
that “hearing shall be held immediately upon the person’s
first appearance before the judicial officer.” (A continuance
of up to five days may also be granted.) 18 U. S. C.
§3142(f) (emphasis added). The judicial officer missed this
deadline, but the Court held that the judicial officer need
not release the detained person. Rather, “once the Gov
ernment discovers that the time limits have expired, it
may [still] ask for a prompt detention hearing and make
its case to detain based upon the requirements set forth in
the statute.” 495 U. S., at 721.
The Court reasoned that “a failure to comply” with the
hearing deadline “does not so subvert the procedural
scheme . . . as to invalidate the hearing.” Id., at 717.
Missing the deadline did not diminish the strength of the
Government’s interest in preventing release to avert the
likely commission of crimes—the very objective of the Act.
Id., at 720. Nor would mandatory release of the detained
person “proportion[ately]” repair the “inconvenience and
uncertainty a timely hearing would have spared him.” Id.,
at 721.
Here, as in Montalvo-Murillo, neither the language nor
the structure of the statute requires denying the victim
Cite as: 560 U. S. ____ (2010) 9
Opinion of the Court
restitution in order to remedy a missed hearing deadline.
As in Montalvo-Murillo, doing so would defeat the basic
purpose of the Mandatory Victims Restitution Act. And,
here, as in Montalvo-Murillo, that remedy does not “pro
portion[ately]” repair the harm caused the defendant
through delay, particularly where, as here, the defendant
“knew about restitution,” including the likely amount, well
before expiration of the 90-day time limit. App. 62. In
deed, our result here follows from Montalvo-Murillo a
fortiori, for here delay at worst postpones the day of finan
cial reckoning. In Montalvo-Murillo, delay postponed a
constitutionally guaranteed bail hearing with the attached
risk that the defendant would remain improperly confined
in jail. See 495 U. S., at 728 (STEVENS, J., dissenting)
(noting the seriousness “of the deprivation of liberty that
physical detention imposes”).
Nor does Montalvo-Murillo stand alone. The Court
there found support in similar cases involving executive
officials charged with carrying out mandatory public
duties in a timely manner. See id., at 718 (citing French v.
Edwards, 13 Wall. 506, 511 (1872); Brock, supra, at 260).
Those cases, in turn, are consistent with numerous similar
decisions made by courts throughout the Nation. See, e.g.,
Taylor v. Department of Transp., 260 N. W. 2d 521, 522–
523 (Iowa 1977); Hutchinson v. Ryan, 154 Kan. 751, 756–
757, 121 P. 2d 179, 182 (1942); State v. Industrial
Comm’n, 233 Wis. 461, 466, 289 N. W. 769, 771 (1940); see
also 3 Singer, Statutory Construction §57:19, at 74 (citing
cases).
Sixth, the defendant normally can mitigate any harm
that a missed deadline might cause—at least if, as here,
he obtains the relevant information regarding the restitu
tion amount before the 90-day deadline expires. A defen
dant who fears the deadline will be (or just has been)
missed can simply tell the court, which will then likely set
a timely hearing or take other statutorily required action.
10 DOLAN v. UNITED STATES
Opinion of the Court
See §3664(d)(4) (providing that “court may require addi
tional documentation or hear testimony”); §3664(d)(5).
Though a deliberate failure of the sentencing court to
comply with the statute seems improbable, should that
occur, the defendant can also seek mandamus. See All
Writs Act, 28 U. S. C. §1651(a); La Buy v. Howes Leather
Co., 352 U. S. 249 (1957). Cf. Brock, 476 U. S., at 260, n. 7(noting availability of district court action to compel
agency compliance with time-related directive).
C
Petitioner Dolan, however, believes we have under
stated the harm to a defendant that a missed deadline can
cause. To show this he makes a three-part argument: (1)
A defendant cannot appeal a sentence unless it is part of a
“final judgment”; (2) a judgment setting forth a sentence is
not “final” until it contains a definitive determination of
the amount of restitution; and (3) to delay the determina
tion of the amount of restitution beyond the 90-day dead
line is to delay the defendant’s ability to appeal for more
than 90 days—perhaps to the point where his due process
rights are threatened. Brief for Petitioner 28–33.
