United States v. Mark Hack, 999 F.3d 980

Background

Mark Hack pleaded guilty (2013) to conspiracy involving bank, mortgage, and wire fraud and agreed to a plea that included an appeal waiver.
The district court ordered $803,420 in restitution to two mortgage companies under the MVRA and set a partial payment schedule (during imprisonment) but did not set a postrelease schedule.
While on supervised release, Hack sought to modify the restitution order to allow reduced lump‑sum settlements ($100,000 and $28,000) from third‑party financing; the victims preferred lump sums.
The Government opposed modification; the district court denied Hack’s motion, concluding it lacked authority under the MVRA to convert the restitution into reduced lump sums.
A motions panel found this court has jurisdiction to hear the appeal under 28 U.S.C. § 1291, but the panel asked the merits panel to decide whether Hack’s plea‑agreement appeal waiver bars the appeal.
The Sixth Circuit affirmed, holding Hack waived his right to appeal the restitution order and explaining the MVRA bars reducing the total restitution amount by private settlement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hack’s plea appeal waiver bars his appeal of the district court’s denial of a restitution‑modification motion	Waiver does not cover this restitution challenge; court has jurisdiction under §1291/§3742 to review	Waiver broadly covers appeals of the conviction and resulting sentence (including restitution) and thus bars the appeal	Waiver is enforceable and covers the restitution challenge; Hack waived his right to appeal under §3742
Whether the appellate court has jurisdiction to review denial of a motion to modify restitution	Appeal is reviewable (moved under §1291 or §3742)	Initially argued no jurisdiction, but later conceded after Marshall clarified §1291 applies	Court has jurisdiction under §1291, but jurisdictional power is distinct from enforcing an appeal waiver; waiver controls here
Whether the district court could accept reduced lump‑sum settlements less than the restitution amount under the MVRA	District court can modify restitution to permit lump‑sum settlements given victims’ preferences and changed circumstances	MVRA requires payment of the full amount of victims’ losses; private settlements do not bind the court; court lacked authority to reduce total restitution	MVRA requires full restitution; court cannot reduce the total amount via private settlements; only the payment schedule may be adjusted
Whether failure to set a postrelease payment schedule was error and the proper remedy	District court never set the postrelease schedule, so modification or clarification is warranted	Court can later set a schedule; MVRA allows bifurcated scheduling if completed	Failure to set a complete postrelease schedule was error; district court should promptly set a §3664(f)(2)‑compliant schedule but may not reduce total restitution

Key Cases Cited

United States v. Marshall, 954 F.3d 823 (6th Cir. 2020) (§1291 can furnish appellate jurisdiction over denial of supervised‑release modification)
United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021) (appeal waivers that unambiguously cover "conviction or sentence" include restitution challenges)
United States v. Smith, 344 F.3d 479 (6th Cir. 2003) (ambiguous waiver did not bar appeal of restitution calculation)
United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006) (appeal waivers are claim‑processing rules and do not themselves divest statutory jurisdiction)
United States v. Davis, 306 F.3d 398 (6th Cir. 2002) (district court must specify a postrelease restitution payment schedule under the MVRA)
United States v. Bearden, 274 F.3d 1031 (6th Cir. 2001) (private settlements do not preclude a court from imposing restitution)
Kelly v. Robinson, 479 U.S. 36 (1986) (victim preference does not control the amount of criminal restitution)
United States v. Bogart, 576 F.3d 565 (6th Cir. 2009) (MVRA gives courts flexibility to tailor restitution payment methods)