United States v. Schrimsher ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-6751.
UNITED STATES of America, Plaintiff-Appellee,
v.
William Michael SCHRIMSHER, Defendant-Appellant.
July 14, 1995.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CR-93-PT-263-NE), Robert B. Propst,
Judge.
ON PETITION FOR REHEARING
Before TJOFLAT, Chief Judge, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
The 1990 amendment to the Victim and Witness Protection Act
(the "VWPA") provides, in pertinent part, that a sentencing judge
may order restitution "to the extent agreed to by the parties in a
plea agreement." 18 U.S.C. § 3663(a)(3) (Supp. V 1993). In this
case, pursuant to a written plea agreement, appellant William
Michael Schrimsher pleaded guilty on May 10, 1994, to one count
charging him with possession of a stolen motor vehicle in violation
of 18 U.S.C. § 2313 (1988 & Supp. V 1993). The plea agreement
stated that the court "must/may consider ordering restitution";
the agreement, however, did not indicate the amount of the
restitution. Schrimsher appeals the district court's restitution
order, asserting that the sentencing judge violated the VWPA by
ordering Schrimsher to pay restitution in excess of the amount
contemplated by the plea agreement. We find that, by his own
admission, Schrimsher agreed to the full amount of the restitution
ordered by the sentencing judge and, therefore, affirm.
I.
At the time of his arrest on February 28, 1994, Schrimsher
possessed three stolen motor vehicles, including the vehicle that
formed the basis of the single substantive count to which he later
pleaded guilty; each of the three vehicles became the subject of
separate counts in an indictment charging Schrimsher with multiple
violations of section 2313. At the sentencing hearing on July 14,
1994, the court, after announcing that it would order restitution
pursuant to the plea agreement, sought to determine the amount of
restitution the parties contemplated when they entered into that
agreement. Counsel for Schrimsher advised the court that although
"the plea agreement does not set out specifically that [Schrimsher]
will agree to restitution [for the] three automobiles ... we
represented by stipulation [that Schrimsher] knew the cars were
stolen ... and he had the three cars so he is responsible for
them." When further questioned by the court as to the extent of
the plea agreement, defense counsel continued to insist: "We take
responsibility for those three."
II.
Prior to congressional amendment of the VWPA in 1990, the
Supreme Court determined that the Act permitted a sentencing judge
to order restitution "only for the loss caused by the specific
conduct that is the basis of the offense of conviction." Hughey v.
U.S., 495 U.S. 411, 413, 110 S. Ct. 1979, 1981, 109 L. Ed. 2d 408
(1990). After Hughey, courts were in disagreement as to the effect
of a plea agreement that called for restitution in an amount
greater than the loss directly arising from the offense of
conviction. Compare United States v. Young, 953 F.2d 1288, 1290
(11th Cir.1992) ("Parties to a plea agreement cannot increase the
statutory powers of the sentencing judge to authorize restitution
simply by stipulating to restitution beyond that allowed under the
relevant version of the Act.") with United States v. Soderling, 970
F.2d 529, 533 (9th Cir.1992) (per curiam) ("[I]f the [Federal
Probation Act] allows restitution beyond the offense of conviction
when the defendant agrees to such in a plea agreement, so too does
the VWPA."), cert. denied, --- U.S. ----, 113 S. Ct. 2446, 124
L. Ed. 2d 663 (1993).
On November 29, 1990, in response to Hughey, Congress amended
the VWPA and added a provision, section 3663(a)(3), authorizing a
sentencing judge to award restitution commensurate with the terms
of a plea agreement. Subsequently, the courts of appeals have
uniformly held that the amendment does not contravene the
limitations placed on the sentencing judge by the Supreme Court in
Hughey. See, e.g., United States v. Silkowski, F.3d 682, 688-89
32
(2d Cir.1994); United States v. Jewett, 978 F.2d 248, 253 (6th
Cir.1992); United States v. Arnold, 947 F.2d 1236, 1237-38 (5th
Cir.1991) (per curiam). See also United States v. Turcks, 41 F.3d
893, 902 n. 12 (3d Cir.1994) (recognizing the effect of the
amendment). We join these circuits and hold that the 1990
amendment to the VWPA gives the sentencing judge discretion to
order restitution in an amount greater than the loss relating to
the offense of conviction when the parties have assented to such
restitution in a plea agreement.
III.
We now must determine what effect, if any, defense counsel's
admission at the sentencing hearing that Schrimsher accepted
restitutory responsibility for the three vehicles has on the
interpretation and operation of a plea agreement otherwise silent
as to the amount of restitution. At the hearing, defense counsel
gave the following unambiguous account of the negotiations
surrounding the plea agreement: "[W]e represented by stipulation
[that Schrimsher] knew the cars were stolen ... and he had the
three cars so he is responsible for them." This statement is a
clear admission by Schrimsher that, as part of the plea agreement,
he effectively conceded, indeed stipulated, that the court could
order restitution for the three vehicles in question. Accordingly,
Schrimsher's argument on appeal that the court lacked the authority
under section 3663(a)(3) to order restitution for the vehicles is
without merit. Furthermore, even if the argument had merit,
Schrimsher waived the point by inviting the court to order the
restitution he now contests.
Given that there is no reason to remand the case for
additional proceedings on the issue of restitution, the judgment of
the district court is AFFIRMED in full.
IT IS SO ORDERED.