United States v. Anderson

10-1838-cr
United States v. Anderson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 31st day of March, two thousand eleven.
PRESENT: DENNIS JACOBS,
Chief Judge,
GUIDO CALABRESI,
REENA RAGGI,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 10-1838-cr
BRIAN ANDERSON,
Defendant-Appellant,
ABDUL IBN ALI ALISHTARI,
a.k.a. MICHAEL MIXON,
Defendant.*
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APPEARING FOR APPELLANT: MICHAEL O. HUESTON, Law Offices of
Michael Hueston, New York, New York.
APPEARING FOR APPELLEE: ANJAN SAHNI (Katherine Polk Failla, on the
brief), Assistant United States Attorneys, on
behalf of Preet Bharara, United States Attorney
for the Southern District of New York, New
York, New York.
*
The Clerk of the Court is directed to amend the caption to read as shown above.
Appeal from the United States District Court for the Southern District of New York
(Alvin K. Hellerstein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on April 28, 2010, and the order of restitution entered
on August 2, 2010, are AFFIRMED.
Defendant Brian Anderson appeals from the district court’s denial of his motion to
amend his judgment of conviction to remove the $2,651,735.25 order of restitution entered
more than ninety days after Anderson’s sentencing in connection with his plea of guilty to
committing and conspiring to commit wire fraud as part of a Ponzi scheme. See 18 U.S.C.
§§ 1343, 1349.1 We ordinarily review a district court’s order of restitution for abuse of
discretion, but we review de novo purely legal questions, such as those raised here. See
United States v. Kyles, 601 F.3d 78, 82 (2d Cir.) (reviewing de novo legal question of
“district court’s authority” to modify restitution schedule), cert. denied, 131 S. Ct. 258
(2010); United States v. Douglas, 525 F.3d 225, 252 (2d Cir. 2008) (reviewing de novo
restitution challenge raising “only issues of law”). We assume the parties’ familiarity with
the facts and record of prior proceedings, which we reference only as necessary to explain
our decision to affirm.
1
Because the government does not challenge Anderson’s ability to appeal the
timeliness of the restitution grant, we need not consider whether Anderson’s plea agreement
waived this right.
2
Anderson concedes that recent Supreme Court and Second Circuit precedent provide
that a “court that misses the 90-day deadline” for imposing restitution after sentencing
“nonetheless retains the power to order restitution – at least where . . . the sentencing court
made clear prior to the deadline’s expiration that it would order restitution, leaving open (for
more than 90 days) only the amount.” Dolan v. United States, 130 S. Ct. 2533, 2537 (2010);
accord United States v. Pickett, 612 F.3d 147, 149 (2d Cir. 2010); see 18 U.S.C. § 3664(d)(5)
(providing that “court shall set a date for the final determination of the victim’s losses, not
to exceed 90 days after sentencing”). Anderson also acknowledges that the district court
repeatedly stated at sentencing that it would order restitution, leaving open only the amount
and specific victim information. Defendant nevertheless submits that the district court
lacked authority to impose restitution six days after the deadline’s expiration because Dolan
and Pickett are distinguishable from his case and because the government did not identify
amounts owed to specific victims until 170 days after sentencing. We are not persuaded.
Nothing in Dolan or Pickett suggests that the factual differences Anderson identifies,
such as the government or probation office not providing restitution information prior to the
deadline, cf. Dolan v. United States, 130 S. Ct. at 2537; United States v. Pickett, 612 F.3d
at 148-49, are material when the district court “made clear . . . that it would order restitution”
at sentencing, Dolan v. United States, 130 S. Ct. at 2537.2 Nor does the government’s delay
2
Even if provision of restitution information prior to the deadline mattered, the
government here provided the total restitution amount on the last day of the extension period,
stating that despite knowing the amounts owed to particular victims, it needed more time to
gather victims’ addresses.
3
in providing specific victim information change the analysis when the district court filed the
judgment specifying the total restitution obligation six days after the deadline. See id. at
2539 (noting that court’s missing of deadline, “even through its own fault or that of the
Government, does not deprive [it] of the power to order restitution”); see also 18 U.S.C.
§ 3664(d)(5) (requiring determination of “victim’s losses” within ninety days); United States
v. Kyles, 601 F.3d at 83-84 (upholding court’s authority to alter payment schedule after
sentencing when restitution amount remained unchanged).
We are also not convinced that Anderson suffered prejudice by the delay because of
ineligibility to apply for a prison transfer until payment of the restitution debt. See United
States v. Douglas, 525 F.3d at 252-53 (upholding restitution grant after ninety-day extension
when defendant “provided no indication” of prejudice). Because Anderson must pay over
$2 million in restitution before he is able to transfer prisons, the short delay in determining
such a large loss amount created no prejudice. Nor do we identify any prejudice in
Anderson’s inability to review the individual loss figures or victims list within the ninety-day
period when he never objected to those figures and raises no issues with respect to them on
appeal.
Finally, we are unpersuaded by Anderson’s assertion that the district court erred by
failing to consider defendant’s financial resources or his dependents’ needs, as required when
restitution is imposed pursuant to the Victim and Witness Protection Act of 1982. See 18
U.S.C. § 3663(a)(1)(B)(i); United States v. Battista, 575 F.3d 226, 230 (2d Cir. 2009).
Because Anderson never raised this claim below, we review it for plain error. See United
4
States v. Carter, 489 F.3d 528, 537 (2d Cir. 2007). We identify no such error here because
the district court imposed Anderson’s restitution pursuant to the Mandatory Victims
Restitution Act, which requires full victim restitution “without consideration of the economic
circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A); see id. § 3663A(c)(1)(A)(ii) &
(B) (requiring mandatory restitution for fraud or deceit victims suffering pecuniary loss);
United States v. Amato, 540 F.3d 153, 157 (2d Cir. 2008). Indeed, Anderson acknowledged
in his plea agreement and during the plea that full victim restitution was mandatory.3
We have considered Anderson’s other arguments on appeal and conclude that they are
without merit. Accordingly, we AFFIRM the district court’s judgment and order of
restitution.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
3
Anderson’s contention, raised for the first time on appeal, that the district court failed
to provide victims with their rights under the Crime Victims Rights Act, see 18 U.S.C. §
3771, is meritless when the government sought extensions to ensure it communicated with
all victims of defendant’s complex scheme.
5