United States v. Wyatt

9 F.4th 440

UNITED STATES of America, Plaintiff-Appellee,

v.Dameion WYATT, Defendant-Appellant.

No. 20-2382

United States Court of Appeals, Seventh Circuit.

Argued May 13, 2021

Decided August 12, 2021

Timothy W. Funnell, Attorney, Office of the United States Attorney, Green Bay, WI, Jonathan H. Koenig, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Sykes, Chief Judge, and Scudder and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

Dameion Wyatt victimized six females, each of whom acted as prostitutes under Wyatt's abusive supervision over varying periods from September 2011 through May 2014. He pleaded guilty to one count of interstate sex trafficking and was sentenced to ten years’ imprisonment. Wyatt's conviction triggered certain mandatory restitution statutes, and the district court took the restitution issue under advisement at sentencing. Following negotiations between the parties, written objections, oral argument, and supplemental briefing, the district court entered a carefully reasoned order requiring Wyatt to pay restitution to three victims of his trafficking: $12,750 to Adult Victim 1 ("AV-1"), $45,200 to Adult Victim 3 ("AV-3"), and $37,125 to Adult Victim 5 ("AV-5"), totaling $95,075.

Wyatt now appeals the restitution order, arguing that the district court improperly delayed the restitution determination, did not rely on a statutorily required "complete accounting" of the victims’ losses (and otherwise erred by relying on improper evidence and, as a result, ordered too much restitution), deprived him of counsel during the restitution process, and improperly ordered restitution outside of his presence.¹ We find no reversible error in the restitution proceedings or in the district court's calculation of the proper amount of restitution, and thus affirm.

I

Wyatt raises four primary challenges to the district court's restitution process and ultimate restitution award. Resolving these challenges involves addressing the muddled, winding procedural and substantive road that has led here. Because the relevance of certain facts is bound up closely with the applicable restitution statutes, we include, in our discussion of those facts, some of the relevant statutory provisions, which are dealt with in greater depth later in this opinion.

On July 2, 2019, Wyatt pleaded guilty to one count of interstate sex trafficking in violation of 18 U.S.C. § 1594(c). Under 18 U.S.C. § 1593, Wyatt was subject to mandatory restitution to the victims for the full amount of their losses. On September 17, 2019, the government provided the probation officer a recommendation for restitution on behalf of three of the victims, which included Wyatt's initial objections to those recommendations. The government submitted a revised request on September 26, 2019, and Wyatt submitted additional objections on September 30, 2019. The probation officer submitted these figures and objections to the district court in a Presentence Investigation Report Addendum (the "Addendum") filed October 3, 2019. On that same day, probation also filed a Revised Presentence Investigation Report (the "PSR").

The Addendum stated the government initially recommended $202,000 in restitution for the three victims ($36,000 for AV-1, $91,000 for AV-3, and $75,000 for AV-5). The Addendum also reflected that on September 30, 2019, the government revised its numbers to $11,000 for AV-1, $71,600 for AV-3, and $89,700 for AV-5, for a total of $172,300. This reduction was the result of negotiations between the government and Wyatt's counsel, though some factual disputes remained as to the proper restitution figures, as the parties disputed the dates each victim worked for Wyatt and the estimated number of commercial sexual transactions that each engaged in for Wyatt's financial benefit.

After reciting each side's position in the Addendum, the Probation Officer wrote:

It is the position of the probation officer victims AV-1 and AV-5 would be entitled to restitution under the Mandatory Victims Restitution Act.² Given the calculations provided by the government, it is the recommendation of the probation officer the Court find the victim's losses were not ascertainable by a date ten days prior to sentencing .³ Under the provisions of 18 U.S.C. § 3664(d)(5), the Court shall set a date for the final determination of the victims’ losses, not to exceed 90 days after sentencing.

Despite these figures and statements in the Addendum, the body of the PSR stated: "Restitution: None."

