United States v. Gunning

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30104
Plaintiff-Appellee,
v.  D.C. No.
CR-01-05204-JET
STEPHEN ROBERT GUNNING,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Jack E. Tanner, Senior Judge, Presiding
Submitted March 9, 2005*
Seattle, Washington
Filed March 31, 2005
Before: Alfred T. Goodwin, Ferdinand F. Fernandez, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Fernandez
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
3881
UNITED STATES v. GUNNING 3883
COUNSEL
Kenneth W. Sharaga, Seattle, Washington, for the appellant.
3884 UNITED STATES v. GUNNING
Robert Henry Westinghouse, Assistant United States Attor-
ney, Seattle, Washington, for the appellee.
OPINION
FERNANDEZ, Circuit Judge:
Stephen R. Gunning appeals from a judgment entered
against him pursuant to his plea of guilty to wire fraud. 18
U.S.C. § 1343. He claims that the schedule for payment of
restitution while he was in prison was improperly delegated
to the Bureau of Prisons (BOP), and that he was improperly
denied allocution at sentencing. We agree, and remand for
further proceedings.
BACKGROUND
On March 21, 2001, Gunning was indicted for two counts
of wire fraud in violation of 18 U.S.C. § 1343. He and a code-
fendant were alleged to have participated in an investment
fraud scheme in which investors entrusted the defendants with
money which the investors were fraudulently and falsely led
to believe was being invested in high-yield investment pro-
grams.
Pursuant to a plea agreement, Gunning entered a guilty plea
on the second count of wire fraud, and on February 8, 2002,
he was sentenced to serve fifty-seven months imprisonment to
be followed by three years of supervised release. He was also
ordered to pay restitution in the amount of $3,924,835.37.
Gunning appealed, and we remanded for further consider-
ation by the district court and for resentencing, if necessary.
United States v. Gunning, 339 F.3d 948 (9th Cir. 2003) (per
curiam) (Gunning I). More specifically, in response to Gun-
ning’s argument that he was entitled to a minor role adjust-
UNITED STATES v. GUNNING 3885
ment, we remanded for additional findings and resentencing,
if necessary, because we could not discern whether the issue
had been considered by the district court. Id. at 949. We also
concluded that the district court erred by delegating the
responsibility for setting a schedule for restitution payments
to the probation office. Id. at 949-50.
On remand, the district court, which, it appears, had not
previously considered the issue, conducted an evidentiary
hearing to determine whether Gunning was entitled to a two
level minor role adjustment under United States Sentencing
Guidelines § 3B1.2(b).1 After hearing testimony and consider-
ing the evidence, the district court denied Gunning that adjust-
ment, and reimposed the same sentence.
The court then ordered restitution payable immediately, but
with the unpaid amount to be paid as follows: (1) during the
time of his imprisonment, it was to be paid through the BOP
Inmate Financial Responsibility Program (IFRP), and (2) dur-
ing the period of supervised release it was to be paid in
monthly installments of not less than ten percent of Gunning’s
gross income, commencing thirty days after his release from
imprisonment. After the district court declared what it would
do, but before the order was signed, Gunning, without any
prompting from the court or his attorney, addressed the court
and asked that his financial responsibilities to his family be
taken into account and that he be allowed to postpone repay-
ment until after he was released from prison. The court did
not respond, the order issued, and this appeal ensued.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 18 U.S.C. § 3742(a).
1
Any reference to the Guidelines is to those effective November 1,
2000.
3886 UNITED STATES v. GUNNING
“The legality of restitution orders is reviewed de novo.”
United States v. Doe, 374 F.3d 851, 854 (9th Cir. 2004). We
review the district court’s failure to afford the defendant the
right to allocution at sentencing for harmless error. See United
States v. Mack, 200 F.3d 653, 657 (9th Cir. 2000). If the
defendant could have received a shorter sentence, the denial
of the right of allocution is not harmless. Id.; United States v.
Sarno, 73 F.3d 1470, 1503-04 (9th Cir. 1995).
DISCUSSION
Gunning asserts that he was not accorded the right of allo-
cution and that the schedule of restitution payments was
improperly delegated to the BOP in part. Because the first
issue touches the sentencing proceeding in general, we shall
consider it first.
A. Right of Allocution
[1] At sentencing the district court must “address the defen-
dant personally in order to permit the defendant to speak or
present any information to mitigate the sentence.” Fed. R.
Crim. P. 32(i)(4)(A)(ii). The court not only must do that, but
also must afford the defendant an opportunity to “present all
available accurate information bearing on mitigation of pun-
ishment.” Mack, 200 F.3d at 658. The district court must then
“listen and give careful and serious consideration to such
information.” Id. At Gunning’s resentencing, the district court
did not perform those duties. It did not address Gunning at all,
and when he interjected some comments after the district
court had already said what it was going to do, the district
court did not even acknowledge those comments.
The government does not dispute those facts, but it argues
that there was no right to allocution here because the mandate
on remand was very limited and did not envision allocution.
We disagree.
