United States v. Edward J. O'Rourke

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------- FILED
No. 05-16162 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar September 7, 2006
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 05-00027-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD J. O’ROURKE,
a. k. a. John P. O’Rourke,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 7, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Edward O’Rourke (“O’Rourke”) appeals a 60-month sentence and
$91,642.94 restitution order imposed after his conviction for embezzlement of
Social Security disability benefits in violation of 18 U.S.C. § 641. No reversible
error has been shown; we affirm.
Between 1987 and 2002, O’Roarke collected Social Security disability
benefits based initially on a work-related injury, and later on his alcoholism. In
1996, while receiving these benefits, O’Roarke assumed the identity of his
deceased brother by using the brother’s Social Security number to obtain
employment and a driver’s license. At one point, O’Roarke used his brother’s
identity when faced with state criminal prosecution. O’Roarke continued to collect
benefits while working under his brother’s name and without reporting his
employment to the Social Security Administration (“SSA”). The SSA later
discovered that O’Roarke had collected $91,642.94 in wrongful Social Security
payments.
In May 2005, O’Rourke pled guilty to one count of embezzling Social
Security disability benefits while two other counts were dismissed on the
government’s motion. At the change of plea colloquy, the district court notified
O’Rourke that “the penalty for Count 1 is a term of imprisonment of up to ten
years without parole, a fine of $250,000, a period of supervised release of up to
three years, and a special assessment of $100.” The Presentence Investigation
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Report (“PIR”) recommended a total offense level of 13,1 with a corresponding
guideline range of 33-41 months’ imprisonment. The PIR also indicated that
restitution of $91,642.94 would be mandatory.
At sentencing, O’Rourke did not object to the PIR but asked for a
downward departure, which the district court rejected based on O’Rourke’s
extensive criminal history. Instead, the district court sentenced O’Rourke to sixty
months’ imprisonment and ordered him to pay $91,642.94 in restitution. “After
considering the statutory purposes of sentencing, and the factors set forth in [18
U.S.C. § 3553(a)],” the district court based this variance outside the advisory
guidelines on O’Rourke’s “sizeable criminal history” outlined at the sentencing
hearing and his lack of appreciation for the wrongfulness of his conduct.
On appeal, O’Rourke argues (1) his guilty plea was not knowing and
voluntary because of the district court’s failure to inform him of a possible
restitution order before to the change of plea hearing; (2) the restitution order was
improper because it included losses from outside of the statute of limitations; and
(3) the district court erred by upwardly departing from the advisory sentencing
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This offense level was calculated from a base offense level of six, U.S.S.G. § 2B1.1(a)(2); an
eight-level enhancement for a loss in excess of $70,000, U.S.S.G. § 2B1.1(b)(1)(E); a two-level
enhancement for the unlawful use of a means of identification to obtain another means of
identification, U.S.S.G. § 2B1.1(b)(10)(C)(i); and a three-level reduction for acceptance of
responsibility, U.S.S.G. § 3E1.1.
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range without prior notice under Fed. R. Crim. P. 32(h).
First, the lack of a specific warning on mandatory restitution did not render
O’Rourke’s guilty plea either involuntary or unknowing. “This court reviews the
issue of a Rule 11 violation for plain error when it is not raised before the district
court.” United States v. Morris, 286 F.3d 1291, 1293 (11th Cir. 2002). To prove
such a violation, a defendant “must show that there is (1) ‘error,’ (2) that is ‘plain,’
and (3) that ‘affects substantial rights.’” Id. (citation omitted). The district court’s
failure to inform a defendant of its authority to order restitution “does not impact a
defendant’s substantial rights where he was warned of a potential fine larger than
the actual amount of restitution ordered.” Id. at 1294.
O’Rourke’s guilty plea was knowing and voluntary because the restitution
order did not affect O’Rourke’s substantial rights. The district court gave
O’Rourke advance warning of a $250,000 fine and the mandatory restitution order
was only $91,642.42. Therefore, failure to give specific prior warning of
mandatory restitution was not plain error.
Second, the district court did not plainly err by ordering restitution for
fraudulently obtained disability payments outside the statute of limitations. If a
defendant objects to an order of restitution for the first time on appeal, we review
the district court’s decision for plain error. United States v. Davis, 117 F.3d 459,
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462 (11th Cir. 1997). We have commented that “[i]f a district court may consider
relevant conduct occurring outside of the statute of limitations in determining the
offense level (and, indirectly, the range of possible sentences), we fail to see what
precludes it from considering such conduct in fashioning a restitution order.”
United States v. Dickerson, 370 F.3d 1330, 1342 (11th Cir. 2004).
The district court did not plainly err by considering conduct outside the
statute of limitations in ordering restitution for O’Rourke’s crime.2 Even if our
decision in Dickerson is not directly binding, “where the explicit language of a
statute or rule does not specifically resolve an issue, there can be no plain error
where there is no precedent from the Supreme Court or this Court directly
resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.
2003). Neither this Court nor the Supreme Court has held that conduct outside the
statute of limitations may not be considered in determining the amount of
restitution. Thus, the district court did not commit plain error by considering the
full extent of losses proximately caused by O’Rourke’s fraud; and we affirm the
2
O’Rourke’s crime is governed by the Mandatory Victim Restitution Act (MVRA), which
mandates restitution for any offense against property under Title 18, including an offense committed
by fraud or deceit, in which an identifiable victim suffers a pecuniary loss. 18 U.S.C. § 3663A(a)(1),
(c)(1)(A)(ii), (c)(1)(B). The statute defines “victim,” in part, as “a person directly and proximately
harmed as a result of the commission of an offense for which restitution may be ordered.” §
3663A(a)(1)(2). In this case, the SSA was an identifiable victim that suffered a pecuniary loss
directly and proximately caused by O’Rourke’s criminal conduct.
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restitution order of $91,642.42.
Third, the district court did not violate Fed. R. Crim. Pro 32(h) by failing to
give O’Roarke advance notice before imposing a sentence above the advisory
guidelines range. In United States v. Irizarry, No. 05-11718, 2006 WL 2129800(11th Cir. Aug. 1, 2006), this Court first considered the issue of “whether the
notice requirement of Rule 32(h) applies to a sentence set outside the advisory
guidelines range based not on the guidelines’ departure provisions, but on a
district court’s consideration of the section 3553(a) factors.” Id. at *3. We
concluded that Rule 32(h) does not apply to such variances when a court exercises
its “post-Booker discretion to impose a reasonable sentence outside the sentencing
guidelines.” Id. (citing United States v. Booker, 125 S. Ct. 738, 757 (2005)). This
Court commented that “[a]fter Booker, parties are inherently on notice that the
sentencing guidelines range is advisory and that the district court must consider
the factors expressly set out in section 3553(a) when selecting a reasonable
sentence between the statutory minimum and maximum.” Id. at 8-9.
As in Irizarry, the district court in this case first calculated the advisory
guidelines range correctly without departing from the guidelines’ departure
provisions. Next, the district court considered the sentencing factors of section
3553(a) before determining that a variance on the proposed guidelines sentence
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was necessary in the light of those factors. The above-guidelines sentence was
therefore a variance and not a guidelines departure. Thus, the district court
properly exercised its post-Booker discretion in imposing a reasonable sentence of
sixty months’ imprisonment and failure to give advance notice of such
consideration was not reversible error.
The sentence imposed by the district court is AFFIRMED.
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