*2 for the appeal Gomer contends COFFEY, On Cir- Before ESCHBACH SWYGERT, requires that the VWPA the sen Circuit first time Judges, and Senior cuit tencing the financial Judge. judge to consider earning ability needs and of the defend SWYGERT, Judge. Senior Circuit 22.1 dependents. Appellant’s ant’s Brief at pled guilty to bank Jimmy Dale Gomer We hold that the district erred twenty-five robbery and was sentenced failing to consider this factor and that this ordered to forfeit imprisonment and years be noticed error the victims of $7,272.00 as restitution to though not raised appellate court even be robberies, to the Victim and pursuant 52(b). low. Fed.R.Crim.P. 1982, 18 U.S.C. Protection Act of Witness requires expressly The VWPA the sen- (1982)(“VWPA”). 1512-14, He 3579-80 §§ tencing “the financial judge to consider restitution sentence. appeals only from the earning ability needs and of the ... defend- requires the sentenc- Because the VWPA 3580(a). dependents.” 18 U.S.C. ant’s “the financial needs ing judge to consider sentencing judge here did not state on earning ability of the ... defendant’s that he this factor. the record considered 3580(a), we va- dependents,” 18 U.S.C. § however, (1) committed, No error was remand restitution sentence and cate the court, (2) properly before the resentencing light of this considera- issue was not implicitly considered this factor tion. restitution, ordering the funds in sentencing hearing, At the proceeds fact were' the of the bank rob- a restitution award was stated that bery. the VWPA and “fairly mandatory” under no or sufficient that he could find “valid places on defendant The VWPA Tran- not to order restitution.” reason demonstrating financial the burden of (“TA.”). Proceedings, A at 3 script of Vol. needs of his 18 U.S.C. forfeiting the personally objected to 3580(d). Therefore, if the defendant did him, $7,272.00 contending that seized from on this produce not at least some evidence proceeds of the funds were not the these issue, the issue was not that the funds ac- He claimed robberies. err in judge, and the latter did not car and from the sale of wife’s crued statutory Brief at attempt Appellee’s issue as a one. See apparent to circumvent In an purports prejudice problem, to frame the lack of 30-33. In view of the waiver argues He one. appellee issue as constitutional in view of our reluctance to reach government requires the unnecessarily, the due clause issues see constitutional infra procedures it sets for itself to follow the a statu- hold that Gomer has stated note we argu- Appellant's Brief at 22. At oral statute. ment, reaching any tory address it before claim and however, the issue in Gomer also framed constitutional issues. interpreted statutory appellee terms. failing giving it.2 true that to consider It is Gom- reasons for decisions.” presented no evidence on this er himself Accordingly, Id. at 374-75. Nevertheless, issue.3 the record contained need not show reliance on an im- ample dependen- evidence4 of the financial proper sentencing factor to obtain relief: it cy family members on Gomer. Accord- is “sufficient to show that it was not im- reports ing presentence present- to the two probable *3 judge the trial influenced Appellee’s judge, Appendix, ed to the see improper imposing factors in sentence.” Gomer had been married three times and Id. at 375. marriage. had had four children his first sons, 18, aged two eldest resid- We hold that a similar applies test him; younger ed with the two sons resided charges where the defendant that the dis money with their mother. Gomer sent judge trict failed to consider a mandatory children, though the mother and his there sentencing Although factor. the sentenc is no evidence of a divorce decree.5 See ing judge need not explicitly state he is Appellee’s Appendix (reprinting Presen- relying mandatory factor, on the appel 29, Report February 3). tence 1984 at late court must reverse where the defend One his stated reasons for an earlier (1) ant shows either judge explicit that the robbery
bank
committed in 1978 was that
ly repudiated
factor,
mandatory
boys
support,
things
he “had four
improbable
that it was not
that the judge
getting
having money
started
as for
bad
to failed to consider the mandatory factor and
Appellee’s Appendix (reprint-
live on.” See
thereby.
influenced
ing
11,
Report
Presentence
of December
strongest
evidence that the district
6).
wives,
1978 at
As for the other two
judge implicitly considered the needs of
dependency
evidence of
in the record
Gomer’s
prosecutor’s
was the
request-for-
was Gomer’s notation on his
$7,672.00
seized,
statement
had been
counsel form that his third wife was a
of which
subsequently
$400.00 was
re-
dependent. We
this
believe
evidence suf-
turned to Gomer’s children. TA. 8.