The critical problem with this argument lies in its third
step. As we have said, a defendant who, like petitioner
here, knows that restitution will be ordered and is aware
of the restitution amount prior to the expiration of the 90
day deadline can usually avoid additional delay simply by
pointing to the statute and asking the court to grant a
timely hearing. That did not happen here. And that
minimal burden on the defendant is a small cost relative
to the prospect of depriving innocent crime victims of their
due restitution. (Should the court still refuse, the defen
dant could seek mandamus—which we believe will rarely
be necessary.)
Even in the unlikely instances where that delay does
cause the defendant prejudice—perhaps by depriving him
Cite as: 560 U. S. ____ (2010) 11
Opinion of the Court
of evidence to rebut the claimed restitution amount—the
defendant remains free to ask the court to take that fact
into account upon review. That inquiry might also con
sider the reason for the delay and the party responsible for
its cause, i.e., whether the Government or the victim. Cf.,
e.g., United States v. Stevens, 211 F. 3d 1, 4–6 (CA2 2000)
(tolling 90-day deadline for defendant’s bad-faith delay);
United States v. Terlingo, 327 F. 3d 216, 218–223 (CA3
2003) (same). Adopting the dissent’s approach, by con
trast, would permit a defendant’s bad-faith delay to pre
vent a timely order of restitution, potentially allowing the
defendant to manipulate whether restitution could be
awarded at all. But since we are not presented with such
a case here, we need not decide whether, or how, such
potential harm or equitable considerations should be
taken into consideration.
In focusing upon the argument’s third step, we do not
mean to imply that we accept the second premise, i.e., that
a sentencing judgment is not “final” until it contains a
definitive determination of the amount of restitution. To
the contrary, strong arguments favor the appealability of
the initial judgment irrespective of the delay in determin
ing the restitution amount. The initial judgment here
imposed a sentence of imprisonment and supervised re
lease, and stated that restitution would be awarded. This
Court has previously said that a judgment that imposes
“discipline” may still be “freighted with sufficiently sub
stantial indicia of finality to support an appeal.” Corey v.
United States, 375 U. S. 169, 174, 175 (1963) (internal
quotation marks omitted). And the Solicitor General
points to statutes that say that a “judgment of conviction”
that “includes” a “sentence to imprisonment” is a “final
judgment.” 18 U. S. C. §3582(b). So is a judgment that
imposes supervised release (which can be imposed only in
conjunction with a sentence of imprisonment). Ibid.;
§3583(a). So is a judgment that imposes a fine. §3572(c).
12 DOLAN v. UNITED STATES
Opinion of the Court
See Tr. of Oral Arg. 33–34.
Moreover, §3664(o) provides that a “sentence that im
poses an order of restitution,” such as the later restitution
order here, “is a final judgment.” Thus, it is not surprising
to find instances where a defendant has appealed from the
entry of a judgment containing an initial sentence that
includes a term of imprisonment; that same defendant has
subsequently appealed from a later order setting forth the
final amount of restitution; and the Court of Appeals has
consolidated the two appeals and decided them together.
See, e.g., United States v. Stevens, supra; United States v.
Maung, 267 F. 3d 1113, 1117 (CA11 2001); cf. United
States v. Cheal, 389 F. 3d 35, 51–53 (CA1 2004).
That the defendant can appeal from the earlier sentenc
ing judgment makes sense, for otherwise the statutory 90
day restitution deadline, even when complied with, could
delay appeals for up to 90 days. Defendants, that is,
would be forced to wait three months before seeking re
view of their conviction when they could ordinarily do so
within 14 days. See Fed. Rule App. Proc. 4(b). Nonethe
less, in light of the fact that the interaction of restitution
orders with appellate time limits could have consequences
extending well beyond cases like the present case (where
there was no appeal from the initial conviction and sen
tence), we simply note the strength of the arguments
militating against the second step of petitioner’s argument
without deciding whether or when a party can, or must,
appeal. We leave all such matters for another day.
The dissent, however, creates a rule that could ad
versely affect not just restitution, but other sentencing
practices beyond the narrow circumstances presented
here. Consider, for example, a judge who (currently lack
ing sufficient information) wishes to leave open, say, the
amount of a fine, or a special condition of supervised re
lease. In the dissent’s view, the entry of any such judg
ment would immediately deprive the judge of the author
Cite as: 560 U. S. ____ (2010) 13
Opinion of the Court
ity later to fill in that blank, in the absence of a statute
specifically providing otherwise. See post, at 1–4 (opinion
of ROBERTS, C. J.). Thus, the sentencing judge would
either have to (1) forgo the specific dollar amount or poten
tial condition, or (2) wait to enter any judgment until all of
the relevant information is at hand. The former alterna
tive would sometimes deprive judges of the power to enter
components of a sentence they may consider essential.
