*4 BOGGS, Circuit Judge. Petitioner-appellant, Barrett N. Wein- berger, a lawyer disbarred acting se, pro appeals a decision of the district court denying his motion to vacate his sentence under 28 U.S.C. 2255. For the following reasons, we affirm part reverse part.
I
In Weinberger began doing legal work Fleischmann; for Dorette K. her daughter, Joan Tobin; and, Fleischmann after death, Dorette’s the Dorette K. Fleischmann estate. April From 1990 through December Weinberger, without his consent, clients’ knowledge and fraudulently diverted over from $1 million his clients’ personal funds to his own use. Weinberger also evaded federal income taxes money on the he embezzled from his clients. 1, 1997,
On October Weinberger was by indicted grand jury federal in the Barrett N. Weinberger (argued and Southern District of Ohio on a thirteen- briefed), Cincinnati, OH, se. pro count indictment. Counts and 3 charged
Christopher K. (argued Barnes fraud, and Weinberger mail in violation of briefed), Attorney, Cincinnati, Asst. U.S. 18 U.S.C. 1341. Counts and 4 OH, for RespondenF-Appellee. charged Weinberger fraud, with wire * Cohn, The Honorable Avern Michigan, Senior sitting by 'United designation. Judge States District for the Eastern District the victims pay full restitution berger to § 1843. Counts
violation did Weinberger’s counsel to the IRS. with inter- Weinberger charged through 8 calculation, offense level object not money taken transportation state grouping the issue specifically, of mon- transportation fraud or interstate plea pursuant to tax counts fraud and fraud, 18of in violation ey in execution total offense agreement. through 13 Counts § 2314. history cate- criminal and his level was 20 evasion, in tax Weinberger with charged sentencing I, resulting in a gory was The indict- of 26 U.S.C. violation district court of 33^41 months. range 1990 and April that between alleged ment im- 41 months of Weinberger to sentenced embezzled Weinberger December years of su- by three followed prisonment, $1,140,000 from clients. approximately addition, the court In release. pervised pay in- addition, Weinberger failed $370,624 in pay Weinberger ordered $370,624 the em- totaling taxes come special condi- the IRS as a restitution to bezzled funds. release, and to tion of supervised 6, 1998, en- February On immedi- $1,285,243.25 fraud to the victims plea agreement. tered into payment would Assuming that ately. 1, 6, to Counts pleaded guilty *5 district court immediately, the made charging counts indictment, first two restitution Weinberger make ordered that of transportation fraud and interstate mail Financial the Inmate through payments the third of fraud money in execution of the Bureau of Program Responsibility relating to Wein- evasion charging tax thereafter, according to an Prisons, and income tax return. federal 1993 berger’s Weinberger developed by plan installment dismissed. remaining counts were The Weinberger’s officer. and his that Wein- provided plea agreement The amount of the object to the counsel did not govern- cooperate berger would IRS, he nor did to the court, to 18 U.S.C. pursuant ment and the regard- order district court’s object to the 3664, recovery, re- §§ 3663A and payments. ing installment restitution any monies ac- turn, of and restitution not file a di- counsel Weinberger’s did scheme through Weinberger’s quired convic- regarding Weinberger’s appeal rect plea and 9 Paragraphs 8 defraud. 19, 1999, February On tion and sentence. joint understand- set forth agreement to Va- pro a se Motion Weinberger filed government and the of ing Aside, under cate, Sentence or Correct Set Weinberger’s of calculation regarding the motion Weinberger’s § 2255. 28 U.S.C. under the United total level offense question at was directed Guidelines. Sentencing sentencing variety of issues. guilt, 29, sentencing on June Weinberger’s Weinberger’s At court denied district 1998, objected 21, to the counsel on motion October Mandatory Victims Decem- Res- on application timely appeal notice filed 3663A, (MVRA), 16, On Janu- pauperis. 18 U.S.C. in forma titution ber Act 1999 1996, 24, 2000, 31, court issued a April the district ary into effect on which went four certifying completed. appealability, certificate of Weinberger’s offense after review. objection appellate issues for court overruled The district the court was the basis that as moot on II Protec- and Witness applying the Victim pe 3663, reviews denials This court (VWPA), which 18 tion Act novo, de 2255 1994, titions under ordering Wein- inwas effect 351 examining Addonizio, while the district court’s factual 178, 185-86, 442 U.S. 99 S.Ct. findings 2235, for clear (1979). error. See Gall v. 60 Uni L.Ed.2d 805 Sentencing States, 107, (6th Cir.1994). ted 21 F.3d 109 challenges generally cannot be made for reviewing When appli court’s first time in post-conviction § cation of the States, United States motion. See Sentencing Grant v. United Guidelines, 503, Cir.1996). this court F.3d reviews its factual Normal- ly, findings sentencing for clear legal challenges error and its con must be made on direct clusions de novo. appeal they or are See States v. waived. See Rutana, 363, Cir.1994). United 18 F.3d States v. Schlesinger, 49 F.3d (9th Cir.1994). The district court’s decision to refuse to group pursuant offenses to USSG 3D1.2 Weinberger argues that the four sen- a legal determination that is reviewed de tencing rulings forming the basis for his Williams, novo. See United States v. 154 motion were not challenged at the time of (6th Cir.1998). regard With his sentencing appeal direct as a and/or restitution, to orders of this court reviews result of the ineffective assistance of his the district court’s order of trial Supreme counsel. The Court and this discretion, abuse of but reviews the district held have that challenges that cannot application court’s of a statute de novo. otherwise be reviewed for the first time on Blanchard, United States v. §a 2255 motion can be part reviewed as (6th Cir.1993). a successful claim that provided counsel
ineffective assistance standard Ill set forth in Strickland v. Washington, 466 668, 694, U.S. 104 S.Ct. 80 L.Ed.2d § 2255, Under 28 U.S.C. “[A] *6 (1984). 674 See United States v. Frady, prisoner in custody under sentence of a 152, 167-68, 456 U.S. 1584, 102 S.Ct. 71 ... [federal] court claiming right the to be (1982); Grant, L.Ed.2d 816 506; 72 F.3d at ... may released move the court which States, v. United 999 F.2d Ratliff imposed vacate, aside, the sentence to set (6th Cir.1993). 1026 or correct the A sentence.” motion brought allege 2255 must one of presents Weinberger four claims (1) bases a three threshold standard: appeal, (1) on challenging: the calculation (2) an error of magnitude; (2) constitutional a of his offense level for sentencing; the imposed sentence statutory outside the (3) victims; restitution order to his fraud (3) limits; or an error of fact or law that IRS; (4) restitution order to the and was so fundamental toas render the entire and the method for scheduling his restitu proceeding invalid. See United tion payments.1 Although Weinberger’s brief, updating a govern- In citation its supervised and a release—not restitution or- Kramer, upon relies ment United States v. 195 grounds der—on the challenge that such a (9th Cir.1999), F.3d 1129 proposition for the custody’’ does not requirement meet “in petitioner a challenge cannot a restitu- §of 2255. Other circuits relied have order in a petition tion 2255 because such a concluding Watroba in that petitioners cannot challenge does not right claim to re- challenge a in a 2255 order mo- custody. leased from tion, because such an order is not a sufficient liberty This circuit has restraint on to custody” not come to the meet the same con- "in Watroba, Kramer, 1130; requirement. clusion. 28, In United States v. 56 F.3d 195 F.3d at (6th Cir.1995), States, rejected this court Blaik v. United
