Gary Stuver pled guilty to several counts of mail and wire fraud and was sentenced to concurrent five-year terms of imprisonment, followed by five years of supervised probation. The district cоurt ordered Stu-ver, as a “special condition” of this probation, to make restitution to the victim of his fraudulent scheme “in an amount to be determined by his probation officer.” Stu-ver now appeals from that sentencing order, contending that the district court (1) failed adequately to apprise him of his right to make a statement in mitigation of *74 his punishment, as required by Fed.R.Crim. P. 32(a)(1); and (2) failed to follow the appropriate procedures in imposing restitution. We reject the first contention, but conclude that the order of restitution was illegally imposed. We therefore vаcate and remand for resentencing.
I
Stuver’s first allegation of error is that the sentencing judge did not adequately apprise him of his right to make a statement in mitigation of his punishment, as required by Fеd.R.Crim.P. 32(a)(1).
1
The Supreme Court has made clear that affording the defendant’s counsel the opportunity to speak does not satisfy the rule.
Green v. United States,
In this case, there is no doubt that the sentencing c^urt gave Stuver such a personal invitation to speak. After an extended conversation with defense counsel concerning alleged errors in the Presentence Report, the court turned to Stuver and, addressing him by name, asked “Are there any other things in the presentence report that you feel unfairly reflect on you?” When Stuver responded “No, sir,” the court asked him if there was “[anything else that you want to add to it that you feel would bе helpful to me, before I pass sentence on you?” The following exchange ensued:
THE DEFENDANT: No, Your Honor, really not. Only I would attempt to amplify what my attorney said regarding the fact that I do accept guilt for this crime. When I pleaded guilty, it was sincere. I regret the circumstances and all.
THE COURT: Well, the Pre-sentence Report suggests that you have no remorse at all, that this was just all in a day’s work for you. Is that a fair characterization?
THE DEFENDANT: No, sir, that’s not fair. That’s not fair at all.
THE COURT: Well, tell me. Do you have remorse?
THE DEFENDANT: Yes, of course.
THE COURT: And I mean remorse as heartfelt as opposed to just feeling sorry for yourself because you gоt caught? There’s different kinds of remorse, you know.
THE DEFENDANT: Yes, Your Hon- or, I realize that. And I do feel remorse. I feel remorse towards the injured party, primarily Mr. Abdul Baki. He was a friend whom I had known for many years.... This is the reason for my remorse, primarily, because this crime was committed not against an abstract entity, but against someone who had been my friend for many years and who had hired me for a job. I certainly feel remorseful, and I wish to do what I can in the future to repay him in some way.
Following this interchange, the court again asked Stuver himself, “Anything else that you would like to add?” When Stuver responded “No, Your Honor,” the judge proceeded to sentence him.
Stuver nonetheless contends that the sentencing court failed to discharge its Rule 32(a)(1) duty because it did not tell him specifically that he had the right to speak
on the issue of mitigation.
In support of this argument, Stuver cites our decision in
United States v. Murphy,
No such uncertainty exists here. The court specifically addressed the defendant by name at the beginning of the interchange, and it was the defendant himself, rather than his counsel, who responded to each and every question put to him. It is clear from the defendant’s responses to the court’s questions that he understood that he was being allowed to speak in mitigation of his punishment, for he spoke of awareness of guilt and remorse. Under these circumstances, the court’s inquiries, though they did not track the literal language of the Rule, wеre sufficient to satisfy its underlying concerns.
II
Stuver claims next that the restitution element of his sentence was illegally imposed. We note at the outset that the record does not reveal thе precise basis for the restitution order. As Stuver’s offense occurred between March 1983 and January 1984, the court could have ordered restitution under either the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3579-3580, (current version at 18 U.S.C. §§ 3663-3664), or the Federal Probation Act (FPA), 18 U.S.C. § 3651 et seq. (repealed effective Nov. 1, 1987). 2 This ambiguity is of little consequence here, because the order of restitution was improрer under either statute. In some cases, though, the statutory basis for the restitution order may be critical to its validity, for the two statutes require consideration of different factors. We therefore join the Sixth Circuit in admonishing sentencing judges to specify in the record the precise statute under which they act in imposing restitution. See United States v. Shackelford, 777 F.2d 1141, 1146 n. 4 (6th Cir.1985). Only so can effective appellate review of rеstitution orders be ensured.
As indicated, the identity of the statute under which the district court purported to act makes little difference here, for the court failed to follow the procedures applicable to either act. If the court imposed restitution under the VWPA, we must remand for resentencing because it failed to make the specific factfindings required by our deсision in
United States v. Bruchey,
If, on the other hand, the court acted under the FPA, a remand for resentenc-ing would still be required, because the court did not determine the amount of restitution with sufficient specificity. Former 18 U.S.C. § 3651 gave the district court broad discretion in deciding what conditions to impose upon a probationer.
See
18 U.S. C. § 3651 (repealed effective Nov. 1, 1987) (court may place convicted defendant on probation “upon such terms and conditions as the court deems best”);
United States
*76
v. McMichael,
Ill
The condition of probatiоn ordering Stu-ver to make restitution to his victim is vacated and the case remanded for resen-tencing in light of this opinion. If restitution is again ordered, the court should identify the statutory basis and observе the procedures appropriate to the source identified.
VACATED AND REMANDED FOR RE-SENTENCING.
Notes
. Fed.R.Crim.P. 32(a)(1) reads, in pertinent part, as follows:
Imposition of sentence. Sentence shall be imposed without unreasonable delay. Before imposing sentence, the court shall
(C) address the defendant personally and ask the defendant if the defendant wishes to make a statement in the defendant's own behalf and to present any information in mitigation of punishment.
. A different statutory scheme of restitution applies for offenses occurring after November 1, 1987. Pub.L. 98-473, 98 Stat. 1987 (Oct. 12, 1984) repealed 18 U.S.C. § 3651 and renumbered 18 U.S.C. §§ 3579-3580 as 18 U.S.C. §§ 3663-3664. Under the new law, any sentence of restitution must be imposed in accordance with the provisions of 18 U.S.C. §§ 3663-3664 (formerly 18 U.S.C. §§ 3579-3580), even when the restitution is ordered as a condition of probation. See 18 U.S.C. §§ 3556, 3563(b)(3).
. The sentencing order itself said simply: “As special conditions of probation the defendant shall make restitution to Tricon Enterprises [the victim] in an amount to be determined by his probatiоn officer.” J.A. 82. At the sentencing hearing, the district judge explained this decision as follows:
[A]s a special condition of your probation, you must make restitution to Tricon Enterprises for an amоunt that is determined by the Probation Officer and the other parties involved to be due Tricon. Those figures were mentioned here by the Assistant United States Attorney this morning, but it may be that that will vary from time to time. So I give the Probation Officer total discretion in determining what that amount is.
J.A. 79.