United States Court of Appeals
For the First Circuit
No. 08-2015
UNITED STATES OF AMERICA,
Appellee,
v.
EDGARDO SALAS-FERNÁNDEZ,
a/k/a "Baby,"
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lipez, Selya and Howard, Circuit Judges.
Irma R. Valldejuli on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief, Appellate Division, and Luke Cass, Assistant
United States Attorney, on brief for appellee.
September 10, 2010
SELYA, Circuit Judge. As framed by the parties, this
appeal poses two questions. The first concerns the preclusive
effect, if any, of a waiver-of-appeal provision with respect to an
order for restitution. The second concerns the appropriateness of
the order itself. We bypass the first question and uphold the
order on the merits.
The background events are easily recounted. On March 20,
2008, defendant-appellant Edgardo Salas-Fernández pleaded guilty to
counts charging him with violations of 18 U.S.C. §§ 1951(a) and
924(c)(1)(A)(ii), respectively. His plea entailed an admission
that he had taken part in the armed robbery of a Loomis-Fargo bank
truck, using a firearm and threats of violence.
The defendant tendered his guilty plea pursuant to a plea
agreement that contained a waiver-of-appeal provision. That
provision read:
The defendant hereby agrees that if this
Honorable Court accepts this agreement and
sentences him according to its terms and
conditions, defendant waives and surrenders
his right to appeal the judgment and sentence
in this case.
The plea agreement also included a section labeled "Fines and
Restitution," but that section did not specify any restitutionary
amount. Indeed, apart from that title, no mention of restitution
appeared anywhere in the entire document.
Benedict Spinoza famously said, more than three centuries
ago, that "[n]ature abhors a vacuum." It is therefore unsurprising
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that the presentence investigation report (PSI Report) did address
the possibility of restitution. Pertinently, it recommended that
the district court order the defendant to pay, "jointly and
severally" with five accomplices, the sum of $944,225,1 which sum
represented the unrecovered proceeds of the robbery. Neither the
defendant's sentencing memorandum nor his objections to the PSI
Report addressed this recommendation.
On June 27, 2008, the district court sentenced the
defendant to consecutive prison terms of forty-one and sixty-seven
months on the two counts of conviction. Even though neither side
had breathed a word about restitution, the court ordered the
defendant to pay $157,370.83 in restitution to Loomis-Fargo
"forthwith." The defendant did not object to this embellishment.
This timely appeal followed. In it, the defendant
contests only the order for restitution.
As a threshold matter, the government urges that the
waiver-of-appeal provision bars this appeal. Although there is a
clear majority view, the circuits are divided as to whether a
waiver-of-appeal provision contained in a plea agreement, which does
not specifically refer to restitution, precludes a subsequent appeal
of a restitutionary order. Compare United States v. Oladimeji, 463
1
The PSI Report correctly states that the total amount stolen
during the robbery was $944,225. However, in a later section of
the PSI Report, it sets the total restitution amount at $932,225,
mistakenly giving a credit to the perpetrators of $12,000.
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F.3d 152, 157 (2d Cir. 2006) (allowing such an appeal), United
States v. Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000) (same),
United States v. Cupit, 169 F.3d 536, 539 (8th Cir. 1999) (same),
and United States v. Phillips, 174 F.3d 1074, 1075 (9th Cir. 1999)
(same), with United States v. Perez, 514 F.3d 296, 298 (3d Cir.
2007) (barring such an appeal), and United States v. Cohen, 459 F.3d
490, 497 (4th Cir. 2006) (same). The waiver-of-appeal provision
here is silent on the possibility of restitution,2 and this court
has not opined on whether such a waiver precludes an appeal of an
order for restitution.
We see no need to plunge into these murky waters today.
Courts should not rush to decide unsettled issues, especially where
a division of authority exists. Because this appeal is easily
resolved on the merits, we have the luxury of being able to bypass
the preclusion issue today. Thus, we assume without deciding that
the waiver-of-appeal provision does not pretermit the prosecution
of this appeal.
This is the first time that the defendant has voiced an
objection to the order for restitution. When a party has failed to
interpose a timely objection in the sentencing court, we review his
ensuing claim of error only for plain error. United States v.
2
The defendant waived the right to appeal his sentence, but
the waiver provision did not specifically mention orders for
restitution (although restitution is a part of the sentence, see 18
U.S.C. § 3663A(a)(1)).
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Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010); United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001). To succeed under this
rubric, four separate showings are required: "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings." Duarte, 246 F.3d at 60.
The defendant's claim that the district court erred in
ordering restitution has three dimensions. He contends that the
court did not adequately explain its rationale, did not apportion
the restitutionary amount based on relative culpability, and
overreached in directing payment "forthwith." We approach these
remonstrances mindful of the terms of the relevant statute, namely,
the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A.
The MVRA requires a district court to order a defendant
to make restitution to victims of certain enumerated crimes of
violence. The offenses of conviction in this case fall squarely
within the maw of the statute. See id. § 3663A(c)(1)(A).
Generically, then, restitution is available; and any ensuing order
for restitution should be tailored to require return of the
purloined property or its equivalent. Id. § 3663A(b).
The first defect perceived by the defendant — the absence
of a detailed explication of the court's reasoning — is not a defect
at all.