prisoner’s (11th Cir.1998); challenge States, ain 2255 motion to the Smullen v. United imposition imprisonment (1st of the of Cir.1996). costs his F.3d We will follow of Wein- portions challenging was not the district court to § 2255 motion here, ei- being appealed counsel, berger’s sentence assistance ineffective based on Weinberger’s sentenc- time of at the ther explicitly to his theory only applied he core of appeal. The direct ing on Weinberger did and/or claims. and fourth first Weinberger disagreement between assis- theory of ineffective not state Weinberger is whether government his second support to of counsel tance government argues prejudiced. was The not Weinberger did claims. third Since sen- that, of the four regard to three with these bringing proper basis present cannot Weinberger dem- tencing rulings, motion, the district § 2255 in his claims his probability that a reasonable onstrate rejected them. challenge these counsel’s failure trial applies Weinberger appeal, On in a different have rulings would resulted of counsel ineffective assistance theory of agrees with government sentence. “[Tis In general, claims. all four of his objection to the amount court but presented sues not IRS, order to the however. his restitution are not appeal the first time raised for that he prove unable to Weinberger is v. Bar court.” Foster properly before two his regard with prejudiced was Cir.1993). ilow, This Therefore, we objections. sentencing four “exceptional case, however, those is one of if trial counsel’s his need not determine issues preventing rule cases” when the regard was deficient performance time on for the first raised being from Weinberger two claims which miscarriage “plain in a appeal would result In of his terms claims prejudiced. circum light justice.” Ibid. vic- orders to his his restitution regarding case, fact that including the of this stances IRS, Weinberger is able and to the tims se, pro we con proceeding perfor- his counsel’s both that demonstrate can extend the is clude that prej- that he was was deficient and mance counsel, ineffective assistance sue of udiced. claims, on two of his already raised below relating to third claims to his second A victims to his fraud orders *7 sentence, to his challenge first In his and the IRS. that the district Weinberger asserts assistance ineffective To establish tax by grouping not his improperly acted counsel, must demonstrate Weinberger of purposes of calcu- and fraud counts deficient performance was “that counsel’s sen- adjusted offense level for lating an was performance and that the deficient grouped tencing. The district 1026. In Ratliff, F.2d at prejudicial.” 999 conviction, Weinberger’s 1 and 6 of Counts Weinberger prejudice, to establish order guilty was found which under that, probability a must show reasonable fraud, in of 18 violation U.S.C. of mail errors, Weinberger’s sen but for counsel’s of transportation § and interstate would been different. tence have § 2314. money, in violation of 694, 104 Strickland, 466 U.S. at S.Ct. that the final count Weinberger argues (Count 12), he under which not contest conviction government does tax violation convicted of evasion by was trial counsel was deficient Weinberger’s § based order 2255 on Ratliff, precedent 999 F.2d court's 1025-27, assistance of counsel purport ineffective meritorious Watroba did not which overrule, claim. allowing petitioner contest
353 § 26 2T1.1(b)(1). should have been USSG Weinberger appears grouped with the first two counts. to raise the double counting issue in two respects: primarily to support his argu- The following summary is a of the sen- ment that the tax evasion count be should tencing calculation used grouped with the other two counts of his court: conviction, but alternatively argue (Mail Base Level: Counts 1 and 6 21 Fraud) if the tax even evasion count is not grouped, sentencing calculation as it (Tax Evasion) Base Level: Count 12 17 stands is improper. 2T1.1(b)(1) (because enhancement 2 Before reaching issue, grouping we Weinberger evaded income derived will address Weinberger’s argument conduct) from criminal the district court’s sentencing calculation Sub-Total improper because the court double Highest Offense Level: Counts and 6 21 counted the criminal conduct underlying (be- GroupAdjustment 3D1.4Multi 2 Weinberger’s fraud conviction. We note (19) offense cause level of tax count that this court has forbidden double count- was within four levels offense level ing when the (21)) same penalized conduct is count fraud Sub-Total separate under two guideline provisions. Smith, See United States v. Acceptance of Responsibility -3 (6th Cir.1999) (“This Circuit has con- sistently been loathe to duplica- condone FINAL ADJUSTED LEVEL punishments tive for the same behavior Weinberger presents independent, two so.”). required Yet, when not do we do arguments related contesting his sen- not need to reach the issue of whether First, tencing calculation. counting double occurred in this case be- (Count contends that his tax evasion count cause Weinberger’s adjusted offense level 12) should have been grouped with his would be the regardless same of whether (Counts 6). other two counts 1 and If the the court applied the two-level statutory three grouped, counts were 2Tl.l(b)(l) enhancement under USSG base offense level would and he for criminal conduct underlying the tax would not receive a multi-group enhance- evasion count—the proposed source ment. After his three-level reduction for If counting. double the enhancement was acceptance of responsibility, his final ad- applied, the base offense level for justed offense level would be resulting Weinberger’s tax evasion count would be in a sentencing range of 27-33 months. 17. Since 17 is within four offense levels Instead, Weinberger was sentenced *8 21, of the two-level multi-group enhance- adjusted 20, basis of a final offense level of § ment under ap- USSG 3D1.4 still would in resulting a sentencing range of 33-41 ply because the fraud and tax evasion Weinberger months. was sentenced to 41 counts would be within the four levels of imprisonment. Second, of months Wein- Therefore, each other. even if there were berger claims that the criminal conduct no double counting, Weinberger’s adjusted underlying his fraud conviction was count- unless, level still offense would be of 20— (1) ed twice toward his sentence: for the course, the grouped counts were together. base level calculation for the fraud of- (2) specific fense as a that, offense charac- Weinberger according *9 USSG Guidelines, upon by relied Sentencing counts. United grouping
matic
655,
and the of-
Williams,
Weinberger,
that tax
evasion
v.
