United States v. Weldon Gilbert, 807 F.3d 1197

Gilbert pleaded guilty on April 23, 2009 to multiple counts including production of child pornography, transportation of a minor to engage in illegal sexual activity, and obstruction of justice; he was sentenced November 16, 2009 to 300 months and lifetime supervision, with restitution amount to be determined.
The district court left the restitution amount TBD because Gilbert’s assets were still being liquidated.
The state-related proceedings concerning restitution delayed finalization of the restitution amount until October 7, 2011, when an amended judgment fixed total restitution at $1,072,175.76.
Gilbert filed a pro se 28 U.S.C. § 2255 motion on October 10, 2012 alleging involuntary plea, plea agreement violations, and ineffective assistance at the pleading stage; the district court denied as time barred.
The central questions were (i) whether a judgment imposing a sentence with an unspecified restitution amount is a final judgment for purposes of § 2255 timing, and (ii) whether later entry of the restitution amount restarts the § 2255 clock or allows equitable tolling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Finality of judgment with unspecified restitution	Gilbert argues the initial judgment was not final until restitution was set	Gilbert’s counsel allegedly misinformed about timeliness	Final; timely clock triggered by appellate-period expiration (14 days after judgment)
Restarts of § 2255 clock after amended restitution	Restitution finalization should restart the § 2255 period	No restart; precedents limit restarting where restitution is ancillary to sentence	Clock does not restart upon entry of specific restitution amount
Equitable tolling for attorney misadvice	Misadvice about filing deadline constitutes extraordinary circumstance	Attorney miscalculation is not rare extraordinary circumstance; tolling denied	Equitable tolling not warranted; misadvice insufficient
Ability to challenge restitution via § 2255	Restitution issues should be reviewable through § 2255	Ninth Circuit precedent bars § 2255 challenges to restitution orders	Restitution challenges barred; § 2255 clock not restarted by amended restitution order

Dolan v. United States, 560 U.S. 605 (U.S. 2010) (dictum about finality of restitution order; appellate concern for delay in setting restitution)
Corey v. United States, 375 U.S. 169 (U.S. 1963) (finality tied to sentence; appeal of initial and final judgments possible)
Berman v. United States, 302 U.S. 211 (U.S. 1937) (finality means the sentence is the judgment)
Schwartz v. United States, 274 F.3d 1220 (9th Cir. 2001) (timeliness when direct appeal window expires for final judgment)
Gonzalez v. United States, 792 F.3d 232 (2d Cir. 2015) (restitution finalization and timing of § 2255; timeliness based on revised restitution order)
Muzio v. United States, 757 F.3d 1243 (11th Cir. 2014) (finality of judgment with restitution; timing implications)
Thiele v. United States, 314 F.3d 399 (9th Cir. 2002) (restitution not challengeable under § 2255)
Kramer v. United States, 195 F.3d 1129 (9th Cir. 1999) (restitution cannot be challenged via § 2255)
Colvin v. United States, 204 F.3d 1221 (9th Cir. 2000) (amendment after remand affects finality timing)
Lawrence v. Florida, 549 U.S. 327 (U.S. 2007) (inequitable tolling limits for attorney miscalculation)
Frye v. Hickman, 273 F.3d 1144 (9th Cir. 2001) (attorney miscalculation not basis for tolling)
Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010) (equitable tolling requires extraordinary circumstances)
Holland v. Florida, 560 U.S. 631 (U.S. 2010) (high threshold for equitable tolling; diligence and extraordinary circumstances)