United States v. George Thompson
113 F.3d 13
2d Cir.
1997
Check Treatment

*2 GRAAFEILAND, JACOBS, Before VAN CALABRESI, Judges. JACOBS, Judge.

George Thompson appeals judg- from a ment of conviction in the United States Dis- trict Court for the Southern District of New J.) (Sprizzo, following York one count of bank fraud violation of 18 Thomp- 1344. The court sentenced eight imprisonment, son to months of five release, years supervised restitution of $67,916.78, mandatory special assess- appeal, Thompson ment of On contends $50. by imposing the district court erred considering restitution without certain of the factors set forth 3664(a), specifically Thompson’s financial condition and the effect of the restitution dependents. order on his for abuse of discretion a We review order of restitution. district court’s Lavin, require an act or affirmative statement allowing an inference that the district court in fact considered” the Although Thompson did order, require- 47 F.3d at 551. To fulfill that restitutionary this is object ment, government points following improper review because appellate bar to *3 (1) adoption acts: the district court’s of the illegal constitutes an ly ordered restitution conjunction factual of the PSR in amounting error. United sentence (2d Cir.) adoption of with the court’s the PSR recom- Mortimer, 436 — restitution, mendation as to the amount of (citation omitted), cert. PSR; but on different terms than those of the (2) and the decision not to a fine may impose restitu Before a court Thompson’s pay. of because We the loss it must consider “the amount of tion unpersuaded. are a of the by victim as result sustained Soto, by explained “[a]doption we that a offense, financial resources of the defen the adequately district court of a PSR that sets dant, earning ability financial needs and the forth the factors tends to a depen and the defendant’s of the defendant finding that court in fact the dents, factors as the court and such other Soto, 551; mandatory factors.” 47 F.3d at 3664(a).1 § 18 U.S.C. appropriate.” deems Coleman, see also United States Although court need not set forth (10th Cir.1993) (‘We 1480, 1486 are satisfied findings, will vacate a restitution detailed we that the have been con- factors that the order if the record does not reflect are sidered when such factors detailed the mandatory factors. court considered these presentence report that the district court has Giwah, F.3d Molen, adopted____”); United States v. Soto, Cir.1996); Cir.1993) (“[A] F.3d district Cir.1995). vacate the district We may requirements by these meet order and remand to the court’s restitution adopting presentence report that recites court for reconsideration because the adequate findings.”). recommended factual court did not link its restitution order stated, however, further that need We § factors in 18 of the adoption not of a alone decide PSR government argues requirement that we would meet our the record The portions of the as a whole reflect a district court’s consider- should infer various because, factors in this sentencing record that the district con ation high adopted.” 47 F.3d at 551. factors. The PSR was not sidered these 3664(a) § true of the case before us. lights the discussion of the factors The same is Report Judge Sprizzo adopt the factual find- Thompson’s did Pre-Sentence record; (“PSR”), merely acknowledges ings if the of the PSR on the “[e]ven but 3664(a) report. § fac that he had read the On the adequately considers the stated PSR form, tors, enough a box was checked to indi- fact alone is not insulate adoption of factual find- being vacated cate the court’s a restitution order Giwah, Rather, PSR, ings in but this does not indicate 84 F.3d at 114. this court.” whether, entirely purposes of the Protection Act clear 1. The Victim and Witness MVRA, (“VWPA”), seq., signifi- § was "convicted” at the time 3663 et was (before cantly passage Mandatory the MVRA became effec of the modified (after ("MVRA”), tive) sentencing or at the time of his Victims Restitution Act II, date). parties agree, how enacted Subtitle A of the statute's effective The which was as Title ever, Penalty if MVRA was in when and Effective Death Act of that even effect Antiterrorism convicted, application apply was of the new 1996. We do not the new amendments provides be that the amendments amendments to this case would barred this case. Title II “shall, post ex clause of the United States Constitu made in the MVRA to the extent constitu- facto Const, I, Lynce tionally cl. 3. See permissible, tion. U.S. art. be effective Mathis, U.S. -, -, proceedings in which the defendant is cases in view, (1997). We concur in this after the date of enactment of convicted on or application of the [April will therefore not consider this Act See 18 U.S.C. and 1996]." added). notes) Thompson. (statutory (emphasis new amendments to It imposing making considered in where he is that the factors year.” restitution. Reading sentencing transcript although notes that whole, persuaded that the state- we at a rate of 10% of called for restitution PSR discussing ments made the course income, court made Thompson’s departure motion allow an infer- and of this recommendation

no mention ence that the district court considered the paid amount to merely imposed the entire be imposing restitution. five-year Thompson’s during the course of Judge Sprizzo’s explain comments his disin- But we do not see how supervised release. depart downwardly for clination to someone an affirmative from the PSR is this deviation money notwithstanding had stolen that the district court considered indication good job living: thus decent It indicate that *4 Sprizzo concluded that this was a crime of considered, not. the factors “pure greed,” deserving special lenien- government’s reliance on the As to the cy. arguments The statements and fine, nothing in court’s decision sentencing, sel at as well as the comments of ap- sentencing transcript addresses the court, insufficiently speak to the The deci- propriateness or amount of fine. question impose a fine does not in sion of whether to were considered the restitution determina- requisite affirmative act itself constitute tion. supporting capable of the need- or statement Accordingly, we vacate the restitution or- Although another box was ed inference. der and remand to the district court for indicating form checked on of the factors reconsideration set imposed that a would not be because of fine forth in 18 U.S.C. we decline on that basis to pay, court considered draw an inference GRAAFEILAND, Judge, VAN ordering ability pay in restitution. See concurring in result: (declining to 47 F.3d at 551 infer my colleagues’ I concur decision to re ability to court had considered defendant’s resentencing, mand for but not for the rea pay decision not to im- from district court’s expressed majority opinion. My sons fine, pose the court made no state- where reading of the record satisfies me that the fine because defen- ment that it declined to experienced pay both dant was unable to restitution prescribed restitution factors in 18 U.S.C. fine).2 3664(a). However, it is law in settled this government argues also that the collo- sentencing judge may that a not as quy between the district court sign probation department respon and counsel reflects sufficient consideration sibility scheduling installment restitution support factors to the resti- See, Khan, payments. e.g., United States v. requested tution order. In the context of a motion, departure -, U.S. Sprizzo informed has a Porter, United States v. net worth of and owns a home with Because that is what the equity. Defense counsel advised case, district court did in the instant the court that has a wife who is error must be corrected. family. denying unable to motion, stated that “these exactly poor people,” and that “[t]his bucks, house,

is a man with a few he has a situation, job good family

has a he has upon ability pay, 2. The relies our decision in financial condition and his Mizrachi, expressly those United States v. district court discussed issues in Cir.1995). However, determining impose in that the PSR con- the course of whether to tained detailed as to the defendant’s fine or costs of incarceration.