IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2008
No. 05-40859 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT E. NOLEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
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Before JOLLY, DAVIS, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
This appeal is before us following our limited remand to the district court,1
in which we conditionally affirmed Nolen’s conviction subject to the aforesaid
limited remand, vacated the sentence, and remanded for the district court to
conduct the Sixth Amendment balancing test as specified in our remand and
thereafter to resentence Nolen based on the result of such balancing. In that
1
See United States v. Nolen, 472 F.3d 362 (2006).
opinion we also held that the district court erred in imposing restitution as part
of Nolen’s sentence.
On remand, the district court conducted the required balancing test
between Nolen’s Sixth Amendment right to counsel of his choice and the public
interest in maintaining the integrity of and respect for the judicial process.
After conducting the balancing test, the district court concluded that revocation
of Nolen’s attorney’s admission to practice pro hac vice was the least intrusive
sanction required to maintain the integrity of the judicial system and that, in
this instance, the societal need for ethical practice outweighed Nolen’s right to
this particular counsel of his choice. The district court then resentenced Nolen
to the same sentence that it had imposed originally, but without imposing
restitution.
Thereafter, the government filed a motion for reconsideration. Our Clerk
of Court, acting pursuant to Fifth Circuit Local Rule 27.1.1, determined to take
no action, deeming the government’s motion untimely under Fifth Circuit Rule
27. The government filed another motion, this one for reconsideration of the
action taken by the Clerk of Court, in response to which we granted the
government’s motion for reconsideration and carried the initial motion with the
appeals consolidated herewith.
2
Now before us following limited remand are the results of the district
court’s balancing test, the court’s reimposition of the same sentence of
imprisonment, and the government’s motion for reconsideration and,
alternatively, appeal of our reversal of the original imposition of restitution by
the district court, and that court’s refusal to reimpose restitution on remand.
First, we affirm the ruling of the district court on remand resulting from
its error-free conduct of the Sixth Amendment balancing test and therefore
affirm the sentence of imprisonment reimposed on Nolen by the district court.
Second, after careful consideration of the government’s appeal/motion to
reconsider the issue of restitution, we agree with the government that our
original reversal of the imposition of restitution by the district court was
overbroad and imprecise. The district court obeyed that pronouncement of our
original ruling and resentenced the defendant but did not impose restitution.
As the government has pointed out, however, there were two omissions of details
in our original order of restitution. One was our failure to note that, in the
absence of an agreement by the defendant, restitution may not be ordered for a
Title 26 offense except as a condition of probation or supervised release, under
18 U.S.C. 3583(d), 3563(b)(2), and 3556. Nolen was convicted solely of Title 26
offenses but was ordered to pay restitution as a separate and independent part
of his sentence, not as a condition of supervised release. Although the
3
government had never conceded that this deficiency in the restitution order of
the district court constituted plain error, it agrees that there was a second error
and that it constituted reversible plain error, viz., that the amount of the
restitution ordered ($453,275) exceeded the loss attributable to Nolen’s tax
evasion offense of conviction ($223,509) because the larger figure included tax
losses associated with Nolen’s relevant conduct.2
On remand, the district court indicated that, but for our unqualified
vacatur of the restitution aspect of the original sentence, it would have imposed
restitution as a condition of supervised release. To the extent that our original
reversal and vacatur of restitution was overbroad, ambiguous, or imprecise, we
acknowledge that, under the current statutory scheme, restitution may be
imposed if done so as a condition of supervised release in a criminal tax case,
even in the absence of a prior definitive determination or adjudication of the
amount of taxes owed, and if limited to losses from the crime of conviction. We
therefore clarify our opinion of December 12, 2006 to make clear that our ruling
on restitution does not bar the imposition of restitution as a condition of
supervised release, and we again remand this matter to the district court to
allow it to impose such a condition if this be its determination. We therefore
2
See United States v. Inman, 411 F.3d 591 (5th Cir. 2005)
(remanding restitution order on plain error review because the
amount of restitution was not limited to the conduct underlying
the offense for which the defendant was convicted).
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affirm the sentence of imprisonment as reimposed by the district court, being the
same sentence as originally pronounced by that court, and remand for the sole
and limited purpose of allowing the trial court to determine whether to impose
restitution as a condition of supervised release, and if so, how much. In so doing,
this panel retains appellate cognizance over the case for our further review
following the district court’s restitution ruling on this remand.
SENTENCE IMPOSED ON REMAND AFFIRMED; REMANDED FOR
RECONSIDERATION AND POSSIBLE REIMPOSITION OF RESTITUTION
AS A CONDITION OF SUPERVISED RELEASE.
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