[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT. 25, 2001
THOMAS K. KAHN
Nos. 00-10296 and 00-14669 CLERK
________________________
D.C. Docket No. 98-00720-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MYAT MAUNG
Defendant-Appellant.
__________________________
Appeals from the United States District Court for the
Southern District of Florida
_________________________
(September 25, 2001)
Before TJOFLAT, CARNES and REAVLEY*, Circuit Judges.
_____________________
* Honorable Thomas M. Reavley, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
CARNES, Circuit Judge:
Myat Maung was convicted of on one count of conspiring, in violation of 18
U.S.C. § 371, to violate 18 U.S.C. § 2321(a) by receiving and possessing with
intent to sell cars with altered identification numbers, and on one count of
exporting stolen cars in violation of 18 U.S.C. § 553. The district court sentenced
Maung to 39 months in prison and ordered him to pay $218,895.68 in restitution
for his crimes. Maung appeals his conviction, his prison sentence, and the
restitution order. We affirm the conviction, but reverse and remand the prison
sentence because it improperly applied a sentencing enhancement, and reverse the
restitution order because it was untimely.
I. FACTS AND PROCEDURAL HISTORY
A. FACTS
To understand the crimes of which Maung was convicted, it is necessary to
understand the nature of his business. Maung was the owner and president of
Transglobal Shipping, Inc., a Miami shipping company. Transglobal was a small
company, with four or five employees. Maung was intimately familiar with all of
the details of Transglobal’s operations.
2
Transglobal was a non-vessel-operating common carrier, which means it did
not own ships but rather was in the business of preparing goods for export and
delivering them to a shipping line. Those preparations included receiving goods
and having them loaded into containers, as well as completing the necessary
exportation paperwork for the goods on the customers’ behalf. To be able to
legally export a car, a shipper must first clear the car through Customs by
presenting various documents, including the car’s title, bill of sale, and a power of
attorney from the car’s owner. Customs then stamps the documents, authorizing
the export, after which the shipper is required to wait 72 hours before the car is
shipped. Before the car is shipped, the shipping line prepares a bill of lading which
documents the nature of the cargo, the owner, the shipper (in this case,
Transglobal), and the consignee. After exporting a car, Transglobal kept files
containing all the documents relating to each car shipped.
Maung’s role in the conspiracy for which he was convicted was uncovered
by chance. While in Kaliningrad, Russia, teaching a course on automobile theft to
Russian police officers, Customs Agent Andrew Diamond was asked by the
Russian officers to look at six cars which had been seized at the Port of
Kaliningrad. When Diamond inspected the cars, he discovered that their vehicle
3
identification numbers (VINs) had been altered.1 Agent Diamond took the
shipping paperwork for the vehicles back to the U.S., where he began an
investigation.
Determining that the cars had been shipped by Transglobal, Diamond visited
its offices and asked Maung for his files relating to the six cars. Maung gave
Diamond a log book and files for the six cars; when Diamond asked Maung who
had been the customer for those six cars Maung told him the customer was “Hans
Kluge.” However, the logbook listed, in Maung’s handwriting, the shipper for
each of the six cars as “Rafal.” “Rafal,” as Diamond would later discover, was
Rafal Kubicki, one of Maung’s co-conspirators.
When Diamond asked how Kluge had paid Transglobal for the shipments,
Maung produced a file which contained correspondence between Maung and
Kluge, photocopies of money orders which Maung said were used to pay for the
shipments, a photocopy of Kluge’s driver’s license, and a business card for Kluge
Automobile. Maung initially told Diamond that he had not arranged any other
shipments to Kluge other than the six Russian cars.
1
Agent Diamond discovered the alteration by comparing the cars’ “public” VIN plates to
their “confidential” VIN plates. “Confidential” VIN plates are placed by car manufacturers in
their cars in places known only to the manufacturer and law enforcement, for the purpose of
allowing law enforcement to tell when a car’s VIN has been altered.
4
Upon further investigation, Diamond learned that each of the six cars had
been stolen in South Florida during October 1996. Diamond asked German
authorities to investigate Kluge; they determined that the “Kluge” driver’s license
was a forgery and that Kluge Automobile did not exist at the address listed on the
business card Maung had shown Diamond. Diamond then obtained a search
warrant for the offices of Transglobal Shipping.
The warrant was executed on July 22, 1997. The agents found counterfeit
manufacturers’ sales stickers in a desk which also contained Maung’s personal
bank statements. They found counterfeit temporary automobile tags above the
ceiling tiles in the bathroom, and blank car invoices on top of a cabinet. The
agents found credit cards for several individuals, and a passport for Anwerali
Sunderji. Sunderji’s 1995 Mercedes with his passport in it had been stolen in
South Florida on October 30, 1996. The agents seized all of those items as well as
paperwork relating to the shipments of other cars.
Following the search, Agent Diamond analyzed the paperwork relating to
Transglobal’s shipments of other cars. He discovered numerous irregularities in
the files for 33 of the 52 cars shipped between September 27, 1996 and November
7, 1996. None of those 33 cars had been cleared for export by Customs; therefore,
all of the Customs’ stamps in Maung’s files for those cars were counterfeit. Agent
5
Diamond was able to link most of the cars to “Kluge” or “Kluge Auto.” Further,
he discovered that the name “Rafal,” which frequently appeared in the logbook, did
not appear in any of paperwork or files for the cars. Twenty-six of the cars had
“bad,” i.e., nonexistent, VINs; four had “good” or existent VINs but those VINs
did not match the cars to which they were assigned in Maung’s paperwork. When
Diamond attempted to locate the notaries whose seals were affixed to various
documents in the files, he could find only one of them. She testified at trial the
notary stamp used in Transglobal’s paperwork was expired and all of her
signatures on that paperwork were forgeries.
