*1 convinces us Van- of the record review disobey specific willfully not Laan did
der order, must reverse the district we judgment.
court’s
Finally, the district court lacked July authority enter its 30 order en agreement. In order
forcing the settlement complaint
ing Laan to withdraw Yander Association, with the Bar
filed power its “inherent to enforce
court relied on agreements.” Supreme
settlement however, recently recognized, that fed
Court possess do not such inherent au
eral courts
thority. Insur Kokkonen Guardian Life —Am., -, U.S. S.Ct. ance Co. of (1994). L.Ed.2d 391 As the en agreement “is
forcement of settlement just a continuation or renewal
more than suit,” regarding breach a claim
the dismissed “requires its own agreement such an basis at-, at jurisdiction.” Id. S.Ct. court here failed Because the district
1676. jurisdiction enforcement of the
to retain over entering judgment, Clau-
agreement when properly claim was breach of contract
der’s separate proceeding.
addressed reasons, foregoing
For the
the district court is reversed. America,
UNITED STATES
Plaintiff-Appellee, WEBB, Defendant-Appellant. E.
Elvis
No. 93-5893. Appeals, Court of
Sixth Circuit.
Argued Jan. July
Decided *2 Atty. (argued The district court considered evidence Terry Cushing, U.S. lease. Asst. Sears, Atty., briefed), that defendant had reestablished contact Alan E. Asst. U.S. and Louisville, KY, family gainfully employed in plaintiff-appellee. for with his and was then, 16, 1993, Florida. The court on June (briefed Manly argued), and Louis- Samuel release, supervised revoked his sentenced KY, ville, defendant-appellant. for incarceration, him to twelve months’ resen- supervised him tenced to a term NORRIS, JONES, and Before: 2, 1996, ending March and ordered that he SUHRHEINRICH, Judges. Circuit pay special the balance of the assessment NORRIS, Judge, Circuit delivered the originally and restitution court, opinion which SUHRHEINRICH, Judge, joined. Circuit II. 691-92), JONES, Judge (pp. Circuit separate opinion concurring delivered argues Defendant first that the dis part dissenting trict abused its discretion when it re term of voked his release. We NORRIS, Judge. ALAN E. Circuit actions in review district court’s appeals Elvis Webb his sentence for violat- release cases for of discretion. abuse ing supervised release and the continued ob- Stephenson, States v. 731-32 ligation pay at restitution ordered the time original of his sentence. For the reasons below, for stated we remand the cause resen- A district court is authorized to revoke a obligation tencing. affirm the continued We term of non-criminal payments. to make restitution supervision, of the terms of the violation 3583(e)(3), 7B1.3(a)(2), U.S.S.G.
I. although options, such as imposing terms pleaded guilty In defendant alter- confinement, home are available to the court. money ing United Postal or- Service 3583(e)(2) (4). See 18 U.S.C. & In this ders, in violation of 18 U.S.C. 371 and case, the district court determined that de- result, § 500. As a he was sentenced to substantially ignored reporting fendant had imprisonment fifteen months’ and a three- monitoring provisions his year and was release. Defendant was not aware of special ordered to assessment and $150 specific provisions, those but had extensive $22,906.25. the amount of justice system contact with the criminal prison When defendant was released from importance abiding by was aware of the in March he was instructed meet the conditions of release. The court conclud- Louisville, probation his officer in Ken- simply ed defendant’s decision diso- tucky. attempt He made one unsuccessful bey release conditions was day meet his officer on the he was “to conduct of the detrimental business released. He then to Florida to went live Accordingly, the Probation Office.” the dis- daughter notifying pro- with his without trict court’s decision to revoke bation office. Several weeks later he called clearly was within its discretion. officer, his but refused to information as to his whereabouts or how he argues Defendant next that the dis again could contacted. He was told to him to trict court’s decision to sentence report to the Louisville office. defen- When violation of imprisonment twelve months’ appear, dant not for his arrest did warrant plainly unreason his release was voluntarily was issued. He surrendered sev- 3583(e)(3), able. a dis Under eral weeks later. trict court a defendant “to sentence hearing prison
The district court held a to deter- serve in all or of the term any, time punishment, mine what if defendant release without credit for postrelease supervision, violating supervised previously would receive for served on expressly limited statute. As to evidence tion is preponderance of the by a if it finds the modification or revocation of a defen- a condition of person violated Sentencing dant’s Guidelines vised release.”1 statement, non-binding policy powers court’s are limited to those found provide a
also *3 3583(e)(3) O’Neil, 292, 3583(e).... 