UNITED STATES v. GUNNING 3887
[2] While it is true that Gunning’s prior sentence was not
vacated,2 we did contemplate a further sentencing proceeding
where, at least, the minor participant issue could be taken up.3
And we did not declare that the district court could not con-
sider any other information at that time. In fact, we asked the
court to make findings on the record if it had already consid-
ered the minor role adjustment, and to resentence if necessary.
As it turned out, the district court held a new proceeding so
that it could decide the minor role issue. When the court
decided against the adjustment, counsel argued for a different
sentence, and the court declared that it would “reimpose all
those matters that you referred to other than the matter that’s
now before the court. It will be the same sentence.”
[3] We recognize that we are not precluded “from limiting
the scope of the issues for which we remand, and thus limiting
the district court’s consideration to evidence and arguments
relevant to those issues.” United States v. Matthews, 278 F.3d
880, 889 (9th Cir. 2002) (en banc). Nevertheless, our general
rule is to “remand for resentencing without limitation on the
district court.” Id. In that event, the district court is “free to
consider any matters relevant to sentencing, even those that
may not have been raised at the first sentencing hearing, as if
it were sentencing de novo.” Id. at 885-86. And, in Gunning
I, we did not include specific language that would preclude
the district court from “resentencing on an open record—that
is, without limitation on the evidence that the district court
may consider.” Id. at 885.
Even when we have found but a single error, we have usu-
ally vacated the sentence and remanded. In those instances,
we have held that the issues before the district court were not
limited to our mandate. See, e.g., United States v. Washington,
172 F.3d 1116, 1118-19 (9th Cir. 1999); United States v.
Caterino, 29 F.3d 1390, 1394-95 (9th Cir. 1994), overruled
2
Gunning I, 339 F.3d at 950.
3
Id. at 949.
3888 UNITED STATES v. GUNNING
on other grounds by Witte v. United States, 515 U.S. 389, 115
S. Ct. 2199, 132 L. Ed. 2d 351 (1995). On the other hand, in
United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994)
(per curiam), we declared that the district court was limited to
consideration of a single issue, even though we had vacated
the prior sentence, at least in part. There may be some tension
between those cases, which may seem to cast some doubt on
the district court’s ability to range freely in this case after
Gunning I. Nonetheless, we need not resolve any tension; nor
need we place Gunning I in one camp or the other, assuming
that there are separate camps after Matthews. That would not
change our analysis.
[4] In Gunning I, the remand was mixed at the very least.
It is apparent that we did not intend to reopen the case for
resentencing if the district court had actually decided the
minor role issue already, but expected a resentencing proceed-
ing to take place if it had not. As it turned out, the district
court had not decided the issue and commenced an evidenti-
ary hearing so that it could do so. In other words, it did
choose to reopen the sentencing proceeding and to resentence.
It made that clear when it “reimposed” its prior holdings and
issued the “same sentence.” Thus, the government’s citation
to Ogden v. United States, 323 F.2d 818, 821-22 (9th Cir.
1963), is inapposite. In that case, we did not remand on a sen-
tencing issue,4 but, rather, remanded so that the district court
could decide if there had been a production of evidence prob-
lem at trial.5 The case certainly does not stand for the proposi-
tion that a defendant has no right to allocution upon a limited
remand, especially when the remand does turn into a resen-
tencing. We see no reason for holding that Gunning did not
have that right.
We have some sympathy for the government’s argument
that the failure to accord Gunning his allocution right was
4
Id.5
Id. at 819.
UNITED STATES v. GUNNING 3889
harmless in this case. However, our precedents are quite clear:
when a district court could have lowered a defendant’s sen-
tence, we have presumed prejudice and remanded, even if we
doubted that the district court would have done so. See Sarno,
73 F.3d at 1503-04; United States v. Carper, 24 F.3d 1157,
1162 (9th Cir. 1994); United States v. Medrano, 5 F.3d 1214,
1219 (9th Cir. 1993); cf. Mack, 200 F.3d at 657-58 (where the
district court excluded only irrelevant information, there was
no violation); United States v. Mejia, 953 F.2d 461, 468 (9th
Cir. 1991) (where the district court used all the discretion it
had, failure to accord allocution was harmless).6
[5] We are not able to say that the district court could not
have lowered Gunning’s sentence had he been given an
opportunity to speak and had the district court accorded his
words that “careful and serious consideration” that they were
entitled to. Mack, 200 F.3d at 658. Thus, we must remand.
B. Restitution Schedule
[6] The Mandatory Victims Restitution Act of 1996 (MVRA)7
provides, among other things, that: “In each order of restitu-
tion, the court shall order restitution to each victim in the full
amount of each victim’s losses as determined by the court and
without consideration of the economic circumstances of the
6
It should be noted that in the case at hand, as in the cited cases, no
objection to the lack of allocution was made at the district court level.