States
in-
unreported
Cir.1998). Furthermore,
generated
that
the Sen
fense
where
together.
always
grouped
be
come should
differ-
measure harm
tencing Guidelines
specifically
publica
The court
cited the
We find these authorities to be
persuasive.
disclaimer that it was
binding
tion’s
not
on
As the district
pointed
out,
Sentencing
Weinberger’s
fraud
Commission or on
counts
and the tax
Vitale,
count consisted
elements,
of different
courts.
416(DLC), at *8 WL Weinberger’s second (S.D.N.Y. challenge to 1998) (“The Nov.16, his perverse re sentence is based on the district court’s argument sult of this is that conduct which order that he full restitution to his the Guidelines have found serious enough victims, $1,285,243.25. an amount totaling warrant two-level increase in sentence ... would be used to reduce ... the sen applicable current law for restitu- tence would if apply the income was tion Mandatory orders is the Victims Res- not derived from criminal activity.... (MVRA), titution Act 3663A. [T]he Court’s properly decision avoids It requires courts to full order result as well as the troublesome anomaly regardless to victims of a defendant’s abili- by created grouping, namely that de ty pay. MVRA became effective on fendant would penal receive no additional April 1996. Weinberger’s offenses were ty evasion.”). his for conviction for tax prior committed to this date. brief, updating In citation cited, We find we authorities have upon relies Fitzgerald, which have held that tax evasion and fraud (2d Cir.2000), for the prop- together, counts should not be grouped to be evasion, fraud, osition that "tax and conver- persuasive. more The cases that have not grouped should together sion under USSG grouped these crimes have based their deci- 3E>1.2(d).” Id. at 320. The court based its sions fact that the harm and the vic- decision on the fact by the harms caused tims of fraud and tax are evasion different the crimes were all monetary measured in grouping and the of fraud and tax evasion values tables that increase at the same counts would result in no penalty additional rate and use monetary the same division for the tax evasion We conviction. find these points. Id. at specifically The court 319-20. to be compelling more reasons not to group referred to the in USSG tables for 2F1.1 arbitrary than the relating factors to the mea- fraud USSG tax 2T4.1 for evasion—the Fitzgerald surement of harm relied tables same used to calculate the lev- offense grouping. els for mail fraud and tax eva- sion counts.
356 court con that the district MVRA, The factors the of the enactment
Prior to
ones. This
inappropriate
were not
sidered
Pro-
and Witness
the Victim
of
provisions
employment
future
and
has held that
court
(VWPA),
U.S.C.
Act
tection
appropriate consider
earning potential are
determining restitution
courts in
guided
the amount of resti
determining
ations
impose a restitution
to
In order
orders.
v.
United States
under VWPA. tution
VWPA,
sentencing court
a
under
order
Sanders,
449, 456-57
Cir.
factors,
certain
examine
required to
Bondurant,
v.
1996);
United States
and “the
of loss”
“the amount
including
Cir.1994). However,
F.3d
defendant, the
of the
financial resources
consider all the
court did not
the district
the
earning ability of
and
financial needs
deciding
in
necessary
VWPA
factors
dependents,
and the defendant’s
full
Weinberger
pay
to
to order
deems
as the court
other factors
and such
over
$1,285,243.25
fraud victims
of
his
3664(a).
appropriate.”
result,
court
the district
years.
five
As
ob-
Weinberger presents two alternative
its discretion.
abused
court’s restitution
jections to the district
VWPA,
(1)
the sentenc
According
the district court
to the extent
order:
MVRA,
court,
to as
deciding
whether
application
ing
its
violated
when
applied
restitution,
consider
“the
of the United States
Ex Post Facto
sess
must
Clause
(2)
by any
dis-
victim
to the extent the
loss sustained
Constitution and
amount
offense,
VWPA,
financial
the court failed
applied
as a result of
trict court
defendant,
ina-
financial
adequately Weinberger’s
resources of
to consider
or-
the defendant
earning ability
of
pay
amount
and
bility
needs
dependents,
defendant’s
such
and the
dered.
appropri
the court deems
other factors as
ap-
that the district
conclude
We
3664(a).
are not
We
ate.” 18 U.S.C.
VWPA,
with
we have
plied
concerns
con
adequately
that the court
convinced
of VWPA.
application
court’s
earning
financial needs and
sidered the
judg-
in its
court made clear
The district
Weinberger’s
Weinberger
ability
sentencing
Weinberger’s
and at
ment
dependents.
was not
hearing that its restitution order
Dunigan,
United States
MVRA,
stating
solely
basis of
made
on the
(6th Cir.1999),
this court stated
appropriate
“an order of restitution is
that
have,
aat mini-
that “a district court must
mandatory
it
or
in this case whether
mum,
Furthermore,
indication
defendant will
con-
some
the district court
not.”
of restitution
pay
in be
the amount
set forth
able
some of the factors
sidered
comply with 18
in order to
Weinberger’s resti-
ordered
determining
in
VWPA
3664(a).”
noting
generally
Other than
district court reviewed
tution order. The
and talents and his
Weinberger’s education
personal and
infor-
Weinberger’s
financial
$68,000
an
year
previous earnings
presentence
in
re-
mation
his
contained
in his
attorney, prior
having engaged
to his
the fact
took into account
port. The court
$68,000
having
activities and
been dis-
legiti-
illegal
Weinberger earned
barred,
adequately
did
assess
the court
prospects
and that his
mate income
have
abili-
Finally, whether
would
employment
good.
are
for future
it or-
ty
pay the amount of restitution
presentence
concurred
did not consider
The district court
is well
dered.
report
noting
disbarment
employ-
capable
gainful
effect
educated
At
order.
ability
the restitution
ment.
