United States v. Tarnawa

26 F.4th 720

UNITED STATES of America, Plaintiff—Appellee,

v.Donald TARNAWA, Defendant—Appellant.

No. 20-40295

United States Court of Appeals, Fifth Circuit.

FILED February 25, 2022

Robert Austin Wells, Esq., Alan Reeve Jackson, Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Texas, Tyler, TX, for Plaintiff—Appellee.

Seth Kretzer, Law Office of Seth Kretzer, Houston, TX, for Defendant—Appellant.

Before Jones, Haynes, and Costa, Circuit Judges.

Edith H. Jones, Circuit Judge:

The original criminal judgment entered against Appellant Donald Tarnawa recommended that he contribute some of his prison wages toward his multimillion-dollar restitution obligation through the Inmate Financial Responsibility Program ("IFRP"). The obligation was vacated, however, by a federal habeas judgment issued in another circuit. Subsequently, the government moved to modify the original judgment because Tarnawa's exemption from the IFRP materially changed his economic circumstances as contemplated by 18 U.S.C. § 3664(k). The convicting court granted the modification. Its judgment is AFFIRMED.

I. BACKGROUND

After serving a prison sentence in Florida in the 1990s, Tarnawa assumed the identities of several fellow prisoners, formed at least six corporate entities, and proceeded to swindle investors out of $27,636,962.00. A jury convicted Tarnawa of five counts of wire fraud, six counts of bank fraud, and 20 counts of money laundering. The district court sentenced him in May 2005 to 480 months of imprisonment, followed by five years of supervised release. The court further ordered Tarnawa to pay $13,491,048.00 in restitution to five victims, specifying:

Restitution payments to being [sic] immediately. Any amount that remains unpaid when the defendant's supervision commences is to be paid on a monthly basis at a rate of at least ten percent of the defendant's gross income, to be changed during supervision, if needed, based on the defendant's changed circumstances pursuant to 18 U.S.C. § 3664(k). While incarcerated, it is recommended that the defendant participate in the [IFRP] at a rate determined by the Bureau of Prisons staff in accordance with the requirements of the Inmate Financial Responsibility Program.¹

The Bureau of Prisons ("BOP") transferred Tarnawa from Texas to California in August 2009. Tarnawa thereafter filed a 28 U.S.C. § 2241 habeas petition. He contended that the warden impermissibly forced him to pay $30 a month toward restitution because the judgment did not establish a payment schedule and thereby unlawfully delegated authority to do so under the Mandatory Victim Restitution Act ("MVRA"). Tarnawa v. Ives , No. 2:09-CV-02429, 2011 WL 1047701, at *1 (E.D. Cal. Mar. 18, 2011). The California district court granted Tarnawa's habeas petition in April 2013 and ordered the warden to exempt him from the IFRP "unless the sentencing court specifies the restitution schedule."² Tarnawa v. Ives , No. 2:09-CV-02429, Dkt. 28 (E.D. Cal. Apr. 4, 2013).

The government then moved the sentencing court in the Eastern District of Texas to modify the original judgment under 18 U.S.C. § 3664(k) based on Tarnawa's materially changed economic circumstances, namely "his exemption from the [IFRP]." It argued that Tarnawa's exemption from the IFRP materially changed his economic circumstances because Tarnawa would no longer face consequences for not contributing earnings toward his restitution obligation while incarcerated. The government emphasized that, given Tarnawa's lengthy sentence, his victims could only be compensated with funds he earned while incarcerated. Thus, it requested a modified judgment requiring Tarnawa to pay 50 percent of his earnings toward the restitution obligation. Tarnawa moved to dismiss on the grounds that the sentencing court lacked jurisdiction to modify the judgment, and an order under § 3664(k) could not require him to participate in the IFRP. Tarnawa further emphasized that his economic circumstances had not materially changed. The sentencing court granted the government's motion and amended the judgment to state:

While incarcerated, it is recommended that the defendant participate in the [IFRP]. During the term of imprisonment, restitution is payable every three months in an amount, after a telephone allowance, equal to 50 percent of the funds deposited into the defendant's inmate trust fund account.

Tarnawa timely appealed and was appointed pro bono counsel.