Usually, the district court had simply overlooked the allocution question
entirely. That would seem to call for plain error review. See United States
v. Olano, 507 U.S. 725, 732-37, 113 S. Ct. 1770, 1776-79, 123 L. Ed. 2d
508 (1993). But we have never applied that analysis. Perhaps, as the Third
Circuit has determined, that is because the error is so plainly plain that it
falls within the category of errors “ ‘that should be presumed prejudicial
if the defendant cannot make a specific showing of prejudice.’ ” United
States v. Adams, 252 F.3d 276, 287 (3d Cir. 2001) (quoting Olano, 507
U.S. at 735, 113 S. Ct. at 1778). In any event, our rule is that stated in the
text.
7
The MVRA is codified in relevant part at 18 U.S.C. §§ 3663A-3664.
3890 UNITED STATES v. GUNNING
defendant.” 18 U.S.C. § 3664(f)(1)(A). It goes on to say:
“Upon determination of the amount of restitution owed to
each victim, the court shall, pursuant to section 3572, specify
in the restitution order the manner in which, and the schedule
according to which, the restitution is to be paid . . . .” Id.§ 3664 (f)(2). When this case was previously before us, we
had occasion to expatiate on the meaning of that language
because the district court had delegated the scheduling of res-
titution payments to the probation office. Gunning I, 339 F.3d
at 949. We said:
Gunning argues that the district court erred by dele-
gating to the probation office responsibility for mak-
ing a schedule for restitution. The Mandatory
Victims Restitution Act . . . charges the district court
with fixing the terms for making restitution . . . .
Other circuits have concluded that this responsibility
is non-delegable. We agree. The language of the
MVRA is categorical. Under the MVRA, the district
court is ultimately responsible for setting a schedule
for making restitution.
Id. (footnotes omitted). We then concluded that, “[b]ecause
we construe [the district court’s] order to assign to the proba-
tion office full control of subsequent payment, we remand for
the district court to provide for the terms of restitution.” Id.
at 950.
Upon remand, the district court was faithful to the letter of
our decision; it did set a restitution schedule for the super-
vised release portion of the sentence and did not delegate that
schedule to the probation office. But, of course, because resti-
tution was due immediately, there was a period between sen-
tencing and supervised release — the period of Gunning’s
incarceration. That had to be provided for. At that point, the
district court overlooked the spirit of our decision and dele-
gated the non-delegable to the BOP for the incarceration
period.
UNITED STATES v. GUNNING 3891
[7] We do not doubt that the BOP, like the probation office,
has expertise in the payment area. That has wisely induced it
to create the IFRP procedure whereby the BOP will “help
[the] inmate develop a financial plan” and will then “monitor
the inmate’s progress” in meeting the terms of that plan. 28
C.F.R. § 545.11; see also 28 C.F.R. § 545.10. Not surpris-
ingly, restitution is one of the obligations with which the BOP
concerns itself, and it is, indeed, a top priority. See 28 C.F.R.
§ 545.11(a)(2). But there is no set schedule, and the district
court simply does not have the authority to delegate its own
scheduling duties — not to the probation office, not to the
BOP, not to anyone else.8
[8] Nor, despite the government’s intricate arguments, are
we persuaded that Montano-Figueroa v. Crabtree, 162 F.3d
548 (9th Cir. 1998) (per curiam), demands a contrary answer.
There we determined that under 18 U.S.C. § 3572(d) a district
court could delegate scheduling of the payment of fines to the
BOP. Id. at 550. It is true that we alluded to restitution, id. at
549-50, which was not an issue in that case, and, no doubt, we
did so because § 3572(d) itself speaks to restitution as well as
to fines. But the fact remains that all we held was that sched-
uling of fine payments could be delegated. Then, in Gunning
I9 we held, in reliance on § 3664(f)(2), which does not speak
to fines at all, that restitution payments cannot be delegated.
Gunning’s appeal still is a restitution case; we must follow
Gunning I and reiterate that scheduling of restitution pay-
ments is non-delegable. Again, the district court must deter-
mine the restitution payment schedule.
8
Of course, this is not to say that the district court cannot seek help from
the BOP or anyone else in selecting an appropriate schedule. See Gunning
I, 339 F.3d at 949-50 n.8.
9
339 F.3d at 949.
3892 UNITED STATES v. GUNNING
CONCLUSION
When this case was before us in 2003, we remanded it so
that the district court could correct the errors that took place
in the sentencing proceeding. It attempted to do so, and now,
some eighteen months later, we must review the district
court’s second try. While we are not convinced that it will
make much practical difference — Gunning’s fifty-seven
month prison sentence will soon be served — we are forced
to hold that the district court’s major error was recrudescent.
It, again, delegated part of its non-delegable duty to set the
manner and schedule of restitution payments — this time it
did so to the BOP rather than to the probation office. In addi-
tion, the district court overlooked according Gunning his right
of allocution at resentencing.
[9] Thus, we again remand to the district court. Unless the
issue becomes moot, the district court shall schedule Gun-
ning’s restitution payments for the period while he is in
prison. It shall also accord him his right of allocution at sen-
tencing. To avoid any further confusion, we hereby vacate the
sentence.
VACATED and REMANDED.