301 n. 11 F.3d in [S]ection v. section United States Cohen, (1st Cir.1993); v. only complete States contemplates United a revocation of 11 (6th Cir.1992), 58, recom- 61 term and an offender’s crimi- defendant’s person impose prison a with mends that the discretion to a term not category imprisoned history longer original supervised nal than on revocation term, to twelve months period subject two-or-three-year of six to a 7B1.4(a). § supervised release. U.S.S.G. of cap.... binding sentencing no there are Because Id. at 441. must court’s sentence the district guidelines, that restitution is a Defendant contends in of the factors listed consideration reflect pursuant condition of to 3553,2 may plainly not be § 18 U.S.C. § and that when 18 U.S.C. 3742(a)(4); 18 U.S.C. unreasonable. See revoked, duty vised release is to Graves, 159, F.2d 160- 914 survive revoked term restitution cannot (8th Cir.1990). from the record It is clear 61 it of release of which was the factors court considered that the district argues government that defendant’s rea- The Under the facts in 18 U.S.C. listed soning congressional intent and frustrates case, to incarcerate defen- this the decision of imposing purpose restitu- undermines plainly un- was not twelve months dant for place. in first tion reasonable. statutory for the are two sources There Nevertheless, in (1) authority impose a court to restitution: (6th Cir.1993), Truss, we held that 4 437 F.3d may as an impose an order of restitution statutory authority lacks the a district court conviction, 18 of the sentence of element impose an additional term (2) 3556, §§ a court or impris U.S.C. has been release after defendant discretionary impose as a condi- his initial term of upon revocation of oned probation, 18 439. Defendant tion release. Id. at 3563(b)(3). 3583(d), §§ in In either to such an additional was sentenced Therefore, ease, governed by the must be the restitution order is his sentence this case. Protection Act of 1982 cause remanded for resen and Witness vacated and the Victim 3663, opinion (“VWPA”), tencing light of this court’s Truss. VWPA, restitution could not Prior to the that, argues Finally, defendant independently of sentence be ordered Truss, employed in reasoning Act, Federal Probation probation. See The supervised release 1984). to revoke court’s decision of the (repealed One 18 U.S.C. 3651 obligation to make him of his restitu relieved change express for the VWPA was to reasons originally Truss states: tion as Cong., S.Rep. No. 97th this result. See 30, reprinted in 1982 U.S.C.C.A.N. 2d Sess. wholly a creation of Supervised release history legislative makes 2536. As the granted Congress. discretion While clear, compen- purpose of restitution is concerning aspects certain of its the courts administration, victims: that discre- sate imposition and offense; nature of the “[Tlhe 2. These include: of incar- further limits
1. The statute conduct, protect the years the need to deter criminal for some- to no more than three ceration appropri- felony, public, defendant or originally of a Class B one convicted treatment; range any guideline sentenc- felony. ate years C D 18 U.S.C. for a Class or two statements; policy 3583(e)(3). ing; guideline and avoidance therefore have Defendant could disparities.” United States v. two of unwarranted for a maximum of been incarcerated Scroggins, years. placed on premise [proposed The defendant sen- just devising tenced to a term of release under is that the court 3579][3] title, offenders, this restitution ordered under this adjudicated sanctions for should ], section shall be a condition of such wrongdoer good[ make[s] insure that the itself, Standing release.” degree possible, to the the harm he has making phrase this could be construed as caused his victim. merely a term of But, probation. looking lease or at the stat- integral principle of restitution is entirety4 light legisla- in its ute virtually every system of part of formal history, reading tive more natural justice, every every criminal culture and provides is that it an efficient and It whatever else the time. holds *4 relatively provi- enforcement uncomplicated sanctioning power society punish of does to fact, In sion for orders of restitution. the wrongdoers, it that its should also insure § 3663(g) of remainder discusses the factors wrongdoer required degree the to the revoking probation to be considered in or possible to restore the victim to his or her supervised holding release or the defendant well-being. prior of state contempt in comply for failure to with a Id. effectively restitution order. It is aimed at using jurisdiction The first section of the VWPA makes clear the court’s over the defen- Congress during supervised proba- that intended restitution to be dant release and tion, obligation independent term of the sentence of not at to make convic- tion, regard restitution. without to whether incarcera- tion, probation, supervised or release were the statute to Were be read as defendant court, It states: “The when sen- is, suggests, making that as restitution no tencing a defendant convicted of an offense supervised more than a term of sev- order, may ... under this title in addition to statutory provisions eral other would be ren- or, misdemeanor, in the case of a in lieu instance, of meaningless. For “in dered law, any penalty by authorized that the 3663(a)(1) language § addition to” any defendant make restitution to victim of § substantially 3551 would be eviscerated be- 3663(a)(1) (em- § such offense.” 18 U.S.C. restitution cause could never be ordered added). phasis This intent is further evi- probation addition to or 3663(f)(3), by permits denced which a court part punishments. but as a of those obligation pay to make an to restitution due Likewise, im- restitution could never be due immediately upon sentencing. Were restitu- mediately case where simply tion a or probation lease or was later ordered. Noth- probation, prior it could not be to due ing legislative history in the of either the commencement of such a term. See United provisions release statute5 or the 1390, Angelica, 1392-93 creating support such result. (9th Cir.1988). Accordingly, we conclude that a district