The latter alternative would require the defendant to
wait—perhaps months—before taking an appeal.
As we have pointed out, our precedents do not currently
place the sentencing judge in any such dilemma. See
supra, at 5, 8–9. And we need not now depart from those
precedents when this case does not require us to do so;
when the issue has not been adequately briefed; when the
lower court had no opportunity to consider the argument
(which the petitioner may well have forfeited); and when
the rule would foreclose the current practices of some
district courts and unnecessarily cabin the discretion they
properly exercise over scheduling and sentencing matters.
Cf., e.g., United States v. Stevens, supra, at 3; United
States v. Cheal, supra, at 47 (illustrating district court
practices).
Certainly there is no need to create this rule in the
context of restitution, for provisions to which the dissent
refers are silent about whether restitution can or cannot
be ordered after an initial sentencing. See, e.g., §§3551(b),
(c) (“A sanction authorized by [criminal forfeiture and
restitution statutes] may be imposed in addition to the
[rest of the] sentence”); §3663A(c)(1) (mandatory orders of
restitution “shall apply in all sentencing proceedings [for
specified offenses]”). And even on the dissent’s theory, the
statute elsewhere provides the necessary substantive
authorization: “Notwithstanding any other provision of
law, when sentencing a defendant convicted of [a specified]
offense . . . , the court shall order . . . that the defendant
14 DOLAN v. UNITED STATES
Opinion of the Court
make restitution to the victim of the offense.” §3663A(a)(1)
(emphasis added). The dissent cannot explain why a
separate statutory provision regarding procedures as to
when a “court shall set a date for the final determination
of the victim’s losses,” §3664(d)(5), automatically divests a
court of this distinct substantive authority. While of
course that provision does not “plainly” confer “power to
act after sentencing,” post, at 5 (emphasis deleted), neither
does it “plainly” remove it or require that all sentencing
matters be concluded at one point in time. (And the dis
sent’s assertion, see post, at 6—that it uses the term “au
thority” not in its “jurisdictional” sense, but rather in the
sense that a court lacks “authority” to “impose a sentence
above the maximum”—introduces a tenuous analogy that
may well confuse this Court’s precedents regarding the
term “jurisdictional.” See supra, at 3–4.)
In any event, unless one reads the relevant statute’s 90
day deadline as an ironclad limit upon the judge’s author
ity to make a final determination of the victim’s losses, the
statute before us itself provides adequate authority to do
what the sentencing judge did here—essentially fill in an
amount-related blank in a judgment that made clear that
restitution was “applicable.” App. 49 (boldface deleted).
Since the sentencing judge’s later order did not “correct”
an “error” in the sentence, Rule 35 does not apply. Com
pare Fed. Rule Crim. Proc. 35(a) with post, at 2–3. Hence
the dissent’s claim that there is no other statute that
creates authority (even were we to assume all else in its
favor, which we do not) is merely to restate the question
posed in this case, not to answer it.
Moreover, the dissent’s reading creates a serious statu
tory anomaly. It reads the statute as permitting a sen
tencing judge to order restitution for a “victim” who “sub
sequently discovers further losses” a month, a year, or 10
years after entry of the original judgment, while at the
same time depriving that judge of the power to award
Cite as: 560 U. S. ____ (2010) 15
Opinion of the Court
restitution to a victim whose “losses are not ascertainable”
within 90 days. Compare §3664(d)(5) (first sentence) with
§3664(d)(5) (second sentence). How is that a sensible
reading of a statute that makes restitution mandatory for
victims?
Finally, petitioner asks us to apply the “rule of lenity” in
favor of his reading of the statute. Dolan has not provided
us with an example of an instance in which the “rule of
lenity” has been applied to a statutory time provision in
the criminal context. See United States v. Wiltberger, 5
Wheat. 76 (1820) (applying rule in interpreting substan
tive criminal statute); Bifulco v. United States, 447 U. S.
