United States v. Ricardo Hunter

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2015 Decided May 22, 2015

No. 13-3098

UNITED STATES OF AMERICA,
APPELLEE

v.

RICARDO HUNTER,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00039-1)

Jeremy C. Marwell, appointed by the court, argued the
cause for appellant. With him on the briefs was John P.
Elwood.

Ricardo Hunter, pro se, filed the briefs for appellant.

Stephen F. Rickard, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney at the time the briefs were filed,
and Elizabeth Trosman and Suzanne Grealy Curt, Assistant
U.S. Attorneys.

Before: TATEL, Circuit Judge, EDWARDS, Senior Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
 2
Opinion for the Court filed by Circuit Judge HARRY T.
EDWARDS.

EDWARDS, Senior Circuit Judge: The Appellant in this
case, Ricardo Hunter, pled guilty to federal charges stemming
from a series of armed robberies. He was sentenced to fifteen
years in prison and ordered to pay $35,157.27 in restitution,
along with a “special assessment” of $400.00. Under the
District Court’s order, both amounts were payable
immediately. The sentencing order further provided that,
during his incarceration, Appellant was to participate in the
Bureau of Prisons Inmate Financial Responsibility Program
(“IFRP”) through which he would make payments to satisfy
the restitution obligation. The timing and amounts of the
payments to be made by Appellant were left to be determined
by IFRP. Appellant’s claim on appeal is that the District
Court’s delegation to IFRP violated 18 U.S.C. § 3664(f)(2),
which mandates that “the court shall . . . specify in the
restitution order the manner in which, and the schedule
according to which, the restitution is to be paid . . . .”

Appellant’s attorney did not raise this statutory argument
during the sentencing proceedings before the District Court.
About two months after the District Court imposed sentence,
Appellant filed a motion pro se seeking to suspend the
restitution order. In his initial brief to the District Court in
support of this belated motion, Appellant did not raise the
statutory argument regarding the District Court’s alleged
unlawful delegation to IFRP. The argument was first raised in
Appellant’s reply brief in support of his motion. The
Government did not respond to the reply brief. The District
Court denied the motion, United States v. Hunter, No. 11-39-
1 (RWR), 2013 WL 4083311, at *1 (D.D.C. Aug. 13, 2013),
and Appellant appealed.
 3
An order was issued by this court appointing amicus
counsel (“Amicus”) to brief and argue the case on behalf of
Appellant. Amicus has directly and clearly raised the statutory
argument resting on 18 U.S.C. § 3664(f)(2). In particular,
Amicus argues that the District Court erred in failing to fulfill
its statutory duty to assess Appellant’s ability to pay
restitution, and to establish an appropriate schedule for
payments. In response to the Government’s argument that
Appellant’s appeal to this court should be dismissed as
untimely, Amicus contends that the filing requirements of
Federal Rule of Appellate Procedure 4(b) are non-
jurisdictional and presumptively subject to equitable tolling.
Amicus thus urges the court not to “dismiss[] a criminal
appeal as untimely where a defendant [acting pro se], through
no fault of his own or lack of diligence, did not know the
clock had begun to run.” Amicus Br. 4.

The Government asserts that the appeal should be
dismissed on any one of four grounds: first, the appeal was
not timely filed; second, at sentencing, Appellant expressly
waived his right to appeal his plea agreement; third, Appellant
forfeited his statutory claim by failing to raise it with the
District Court during the sentencing proceedings; and, finally,
Appellant’s challenge to the District Court’s sentencing order
is without merit.

