US v. Kyles

601 F.3d 78

UNITED STATES of America, Appellee, v. Basil J. KYLES, Defendant-Appellant.

Docket No. 06-4196-CR.

United States Court of Appeals, Second Circuit.

Submitted: May 20, 2009.

Decided: April 2, 2010.

Marshall A. Mintz, Mintz & Oppenheim LLP, New York, NY, for Defendant-Appellant.

Christine Sciarrino, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on the brief), on behalf of Nora R. Dannehy, United States Attorney for the District of Connecticut, Hartford, CT, for Appellee.

Before: MINER, KATZMANN, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

Defendant Basil Kyles was convicted after a jury trial in the United States District Court for the District of Connecticut (Alfred V. Covello, Judge) of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). On September 9, 1993, the court sentenced Kyles to 262 months' imprisonment, five years' supervised release, and a $50 special assessment. As a special condition of his supervised release, Kyles was directed to pay $4,133 in restitution on a schedule to be determined by the United States Probation Office.

In fact, the Probation Office never set any restitution schedule for Kyles. Instead, over the next thirteen years, the district court itself entered various orders specifying the schedule on which Kyles was to pay the specified restitution amount while incarcerated, requiring first that he pay $2 per month, then that he pay $25 per month, and finally that he pay such amount as was determined under the guidelines of the Inmate Financial Responsibility Program ("IFRP"). Kyles did not timely appeal the first amended order, precluding him from doing so now. See Baker v. Dorfman, 239 F.3d 415, 426 n. 6 (2d Cir.2000). He nevertheless challenges the last two amendments as unauthorized modifications of his sentence. Although Kyles acknowledges that the Victim and Witness Protection Act of 1982 ("VWPA") permits a sentencing court to order a defendant to make restitution in installments over a specified time, see 18 U.S.C. § 3663(f)(1) (1993),¹ he maintains that the statute does not authorize modifications to a restitution schedule while a defendant is still incarcerated. For the reasons discussed in this opinion, we disagree. Whatever limits may apply to a court's authority to alter the amount of restitution awarded in a judgment of conviction, these limits do not extend to the court's authority to modify the schedule for paying such amount. The latter authority derives from the statutory conferral of discretion on district courts to excuse a defendant from the presumption in favor of immediate payment of a restitution award. See id. § 3663(f)(1), (3). Implicit in such effectively equitable power is the authority to modify an initial payment schedule as warranted by a defendant's financial circumstances, mindful of the overall statutory goal of compensating crime victims.

While we thus reject Kyles's authority challenge on the merits, we are compelled by circuit precedent to conclude that the last challenged order, directing that Kyles's payment schedule be increased as warranted by IFRP guidelines, constitutes an impermissible delegation of judicial power to the Bureau of Prisons. See United States v. Mortimer, 94 F.3d 89, 90-91 (2d Cir.1996). Accordingly, we vacate that order and remand for the district court itself to set an appropriate restitution schedule.

I. Background

A. The Order of Restitution in the Original Judgment of Conviction

In a judgment of conviction entered on September 15, 1993, Kyles was sentenced on one count of armed bank robbery to 262 months' incarceration, five years' supervised release, and a $50 special assessment. In a section entitled "Special Conditions of Supervised Release," the judgment stated that "Defendant shall make restitution to the Shawmut Bank in the amount of $4,133 on a schedule to be determined by the United States Probation Office." United States v. Kyles, No. 92 Cr. 91, Judgment (Sept. 15, 1993). The judgment was affirmed by this court in United States v. Kyles, 40 F.3d 519, 527 (2d Cir.1994).²

B. Amendments to the Restitution Schedule

1. The October 19, 1998 Order Amending Judgment

On October 19, 1998, the district court ordered that Kyles's original judgment be amended to require him to "pay restitution of $2 per month, while incarcerated." United States v. Kyles, No. 92 Cr. 91, Order Amending Judgment (Oct. 19, 1998).³ The court specifically reserved the authority to alter this amount as circumstances warranted. See id. ("The court may adjust the amount of the monthly repayment according to the defendant's ability to pay."). Kyles did not appeal this order. Thus, any challenges he might have to the October 19, 1998 amendment to his restitution schedule are waived. See Baker v. Dorfman, 239 F.3d at 426 n. 6.

