United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2008 Decided April 21, 2009
No. 05-3174
UNITED STATES OF AMERICA,
APPELLEE
v.
VENUS D. BALDWIN, ALSO KNOWN AS TALISHA JOHNSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00323-01)
Howard B. Katzoff, appointed by the court, argued the cause
and filed the briefs for appellant.
Suzanne G. Curt, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese III, Elizabeth Trosman, Thomas
E. Zeno, and Deborah L. Connor, Assistant U.S. Attorneys.
Thomas J. Tourish Jr. , Assistant U.S. Attorney, entered an
appearance.
Before: SENTELLE, Chief Judge, and GRIFFITH, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
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Opinion for the Court filed PER CURIAM.
PER CURIAM: Venus Baldwin appeals her convictions and
sentence after a jury trial for health care fraud, 18 U.S.C.
§ 1347, mail fraud, 18 U.S.C. § 1341, and conspiracy to commit
money laundering, 18 U.S.C. § 1956(h). The indictment
charged that Baldwin, her four co-defendants, and others set up
a scheme that defrauded Kaiser Foundation Health Plan, Inc. out
of a total of $1,159,958. Baldwin and her co-conspirators
created sham business entities to submit fraudulent invoices to
Kaiser Permanente requesting payment for various goods and
services that were never furnished, including dental chairs,
which qualified as “health care item[s]” within the meaning of
18 U.S.C. § 1347. They then created numerous bank accounts
to receive the payments and launder the money.
When calculating Baldwin’s sentence range under the U.S.
Sentencing Guidelines Manual, the district court increased her
offense level upon finding that she was a leader or organizer of
the scheme, that she committed perjury, and that she committed
another offense while on release pending sentencing. See
generally United States v. Baldwin, 389 F. Supp. 2d 1 (D.D.C.
2005). The court ultimately sentenced her to concurrent prison
terms of 120 months on the money laundering count and 60
months on the health care and mail fraud counts. It ordered her
to pay restitution in the total amount of $893,085, for which she
was jointly and severally responsible with her co-defendants.
The judgment also provided that Baldwin “may make payment
of the special assessment and restitution through the U.S.
Bureau of Prisons’ Inmate Financial Responsibility Program”
during her incarceration. Any balance remaining after her
release was to be paid at a rate of $200 per month, but the U.S.
Probation Office could “revise the amount of monthly payments
in its discretion.”
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Two of the issues Baldwin raises amount to nothing. There
is no room for doubting whether she committed health care
fraud in violation of 18 U.S.C. § 1347. As the district court
ruled, her fraud was directed against Kaiser, a “health care
benefit program,” and the payment requests for the dental chairs
were “in connection with the . . . payment for health care . . .
items.” See United States v. Baldwin, 277 F. Supp. 2d 67, 68–69
(D.D.C. 2003). Whether she was a leader or organizer of the
scheme, as defined in § 3B1.1 of the U.S. Sentencing
Guidelines, is not a close question. The district court cited
ample evidence proving that she was. See Baldwin, 389 F.
Supp. 2d at 2.
A more serious issue is whether the district court
impermissibly delegated its authority to determine her restitution
obligations to the Bureau of Prisons during her incarceration,
and to the Probation Office upon her release. Citing this court’s
decision in United States v. Braxtonbrown-Smith, 278 F.3d
1348, 1356 (D.C. Cir. 2002), and cases from other circuits,
Baldwin argues that the district court could not give the
Probation Office the authority to modify her monthly restitution
payments while she was on supervised release. Baldwin also
contends that the district court was required to set the total
amount and schedule of restitution payments to be made during
her incarceration through the Inmate Financial Responsibility
Program.
Baldwin’s counsel did not object to the restitution order at
the sentencing hearing, so our review is for plain error. See Fed.
R. Crim. P. 52(b); United States v. Watson, 476 F.3d 1020, 1023
(D.C. Cir. 2007). To overturn a district court’s decision under
plain error review, we must find that there is “(1) error, (2) that
is plain, and (3) that affect[s] substantial rights.” Watson, 476
F.3d at 1023 (quoting Johnson v. United States, 520 U.S. 461,
466–67 (1997)). If all three conditions are satisfied, we have
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discretion to remedy the error only if (4) it “seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1023–24.
Although the government did not alert the district court, it
tells us the court committed error in failing to specify the
amount and schedule of Baldwin’s restitution payments during
her incarceration and in giving the Probation Office discretion
to modify her monthly payment amounts on supervised release.
We are not obligated to accept the government’s confession of
error, United States v. Bowie, 198 F.3d 905, 913 (D.C. Cir.
1999) (citing Young v. United States, 315 U.S. 257, 258 (1942)),
particularly when there is reason to doubt whether the
government’s position is correct.
Braxtonbrown-Smith, on which Baldwin and the
government rely, contains no analysis of the issue. Citing two
cases, one from the Seventh Circuit and another from the Fourth,
United States v. Pandiello, 184 F.3d 682, 688 (7th Cir. 1999);
United States v. Johnson, 48 F.3d 806, 808–09 (4th Cir. 1995),
we remanded with instructions to the district court to “clarify”
that the Probation Office did not have authority to modify the
monthly restitution payments. Braxtonbrown-Smith, 278 F.3d
at 1356. On the issue of the Probation Office’s authority there
is now a split in the circuits. See Weinberger v. United States,
268 F.3d 346, 359–60 & n.3 (6th Cir. 2001) (collecting cases).
Some courts (apparently the majority) hold that allowing
probation officers to modify monthly restitution payments
conflicts with 18 U.S.C. §§ 3663–3664 and Article III of the
Constitution. See, e.g., United States v. Johnson, 48 F.3d 806,
808–09 (4th Cir. 1995). Others hold that so long as the district
court determines the total amount of restitution to be paid, it
may properly allow the Probation Office to set the schedule of
payments. See, e.g., United States v. Signori, 844 F.2d 635,
641–42 (9th Cir. 1988).
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As to the Bureau of Prisons’ Inmate Financial
Responsibility Program, it is not so clear that the district court
had to give more specific instructions regarding Baldwin’s
restitution payments during her incarceration. The Seventh
Circuit recently overruled Pandiello, the case on which
Braxtonbrown-Smith (and the government) relied for the
conclusion that the district court could not delegate its authority
to specify restitution payment schedules. See United States v.
Sawyer, 521 F.3d 792, 794–96 (7th Cir. 2008). Sawyer held that
a court may not set the terms of restitution payments made
through the Inmate Financial Responsibility Program, because
the Program is under the exclusive control and authority of the
Executive Branch (unlike the Probation Office, whose only
power derives from the court). Id. at 795. Only the Bureau of
Prisons could determine whether an inmate earned anything
while in prison, and whether and how much of the amount could
be used to make restitution payments. Id. Hence the
conclusion: the court is not delegating its authority when it
leaves it up to the Bureau of Prisons to determine the amount
and schedule of restitution to be paid during incarceration. Id.
While agreeing with two circuits in so holding, the Seventh
Circuit acknowledged that its decision on the issue conflicted
with that of six other circuits. Id.
Given the divergent views of the courts of appeals and the
shift in the authority on which we relied in Braxtonbrown-Smith,
we cannot say that the district court committed “plain error” in
its restitution order.
Affirmed.