United States v. James Simon
952 F.3d 848
| 7th Cir. | 2020Background
- In 2010 James Simon (a CPA) was convicted of tax fraud, FBAR violations, mail fraud related to financial aid, and federal financial aid fraud; the district court ordered six years’ imprisonment plus $1,053,572.04 in restitution (IRS, Dept. of Education, Canterbury School, and Culver Academies).
- Simon did not object to the probation officer’s restitution calculations at sentencing and raised no restitution claims on direct appeal; convictions affirmed in 2013.
- In March 2016 the government moved to amend the restitution order: remove Canterbury (which disclaimed restitution) and reduce Culver’s balance to $48,376; the court granted the motion without a hearing and directed future disbursements accordingly; Simon was mailed notice.
- Simon filed pro se motions to reconsider in Oct. and Dec. 2018, arguing (inter alia) denial of due process, that the amended Culver figure created a new, improperly supported obligation, and that the Dept. of Education should be relieved because his daughter repaid loans.
- The district court denied reconsideration, finding Simon had no cognizable property interest harmed, the amended Culver amount was not a new restitution obligation, the record did not require an evidentiary hearing, and many arguments were untimely rehashes of sentencing claims.
- The Seventh Circuit affirmed: most challenges were waived because they should have been raised at sentencing or on direct appeal; Simon’s challenge to the March 2016 amendment was untimely under the 14‑day appeal period; the court also expressed doubt whether the district court had statutory authority to grant the government’s amendment request, but declined relief because of procedural default and timeliness.
Issues
| Issue | Simon's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Simon may challenge restitution on grounds that it included relevant-conduct losses | Restitution improperly based on "relevant conduct" beyond convictions | Such challenges should have been raised at sentencing/direct appeal | Waived for failure to raise at sentencing or on direct appeal |
| Whether removal of Canterbury and the amended Culver amount created a new restitution obligation open to collateral attack | Amended Culver figure created a new, unsupported obligation and Simon had due‑process right to a hearing | Amendment merely reduced/updated existing obligations; not a new obligation | Amendment did not impose a new obligation; challenge to amendment was untimely |
| Whether Simon timely appealed the district court’s March 2016 amendment | Late-filed motions preserved rights; entitlement to hearing and appeal | Rule 4(b)(1)(A) 14‑day appeal period applied to sentence-related amendment; Simon missed deadline | Appeal untimely as to March 2016 amendment; challenges therefore forfeited |
| Whether the district court had statutory authority to grant the government’s motion to modify restitution | Implicit or inherent authority to adjust restitution administratively | Government relied on §3664(k); court doubted applicability | Court expressed serious doubt about authority but declined relief due to waiver/timeliness; left open statutory-authority questions |
Key Cases Cited
- Barnickel v. United States, 113 F.3d 704 (7th Cir. 1997) (nonconstitutional sentencing claims not raised on direct appeal are waived)
- Bania v. United States, 787 F.3d 1168 (7th Cir. 2015) (late challenges to restitution rejected; sentencing is the proper time to raise such objections)
- Rollins v. United States, 607 F.3d 500 (7th Cir. 2010) (14‑day Rule 4(b) appeal period applies to sentence-related orders and failure to move within 14 days renders appeal untimely)
- Apampa v. United States, 179 F.3d 555 (7th Cir. 1999) (the ‘‘core of a criminal case’’ for appeal timing is the sentence)
- Puentes v. United States, 803 F.3d 597 (11th Cir. 2015) (district court may only modify mandatory restitution in the limited ways §3664(o) permits)
- Wyss v. United States, 744 F.3d 1214 (10th Cir. 2014) (distinguishing jurisdiction from a court’s statutory authority to alter restitution post‑sentencing)
- Greenlaw v. United States, 554 U.S. 237 (2008) (appellate courts cannot correct nonjurisdictional defects that were not timely appealed)