II. STANDARD OF REVIEW

This court "review[s] the legality of the district court's order of restitution de novo .... [and] the propriety of a particular award for an abuse of discretion." United States v. Hughey , 147 F.3d 423, 436 (5th Cir. 1998) (citing United States v. Chaney , 964 F.2d 437, 451 (5th Cir. 1992) ). Factual findings supporting the award are reviewed for clear error. See United States v. Sharma , 703 F.3d 318, 322 (5th Cir. 2012) (citation omitted)).

The parties appear to dispute the appropriate standard of review of a judgment modified under Sec 3664(k). Our sister circuits seem to take different positions on whether to conduct appellate review de novo³ or for abuse of discretion.⁴ We need not take a position on the precise standard because the modification must be affirmed either way. And on this record, it is also unnecessary to decide which party bears the burden of proof when the government seeks modification pursuant to § 3664(k).

III. DISCUSSION

The MVRA requires defendants pay restitution if they commit "an offense against property ... including any offense committed by fraud or deceit[,]" and "an identifiable victim or victims ... suffered a physical injury or pecuniary loss." 18 U.S.C. § 3663A(c)(1)(A)(ii), (c)(1)(B). Upon making such findings, district courts must "order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant." 18 U.S.C. § 3664(f)(1)(A) ). "A person sentenced to pay ... restitution, shall make such payment immediately, unless, in the interest of justice, the court provides for payment on a date certain or in installments." 18 U.S.C. § 3572(d)(1). But the MVRA further requires courts to "specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid in consideration of ...." the defendant's assets, income, and financial obligations. 18 U.S.C. § 3664(f)(2).

A sentence imposing restitution constitutes a final judgment; but, because § 3664(f)(2) only accounts for the defendant's financial circumstances at sentencing, the MVRA instructs that:

the defendant shall notify the court and the Attorney General of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution. The court may also accept notification of a material change in the defendant's economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require.

18 U.S.C. § 3664(k), (o)(1)(D). Procedurally, courts determine whether a defendant's economic circumstances have materially changed "by an objective comparison of a defendant's financial condition before and after a sentence is imposed." United States v. Franklin , 595 F. App'x 267, 273 (5th Cir. 2014) (per curiam ) (quoting Grant , 235 F.3d at 100 ). Substantively, a material change is "a bona fide change in the defendant's financial condition, either positive or negative." Cani v. United States , 331 F.3d 1210, 1215 (11th Cir. 2003) (citation omitted) (emphasis in original); see also United States v. Grigsby (Grigsby II) , 579 F. App'x 680, 684 (10th Cir. 2014) (citing Cani , 331 F.3d at 1215 ). A change must also be immediate to be material. See Vanhorn , 399 F.3d at 886 ; see also United States v. Surber , 94 F. App'x. 355, 356 (7th Cir. 2004) (per curiam ).

"In summary, the MVRA requires the district court to: (a) order the full amount of restitution; (b) establish an original payment schedule that takes into consideration the defendant's financial situation; and (c) respond to any change in the defendant's economic condition by adjusting the schedule. All of this has the goal of making ‘full payment’ in the shortest time possible." United States v. Scales , 639 F. App'x. 233, 239 (5th Cir. 2016).

A.

Tarnawa argues that the sentencing court erred by modifying the judgment pursuant to § 3664(k) without articulating its consideration of the factors under § 3664(f)(2). To support this argument, Tarnawa cites the Fourth Circuit's decision in United States v. Grant. In Grant , the court held that "it is not sufficient that the district court merely consider [the defendant's financial resources, assets, projected income and other financial obligations under § 3664(f)(2) ]; the court must actually demonstrate its consideration of them on the record." 715 F.3d 552, 558 (4th Cir. 2013) (citations omitted). But the § 3664(f)(2) factors are relevant when the court fixes the original restitution payment schedule. Tarnawa cites no authorities that link the § 3664(f)(2) factors to § 3664(k). The absence of any such link in the MVRA's plain text forecloses Tarnawa's attempt to import interpretations of § 3664(f)(2) into § 3664(k).

But, even if the § 3664(f)(2) factors did apply to modifications under § 3664(k), Grant conflicts with this court's precedents. The Fifth Circuit holds that district courts "need not make specific findings [when originally imposing restitution] if the record provides an adequate basis to support the restitution order." United States v. Blocker , 104 F.3d 720, 737 (5th Cir. 1997) (c...