381, 387, 400 (1980) (applying rule in interpreting “penal
ties”). But, assuming for argument’s sake that the rule
might be so applied, and after considering the statute’s
text, structure, and purpose, we nonetheless cannot find a
statutory ambiguity sufficiently “grievous” to warrant its
application in this case. Muscarello v. United States, 524
U. S. 125, 139 (1998) (internal quotation marks omitted).
See Caron v. United States, 524 U. S. 308, 316 (1998)
(rejecting application of rule where the “ambiguous” read
ing “is an implausible reading of the congressional
purpose”).
For these reasons, the judgment of the Court of Appeals
for the Tenth Circuit is
Affirmed.
Cite as: 560 U. S. ____ (2010) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–367
_________________
BRIAN RUSSELL DOLAN, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 14, 2010]
CHIEF JUSTICE ROBERTS, with whom JUSTICE STEVENS,
JUSTICE SCALIA, and JUSTICE KENNEDY join, dissenting.
The statute at issue in this case provides that “[i]f the
victim’s losses are not ascertainable [at least] 10 days
prior to sentencing, . . . the court shall set a date for the
final determination of the victim’s losses, not to exceed 90
days after sentencing.” 18 U. S. C. §3664(d)(5). Under the
Court’s view, failing to meet the 90-day deadline has no
consequence whatever. The Court reads the statute as if
it said “the court shall set a date for the final determina
tion of the victim’s losses, at any time after sentencing.” I
respectfully dissent.
I
In the absence of §3664(d)(5), any order of restitution
must be imposed at sentencing, if it is to be imposed at all.
Restitution “may be imposed in addition to [a] sentence” of
probation, fine, or imprisonment only if it is authorized
under §3556. See §§3551(b)–(c). Section 3556, in turn,
authorizes courts to order restitution “in imposing a sen
tence on a defendant” (emphasis added), pursuant to yet
other provisions requiring such orders to be made “when
sentencing a defendant,” §§3663(a)(1)(A), (c)(1), 3663A(a)
(1) (emphasis added). The mandatory restitution provi
sions of §3663A “apply in all sentencing proceedings for
2 DOLAN v. UNITED STATES
ROBERTS, C. J., dissenting
convictions of” certain crimes. §3663A(c)(1) (emphasis
added). And the court “at the time of sentencing” must
“state in open court the reasons for its imposition of the
particular sentence”—including its reasons for “not or
der[ing] restitution” if it fails to do so. §3553(c).
These provisions authorize restitution orders at sentenc
ing. They confer no authority to order restitution after
sentencing has concluded. When Congress permits courts
to impose criminal penalties at some time other than
sentencing, it does so explicitly. See, e.g., §3552(b) (provi
sional sentence during a study period); §3582(d) (authoriz
ing certain penalties “in imposing a sentence . . . or at any
time thereafter”); §3583(e) (permitting extension of super
vised release); §§4244(d)–(e) (provisional sentencing for
the mentally ill); see also Fed. Rules Crim. Proc.
32.2(b)(2)(B), (4)(A) (presentencing forfeiture orders); cf.
Corey v. United States, 375 U. S. 169 (1963) (appeals from
provisional and final sentences authorized by law).
Once a sentence has been imposed, moreover, it is final,
and the trial judge’s authority to modify it is narrowly
circumscribed. We have stated that “the trial courts had
no such authority” prior to the adoption of Rule 35, United
States v. Addonizio, 442 U. S. 178, 189, and n. 16 (1979),
and Congress has since revoked the broad authority to
correct illegal sentences originally set forth in that Rule.
See Sentencing Reform Act of 1984, Pub. L. 98–473,
§215(b), 98 Stat. 2015–2016; see also Historical Notes on
1984 Amendments to Rule 35, 18 U. S. C. A., p. 605 (2008).
Today, an error may be corrected by the trial court only if
it is “clear,” and only within 14 days after the sentence is
announced. Rules 35(a), (c). The Rule of Criminal Proce
dure allowing extensions of time expressly provides that
“[t]he court may not extend the time to take any action
under Rule 35, except as stated in that rule.” Rule
45(b)(2). This Court has reiterated that time limits made
binding under Rule 35 “may not be extended,” Addonizio,
Cite as: 560 U. S. ____ (2010) 3
ROBERTS, C. J., dissenting
supra, at 189, and that Rule 45(b)(2) creates “inflexible”
“claim-processing rules,” Eberhart v. United States, 546
U. S. 12, 19 (2005) (per curiam).
Thus, if the trial court fails to impose a mandatory term
of imprisonment, see, e.g., §924(c)(1)(A), or a mandatory
fine, see, e.g., 21 U. S. C. §844(a), or a mandatory order of
restitution, see 18 U. S. C. §3663A, the Government can
not simply ask it to impose the correct sentence later. If
the error is clear, and raised within 14 days, it might be
corrected under Rule 35. Otherwise, the Government
must appeal, and seek resentencing on remand.