Because the filing requirement under Federal Rule of
Appellate Procedure 4(b) is a non-jurisdictional, claim-
processing rule, see United States v. Byfield, 522 F.3d 400,
403 n.2 (D.C. Cir. 2008), we may proceed to the merits. We
therefore leave for another day the challenging questions
raised by Amicus and the Government regarding the
timeliness of this appeal. The record in this case makes it
clear that Appellant’s “counsel did not object to the restitution
order at the sentencing hearing, so our review is for plain
 4
error.” United States v. Baldwin, 563 F.3d 490, 491 (D.C. Cir.
2009) (citing Fed. R. Crim. P. 52(b)). In Baldwin, we
considered whether a restitution order that delegated to IFRP
the responsibility for determining a defendant’s payment
schedule during her incarceration constituted plain error. The
court held that, “[g]iven the divergent views of the courts of
appeals . . . we cannot say that the district court committed
‘plain error’ in its restitution order.” Id. at 492. Baldwin
controls the disposition of this case. We are therefore
constrained to deny Appellant’s appeal. Given this result, it is
unnecessary to reach the other arguments raised by the
Government.

I. BACKGROUND

A. The Mandatory Victim Restitution Act

The Mandatory Victim Restitution Act (“MVRA”)
governs restitution orders that are issued against federal
defendants. Pub. L. No. 104-132, §§ 201–11, 110 Stat. 1214
(1996) (codified as amended in scattered sections of 18
U.S.C.). When sentencing a defendant convicted of certain
crimes (including any crime of violence), the MVRA requires
the court to order the defendant to “make restitution to the
victim of the offense.” 18 U.S.C. § 3663A(a)(1). The court
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.” Id. § 3664(f)(1)(A). The statute provides,
however, that:

(2) Upon determination of the amount of restitution
owed to each victim, the court shall, pursuant to
section 3572, specify in the restitution order the
manner in which, and the schedule according to
 5
which, the restitution is to be paid, in consideration
of –
(A) the financial resources and other assets of
the defendant, including whether any of these
assets are jointly controlled;
(B) projected earnings and other income of the
defendant; and
(C) any financial obligations of the defendant;
including obligations to dependents.
(3)(A) A restitution order may direct the defendant to
make a single, lump-sum payment, partial payments at
specified intervals, in-kind payments, or a
combination of payments at specified intervals and in-
kind payments.
(B) A restitution order may direct the defendant to
make nominal periodic payments if the court finds
from facts on the record that the economic
circumstances of the defendant do not allow the
payment of any amount of a restitution order, and do
not allow for the payment of the full amount of a
restitution order in the foreseeable future under any
reasonable schedule of payments.

Id. § 3664(f)(2), (f)(3).

The statute also allows for the adjustment of restitution
orders after sentencing. On this point, the statute states:

A restitution order shall provide 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
 6
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.

Id. § 3664(k).

B. Appellant’s Challenge to His Restitution Order

Appellant was charged in September 2011 after a spree of
armed robberies. He pled guilty to two counts of armed
robbery under the Hobbs Act, 18 U.S.C. § 1951, one count of
attempted armed robbery of an armored car under 18 U.S.C.
§ 2113, and one count of possession of a firearm during a
crime of violence, 18 U.S.C. § 924(c)(1). As part of his plea
agreement, Appellant agreed to forfeit $35,157.27, the total
proceeds of his Hobbs Act robberies, and to pay restitution in
the same amount.

On March 1, 2013, the District Court orally sentenced
Appellant to fifteen years in prison followed by three years of
supervised release. The court also ordered Appellant to pay
$35,157.27 in restitution (jointly and severally with his
codefendant), as provided in the plea agreement, along with a
“special assessment” of $400. The court made both amounts
immediately payable. The District Court’s order further
provided that, during his incarceration, Appellant should
make payments by participating in IFRP, leaving the timing
and amounts of his payments up to the Bureau of Prisons.
Finally, the District Court ordered that, when he was out of
 7
prison on supervised release, Appellant would be required to
pay down the balance of his restitution at a rate of no less than
$50 each month. Appellant’s counsel did not object to the
restitution order. When Appellant entered prison, IFRP
imposed a schedule of restitution payments of $25 every three
months.

On May 17, 2013, Appellant filed a pro se motion asking
the District Court to suspend his restitution payments. He did
not claim that the restitution order should be suspended due to
changed circumstances. Rather, he argued that the District
Court had failed to inquire into his economic situation when
determining his payment schedule, and that the payments
required by IFRP imposed a significant hardship on him. In
an affidavit accompanying the motion, Appellant explained
that he could not make his restitution payments because there
were few jobs available in the prison offering sufficient
wages, his poor health made it hard to work, and he needed
the small amounts of money sent by his sister for himself.

