United States v. Mandel, David

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 3, 2006*
Decided May 8, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-3473
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division
v.
No. 98 CR 444-1
DAVID MANDEL,
Defendant-Appellant. Ruben Castillo,
Judge.
ORDER
David Mandel was convicted in 2000 of making a false statement to a
financial institution. See 18 U.S.C. § 1014. He was sentenced to 12 months and a
day of imprisonment to be followed by three years of supervised release, and was
ordered to pay $243,350 in restitution and a $50,000 fine. He appealed his
sentence, which we affirmed. See United States v. Mandel, 15 Fed. Appx. 369 (7th
Cir. 2001). At that time Mandel did not challenge the restitution order. Then in
March 2005, while on supervised release, Mandel moved to modify the restitution
*
The parties have waived oral argument, and thus the appeal is submitted on
the briefs and the record. See Fed. R. App. P. 34(f).
No. 05-3473 Page 2
order on the ground that the amount he was ordered to pay improperly includes
consequential damages including attorneys fees. The district court concluded that
it lacked jurisdiction to reduce the amount of restitution and directed that Mandel
promptly pay the outstanding balance.
On appeal Mandel argues that the district court had jurisdiction to reduce
the amount of restitution because he was on supervised release and his obligation to
pay was made an express condition of his supervised release. In Mandel’s view, all
he was doing was asking the court to exercise its discretion under 18 U.S.C.
§ 3583(e)(2) to modify a condition of supervised release. As authority he cites
United States v. Miller, 205 F.3d 1098, 1100 (9th Cir. 2000), in which the Ninth
Circuit held that Ҥ 3583(e)(2) may be used to modify the requirement that an
individual pay any portion of a fine which is made an express condition of
supervised release.” Whether the district court had jurisdiction to consider
Mandel’s motion is a question of law that we review de novo. See United States v.
De la Torre, 327 F.3d 605, 608 (7th Cir. 2003).
A sentencing court retains authority to clarify or modify conditions of
supervised release, including a condition requiring payment of restitution. See 18
U.S.C. § 3583(e)(2); United States v. Lilly, 206 F.3d 756, 761-62 (7th Cir. 2000). But
despite his effort to recast what he wanted, Mandel wasn’t asking the district court
to modify the pertinent condition of his supervised release. That condition requires
only that he make payments toward the unpaid balance while on supervised release;
eliminating the condition would not have released his underlying liability, which
arises not from the conditions of supervised release but from the Mandatory Victim
Restitution Act, 18 U.S.C. § 3663A. Cf. United States v. Daddato, 996 F.2d 903, 905
(7th Cir. 1993) (repayment of drug buy-money not authorized by predecessor statute
to MVRA, but may be independently ordered as condition of supervised release).
Yet a partial release of liability—a declaration that a substantial portion of the
restitution amount was imposed in violation of law—is what Mandel wanted from
the district court. That relief was not available.
Absent a specific statute or rule, a district court lacks jurisdiction to revisit a
sentence, United States v. Goode, 342 F.3d 741, 743 (7th Cir. 2003). After the
window for Mandel to appeal his sentence closed, no avenue was available to the
district court to redetermine the appropriate amount of restitution. The governing
statute permits a defendant to seek a revised payment schedule, but not a reduced
obligation. See 18 U.S.C. § 3664(k) (“[T]he court may . . . adjust the payment
schedule, or require immediate payment in full, as the interests of justice require.”);
but see United States v. Turner, 312 F.3d 1137, 1143 (9th Cir. 2002) (reading
§ 3664(k) as giving district court authority to “reduce restitution if it finds that a
defendant’s economic circumstances have changed”). It was too late for Mandel to
No. 05-3473 Page 3
seek relief under Federal Rule of Criminal Procedure 35(a). It was likewise too late
for him to seek recourse under 28 U.S.C. § 2255, see id. § 2255 ¶ 6, though a
challenge to his restitution order would not have presented a cognizable claim in
any event, see Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997). The
appropriate time for Mandel to have challenged the legality of the restitution
calculation was on direct appeal, and § 3583(e)(2) cannot now serve as a substitute.
See United States v. Hatten, 167 F.3d 884, 887 (5th Cir. 1999); United States v.
Lussier, 104 F.3d 32, 34 (2d Cir. 1997). Even the Ninth Circuit, despite its broad
language in Miller, has concluded that “illegality is not a proper ground for
modification” of a condition of supervised release. United States v. Gross, 307 F.3d
1043, 1044 (9th Cir. 2002) (citing Hatten and Lussier).
AFFIRMED.