2. The June 5 and September 1, 2006 Orders Amending Judgment

Nearly eight years after its initial amendment, purportedly in response to "information . . . from the Bureau of Prisons indicating that Kyles had experienced a positive material change in his ability to pay," United States v. Kyles, No. 92 Cr. 91, Order on Increase in Restitution Payments, at 1 (Sept. 1, 2006), the district court again amended the judgment in Kyles's case, this time "to reflect an increase in the defendant's restitution payment obligation from $2 each month to $25 each month, while incarcerated," id., Order Amending Judgment (June 5, 2006).⁴ Once more, the district court reserved the right to make future adjustments to the restitution schedule based on Kyles's ability to pay. See id.

In an ex parte letter dated June 15, 2006, Kyles sought reconsideration of this amendment, prompting the district court to stay its June order pending further submissions from the parties. See id., Order Staying Enforcement of Amended Judgment (July 14, 2006). In his filings, Kyles argued that the district court lacked authority to issue either the October 1998 order or the June 2006 order, as neither had been entered within seven days of sentencing as required by the Federal Rules of Criminal Procedure. See Fed. R.Crim.P. 35(c) (1993) (permitting court to correct clear sentencing error within seven days of judgment). Even if the court possessed the requisite authority, Kyles insisted he lacked the means to pay $25 per month.

The government disputed the latter assertion and submitted that Rule 35(c) was inapplicable as the challenged amendment did not constitute a "correction" of the judgment. Further, in response to a specific inquiry from the court as to the need for an Attorney General certification under the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. § 3664(k) (permitting court to adjust restitution schedule upon notification of a "material change in the defendant's economic circumstances," but requiring Attorney General to "certify to the court" that any victim owed restitution has "been notified of the change in circumstances"), the government asserted that the statute did not apply in Kyles's case given its enactment after his sentencing and, in any event, the lack of a "material" change in Kyles's financial circumstances exempted him from the certification requirement.

On September 1, 2006, the district court concluded that Kyles did have the ability to pay increased monthly restitution and that no Attorney General certification was necessary. United States v. Kyles, No. 92 Cr. 91, Order on Increase in Restitution Payments, at 2-3 (Sept. 1, 2006).⁵ The court did not lift the stay on its June 5, 2006 order directing Kyles to pay $25 per month in restitution. Rather, it vacated that order and directed that Kyles's "restitution payments shall be increased in accordance with the guidelines of the Inmate Financial Responsibility Program." Id. at 3 (citing 28 C.F.R. §§ 545.11, 545.12).

On September 11, 2006, Kyles filed timely notice of the instant appeal.⁶

II. Discussion

A. Standard of Review

Ordinarily, we review a challenged order of restitution for abuse of discretion. See United States v. Ojeikere, 545 F.3d 220, 222 (2d Cir.2008). This appeal, however, does not present us with the sort of challenge to a district court's balancing of the statutory factors relevant to restitution that demands an "extremely deferential" standard of review. United States v. Grant, 235 F.3d 95, 99 (2d Cir.2000) (internal quotation marks omitted). Rather, it raises legal questions as to the district court's authority (1) to modify a restitution schedule set under 18 U.S.C. § 3663(f)(1) during a defendant's term of incarceration, and (2) to direct that restitution payments be increased in accordance with IFRP guidelines. We review such questions of law de novo. See United States v. Grant, 235 F.3d at 99; see generally United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir.2005).

B. The District Court Did Not Exceed Its Authority in Modifying Kyles's Restitution Schedule While He Was Incarcerated

Although federal courts lack inherent authority to order restitution, see United States v. Casamento, 887 F.2d 1141, 1177 (2d Cir.1989), they may do so when "explicitly empowered by statute," United States v. Farr, 419 F.3d 621, 623 (7th Cir.2005); see also United States v. Balentine, 569 F.3d 801, 802 (8th Cir. 2009); United States v. Valladares, 544 F.3d 1257, 1269 (11th Cir.2008); United States v. Cohen, 459 F.3d 490, 498 (4th Cir.2006); United States v. Mitchell, 429 F.3d 952, 961 (10th Cir.2005); United States v. Gilberg, 75 F.3d 15, 22 (1st Cir. 1996); United States v. Snider, 957 F.2d 703, 706 (9th Cir.1992). Here, neither party disputes that on September 15, 1993, when a judgment of conviction was first entered in Kyles's case, the district court was statutorily authorized by the VWPA to order restitution, see 18 U.S.C. § 3663(a)(1), and to set a schedule of installment payments, see id. § 3 663(f)(1), thereby overriding the statutory presumption that restitution would...