The Government responded that the amount of
Appellant’s restitution was mandated by the MVRA, that the
judgment was immediately enforceable, and that district
courts cannot set the terms of payments made through IFRP.
In a reply brief, Appellant argued for the first time that the
District Court does not have the authority to delegate its
scheduling duties to the Bureau of Prisons. Appellant
acknowledged that if the matter had been properly raised by
his counsel during the sentencing hearing, “the problem
would have been resolve[d].” Appendix for Appellee 76.
Appellant also asserted that it “would be futile” for him to
seek administrative relief from the Bureau of Prisons. Id.

The District Court rejected Appellant’s motion, holding
that restitution was mandated by the MVRA, and that the
 8
court had no authority to order IFRP to alter what it requires
Appellant to pay. The court noted further that:

a defendant may seek judicial review of his IFRP
restitution payment amount after exhausting his
administrative remedies. Here, Hunter has not shown that
he exhausted all available administrative remedies before
filing his motion.

Hunter, 2013 WL 4083311, at *2 (citation omitted).
Appellant now appeals the District Court’s ruling.

II. ANALYSIS

A. Standard of Review

Under normal circumstances, the court reviews “issues of
law related to sentencing” de novo. United States v. Watson,
476 F.3d 1020, 1023 (D.C. Cir. 2007). However, if the
defendant’s counsel fails to raise an objection at sentencing,
we review the sentencing claim only for plain error. Id.; see
Fed. R. Crim. P. 51(b), 52(b). Appellant does not contend that
the statutory delegation issue that he raises in this appeal was
raised with the District Court during his sentencing hearing.
Therefore, plain error review applies in this case.

“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 affects substantial rights. If all three conditions
are satisfied, we have discretion to remedy the error only if
(4) it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Baldwin, 563 F.3d at 491
(citations, brackets, and internal quotation marks omitted). As
noted above and explained below, the District Court did not
commit plain error.
 9

Amicus presents two arguments for why we should
nonetheless eschew plain error review, but both are without
merit. Amicus’s first contention is that the Government
should have raised forfeiture with the District Court in
response to Appellant’s post-sentencing pro se motion.
Amicus Br. 41–43. By failing to do so, Amicus claims, the
Government “forfeited [its] forfeiture argument.” Solomon v.
Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014).

Amicus’s argument on Appellant’s behalf is clever, and it
is appealing at first blush. However, it is premised on an
inaccurate view of the record. We simply cannot find that the
Government “forfeited” its objection to Appellant’s belated
attempt to raise the statutory delegation argument. As noted
above, Appellant’s counsel raised no objection to the
restitution order during the sentencing hearing. When
Appellant filed his pro se motion more than two months after
the sentencing order had issued, his initial brief to the court
seeking to suspend the restitution order did not raise the
statutory argument regarding the District Court’s alleged
unlawful delegation to IFRP. And there was no reason for the
Government to assume that Appellant meant to raise the
statutory argument because Appellant’s motion and
accompanying affidavit focused on the financial hardship he
was experiencing inside prison.

The non-delegation argument that Amicus now presses
on appeal did not appear until Appellant’s reply to the
Government’s opposition to his initial brief in support of his
motion. It is generally understood that arguments first raised
in a reply brief are untimely. See, e.g., United States v.
Berkeley, 567 F.3d 703, 711 n.4 (D.C. Cir. 2009); United
States v. Johnson, 216 F.3d 1162, 1168 (D.C. Cir. 2000). The
Government never had an opportunity to argue forfeiture or
 10
say anything else in response to Appellant’s belated attempt
to raise the statutory issue in his reply brief. The Government
argued that Appellant had forfeited this claim at the first
appropriate opportunity: in its brief to this court. Therefore,
the Government did not forfeit its forfeiture argument.

