United States v. Michael Stivers, 996 F.3d 800

Michael Stivers pled guilty to receiving, possessing, and distributing child pornography and was sentenced to 300 months’ imprisonment.
Because the parties disputed restitution, the district court deferred the restitution determination and permitted supplemental briefing; Stivers did not object to deferral at the time.
After briefing, the court entered a written order (in Stivers’s absence) overruling his objections and ordering $3,000 in restitution under 18 U.S.C. § 2259.
Stivers appealed, arguing that Federal Rule of Criminal Procedure 43(a)(3) requires the defendant’s presence when restitution (as part of the sentence) is ordered.
The court held that § 3664(d)(5) authorizes delayed restitution determinations and § 3664(c) makes the Chapter 229 procedures and Rule 32(c) the only rules applicable to § 3664 proceedings, thereby rendering Rule 43(a)(3) inapplicable to the delayed restitution order.
Stivers’s supplemental argument invoking 18 U.S.C. § 3553(c) and constitutional-avoidance principles was rejected as either unpersuasive or not preserved; the judgment was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 43(a)(3) requires the defendant’s presence when a court enters a delayed restitution order after sentencing	Stivers: restitution is part of the sentence, so Rule 43(a)(3) requires his presence for the restitution order	Government: § 3664(d)(5) authorizes delayed determinations and § 3664(c) makes Rule 32(c) the only federal rule applicable, superseding Rule 43	Rule 43(a)(3) is inapplicable to § 3664 delayed restitution orders; no relief under Rule 43
Whether § 3553(c) or constitutional concerns create ambiguity that prevents § 3664(c) from superseding Rule 43	Stivers: § 3553(c) requires pronouncement of sentence in open court and, under constitutional-avoidance, § 3664(c) should be read not to displace Rule 43	Government: § 3553(c) does not reference Rule 43 and does not create ambiguity; § 3664(c) clearly governs restitution procedure	Court rejected the argument (and declined to consider new constitutional claims not raised originally); § 3664(c) stands and the restitution order is valid

United States v. Johnson, 934 F.3d 716 (7th Cir. 2019) (argument that restitution is part of sentencing under Rule 43)
Dolan v. United States, 560 U.S. 605 (2010) (90-day deadline for delayed restitution is nonjurisdictional)
United States v. Ferguson, 831 F.3d 850 (7th Cir. 2016) (district court’s delay in determining restitution authorized by § 3664)
In re Gen. Motors Corp. Engine Interchange Litig., 594 F.2d 1106 (7th Cir. 1979) (Congress may supersede federal rules by statute when intent is clear)
Robbins v. Pepsi-Cola Metro. Bottling Co., 800 F.2d 641 (7th Cir. 1986) (repeals by implication not favored but clear statutory intent can displace rules)
United States v. Vanhorn, 296 F.3d 713 (8th Cir. 2002) (3674(c)-style statutory language rendered a Federal Rule inapplicable to a restitution order)
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (constitutional-avoidance canon applies only when statutory language is ambiguous)
United States v. Agostino, 132 F.3d 1183 (7th Cir. 1997) (noting Rule 43’s constitutional roots in confrontation and due process)