§§3742(b)(1), (g).
Section 3664(d)(5) is a limited exception to these bed
rock rules. It permits a trial court to go forward with
sentencing while delaying any restitution order for up to
90 days. This provision is meaningful precisely because
restitution must otherwise be ordered at sentencing, and
because sentences are otherwise final unless properly
corrected. If trial courts had power to amend their sen
tences at any time, §3664(d)(5) would be unnecessary.
Here, however, the District Court failed to make use of
its limited authority under §3664(d)(5). Dolan was sen
tenced on July 30, 2007. The court declined to order resti
tution at that time or to set a date for a future restitution
order. App. 35, 39–40; see also id., at 49.1 The 90-day
period elapsed on October 28. At no time did the Govern
ment seek timely relief, whether under Rule 35 or by
appeal. Cf. Corey, supra, at 174; Berman v. United States,
302 U. S. 211, 212 (1937). Nor did it assert any claim that
the deadline had been lawfully extended or equitably
tolled, an issue that I agree is not before us, see ante, at 3,
11. But on April 24, 2008—269 days after sentencing, and
——————
1 Whether that date must itself be set at sentencing is not before us.
The order setting the date plainly cannot be entered 182 days after
sentencing, as happened here. See App. 3–4.
4 DOLAN v. UNITED STATES
ROBERTS, C. J., dissenting
after Dolan had already been released from prison—the
District Court nonetheless ordered $104,649.78 in restitu
tion. App. to Pet. for Cert. 32a, 47a.
I cannot see where that court obtained authority to add
additional terms to Dolan’s sentence. That is the step the
Court misses when it searches for the “remedy” for a
violation of §3664(d)(5). Ante, at 1. The rule is that a trial
court cannot alter a sentence after the time of sentencing.
Section 3664(d)(5) is a limited exception to that rule. If
the limits are exceeded the exception does not apply, and
the general rule takes over—the sentence cannot be
changed to add a restitution provision. Section 3664(d)(5)
is self-executing: It grants authority subject to a deadline,
and if the deadline is not met, the authority is no longer
available.
The Court appears to reason that §3664(d)(5) confers the
authority to add a restitution provision for at least 90
days, and that once the camel’s nose of some permitted
delay sneaks under the tent, any further delay is permis
sible. Ante, at 3, 5. But that is not what §3664(d)(5) says.
It provides 90 days for a final determination of the victims’
losses, not a free pass to impose restitution whenever the
trial court gets around to it. The court had no more power
to order restitution 269 days after sentencing than it did
to order an additional term of imprisonment and send
Dolan back to prison.
II
A
To avoid this conclusion, the Court runs through a
series of irrelevancies that cannot trump the clear statu
tory text. It notes, for example, that §3663A provides that
“ ‘[n]otwithstanding any other provision of law, when
sentencing a defendant convicted of [a specified] offense
. . . , the court shall order . . . that the defendant make
restitution to the victim of the offense.’ ” Ante, at 6 (quot
Cite as: 560 U. S. ____ (2010) 5
ROBERTS, C. J., dissenting
ing §3663A(a)(1); emphasis in Court’s opinion). But the
issue before us is when restitution should be ordered, so
the language the Court should underscore is “when sen
tencing.” This provision plainly confers no power to act
after sentencing. Any such power attaches only by virtue
of §3663A(d), which incorporates the procedures of §3664,
including the limited 90-day exception. See also §3556
(“The procedures under section 3664 shall apply to all
orders of restitution under this section”).
The Court puts greater emphasis on its reading of the
statute’s purpose, namely to provide restitution to victims
of crime. Certainly that was a purpose Congress sought to
promote. But “no legislation pursues its purposes at all
costs,” and “it frustrates rather than effectuates legislative
intent simplistically to assume that whatever furthers the
statute’s primary objective must be the law.” Rodriguez v.
United States, 480 U. S. 522, 525–526 (1987) (per curiam).