*11
time,
the same
did not
court
consider
C
has,
other
Weinberger
possi-
what
abilities
Weinberger’s third challenge to his sen-
bly in
previ-
the real estate field given his
tence
based on the district court’s order
ous
lawyer,
work
a real estate
that
of restitution to the
IRS
the one count
could enable him to
obligations.
meet his
tax
evasion on which Weinberger was
The court also did not
review
financial
Weinberger
convicted.
was charged with
needs of Weinberger
dependents,
and his
in
tax evasion
connection with his 1990-94
which undoubtedly would affect Wein-
(Counts 9-13).
income tax
federal
returns
berger’s ability
pay
to
full
amount of
Weinberger pleaded guilty only to Count
Instead,
restitution ordered.
12, the
year,
and the remaining four
imposed
a restitution order
that
counts were dismissed. The tax loss for
$257,000
approximately
to
year
amounts
$160,004.
1993 was
The district court or-
years,
for five
an amount that far exceeds
dered, as a
supervised release,
condition of
Weinberger’s previous high income and
$370,624
Weinberger pay
that
in restitu-
does
account for taxes that Wein-
IRS,
tion to the
the amount of the total tax
berger would have
pay
and for neces-
loss for the five years.
subsistence
sary
costs for Weinberger and
dependents.
Weinberger
that,
contends
absent
specific provision
plea
agreement
According to Ratliff, 999 F.2d at
full
pursuant
to 18
refusal to
“[a]
an
appeal
erroneous
3663(a)(3),
the district court could
award,
which award would have
only order restitution for the tax loss relat
subject
been
appeal,
reversal on
would
toed Count 12. The government concedes
the Strickland
meet
test and would clearly
Weinberger
that
is correct.
agree.
We
[petitioner’s]
constitute cause for
failure to Weinberger is able
establish a
claim of
appeal the award.” Weinberger is able to ineffective assistance of counsel with re
establish cause based on his
fail
counsel’s
to this
gard
issue
such
he is entitled
appeal
ure to
his restitution order to his
to collateral relief
only
under
Not
addition,
victims. In
Weinberger can dem
Weinberger
does
prejudice,
establish
prejudice
onstrate
on his
based
counsel’s he establishes cause since his counsel’s
performance.
deficient
The district court
performance was deficient. See Strick
abused its discretion in imposing a restitu
land,
tion on the basis he performance because counsel’s deficient year. tax the 1994 not include plea did under an award pay money to was ordered concede that it appeared to objection This had if his counsel upheld not be to that would be ordered Weinberger proper that was Ratliff, it. objected to properly years tax 1990-93. for the pay restitution States, 21 In at 1026. Gall United Weinberger F.2d error. objection was in This court, Cir., 1994), 107, 108 this only evasion for the to tax pleaded guilty situation, “a held that factual Therefore, a similar only not should year. 1993 tax to a defendant may court order included district year not have been 1994 tax the upon super calculation, pay restitution conditioned years but the in the restitution the solely for crimes of which release included as vised have been should not actually charged and con hearing, sentencing Weinberger’s At well. provided exception An victed.” this trial withdrew Weinberger’s counsel 3663(a)(3), which authorizes in 18 U.S.C. the basis that an objection on erroneous parties pay the agreement an between to determine the being prepared audit was not includ for relevant conduct liability. tax The Weinberger’s amount charge gov in a conviction. that ed then ordered Wein- court district the it states that intended tax liabil- ernment the full amount of his berger pay given the discretion district court Weinberger’s years ity for 1990-94. full res Weinberger the IRS order objected to this erroneous neither counsel $370,624, plea agree but titution sentencing hearing restitution order provide for such specifically did not reviewing Wein- ment appeal. nor on direct restitution, by 18 motion, required court § 2255 the district berger’s 3663(a)(3). result, the As a Weinberger’s coun- that concluded because $370,624 statutory order of is outside objection, the issue was withdrew his sel can and limits of 18 U.S.C. appeal or collater- preserved for direct collater should be remedied al review. Gall, at 108. al relief. See perfor in the The deficiencies only counsel not Weinberger’s mance of D meet, the standard set go beyond, that the argument is Weinberger’s final only Not did Wein forth in Ratliff. spe- by delegating district erred appeal fail to the errone berger’s counsel in- Weinberger’s restitution cific terms of IRS, but restitution to the he ous order of plan to the Bureau stallment an erro problem by filing compounded and the United States Probation Prisons restitution calcula objection neous Office. tion, later withdrew at sentenc which he The district court ordered Wein- had filed Weinberger’s If counsel ing. pay restitution of berger immediately order proper objection to the restitution $1,285,243.25 fraud victims. Assum- (or to his objection at clarified his erroneous would not be ing paid this amount Weinberger sentencing hearing), likely Furthermore, immediately, ordered prevailed. would have file, payments initially make he did withdrawing objection Responsibili- Financial through the Inmate preserve failed to Weinberger’s counsel (IFRP) Bureau of Pris- ty Program togeth Taken for direct the issue review. and,’thereafter, an according to install- er, ons counsel the actions Weinberger and plan developed by ment to this claim were deficient. regard result, felony.” up- his officer. Wein- Ibid. As the court improper are del- berger claims that these held conviction for violating Whitehead’s to the Bureau of Prisons and his egations probation by committing felony. probation officer. disposition While useful to the of this general relies case, does not Whitehead control our re- proposition, stated v. United Whitehead sult. The Whitehead court did not consid- States, Cir.1946), *13 155 F.2d 462 improper er whether it was delegate to “Mixing the terms and conditions of that payments pursuant defendant’s schedule of probation judicial may is a act which not order, rather, to a restitution it consid- delegated.” On consideration ered properly whether a defendant was case, however, proposition is entire this placed Therefore, probation. on we will helpful Weinberger than it first less address, turn, specifically appears. improper contentions of delegation to his probation and to officer the Bureau of involved a defendant who
Whitehead Prisons. proba- was convicted for violation of his challenged
tion. the conviction Whitehead properly on the basis that he was not placed probation. He claimed that the Weinberger argues that the dis indefinite, probation duration of his no trict improperly delegated court authority probation terms and conditions of were probation by to his officer ordering a sentence, incorporated in his and he was payments schedule of restitution “accord supervision never taken under the of a ing plan to an installment developed by the probation officer. probation Defendant and his officer.” In previous unpublished opinions, two
This court affirmed Whitehead’s convic-
VWPA,
court has
that under
held
the dis
that,
“Mixing
tion. The
noted
while
delegate
probation
trict court
to a
can
probation
the terms and conditions of
is a
officer the determination of the “rate” of
judicial
may
delegatedf,
act which
not be
payments
long
installment restitution
as
tjhis
as
mean, however,
does not
the district court sets the total amount of
may
adopt
incorporate
into a
paid.
restitution
must be
United
proba-
sentence terms and conditions of
95-1832,
Gray,
States v.