The sentencing went forward on November 15, 2019. At the beginning of the hearing, the district court asked the parties whether they had any issues with the information contained in the "numbered paragraphs" of the PSR. Wyatt's counsel, Daniel Sanders, stated that he had "no additional information ... that we haven't already provided to the Probation Department, the Government, and the Court." The district court then stated:

As for the restitution, since there is no agreement on the restitution, what the Court is going to do today consistent with the requirements of Title 18, Section [3663A] is I'm going to schedule an outside date for further hearing on restitution on Friday, February 7th, of next year at 8:30. I appreciate there are competing interests here, but on the basis of what's in the revised presentence report and the addenda, the Court is unable to make a meaningful determination without guessing, and guesswork has no role in restitution determinations.

And, again, given the significant dollar amounts that are at issue here ... the Court has to go through the labyrinth of making a reasoned determination, and we're not there yet.

The district court announced Wyatt's guideline range was 262 to 327 months’ imprisonment and noted that restitution was "yet to be determined." The district court then asked:

Having made those determinations, Mr. Sanders, do you and your client have any reason to advance this morning as to why the Court ought not proceed today with the imposition of sentence in this case?

MR. SANDERS [Defense counsel]: No, sir.

Later, after Sanders argued for his requested sentence, the district court briefly returned to the restitution issue:

THE COURT: Obviously at some point if there is a restitution order, there will be provisions that relate to that including a reasonable monthly payment requirement.

MR. SANDERS: We understand that, Your Honor.

THE COURT: But today is not the day to address that.

MR. SANDERS: We understand that, Your Honor.

Following Wyatt's allocution, the district court reiterated that it would take the restitution issue under advisement and would reconvene on February 7, 2020, stating that if the parties are "unable to agree upon an appropriate restitution amount," it may "refer the matter for further fact finding [before a] magistrate judge for [an] evidentiary hearing if that [is] required." The court referenced § 3664(d)(5) as providing authority to make the "final determination on restitution ... within 90 days of today's date," which it intended to do "unless the parties resolve the matter via agreed restitution order in the interim." As discussed, the court ultimately accepted the below-guideline joint recommendation of the parties and sentenced Wyatt to ten years in prison.

Following the sentencing hearing, on December 2, 2019, Wyatt, through Sanders, filed a notice of appeal. This caused some electronic docketing issues. Although Sanders was representing Wyatt and intended to continue representing him in the restitution proceedings still pending before the district court, Wyatt also sought and was appointed appellate counsel in his first appeal. This resulted in Sanders being removed from the district court's electronic filing notification system, as he was not appellate counsel, meaning Sanders did not receive notices of subsequent filings in the district court. The parties agree this issue was not Sanders's fault.

In any event, following Sanders's removal from the notification system, various filings were entered on the district court's docket before the February 7, 2020 restitution hearing. First, on December 5, 2019, Wyatt filed a pro se motion for an evidentiary hearing related to whether the government had breached the plea agreement. The government responded, and Wyatt eventually also filed a reply brief pro se. Wyatt's first appeal disposed of this substantive issue.

More relevant here, however, is that the government also filed a brief in support of its requested restitution on February 4, 2020. That brief was accompanied by an affidavit submitted by the case agent who had investigated Wyatt, Special Agent Todd Higgins with the Wisconsin Division of Criminal Investigations. A few days before the restitution hearing, Sanders became aware of the docketing issue. Sanders appeared at the hearing and advised the district court of the problem. The district court stated that it would recall the case at 1 p.m. in order to give Sanders time to review the recent filings. The district court added that "unless you have something very significant, the Court is prepared, with or without your representing Mr. Dameion Wyatt, to enter an order of restitution. ... This case has dragged on and on and on and on with no end in sight. ... [Y]our client agreed in the plea agreement that the victims in this case have protected rights. And the information in the discovery in Mr. Higgins’ affidavit mirrors everything that was available to you as Mr. Wyatt's counsel from day one." Sanders disagreed with the district court's last statement and said he would address it at 1 p.m.

The case was recalled that afternoon. Sanders stated that he had reviewed the government's brief and the agent's affidavit. He stated that Wyatt still disputed certain figures and...