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Restitution serves as a mechanism for making a victim
whole by restoring the monetary equivalent of losses suffered in
consequence of the defendant's criminal activity. See United States
v. Innarelli, 524 F.3d 286, 294 (1st Cir. 2008). Determination of
that monetary equivalent and ordering its payment are all that the
MVRA, by its terms, requires. See 18 U.S.C. § 3664(f)(1)(A); see
also Innarelli, 524 F.3d at 294. In calculating the amount, a
sentencing court is not held to a standard of absolute precision.
Innarelli, 524 F.3d at 294; United States v. Burdi, 414 F.3d 216,
221 (1st Cir. 2005). A "modicum of reliable evidence" will suffice.
United States v. Vaknin, 112 F.3d 579, 587 (1st Cir. 1997).
To be sure, the restitutionary amount must have a
rational basis in the record. Id. But that does not mean that the
court must recite book and verse in making an award.
In the case at hand, simple arithmetic strips away any
mystery about the origins of the amount. There were six known
participants in the robbery of the bank truck, and the PSI Report
put the amount of the total loss at $944,225. The court ordered the
defendant to pay restitution of $157,370.83. The inference is
inescapable that the court established the restitutionary amount at
one-sixth of the total loss.
This brings us to the defendant's importunings about
misapportionment. That claim rests on the premise that the
sentencing court, for the purpose of restitution, should have
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divvied up the loss to reflect the relative culpability of the six
participants in the heist. The defendant says that he played a bit
part and, therefore, should bear a lesser share of the
restitutionary burden.
The premise on which this argument rests is patently
incorrect. A sentencing court is not required to consider an
individual's role in the offense when awarding restitution. See
United States v. Scott, 270 F.3d 30, 52 (1st Cir. 2001); see also
Tilcon Capaldi, Inc. v. Feldman, 249 F.3d 54, 62 (1st Cir. 2001).
The court's objective should be to make the victim whole. See
Scott, 270 F.3d at 53; see also 18 U.S.C. § 3664(f)(1)(A) ("In each
order of restitution, the court shall order restitution to each
victim in the full amount of each victim's losses as determined by
the court . . . ."). Where, as here, more than one offender has
contributed to the victim's loss, "the court may make each defendant
liable for payment of the full amount of restitution." 18 U.S.C.
§ 3664(h).
Of course, a sentencing court has some discretion as to
how restitution should be apportioned among multiple defendants.
Scott, 270 F.3d at 52. The court may consider, among other things,
the relative culpability of those responsible for the loss. 18
U.S.C. § 3664(h). In the last analysis, however, the court is not
required to use any particular formula for apportionment or, indeed,
to apportion the loss at all.
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That ends this aspect of the matter. The method that the
court chose to employ here — dividing the loss equally among the
responsible parties — was well within its discretion. Consequently,
the defendant's misapportionment claim fails.
The defendant's final assignment of error posits that the
district court overreached in ordering payment of restitution
"forthwith." In this regard, he alleges that the court did not
adequately consider his financial circumstances and prospects.
The MVRA requires a court, in setting out a payment
schedule, to consider a defendant's financial circumstances and
prospects. Id. § 3664(f)(2). But "consideration," in this context,
does not require any elaborate formality. See United States v.
Theodore, 354 F.3d 1, 9 (1st Cir. 2003); Vaknin, 112 F.3d at 591.
In making a restitutionary order, the court need not make explicit
findings or even indicate what it has considered; it suffices if the
record contains relevant information about, say, the defendant's
income and assets. See Theodore, 354 F.3d at 9; Vaknin, 112 F.3d
at 591-92. In all events, the court enjoys broad discretion in
setting a payment schedule. See United States v. Overholt, 307 F.3d
1231, 1255 (10th Cir. 2002).
In the instant case, the PSI Report included a detailed
account of the defendant's economic situation. In making this
appraisal, the probation officer used, among other things, a
financial statement submitted by the defendant and an Equifax credit
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report. The probation officer concluded that the defendant had
$7,000 in equity in his residence, owned three automobiles with an
estimated aggregate value of $42,000, and had few liabilities. His
sole prospect for income during incarceration seemed to be the
monthly lease payments ($600) for rental of his residence.
We agree with the defendant that these figures do not
show ready access to the amount of restitution that he was ordered
to pay "forthwith." But there is no reason to believe that the
court shirked its duty to consider the defendant's financial
circumstances and prospects. Moreover, "[a] defendant's
impoverishment today is no assurance of future poverty, and hence,
present impecuniousness is not a bar to the imposition of
restitution." Vaknin, 112 F.3d at 592 (citing United States v.
Brandon, 16 F.3d 409, 461 (1st Cir. 1994)).
It is permissible for a sentencing court, in fashioning
a restitutionary order, to take into account a defendant's future
earning capacity. United States v. Lombardi, 5 F.3d 568, 573 (1st
Cir. 1993); United States v. Savoie, 985 F.2d 612, 619 (1st Cir.
1993). This tenet applies with particular force where, as in this
case, the proceeds of the criminal activity have been secreted by
(and presumably divided among) the malefactors, and no accounting
has been made of the defendant's share. See United States v. Olson,
104 F.3d 1234, 1238 (10th Cir. 1997) (holding that, for purposes of
ordering restitution, "when a defendant has secreted proceeds from
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an illegal activity, the illegal proceeds are presumed assets of the
defendant unless the defendant proves otherwise"); United States v.
Voigt, 89 F.3d 1050, 1093 (3d Cir. 1996) (similar).
The short of it is that we find no abuse of discretion,
let alone any plain error, in the district court's order to pay
restitution forthwith.
We need go no further. For the reasons elucidated above,
we uphold the challenged order.
Affirmed.
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