No.
1997 WL
tion,
recommended to it
an administra-
(6th
413663,
17, 1997);
July
at *4
Cir.
agency
government,
tive
and to
95-1629,
Ferguson,
United States v.
No.
impose such further terms and conditions
(6th
571142,
Oct.3,
at *5
WL
Cir.
may
it
as to
seem best.” Ibid. The court
1996);
Fuentes,
accord United States v.
practice”
stated that
it is “better
for a
1515,
Cir.1997);
107 F.3d
1528 n. 25
specifically
court “to announce
the terms
Stinson,
466,
United States v.
97 F.3d
probation
and conditions under which
is
(11th Cir.1996);
However,
n. 1
United States v. Bar
granted.” Ibid.
the court stated
Cir.1989);
it
practice, everywhere
any,
is “universal
under-
884 F.2d
stood,
requirement
Signori,
that the minimum
...
844 F.2d
(9th Cir.1988).
not, during
is that the
shall
We find
]
these authorities
period,
probationary
again
persuasive.3
commit a
to be
We hold that the dis-
payments)
judicial
may
3. We note that other circuits have held that
is a core
function
See,
delegated
probation
the determination of the rate and terms of
not be
officers.
Coates,
(including
e.g.,
restitution
determination of the
United States v.
178 F.3d
Miller,
amount,
(3d
1999);
timing, and schedule of installment
Cir.
United States v.
ordering that
prison by
“[t]he
by setting the while
properly
acted
trict court
...
pay
is
shall
Defendant
total amount
Inmate Fi-
by delegating the
Bureau of Prisons
pay
through
required
Of-
to the Probation
payments
Responsibility Program.”
schedule
nancial
in Gray, “[the]
court stated
fice. As this
program
IFRP
a work
instituted
The
ju-
its
abrogate
does not
sentencing court
encourage
by the Bureau of Prisons
delegates
it
the set-
authority when
dicial
his or her
inmate to meet
“each sentenced
restitution-payment schedule
of a
ting
obligations.”
financial
Monta
legitimate
officer, provided
the defendant’s
Crabtree,
548, 548
no-Figueroa v.
the amount
first
that the court
establishes
(9th Cir.1998)
(quoting
28 C.F.R.
*4.
1997 WL
of restitution.”
545.10).
program
allows for
Furthermore,
the Ninth Circuit noted
plan
a financial
that allows
development of
empowered
court “is
Signori,
obligations,
enumerated
inmates
*14
pro-
any condition of
modify
‘revoke or
to
incar
payments, while
such as restitution
restitution,
bation,’
during the
including
ibid,
(citing 28 C.F.R.
cerated.
F.2d at 642
period.” 844
probationary
545.11).
court has not
Although
this
3651).4
As the Ninth
(quoting 18 U.S.C.
issue,
cir
with the
other
presented
been
that,
Signori,
we note
stated
Circuit
general
IFRP
upheld
cuit courts have
the
is
defendant]
that
[the
the extent
“[t]o
process
due
ly
against
constitutional
department
probation
concerned that the
cases).
(citing
challenges. See id. at 549
may
authority, he
may
delegated
abuse its
addressing specific challenges to
While not
department’s
always bring
probation
the
IFRP,
implicitly en
this court has
the
atten-
concerning restitution
the
orders
v.
program.
the
See United States
dorsed
court and seek a modifi-
tion of the district
(6th Cir.1994);
Webb,
687, 690-91
30 F.3d
F.2d at
any
Signori,
order.”
844
cation of
Hill,
98-3709,
v.
No.
1999
United States
642.
1999).
(6th
801543,
Sept.28,
at *1
Cir.
WL
2
ruled that a district
courts have
Several
partici-
to a defendant to
court’s mandate
contends that the
Weinberger also
IFRP
an unconstitutional
pate
improperly delegated
district court
authority
because
payments
delegation
scheduling of his restitution
71,
Cir.1996);
(4th
applicable
probation
provisions
to the
United States v.
77 F.3d
Graham,
352,
(3d Cir.1995);
setting
probation.”
72 F.3d
initial
of the conditions
Mohammad,
1426,
v.
53 F.3d
United States
32.1(b)
Procedure
Federal Rule of Criminal
Cir.1995);
United States v. John-
1438-39
procedures
forth the
for modification
sets
son,
806,
(4th Cir.1995);
48 F.3d
probation.
It states:
Porter,
(2d
41 F.3d
United States v.
hearing
counsel are
A
and assistance of
Albro,
Cir.1994);
States v.
32 F.3d
required
the term or conditions of
before
(5th Cir.1994). We decline to follow
174 n. 1
modified,
probation
unless the
... can
these cases.
person
proba-
granted to the
relief to be
Although
4.
3651 has been re-
person’s request or the
tion ....
3563(c)
in-
pealed, the current 18 U.S.C.
per-
own motion is favorable to the
court’s
stating:
substantially
language
cludes
similar
son,
government,
attorney for the
and the
reduce,
enlarge
may modify,
or
"The court
having
given
pro-
been
notice of
after
probation at
of a sentence of
the conditions
opportunity
posed
and a reasonable
relief
any
prior
expiration or termi-
time
to the
object,
objected. An extension of
has not
probation, pursuant to
the term of
nation of
probation ...
is not favorable
the terms of
provisions
Rules of Crimi-
of the Federal
person
purposes
of this rule.
to the
for
relating to the modification of
nal Procedure
schedules under the IFRP are not fixed
regard
probation
dent
officers to
formula,
predetermined
to a
accorded
general
establish a
principle upholding
See,
vary
prison
discretion of
staff.