It
discharge
pro-
ficed to
Gomer’s
burden
argued
could be
that the
judge
district
im-
that, accordingly,
duction and
the issue was
plicitly concluded that
this
ade-
$400.00
judge.
before the district
quately provided for the children’s needs
possibility
As for the
that the dis
equitable
and that
it was therefore
judge
trict
implicitly considered the needs
$7,272.00
remaining
award the
to the vic-
of Gomer’s
it is true that an
tims.
statement of the
factors
conclude, however,
We
that it
required.
relied on not
was not
generally
Harris,
(7th improbable that the
failed to
First,
Cir.1977). Nevertheless,
consider the
this court has
needs.
“always
return of
stated that it is
to do so
to the children would not
$400.00
advisable”
against adopting
provide
and has cautioned
a rule
for the needs of Gomer’s wives.
Second,
probable
although
“which
have the natural and
will
the VWPA does not nec-
encouraging
judges
effects
trial
essarily require
to avoid
full satisfaction of the de-
discharge
production
hearing.
Ray,
2. A failure to
See United States v.
might
though
(7th Cir.),
denied,
itself be
we need not
cert.
(1982).
reach that issue here.
inate, the restitution award. It was there- plain error in awarding restitution without “probable” fore that consideration of the considering the earning financial needs and omitted factor would have ability of Gomer’s We there- changed the outcome. fore vacate the restitution sentence. On remand, should first con-
It is true that the
error rule
sider whether the
seized funds were
“sparingly”
must be used
and that the ulti
proceeds
of the bank robberies.
If
judgment
mate
to be reached is that the
not,
they were
then Gomer’s restitution
application
rule’s
prevent
sentence should be
light
reconsidered in
“miscarriage
justice.”
—
the financial
earning
needs and
ability of
U.S.-,
Young,
1038, 1047,
*5
dependents.
his
Because we resolve this
(1985);
Silverstein,
some checks on the enormous discretion of
sentencing judge,
the
appellate courts
principal
The
issue raised
in
been less reluctant to
plain
appeal
invoke the
error
is whether the Victim and Wit-
See,
rule in
the
context.
e.g.,
(“VWPA”),
ness Protection Act
18 U.S.C.
Harris,
(failure
were to
trary
majority’s inaccurate state-
to the
to consider the needs
failed
court
district
need be is
evi-
ment that all there
“some
possi
how such error could
dence
needs” in order
According
error.
bly amount
properly
it,
issue
before
I understand
case
as
law
3580(d)
court,
explicitly
district
establish-
§
court
his
waived
dispute
es that
if there is a
“as
depend
needs
of his
failed to consider
proper
... of restitution” the de-
amount
to raise it in the trial
he failed
ents when
establishing
fendant bears
time on
it for
first
raised
“preponderance
evidence”
Carter,
See, e.g., United States v.
appeal.
dependents.
The
financial needs of
(7th Cir.1983); Holleman
F.2d
requires
defendant bear
Duckworth,
394-95
—
establishing his dependents’
the burden of
U.S.-,
Cir.),
denied,
cert.
produc-
needs
the burden
just
and not
(1983). I
reach
L.Ed.2d 116
would
tion,
believe,
majority seems
as the
as
appeal,
the defendant’s
merits
demonstrating the financial
needs of
court, and hold that the Victim
filed in this
However, during
presen-
Act
Protection
is constitution
Witness
raise,
hearing,
tence
did not
even
therefore,
I,
respectfully
al.
dissent.
argue,
depend-
much
the issue of his
less
presented
majority frames
issue
ents’
and thus failed even to come
no er-
statutory
and asserts that
terms
meeting
close to
his burden
“(1) the
issue was
ror was committed
required by
needs of his
court,
[or]
fact,
3580(d).
pre-
examination of the
ordering
implicitly considered this factor
report reveals
the defend-
sentence
restitution____”
*6
of
needs was before the
dependents’
the
sent,
if,
money
why it was sent or
majority
reaches this
district court.
