21 F.4th 499
7th Cir.2021Background
- In 2015 Alverez and two others created 647 fake credit cards and made about $52,631 in fraudulent purchases; one co‑defendant fled, one pled guilty, received 12 months probation, $1,000 restitution, and was jointly and severally liable in the first judgment.
- Alverez was convicted at trial in 2019 of access‑device fraud and aggravated identity theft and sentenced to 60 months and roughly $52,561 in restitution, but sentencing records (oral pronouncement, PSR, written judgment) conflicted about victim payees and allocation.
- On appeal the government moved to remand; this Court vacated the judgment and remanded for a corrected restitution order consistent with the government’s representations (limiting victims to three banks mentioned at sentencing).
- On remand the government sought $16,652.90 in restitution after crediting forfeited funds and the co‑defendant’s $1,000 payment; Alverez accepted the credits but requested either joint and several liability or apportionment after a hearing and sought a hearing on her inability to pay.
- The district court entered an amended restitution order without holding a hearing, ordered payment to the three banks in the government’s amounts, declined to reduce restitution based on indigency, and did not set a payment schedule or state whether liability was joint and several.
- The Seventh Circuit vacated the second restitution order and remanded because the district court failed to address Alverez’s arguments about joint and several liability and her apparent indigency/payment schedule; the court did not decide whether a new hearing was constitutionally or statutorily required and left the hearing decision to the district court’s discretion on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution liability should be joint and several with co‑defendants | Alverez: order restitution jointly and severally or apportion after a § 3664(h) hearing on relative culpability | Government: apportionment not appropriate (and did not request joint and several) | Court: district court erred by not addressing this objection; vacated and remanded for explanation/resolution |
| Whether the court must set a payment schedule and consider indigency under § 3664(f) | Alverez: indigency requires a repayment schedule and possible nominal periodic payments per § 3664(f)(3)(B) | Government: conceded indigency and did not oppose need for a payment schedule in this remand | Court: remand required so district court can address ability to pay and set schedule |
| Whether a second sentencing hearing was required (Due Process and § 3553(c)) | Alverez: hearing was required to litigate restitution, joint liability, and ability to pay | Government: hearing not required | Court: declined to decide; left to district court’s discretion to hold a hearing on remand |
Key Cases Cited
- United States v. Donaby, 349 F.3d 1046 (7th Cir. 2003) (MVRA limits courts’ restitution authority and prescribes procedure)
- United States v. Webber, 536 F.3d 584 (7th Cir. 2008) (standard of review for restitution calculations)
- United States v. Wyatt, 9 F.4th 440 (7th Cir. 2021) (de novo review of § 3664 and Rule 32(c)(1)(B) procedural questions)
- United States v. Dokich, 614 F.3d 314 (7th Cir. 2010) (MVRA permits joint and several liability for scheme losses)
- United States v. Martin, 195 F.3d 961 (7th Cir. 1999) (joint and several liability under MVRA)
- United States v. Moose, 893 F.3d 951 (7th Cir. 2018) (district court must respond to specific sentencing objections for appellate review)
- United States v. Ballard, 950 F.3d 434 (7th Cir. 2020) (need for explanation when sentence changes on remand)
- United States v. Day, 418 F.3d 746 (7th Cir. 2005) (duty to fix a payment schedule when defendant cannot pay immediately)
- United States v. Sawyer, 521 F.3d 792 (7th Cir. 2008) (§ 3664(f)(2) requires schedule for future repayment when defendant lacks ability to pay immediately)
- United States v. Noble, 367 F.3d 681 (7th Cir. 2004) (limits on introducing new evidence at a second sentencing)
- United States v. Wyss, 147 F.3d 631 (7th Cir. 1998) (same)
- United States v. Robl, 8 F.4th 515 (7th Cir. 2021) (district court may exercise discretion to hold sentencing proceedings on contested restitution issues)