“sentencing courts’ decisions to delegate
Pandiello,
e.g.,
United States
184 F.3d
the timing and
payments
manner of
Cir.1999);
United States v.
court-ordered restitution.”
162 F.3d at
Mortimer,
(2d Cir.1996).
We
also note this court’s statement
persuaded
These courts were
by holdings
in Whitehead that a court may “adopt and
within their own circuits
schedul-
incorporate into a sentence terms and con-
ing
payments by
of restitution
a defen-
probation,
ditions
recommended to it by
probation
dant’s
officer constitute an im- an administrative agency
govern-
proper delegation. The courts established ment.”
rv offi- rely upon probation District courts informa- necessary everyday for the cers reasons, judgment the foregoing For the sentence. appropriate an regarding tion in part is AFFIRMED district court prepare officers example, probation For portions All part. and REVERSED rec- reports and presentence investigation are AF- judgment court’s the district probation ommend a sentence which por- exception of FIRMED with the light appropriate views officer up- judgment the district court’s tions of and the Guidelines Sentencing Federal of restitution Weinberger’s orders holding In a of each defendant.2 particularities por- to the IRS. These victims and to his part of the is to be case where restitution judgment are the district court’s tion of sentence, also recom- officer REMAND- case is and the REVERSED In sen- restitution.3 mends amount of court with instructions ED to the district defendant, however, it is the tencing (1) necessary all factors to consider the sen- actually sets district court which proper amount determining VWPA amount, if any. and the restitution tence pay is to of restitution Here, sentencing, the district (2) to amend his victims no of the schedule here made mention that the amount sentencing order to reflect pay under which payable to the IRS of restitution Judg- ordered. The amount of restitution $370,624. $160,004,instead of the Sen- Including Sentence Under ment Act entered
tencing Reform
COHN,
Judge,
Senior District
court states:
concurring.
shall
The Defendant
$1,285,243.26
the Bureau of
through
emphasize
separately
I write
Responsibility
Financial
Prisons Inmate
implications
contrary
if there is
practical
according to
Program,4
thereafter
*16
dissent,
The
to
III.D.
conclusion
Part
De-
plan developed by the
an installment
the other Cir-
majority
with a
along
officer,
the
as
probation
and
fendant
court,” ie.,
cuits,1
“the
the
believes that
order;....
in this
fully
more
described
determine the defen-
judge,
district
must
added)
(JA 62, emphasis
at
and footnote
schedule at
payment
dant’s restitution
say:
on to
Judgment
goes
further
probation
a
and
to allow
sentencing
objects that
Finally,
the
is an unconstitu-
Defendant
to set the schedule
officer
restitution,
the Court
ordering
when
judicial
of a
function.
delegation
tional
the
ability
opinion,
must consider his
my
such a
This is a mistake.
substance,
dependents. The Probation
needs of his
particular-
puts
view
form over
a
the Court with
provided
has
probation officer does not “set”
Officer
ly since a
fl-
report
detailed
the Defendant’s
payment
a
schedule.
also,
3.Id.;
Merric,
Chapter 11 of
The Presentence
nancial situation and his courts micro-manage each defendant employment. future The Court has tak- whose sentence has a component. financial en this information into consideration in Indeed, legislative the history of 18 U.S.C. determining appropriate § 3572 specifically states that the statute Furthermore, order. the post-imprison- is intended “eliminate the ... require- plan ment developed by be ment that specific Defen- terms of an install- probation dant and his will take officer ment schedule to be by fixed the court. into consideration his financial status The is thus able delegate and the needs of the depen- Defendant’s responsibility for setting specific terms to dents. Accordingly, the Defendant’s ob- probation officer.” H.R.Rep. No. 100- jection is MOOT. 390, § (1987), reprinted (JA 67, added) at emphasis first U.S.C.C.A.N. procedure This recognized practicali- Further, concerns probation offi- ty of deferring setting of the restitu- cers will abuse their authority are un- payment tion until schedule closer in time founded. Even probation where a officer to when the defendant would realistically (working defendant) with the is to estab- making such payments, opposed be lish schedule, a restitution payment should setting a rigid at schedule the time of any problems arise, or disagreements Indeed, sentencing. generally “Courts do district court must dispute. resolve enough not have information at sentencing Indeed, Judgment expressly pro- here fix, to know what payment schedule to payment vides that the schedule is to be particularly when will sen- developed by defendant, proba- with his tenced to a term of imprisonment. The tion Accordingly, in part the re- officer. evolving ability defendant’s to pay best sponsibility of devising a pay- reasonable probation known officer during su- ment schedule is implicitly placed on the pervision.” Monetary Criminal Penalties: defendant, always who can avail himself of A Guide to the Probation Role Officer’s the district court in problem. the event of IV-1, Monograph Federal Corrections Clearly, the district court has the final Supervision Division, Administrative authority on the payment Office of the Thus, United States Courts. schedule and has not “delegated” judi- its than speculative rather setting restitu- cial role to the officer. tion schedule the time of sen- *17 tencing, and then later the modifying sum, In I do not consider permitting a schedule,-the district court allowed the probation officer to establish a restitution defendant and the probation officer to set schedule, payment after the restitution a reasonable schedule based on current court, amount set the is district be a circumstances in first instance.5 the “delegation” judicial function, of but rath- er,
The underappreciates dissent a way the role of realistic of dealing with the probation the officer future, and does not take uncertainties of the particularly the into account what proposi- a burdensome ability of the defendant to meet the finan- it tion would be require the component district cial of his sentence. Catherine determining 5. In ability pay, IV-1, defendant’s A Guide to the Probation Role Officer's probation compiles the interviews, through officer data Monograph Federal Su- Corrections and verification, per- record financial Division, pervision Administrative Office of statements, sonal financial and asset lia- and the United States Courts. bility Monetary criteria. Criminal Penalties: prison, see 18 Law, 64, his release from years no. from Goodwin, at the Looking M. 3663(f)(2)(B) (1994), district (2000). U.S.C. Probation 62 1 Fed. adequately the de- court failed to consider MOORE, concurring Judge, Circuit ability.” Complying “earning fendant’s part. dissenting part and the five- order within with the restitution by the statute year period time mandated sepa- opinion, I -write I In Part of over require would my agreement with rately explain $400,000 $200,000 year, or to earn over its the district court abused majority that immediately fol- per year dollars pre-tax in the by ordering restitution