fact, it
Certainly,
was ever received.
the
phrases
relying on two
in differ-
conclusion
very logically
could
court
reciting
presentence report
ent
the
areas of
have
since
inferred that
Gomer never
that
four children and that at
had
Gomer
needs,
dependents’
raised
his
the issue of
them,
money”
a
one
he “sent
to
and
time
relatives,
being
met by
needs were
self-serving, unsubstantiated
statement
government pro-
type
friends or some
of
earlier bank rob-
he had committed
gram
I know
such as AFDC.
of no case
bery
“support
had
his
because he
1978
holding
upon
law
that it is incumbent
trial
Overlooking the
the
boys.”
four
fact that
judges
of impartiality
shed their mantle
raised the issue of
defendant never even
microscopic analysis
and
a
undertake
of
needs,
the
relies
dependents’
every phrase
presentence
each
and
phrases in the
exclusively upon these two
that,
report
according
issues
and raise
hold
the
of
presentence report to
issue
statute,
mandate of the
are to be
clear
properly
dependents’ needs
before
Indeed,
raised
defendant.
it is the
by the
the district court.
responsibility of defense counsel to chal-
3580(a) requires
Admittedly,
lenge
the court
prosecution
meet each
(i.e.,
every
requirement
not
the “loss sustained
of the statute
consider
proof
also the financial needs and
defendant
the burden of
victim” but
bears
of
“demonstrating
the ...
financial needs
earning ability of the defendant and
3580(d).
demonstrating
shall
defendant."
18 U.S.C. §
the finan-
be on the
"The burden of
...
cial needs of the ... defendant’s
1227
dependents____”),
judges,
defendant’s
forcing
them address is-
representing his client
when
properly raised,
sues not
to abandon their
definitely]
is
court.
obligation
impartiality,
“[I]t
clear
of
[most
and to act
responsibility
prosecutor
of the
attorneys.
as substitute defense
judge to do the work of the defense counsel
“A judge best
serves
administra-
type
preparation
...
of lack
not in
is
justice
tion
by remaining
detached
best
interests
his client
it in
nor is
from the conflict
parties.
between the
justice.”
the interests of
Cady,
Ruiz v.
As Justice McKenna
long ago,
stated
(7th Cir.1983)
710 F.2d
(explana-
1218
country
shall not only
‘[Tribunals
added).
Indeed,
anything
it is de-
impartial
the controversies sub-
fense counsel’s
absolute failure to
to them
give
mitted
but shall
assurance
meet his burden
under
statute and thus
they
impartial____’
are
Berger v.
protect his client’s interests that deserve
States,
United
255
35-36,
comment and attention
this court.
230, 235,
(1921).”
S.Ct.
L.Ed.
I would
entirely proper
hold that it was
Mining
Lord,
Reserve
Co. v.
529 F.2d
district court
order
(8th Cir.1976).
Accordingly, I dissent
$7,200
Gomer,
restitution of a mere
majority’s
from the
unsupported plain er-
ap-
who had robbed numerous banks of
ror analysis and would reach the merits of
$260,000.
proximately
Since Gomer failed the constitutional challenges to the VWPA
dependents’
to raise the issue
needs
raised
Gomer.
and because the explicit language of the
argues
that the district court vio-
places
the burden
due
rights
lated his
in misapplying
defendant,
on the
I
needs
As
majority notes,
statute.
cannot
how the
understand
defendant’s
deprivation
frames his attack as a
of due
appellate
mere accusation in his
brief that
process,
attempt
in an obvious
to circum-
the district court failed to consider the
problem.
vent his waiver
The law is clear
of his
needs
rises to the
level
in this circuit that the requirements of due
error,
plain
let alone
error. To constitute
process during
hearing are
conspic-
“must
omission
given
met
if the defendant
adequate
uous,” and it
also
“probably
the proceeding
notice of
an opportunity
changed the
of the trial
outcome
hear-
[or
upon
to contest the facts
relied
ing].”
Silverstein,
United
imposed
penalty.
criminal
See Town-
Cir.1984)
(7th
(explanation
Burke,
736, 741,
send v.
added). Certainly
alleged
failure of the
1252, 1255,
(1948);
1229
Indeed,
remedy.