Amicus’s second argument is that plain error review
should not apply because the statutory delegation issue was
presented to the District Court and that court had an
opportunity to rule on it. Amicus Br. 45–46. This claim is
contrary to the text and purpose of Federal Rule of Criminal
Procedure 51(b). Rule 51(b) is quite clear that “[a] party may
preserve a claim of error by informing the court – when the
court ruling or order is made or sought – of the action the
party wishes the court to take, or the party’s objection to the
court’s action and the grounds for that objection.” Fed. R.
Crim. P. 51(b) (emphasis added). The proper time for
Appellant to have raised his statutory argument was during
the sentencing hearing. Because his claim was not so
preserved, it is reviewed only for plain error. Id. at 52(b);
Baldwin, 563 F.3d at 491.

The purpose of this “contemporaneous-objection rule” is
to allow the District Court to “correct or avoid the mistake so
that it cannot possibly affect the ultimate outcome.” Puckett v.
United States, 556 U.S. 129, 134 (2009). This goal is not
served when a defendant raises an objection after proceedings
are complete and a ruling has been handed down. If raising an
issue in a post-judgment motion were sufficient to preserve an
objection, then any and all objections could be preserved in
this manner. The law does not condone this. See United States
v. Bentley, 489 F.3d 360, 364 (D.C. Cir. 2007) (“[W]hen a
defendant has failed to timely object to an error at trial, we
apply plain error review even if he subsequently raised the
issue in a motion for a new trial[.]”).
 11

As noted above, Appellant’s statutory argument appeared
for the first time in the reply brief that he submitted in support
of his motion to suspend the restitution order. The
Government had no opportunity to brief the issue. And the
District Court did not discuss or rule on the argument when it
denied Appellant’s motion. The appropriate standard for
appellate review under such circumstances is plain error.

B. Plain Error Review

The District Court did not commit plain error in this case.
The legality of restitution orders that leave a prisoner’s
payments up to IFRP has split the courts of appeals. A
majority of the circuits that have considered the problem
agree with Appellant that “the district court simply does not
have the authority to delegate its own scheduling duties – not
to the probation office, not to the [Bureau of Prisons], not to
anyone else.” United States v. Gunning, 401 F.3d 1145, 1150
(9th Cir. 2005); see also United States v. Overholt, 307 F.3d
1231, 1254–56 (10th Cir. 2002); United States v. Davis, 306
F.3d 398, 425–26 (6th Cir. 2002); United States v.
McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001); United States
v. Kinlock, 174 F.3d 297, 300 (2d Cir. 1999); United States v.
Corley, 500 F.3d 210, 225 (3d Cir. 2007), vacated and
remanded on other grounds, 556 U.S. 303 (2009); United
States v. Dupree, 590 F. App’x 857, 860 (11th Cir. 2014) (per
curiam); United States v. Short, 25 F. App’x 100, 103 (4th
Cir. 2001) (per curiam). But see United States v. Sawyer, 521
F.3d 792, 794–95 (7th Cir. 2008) (holding that there had been
no impermissible delegation in a similar case); Kaemmerling
v. Berkebile, 359 F. App’x 545, 546–47 (5th Cir. 2010) (per
curiam) (same); Bramson v. Winn, 136 F. App’x 380, 381 (1st
Cir. 2005) (per curiam) (same). This circuit has not ruled on
the permissibility of such orders, and we do not do so today.
 12
In United States v. Baldwin, 563 F.3d 490 (D.C. Cir. 2009),
however, we determined that restitution arrangements like the
one at issue here do not constitute plain error. Baldwin
controls the disposition of this case.

Venus Baldwin was convicted of health care fraud and
ordered to pay restitution. The District Court set a restitution
schedule for after she was released from prison, but during the
term of her incarceration provided that she “may make
payment of [her] special assessment and restitution through
[IFRP].” Id. at 491 (internal quotation marks omitted).
Baldwin did not challenge the order during sentencing. On
appeal, she argued that the lower court “impermissibly
delegated its authority to determine her restitution obligations
to the Bureau of Prisons during her incarceration.” Id. The
Government did not contest Baldwin’s claim. To the contrary,
it agreed with Baldwin that the District Court had erred. This
court nonetheless upheld the decision below. “Given the
divergent views of the courts of appeals,” we wrote, “we
cannot say that the district court committed ‘plain error’ in its
restitution order.” Id. at 492.