discretion prison a 41 month lowing his release from $1,285,243.25without consider- amount sentence, accounting for the district even earning the defendant’s ing adequately $370,624 order of restitu- erroneous court’s I opinion, II ex- In Part of this ability. of the fact that light tion to the IRS. majority’s press my disagreement with more legally never earned this defendant may that a district court determination $68,000 and is now dis- year than in a a defendant’s setting the task of delegate profession, there is from his former barred Bu- schedule to the payment that the defendant would be no indication of Prisons while reau the amount able to earn almost six times incarcerated, probation and to a officer his criminal conviction prior he earned I defendant’s release. Because prison. from upon his release delegation that the district court’s believe res- authority setting the defendant’s only analysis court’s The district improper, I titution schedule was earning potential future Part III.D of the respectfully dissent from sentencing hearing at that he to note majority opinion. talented, intel- “exceptional person, anwas him,” open to ligent, many options Restitution I. Amount of in its order of J.A. at and to state properly the district court agree I _ proba- that it had considered the judgment under the Victim ordered restitution defendant’s fi- report tion office’s on the (“VWPA”), 18 Protection Act Witness prospects for future nancial situation and (1994), opposed to the U.S.C. employment, J.A. Act, 18 Mandatory Victims Restitution report office’s on which district 3663A, that the district “is well only relied noted setting the abused its discretion when capable obtaining educated and According to the amount of restitution. employment. As a re- maintaining gainful court, VWPA, decid- sentencing when sult, restitution.” capable paying he is restitution, must ing whether to assess that a defen- at 174. While it is true J.A. “the amount of the loss consider sustained education, employ- intelligence, dant’s offense, by any victim as a result of appropriate are factors for ment record *18 defendant, financial resources fashioning court to consider when district earning ability financial needs and of order, v. a restitution see United States dependents, the defendant’s and defendant Cir.1996), Sanders, F.3d other factors as the court deems and such the invocation of these factors should 3664(a) (1994) appropriate.” 18 U.S.C. review the dis- meaningful insulate from added). (emphasis specific of a amount of trict court’s order court’s reliance pay restitution. The district By requiring Weinberger to this merely factors indicates $1,285,243.25 in restitution within five these viction, properly adequately contemplate con- does not court that the district pay earning ability. whether the defendant could the defendant’s future Al- sidered In at all. See id. 456-57. I though possibility restitution cannot rule out the in case, that, cases, that the order for this court to conclude I in every most it believe in court did not abuse its discretion district highly unlikely any is that defendant could restitution, setting the amount of there substantially earn more than he earned must be some evidence before district prior immediately his incarceration fol- court, report, in presentence whether lowing prison, his release from much less court, any in to the or other submission nearly previous six times the amount of his potential that the defendant has the to legal income. I Because do not believe the money required pay earn the amount of district court any had indication that the fact that off the order of restitution. The in ability defendant this case will have the $68,000 year earned in one to earn over one million dollars in five prior to his criminal activities does not I years, believe that the district court’s support the district court’s conclusion that respect order of full restitution “threatens $400,000upon he can earn over his release judicial for generally” orders and is an prison, any from nor are other facts join of I abuse discretion. therefore support record which could majority reversing the district court’s restitution, full court’s order of notwith- order full remanding of restitution and for standing Weinberger’s education and his reconsideration of the amount restitu- talents. tion. There is recent case law our circuit Delegation Authority II. to Set “a
which states that district court must Payment Restitution Schedule have, minimum, aat some indication that a I pay disagree majority’s defendant will be able to the amount with the determi- permissible restitution ordered.” United States v. nation that it is for the district (6th Cir.1999) Dunigan, delegate 163 F.3d court to to the Bureau of Prisons added). (emphasis panel probation That also noted and the defendant’s officer the “ordering in an setting amount task of his restitution possibly pay presently split that a defendant cannot schedule. There is respect judicial gen- appeals ‘threatens orders the courts of on this issue.1 among Second, Third, Fourth, Fifth, erally’ provides and the defendant with The and Sev- remunerative, impermis- ‘less incentive to seek reha- enth have held that it Circuits ” bilitative, employment.’ scheduling delegate non-criminal sible task Fuentes, (citing post-incarceration payments Id. United v. States Cir.1997)). 1529 n. 26 officer. See (3d Cir.1999) case, clear, Coates, proba- I believe it is as the concluded, applica- tion office (explaining Constitution provision Mandatory will ability have the some amount of ble Victims restitution, Act, 3664(f)(2), like but that the district court’s or- Restitution 18 U.S.C. restitution, premised counterpart full in the der of which is on its Victim Witness 3663(f)(1) Act, ability the defendant’s to earn almost six Protection (1994), prior delegate income criminal eon- district court to times his to his forbids noted, persuasive majority opinions majority finds 1. As the this circuit has not which *19 yet delegation question commented binding any in this are not court circuit. published opinion. unpublished in a 366 schedule); restitution schedule may court leave Unit payment
authority to set 1426, discretion), Mohammad, and to the probation F.3d officer’s 53 v. ed States Cir.1995); (7th Prisons, v. Montano-Figueroa United States see 1438-39 Bureau of (4th 806, (9th Johnson, Crabtree, 548, 808-09 Cir. 48 F.3d 162 F.3d 550 Cir. v. 1995) “making decisions (holding that 1998) (fine). restitution, about the amount law, I of the case Upon consideration installments, timing is and their amount of adopted by the position that the believe is non- judicial function and therefore circuits is the bet- majority of substantial Porter, v. 41 States delegable”); United statutory lan- applicable ter one. The (2d 68, Cir.1994); States v. 71 United F.3d province makes clear that it is guage (5th Cir.1994);
Albro,
173, 174
see
32 F.3d
alone,
court,”
to fix the
and the court
“the
Merric,
406,
166 F.3d
also
United
restitution, determine whether
amount of
(1st Cir.1999) (holding that district
paid
lump
in a
the restitution should be
delegate
probation
officer
may
not
installments,
then, if the
sum or
for a
authority
payment
to set
schedule
latter,
install-
the amount of each
establish
fine).