Congress had to balance against the interest in restitu
tion the contrary interest in promptly determining the
defendant’s sentence. The balance struck was clearly set
forth in the statute: determine the victim’s losses by a date
“not to exceed 90 days after sentencing.” §3664(d)(5).
Whether or not that limit was “primarily designed to help
victims of crime,” ante, at 7, it does not cease to be law
when invoked by defendants.
Nor can the Court find any support in the second sen
tence of §3664(d)(5). See ante, at 14–15. That provision
addresses a distinct issue—what to do about newly discov
ered losses—and sets a higher “good cause” standard. The
fact that Congress struck the balance between restitution
and finality differently in that context does not justify
overriding the balance it struck here.
The Court also analogizes the 90-day limit to other
provisions discussed in our precedents, most of which have
nothing to do with the rights of criminal defendants (for
whom procedural protections are of heightened impor
6 DOLAN v. UNITED STATES
ROBERTS, C. J., dissenting
tance), let alone the finality of criminal sentencing. The
cited cases are said to establish that an official’s “failure to
meet [a] deadline” does not always deprive that official of
“power to act beyond it.” Regions Hospital v. Shalala, 522
U. S. 448, 459, n. 3 (1998). But the failure to comply with
§3664(d)(5) does not deprive anyone of anything: The trial
court never had the general authority to alter sentences
once imposed, in the way that the administrative agencies
in the cited cases were said to have general regulatory
authority. The trial court’s authority to add a restitution
provision to an otherwise final sentence was conferred by
the very provision that limited that authority. Section
3664(d)(5) did not take away anything that might persist
in the absence of §3664(d)(5).2
Even more perplexing is the Court’s suggestion that
references to the authority of trial courts necessarily
implicate questions of jurisdiction. Ante, at 14. To say
that a court lacks authority to order belated restitution
does not use “authority” in a jurisdictional sense, see
Arbaugh v. Y & H Corp., 546 U. S. 500, 511 (2006), but
only in the same sense in which a court lacks “authority”
to impose a sentence above the statutory maximum. Such
action is an error of law, reversible on appeal, but it is not
jurisdictional. As in United Student Aid Funds, Inc. v.
Espinosa, 559 U. S. ___, ___ (2010) (slip op., at 9), compli
ance with §3664(d)(5) is “not a limitation on the . . . court’s
jurisdiction,” but it is a statutory “precondition to obtain
ing a [particular] order.” Here that condition was not
satisfied.
——————
2 United States v. Montalvo-Murillo, 495 U. S. 711 (1990), is equally
inapposite: The statute in that case rested the lower court’s authority
on whether a bail hearing had been held at all (it had), whereas here
the only statutory condition is whether the losses were determined
within 90 days of sentencing (they were not).
Cite as: 560 U. S. ____ (2010)
7
ROBERTS, C. J., dissenting
B
In the end, the Court does not appear to need
§3664(d)(5) at all. It instead suggests that we abandon
the bedrock rules that sentences once imposed are final,
and that the only exceptions are ones Congress chooses to
allow (and Congress has allowed various ones). The Court
instead proposes a judicial power to alter sentences, ap
parently at any time. But if a trial court can “leave open,
say, the amount of a fine,” ante, at 12, why not, say, the
number of years? Thus, after a defendant like Dolan has
served his entire sentence—and who knows how long
after?—a court might still order additional imprisonment,
additional restitution, an additional fine, or an additional
condition of supervised release. See ante, at 12–13.
The Court cites no authority in support of such “fill in
th[e] blank” sentencing, other than two cases implicated in
the Circuit split below. Ante, at 13. Prior to the enact
ment of §3664(d)(5), however, it was widely recognized
that the requirement to impose restitution “when sentenc
ing” meant that “[r]estitution must be determined at the
time of sentencing,” and could not be left open after sen
tencing had concluded. Federal Judicial Center, J. Wood,
Guideline Sentencing: An Outline of Appellate Case Law
on Selected Issues, p. 300 (Sept. 2002) (emphasis added;
citing United States v. Porter, 41 F. 3d 68, 71 (CA2 1994);
United States v. Ramilo, 986 F. 2d 333, 335–336 (CA9
1993); United States v. Prendergast, 979 F. 2d 1289, 1293
(CA8 1992); United States v. Sasnett, 925 F. 2d 392, 398–
399 (CA11 1991)).