1197, 1204,
intended as a civil
one of
S.Ct.
51 L.Ed.2d
(plu-
393
primary purposes
enacting
in
rality opinion). The defendant
giv-
must be
improve
VWPA was
lot of victims
en,
case,
as was done in
adequate
position
and
restore them as whole a
proceedings
notice of the
opportuni-
and an
possible,
problem
ignored
far too often
in
ty
to contest facts relied on
judge
in
past by
justice system.
the criminal
Townsend,
decision. See
sentencing
532,
S.Rep.
10,
Cong.
No.
97th
2nd Sess.
334
However,
U.S. at
Gomer also unleashes a buckshot reaching determination in his restitution alleged attack on the VWPA’s due addition, 32(c)(3)(D) decision. Rule re shortcomings. quotes extensively quires findings to make factual frequently his brief from the criticized challenges the defendant accuracy recently opinion overturned of the Ala- Welden, any information presen contained listing bama district court report. Finally, guidelines tence questions arising pro language from the of the VWPA, vided affecting process rights conjunc Act the due when read in Welden, See tion with F.Supp. defendant. Fed.R.Crim.P. are far more specific guidelines 527-30. The Due Process extensive and than the Clause of the Act, apply provided Fifth Amendment does for in the the sen- Probation 18 U.S.C. tencing stage See simply provides of the criminal trial. which Florida, 349, 358, Gardner v. probation, 97 as a condition of *9 or court committed let alone error required to make restitution
“[m]ay be parties failing for actual aggrieved allegedly defend- reparation by the offense for Contrary or loss caused damages ant’s intent needs. ex- had.” words 3580(d), conviction was which expressed in Congress v. by our United States pressed analysis completely majority’s erroneous (7th Cir.1970), 1344, 1347 Baker, 429 F.2d statute and rewrites the VWPA relieves constitutionality of the upholding in this case and defendants applicable here: equally Act are Probation in all cases of their future estab- delegations of validity of discretion- “The lishing the needs Be- upon merely not rest powers does ary never raised the issue of cause Gomer precise standards enumeration of needs, the issue was never factors____ Court guiding specific [T]he Thus, I the court. would before necessary power to noted that [has] very appeal reach the merits of Gomer’s authority to effectu- delegate sufficient that the VWPA statute does hold purposes demand congressional ate violate the Seventh Amendment or Due discretions adminis- grant of broad Fifth Process Clause Amendment agencies: trative application and that the of the statute in Congress ‘It is not constitutionally antiseptic this case was officials with supply administrative proper. guidance in a for their specific formula flexibility adapta- where field policy to infi- congressional
tion of
nitely conditions constitutes variable program. “If Con-
the essence of legislative lay down act
gress shall * * * intelligible principle leg- such is not a forbidden del-
islative action legislative power____” egation of PRATER, William J. prescribed Congress are Standards Petitioner-Appellant, light of the read in conditions to be they applied. “They are v. which meaningful much content derive COMMISSION, and U.S. PAROLE Act, factual purpose of its Keohane, Warden, Thomas statutory context background and Respondents-Appellees. they appear.” American in which No. 84-1121. S.E.C., Light Power & Co. nized where 90,104, “Even [1946].’ greater S.Ct. Congress grants latitude [142] broad L.Ed. 103 recog- dis- Argued Seventh Circuit. Nov. Court Appeals, courts, cretionary powers to for the con- 12, 1985. Decided June and functional role of courts stitutional necessarily frequent requires applica- judgment in the exercise of dis-
tion of
cretion.” 3580(d) explicitly mandates section
Since proof in
that the burden of upon crimi- Gomer failed to
nal defendant and because raise, argue,
challenge, less the al- much
leged needs of court, I to see how the district fail After the notes self-serving ant’s declaration that “he sent defendant bears the burden money” his sons after his latest series of financial needs of his de- establishing the (Appellee’s appendix, armed robberies Feb- holds, 3580(d),1 pendents, 18 U.S.C. see 3). ruary 29, Report Presentence manner, circuitous that the issue very fails to establish much report how