711 F. App'x 38
2d Cir.2017Background
- Defendant Fred Dalicandro pleaded guilty to one count of wire fraud; victim was Omega Healthcare Investors.
- At initial sentencing (2009/2010) the PSR listed restitution of $956,090; counsel requested additional proceedings on restitution amount.
- The district court set a briefing schedule and a hearing on restitution rather than resolving the amount at sentencing.
- More than five years after sentencing, the district court entered a restitution order making Dalicandro and co‑defendant Raymond Termini jointly and severally liable for $956,090.
- Dalicandro appealed, arguing (1) the court lacked authority to impose restitution so long after sentencing and (2) the court should have apportioned restitution more to Termini under 18 U.S.C. § 3664(h).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to enter restitution years after sentencing | Gov’t: Plea waiver forecloses review (alternative: restitution was valid) | Dalicandro: MVRA required restitution at sentencing because amount was ascertainable >10 days before sentencing; court lost authority after § 3664(d)(5) 90‑day window | Court assumed waiver unenforceable but affirmed: under Dolan and Gushlak district court retained authority to order restitution after 90 days when it made clear restitution would be ordered and only amount remained unresolved |
| Whether amount was ascertainable pre‑sentence | Gov’t: PSR figure not finally ascertainable because defendant preserved challenges and court set further proceedings | Dalicandro: PSR and judge’s statements show amount was known and thus had to be ordered at sentencing | Held for Gov’t: counsel’s request for further proceedings and subsequent briefing showed amount was not finally ascertainable ten days before sentencing |
| Prejudice from delay and due process | Gov’t: no plain error; judge had record and delay did not prejudice defendant | Dalicandro: multi‑year delay caused judicial forgetfulness, worsened relative ability to pay, and impaired planning; claims due process violation | Held for Gov’t: plain‑error review fails — no showing district judge forgot facts, delay improved defendant’s finances, and defendant knew restitution was mandatory; no due process violation shown |
| Apportionment under § 3664(h) | Gov’t: district court properly exercised discretion to make defendants jointly and severally liable | Dalicandro: court should have apportioned more to Termini given his greater role | Held for Gov’t: district court sufficiently found both integral to the fraud and permissibly chose joint and several liability without detailed apportionment discussion |
Key Cases Cited
- United States v. Helmsley, 941 F.2d 71 (2d Cir.) (federal courts lack inherent power to order restitution; authority must come from Congress)
- United States v. Gushlak, 728 F.3d 184 (2d Cir. 2013) (applies Dolan; court may order restitution after 90‑day window when restitution was promised and only amount remained)
- United States v. Rivernider, 828 F.3d 91 (2d Cir.) (standard of review for restitution orders; plain‑error framework)
- United States v. Vilar, 729 F.3d 62 (2d Cir.) (de novo review for legal issues in restitution challenges)
- United States v. Boccagna, 450 F.3d 107 (2d Cir.) (restitution review principles)
- Dolan v. United States, 560 U.S. 605 (2010) (Supreme Court: missing § 3664(d)(5) deadline does not strip court of power to order restitution when court made clear restitution would be ordered)
- United States v. Tulsiram, 815 F.3d 114 (2d Cir.) (plain‑error test explanation)
- United States v. Ray, 578 F.3d 184 (2d Cir.) (delay in sentencing does not automatically constitute due process violation)