United States v. Pablo Alvarez
835 F.3d 1180
9th Cir.2016Background
- Border Patrol set up spike strips; during pursuit Pablo Alvarez (driving a Chevrolet) and a co-defendant (driving a rental Ford) collided when the co-defendant could not stop after Alvarez hit spikes; the collision severely damaged the rental car.
- Alvarez pleaded guilty to knowingly transporting illegal aliens (8 U.S.C. § 1324(a)(1)) in a plea that promised a government recommendation at the low end of the guidelines and mentioned restitution waivers and supervised-release conditions but did not expressly promise no restitution.
- The presentence report recommended $9,114.03 in restitution to San Diego Rent‑A‑Car; at sentencing Alvarez initially admitted responsibility and said he would pay restitution, but later (with new counsel) contested restitution.
- The district court imposed 13 months’ custody and, after a restitution hearing, ordered Alvarez to pay $2,900 restitution to the rental company.
- Alvarez appealed, arguing (1) Paroline makes restitution punishment and thus impermissible as a supervised‑release condition and barred by Apprendi; (2) the rental company was not a victim of the offense; (3) the government breached the plea agreement by seeking restitution; and (4) the Rule 11 plea colloquy failed to advise him of possible restitution and the error was not harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution is an impermissible form of punishment that cannot be imposed as a supervised‑release condition | Restitution is remedial/compensatory and may be imposed under §3583/§3563 | Paroline shows restitution has punitive aspects so it is punishment and barred as a supervised‑release condition | Court: Paroline treats restitution as primarily remedial; Ninth Circuit precedent stands—restitution may be a supervised‑release condition (Batson controls) |
| Whether Apprendi requires jury findings for restitution | Government: Apprendi does not apply to restitution orders | Alvarez: Paroline’s punitive language triggers Apprendi protections | Court: Apprendi does not apply to restitution in this circuit (Green retained) |
| Whether San Diego Rent‑A‑Car is a victim entitled to restitution | Government: Damage to the vehicle directly resulted from the transportation offense (transportation was element) | Alvarez: Damage was caused by Border Patrol spike strip, not by his offense | Court: Rental company's loss was directly related (not too attenuated); restitution proper |
| Whether the government breached the plea agreement or Rule 11 error requires reversal or specific performance | Government: Plea did not guarantee no restitution; Alvarez explicitly agreed at sentencing and waived appeals on restitution | Alvarez: Plea did not warn of restitution; government breached by pursuing it; Rule 11 omission prejudicial | Court: No breach—Alvarez’s statements and plea terms made restitution reasonably foreseeable; Rule 11 omission was harmless given statutory fine warning and $2,900 < maximum fine; district court’s refusal to eliminate restitution was within discretion |
Key Cases Cited
- Paroline v. United States, 134 S. Ct. 1710 (2014) (characterizes restitution as primarily remedial though sometimes punitive)
- United States v. Batson, 608 F.3d 630 (9th Cir. 2010) (authorizes restitution as a condition of supervised release)
- United States v. Green, 722 F.3d 1146 (9th Cir. 2013) (Apprendi does not apply to restitution; restitution not "clearly" punishment)
- Hughey v. United States, 495 U.S. 411 (1990) (limits restitution to loss caused by conduct underlying the offense)
- United States v. Reed, 80 F.3d 1419 (9th Cir. 1996) (restitution must be tied to conduct that is an element of the offense)
- United States v. Kamer, 781 F.2d 1380 (9th Cir. 1986) (plea‑agreement interpretation by objective record of defendant’s reasonable expectations)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (constitutional rule on facts increasing punishment; inapplicable here to restitution per circuit precedent)