Amicus attempts to distinguish Baldwin, but his
arguments are not persuasive. Amicus notes that Appellant
raised his claim in a reply brief submitted to the District
Court, while Baldwin first raised her claim on appeal. Amicus
Br. 52. This distinction is germane only to the question of
whether plain error review applies to Appellant’s case, and we
have already determined that it does. He also points to a
textual difference between the restitution orders in the two
cases. Id. Appellant’s order requires him to participate in
IFRP, while Baldwin’s stated only that she “may” do so. This
has no bearing on the statutory argument in both cases, which
is that the District Court failed to fulfill its obligation to set a
restitution payment schedule under 18 U.S.C. § 3664(f)(2).
 13

Next, Amicus claims that Baldwin is bad law. We reject
this contention as well. He first argues that Baldwin conflicts
with United States v. Braxtonbrown-Smith, 278 F.3d 1348
(D.C. Cir. 2002). Amicus Br. at 52–53. However, the portion
of Braxtonbrown-Smith on which Amicus relies establishes
only that a District Court cannot give probation officers the
authority to increase a defendant’s restitution payments after
she is released from prison. Braxtonbrown-Smith, 278 F.3d at
1356. The case contains no holding on anything directly at
issue in Baldwin. Nor does Braxtonbrown-Smith contain any
reasoning that could be extrapolated to cover Baldwin’s
circumstances. The closest Braxtonbrown-Smith comes to
weighing in on the question of whether the District Court can
leave restitution scheduling up to IFRP is a citation to United
States v. Pandiello, 184 F.3d 682 (7th Cir. 1999), a case that
rejected such orders. Id. at 688. By the time Baldwin was
decided, however, Pandiello had been overruled. Baldwin,
563 F.3d at 492. This is far too thin a reed to support a claim
that Braxtonbrown-Smith and Baldwin are fundamentally
incompatible.

Amicus also argues that the Baldwin panel improperly
held that there was no plain error simply because of the
existence of a circuit split on the issue. Amicus Br. 53.
Amicus cites In re Sealed Case¸ 573 F.3d 844, 851 (D.C. Cir.
2009), for the proposition that an error can be plain despite a
circuit split if the statute “speaks with absolute clarity.” He
claims that 18 U.S.C. § 3664(f)(2) meets this standard. This
cannot be so, however, because Sealed Case specifically cites
Baldwin as an example of a case in which the statutory
language is unclear (and therefore a circuit split is sufficient
to preclude a finding of plain error). Id. at 851–52.
 14
Despite Amicus’s protestations, Baldwin is the law of the
Circuit and it controls this case. We can understand Amicus’s
frustration on behalf of Appellant over this court’s inability to
address an important statutory question because it has yet to
be properly raised and preserved for appellate review. But the
concern raised is beyond our control. We are bound by the
applicable standards of review, and in this case plain error
applies.

****

It is worth noting, as the District Court made clear, that
Appellant has administrative remedies available to address
any concerns about his restitution payments. Appendix for
Appellee 82. His motion to the District Court suggested that
this would be “futile,” but he offered nothing to support this
assertion.

Appellant also may be able to seek redress under 18
U.S.C. § 3664(k), which allows for an adjustment of
restitution orders if there has been a “material change” in
Appellant’s “economic circumstances.” Appellant’s motion to
the District Court to suspend the restitution order did not
purport to invoke Section 3664(k). The District Court did not
address Section 3664(k), and Appellant’s appeal to this court
does not rest on this provision. Therefore, we have no
occasion to comment on the scope of Section 3664(k).

****

We express our appreciation to Amicus for the
outstanding representation he has afforded Appellant in this
difficult case.
 15

CONCLUSION

For the reasons discussed above, Appellant’s appeal is
hereby denied.

So ordered.