United States v. Montgomery, Lepize

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 26, 2007*
Decided September 27, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 06-3023
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 05 CR 134-1
LEPIZE Q. MONTGOMERY,
Defendant-Appellant. James B. Moran,
Judge.
ORDER
Lepize Montgomery obtained a driver’s licence with his photograph but
another man’s name and used it on January 17, 2003, to cash a check for $593.63
made payable to the name on the license. This was just one of many checks
Montgomery cashed under false pretenses over several years, but the government
abandoned its prosecution of broader charges after Montgomery pleaded guilty to
one count of violating 18 U.S.C. § 1028(a)(7) in connection with the check for
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 34(a)(2).
No. 06-3023 Page 2
$593.63. The district court sentenced him to 51 months’ imprisonment and ordered
him to pay $593.63 in restitution under the Mandatory Victims Restitution Act.
See 18 U.S.C. §§ 3663A(a)(1), (c)(1)(B). The court also ordered him to pay $5,000 in
“discretionary” restitution for losses arising from other checks.
Montgomery does not dispute that he must repay $593 as restitution for his
conviction under § 1028(a)(7), which makes it a crime to use another person’s name
with the intent to commit a felony. But he argues that the district court had no
authority to order restitution beyond that amount. Montgomery contends, and the
government agrees, that on the facts of this case the court lacked authority to
impose the $5,000 award under the Mandatory Victims Restitution Act, see United
States v. Randle, 324 F.3d 550, 556 (7th Cir. 2003); or the Victim and Witness
Protection Act, see 18 U.S.C. § 3663(a); United States v. Menza, 137 F.3d 533, 537
(7th Cir. 1998); or as a condition of supervised release, see United States v. Frith,
461 F.3d 914, 919 (7th Cir. 2006). Montgomery did not raise this objection in the
district court, so our review is for plain error. See United States v. Alburay, 415
F.3d 782, 789 (7th Cir. 2005). But a district court commits plain error when it
imposes restitution without statutory authority, as the government concedes. See
Randle, 324 F.3d at 558.
Accordingly, we VACATE the award of $5,000 in discretionary restitution
and REMAND for the district court to enter a corrected judgment.