The Court finds Rule 35(a) inapplicable because the
District Court was not “ ‘correct[ing]’ ” a clear error in the
sentence. Ante, at 14. True enough; but that is why the
Government should lose. The limitation of Rule 35(a) to
clear errors, corrected within 14 days of sentencing, does
not leave trial courts free to make other changes to sen
tences whenever they choose. Rule 35(a) only makes sense
8 DOLAN v. UNITED STATES
ROBERTS, C. J., dissenting
against a background rule that trial courts cannot change
sentences at will.
The same is true of §3552(b), which empowers a court
that does not wish to delay sentencing but “desires more
information than is otherwise available to it” to impose a
provisional sentence during a 120-day study period. That
statute would be largely unnecessary if a trial court could
do the same by order.
In Addonizio, 442 U. S., at 189, we thought it noncon
troversial that a sentence once imposed is final, subject to
such exceptions as Congress has allowed. Contrary to the
Court’s suggestion, ante, at 13, Dolan invoked that princi
ple both here and below. See, e.g., Brief for Petitioner 13,
15–18, 20, 29, 33, and n. 14, 36, 48, and n. 19; Reply Brief
for Petitioner 1, 5–8; Appellant’s Opening Brief in No. 08–
2104 (CA10), pp. 12–13 (citing United States v. Blackwell,
81 F. 3d 945, 949 (CA10 1996), for the proposition that a
“district court does not have inherent authority to modify
a sentence”). That the Court finds it necessary to question
that principle—indeed, to accuse this dissent of “creat[ing]
th[e] rule,” ante, at 13—highlights how misguided its
decision is.
To counter the effects of its opinion and to restore some
semblance of finality to sentencing, the Court advises
defendants to seek mandamus—a remedy we have de
scribed as “drastic and extraordinary,” “reserved for really
extraordinary causes,” and one of “the most potent weap
ons in the judicial arsenal.” Cheney v. United States Dist.
Court for D. C., 542 U. S. 367, 380 (2004) (internal quota
tion marks omitted). What an odd procedure the Court
contemplates! A defendant, who should have received a
harsher sentence, is to invoke the drastic and extraordi
nary remedy of mandamus, to make sure he gets it. That
is not how sentencing errors are corrected: If the trial
court fails to order the appropriate sentence, the Govern
ment must appeal to correct it. It did not do so here, and
Cite as: 560 U. S. ____ (2010) 9
ROBERTS, C. J., dissenting
that ends the case. Greenlaw v. United States, 554 U. S.
___, ___ (2008) (slip op., at 6).
Moreover, the Court’s mandamus remedy only helps
defendants who know they are in danger of an increased
sentence. So the Court imposes another rule, namely that
the trial court must explicitly “leave open” the precise
sentence at the time of sentencing, ante, at 12, or must
make clear, “prior to the deadline’s expiration[,] that it
would order restitution” at some indeterminate time, ante,
at 1 (emphasis added). But what if the court does not
make the crucial announcement at sentencing, or “prior to
the deadline’s expiration”? Are these judicially created
deadlines to be taken more seriously than those imposed
by Congress? Or are we just back at the beginning, asking
what the “remedy” should be for failing to meet the rele
vant deadline?
The Court’s suggestion to require notice of intent to
augment the sentence at some future date may be a good
idea. But an even better one might be to set a particular
date—say, 90 days after sentencing—on which the parties
could base their expectations. That was Congress’s choice,
and it should be good enough for us.
* * *
The District Court in this case failed to order mandatory
restitution in sentencing Dolan. That was wrong. But two
wrongs do not make a right, and that mistake gave the
court no authority to amend Dolan’s sentence later, be
yond the 90 days allowed to add a sentencing term requir
ing restitution.
I am mindful of the fact that when a trial court blun
ders, the victims may suffer. Consequences like that are
the unavoidable result of having a system of rules. If no
one appeals a mistaken ruling on the amount of restitu
tion (or whether restitution applies at all), finality will
necessarily obstruct the victims’ full recovery.
10 DOLAN v. UNITED STATES
ROBERTS, C. J., dissenting
It is up to Congress to balance the competing interests
in recovery and finality. Where—as here—it has done so
clearly, the “judicial inquiry is complete.” Barnhart v.
Sigmon Coal Co., 534 U. S. 438, 462 (2002) (internal quo
tation marks omitted).