Second, Fourth,
Likewise, the
3663(f)(1) (1994)
§
ment. See 18 U.S.C.
have held that it is simi
Seventh Circuits
may
(stating
require
that the “the court
larly impermissible
delegate
the sched
...
defendant make restitution
[the]
to the Federal Bureau
uling of restitution
period
specified
specified
within a
or
incarcer
while the defendant is
of Prisons
3572(d) (1994)
installments”);
§
18 U.S.C.
Pandiello, 184
States v.
ated. See United
(noting, in relation to a defendant sen-
Cir.1999)
682,
(noting that
F.3d
pay monetary penalty,
tenced to
shifting responsibility
“concerns about
provide
payment
for
either
“the court” will
judge
the Article III
to another enti
from
equal monthly
certain or in
on a date
ty” are the same whether the district
period provided by
installments “over
authority
probation
to a
offi
delegates its
court,” unless “the court” decides oth-
Responsibility
cer or the Inmate Financial
3664(f)
erwise);
§
see also 18 U.S.C.A.
Mortimer,
States v.
Program); United
(2000) (current
echoing language in
statute
(2d Cir.1996);
89, 91
United States v.
3663(f));
§
former
U.S.C.A.
(4th Cir.1996).
Miller,
71,
Only
77 F.3d
3572(d)(l)-(2) (2000)
in current
(stating
and Eleventh Circuits have
the Ninth
that,
required
for
statute
regard
adopted contrary rules
del
restitution,
provide
pay-
“court” will
officer,
egation
probation
to a
see United
monthly
equal
a date certain or in
ment on
Fuentes, 107 F.3d
1529 n.
States v.
installments unless “the court establishes
(11th Cir.1997) (circuit precedent per
time
“length
another
and that
schedule”
delegate setting
district court
mits.
payments
which scheduled
will be
schedule);
over
States v.
Cir.1989),
court”). Only
by
made shall be set
Barany, 884 F.2d
the restitu-
denied,
1034, 110
when the court has established
t.
493 U.S.
S.Ct.
cer
(1990)
may
tion amount and
schedule
(holding, with
act. As the Plaintiff-Appellee, clear, impose restitu- deciding whether part at rate is a tion and what See, e.g., 18 sentencing process. 3663(a)(1) (1994) (stating that when sen- Anaibony COLON, Defendant- defendant, may order that
tencing a Appellant. defendant make restitution to victim of No. 00-3345. offense): a imposition Given that the an restitution order is element of sentenc- Appeals, Court of ing, agree I with Fourth Circuit Sixth Circuit. must read as applicable statutes authority upon the conferring exclusive Aug. Submitted 2001. regard power to their to set courts Decided and Filed Oct. 2001. payment
the amount of restitution and the Johnson, at schedule. See course, may “nonjudicial offi-
Of courts use functions, judicial long cers as support judicial as a officer retains and exercises But responsibility.” ultimate Id. at 809. authority their they may delegate timing payments of restitution set entity running III without non-Article of the afoul Constitution. diffi- appreciate potentially I While may face in cult task that the district court setting a reasonable restitution schedule when, sentencing, particularly Judge concurring opinion, notes in his Cohn lengthy pe- faces a incarceration defendant anticipate when riod and the court cannot likely will be able to obtain employment begin making so as to restitu- release, tion I believe that plain language Constitution and the applicable any statutes will not admit of Therefore, respect- I arrangement.
other majori- III.D the fully dissent from Part ty’s opinion. plan initially approve payment delegate authority to determine the review and the final schedule, although the by probation conceived officer. III, may, consistent with Article district notes teristic of the tax 3D1.2, evasion count § and its involving “[a]ll USSG counts sub- statutory two-level enhancement under stantially the same grouped harm shall be those counts counts ently for different pres- Weinberger Group.” single into a ibid. Williams grouped. not be need his claim support in of arguments ents two a that it point involved directly on in is not counts tax evasion fraud that his fraud bankruptcy group not to decision they because grouped have been should loss, princi- the same a tax charge with harm. the same substantially involve Indeed, in case. applied be ples can relies on USSG First, Weinberger principles applied these Third Circuit the in- 3D1.2(c), that which states counts § similar to this with facts resolving in a case when substantially the same harm volve Vitale, 159 v. United States case. See conduct which count “embodies one Cir.1998). (3d in- Vitale F.3d 813-15 characteristic specific offense treated as with wire charged a defendant volved to, guideline the adjustment in, or other from his stemming and tax evasion fraud counts.” to another applicable from his em- million $12 embezzlement and tax argues that the fraud Weinberger and restore ployer acquire in order substantially the involve evasion counts court deter- Vitale clocks. The antique count the tax evasion harm same because and tax evasion that the wire fraud mined from the income derived based on was other, were counts, to each while related the count. forming fraud criminal conduct they that should closely related not so Frequently Most Relying Questions on id. at together. See grouped have been Guidelines, Sentencing the About Asked reasoning of rejected the The court (March 1, 1992), Weinberger points Vol. V Haltom, which has Sentencing Commission out that the tax and principle that upon for the relies counts should be that evasion tax stated to each other that are related fraud counts generated with the offense grouped In together. always grouped be should addition, Wein- unreported income. the addition, the facts distinguished the court decision United argues that the berger Haltom, Haltom, noting that Haltom, 113 F.3d under 47 n. the enhancement F.3d at Cir.1997), that tax supports his contention 2Tl.l(b)(l) brought § the tax count USSG related counts are evasion fraud count. of the fraud within four levels together. grouped to each other should Therefore, the group not to the decision § Second, 3D1 Weinberger relies USSG en- in two-level together resulted counts .2(d), involve sub- that counts which states § As dis- 3D1.4. hancement USSG “the of- same harm when stantially the 2Tl.l(b)(l) above, although cussed on the largely is determined fense level by the district applied enhancement or loss.” amount of harm total basis Vitale, case, Weinberger, like in this the fraud levels of both the offense Since en- 3D1.4 have received still would on the and tax counts were determined application regardless of hancement loss, claims basis of dollar 2T1.1(b)(1) enhancement, because harm substantially same they involve tax count was level for the the offense together. grouped have been and should offense level within four levels arguments are also The Vitale court count. fraud Ques- adopt proposition has held unavailing. This refused 3D1.2(d) auto Asked About Frequently not mandate Most does tions