The confusion as to whether restitution is a court’s decision to revoke merely separate obligation pay term of the sentence or does not affect the to restitu- obligation tion if such was authorized under 3551, by 3663(g): §§ “If created 18 U.S.C. such 18 3556. A defendant who is U.S.C. orig- legislative history primary 3. The restitution sections of the VWPAwere 5.The states: "[T]he 3580, inally §§ codified at 18 U.S.C. but goal [supervised is to ease the defen- release] Comprehensive were renumbered later community dant's transition into the after the 1984, 98-473, Crime Act of Control Pub.L. No. long prison particularly service of a term for a & as 18 3363 offense, serious or to rehabilitation to a spent fairly period defendant who has short whole, interpret 4. "We must the statute as a prison punishment purposes for or other but still making every interpret not to effort supervision training programs after needs provisions in a manner that renders other 225, S.Rep. Cong.2d release.” No. 98th Sess. inconsistent, meaningless, same statute fluous.” 124, reprinted in U.S.C.C.A.N. 1984 Greenpeace, Technologies Inc. v. Waste Indus., F.3d 1179 Cir.1993), imposition of an additional may pay his restitu- continue incarcerated Financial release must be vacated through the Inmate obligation tion resentencing. for See 28 C.F.R. and the matter remanded Program. Responsibility Williams, However, I 545.10; believe Cir.1993) (10th (noting obliged regard the resti- we are 233-34 a condition of up average to an tution order as inmates can earn federal Consequently, improper it was $1,000 use those resources release. per year and can restitution). sentencing court to revoke the term of the defendant is pay Once release, yet serving time for retain the restitution prison after from released violation, obligation. Accordingly, respectfully I the obli- dis- supervised release his majority opinion portion from the continues accor- sent gation pay pertaining res- to restitution. original dance with years up to five from titution states, § majority 3663(g) provides As the from was released date the defendant placed proba- on “[i]f such defendant primary conviction. See prison on the tion or sentenced to a term of 3663(f)(1) (2)(B). Although the & title, any release under this restitution or- longer monthly over- court no has district dered under this section shall be a condition progress toward re- sight over a defendant’s release.” of such restitution, *5 government payment of plain unambiguous meaning of this The and any way restitution the order of enforce that where restitution and 3663(h), including seeking a by § authorized imposed, vised are both the former release under 18 judgment for criminal default must be a condition of the latter. The lan- § 3615. clearly mandatory guage provision is of this explicit- and leaves no room for discretion. Although district court did not statutory authority impos- ly set forth however, majority, interprets sec- The this case, apparent it is ing restitution this permitting and tion as restitution upon 18 the court relied imposed independently of each release to be was awarded as a 3556 because restitution other, of one does not such revocation con- component of the separate affect other in the least. It characterizes were ordered to be viction and installments to me to be interpretation, this which seems beginning of paid prior to the language totally plain with the inconsistent release.6 statute, reading natural as “a more Majority Op. at 690. provision.” did not err Accordingly, the district court release and re- when it revoked construing majority contends that The obligation. tained the restitution regard with I 3663(g) in accordance what meaning would plain unambiguous and as its III. language in other “substantially eviscerate” remanded to the district This cause is namely phrase “in parts of the statute — compliance resentencing in 3663(a)(1). court for to,” §in which is found addition States v. Truss. opinion in this court’s claim to Majority Op. at 690. I find this See 3663(a)(1) grants insupportable. be Section JONES, Judge, R. Circuit NATHANIEL to order sentencing court the discretion dissenting concurring part and pen- any ... “in addition to restitution by There is no tension majority alty authorized law.” agree I with the that the district inconsistency this section between to revoke Webb’s court’s decision discretion, that, provisions together sim- 3663(g). The two as was within its Truss, (6th penal- in addition to other ply per F.3d 437 the follow- order contains order states: “The defendant 6. The restitution $22,- ing special shall make "The defendant condition: make restitution in the amount of shall any remaining payments balance payment regular toward The defendant shall make 906.25.... (which $22,906.25 imposed by as determined the Inmate toward restitution months of Responsibility Program within the first 30 ... with due Financial release), permitted by his rate paid exceed at the maximum within a not to balance to added.) (Emphasis monthly, imprisonment.” cash flow....” months after release from ties, order a defendant to make
restitution, if a re- penalties, making is one of the other
lease must be a condition of such re-
lease. No of the statute “eviscerated” interpretation. straightforward this Truss,
According to the revocation of a must be under- revocation, including all complete
stood as a
of the term.
of the conditions restitution order was a condi-
Insofar as the
tion of it destroyed by the revocation.
too is reasons, I
For these would instruct that it is no more
district court on remand re-impose restitution order than it
free to re-impose
is to extended remand,
lease term. I would hold that on
the district court is free to reconsider wheth-
er it should revoke the term of It
release at all. has choice of either Webb,
incarcerating reinstituting or of of the term of su- the conditions
pervised including restitution. See
Truss, majority at 438-39. The errs
by allowing the district court on remand to things.
do both of these
MICHIGAN LABORERS’ HEALTH FUND; Michigan
CARE Laborers’ Va Fund; Michigan
cation Laborers’ Train Industry
ing Fund; Michigan Laborers’ Fund; and Michi
Advancement State of
gan Laborers’ District Council Pension
Fund, Plaintiffs-Appellees, CONCRETE, INC.,
GRIMALDI Company,
Rocco’s Concrete
Defendants-Appellants.
No. 93-1494. Appeals,
United States Court of
Sixth Circuit.
Argued May July
Decided