In August 1998, the grand jury subpoenaed all of Transglobal’s records.
Diamond compared the subpoenaed records to the records for the 33 suspect cars
and discovered that, unlike the records of the 33 suspect cars, the subpoenaed
records (with one or two exceptions) contained records of payment by the owner of
the goods. Additionally, Diamond verified that each of the cars in the subpoenaed
files had been cleared by Customs for export, in contrast to the 33 suspect cars,
none of which had been cleared for export.
At trial, a friend of Maung’s, Walter Crane, testified that he was present
when Rafal Kubicki met with Maung about shipping cars. Crane also testified that
he spoke with Maung about Maung’s business dealings with Kubicki. According
6
to Crane, Maung said that the cars he was shipping for Kubicki were stolen and
their VINs had been changed. Maung said that Kubicki’s associates stole the cars,
and Kubicki got the counterfeit VIN plates from Europe. Maung admitted that the
cars had not cleared U.S. Customs, and said Kubicki was supplying fraudulent
documents and paying him in cash. Maung showed Crane a passport for Hans
Kluge, and said Kluge was the person to whom the stolen cars were being shipped.
Maung also showed Crane correspondence between Maung and Kluge, which
Maung said would “cover his butt” if he ever had problems with Customs.
Meanwhile, in November 1996, a Miami-Dade police officer had tracked a
Lo-Jack signal (an electronic signal used to locate cars) for a stolen gold Mercedes
to CMA Towing, a company owned by Miguel Torres. When the gold Mercedes
was recovered, investigation revealed that the VIN plate had been changed. The
car contained an export package which indicated that the car was to be sent out of
the country, but Customs records showed the car had never been cleared for export.
The export package contained fake Customs documents, and a passport photograph
of “Hans Kluge.” The export power of attorney for the vehicle was in the name of
“Hans Kluge.”
At trial, Crane testified that he was present at a November 1996 meeting
between Maung, Torres and Kubicki at which they discussed the seizure of a gold
7
Mercedes by law enforcement. During that discussion Torres had described how
the police had shown up after the car’s Lo-Jack device was activated. According to
Crane, Maung had panicked as a result of this seizure, and decided to stop shipping
cars for Kubicki.
Finally, in August 1998, Diamond arrested two car thieves as they were
preparing to steal a car. Those arrests led to a search of the house of Manfred
Sambulski, where agents discovered two cars in Sambulski’s garage in the process
of having their VINs altered.
B. PROCEDURAL HISTORY
Maung was charged in two counts of a four-count superseding indictment;
his co-defendants were Sambulski, Kubicki, and Torres.2 On the first count,
Maung was charged with conspiring, in violation of 18 U.S.C. § 371, to violate 18
U.S.C. § 2321(a) by receiving and possessing with intent to sell motor vehicles,
knowing that their identification numbers had been removed or altered. On the
second count, Maung was charged with exporting three of the stolen cars which
Agent Diamond had discovered in Russia, in violation of 18 U.S.C. § 553(a)(1)
and (2).
2
Sambulski and Torres pleaded guilty; Kubicki is a fugitive.
8
The indictment made these allegations. Sambulski and Kubicki used
Transglobal as a conduit to ship stolen cars to Eastern Europe. Pursuant to their
scheme, thieves stole late model SUVs and Mercedes from various locations in
South Florida. The stolen cars then were taken to garages where Sambulski altered
the cars’ VINs to match those on title documents which he had either forged or
acquired illegally. Sambulski sold some of these stolen cars to Rafal Kubicki in the
United States. Kubicki applied counterfeit Customs clearance stamps to the
fraudulently obtained titles giving the appearance that the stolen cars had been
properly cleared for export by Customs.
The indictment also alleged that Maung, through Transglobal, arranged for
the export of some of the stolen cars that Kubicki bought from Sambulski.3 Maung
arranged for the stolen cars to be placed in containers and loaded onto ships for
export. The arrangements for actually towing the stolen cars from the garages to
the loading station were made by Torres as owner of CMA Towing. Maung’s
primary role in the scheme was the preparation of false shipping records and
retention of the fraudulent titles in case of a Customs investigation.
3
Maung contended, and the government did not dispute, that Kubicki had been using
another shipping company before Maung became involved. After that company backed out,
Kubicki sought out Maung’s services.
9
A jury convicted Maung on both counts against him. To calculate Maung’s
prison sentence, the district court started with a base offense level of eight under
U.S.S.G. § 2B6.1(a), which applies to convictions for altering or removing motor
vehicle VINs or trafficking in vehicles with altered VINs. It then raised that base
level by eleven under U.S.S.G. § 2B6.1(b)(1), which incorporates U.S.S.G. §
2F1.1, because the total loss was more than $800,000. Finally, the district court
added a two-level enhancement against Maung for “being in the business of
receiving and selling stolen property.” U.S.S.G. § 2B6.1(b)(2). This brought
Maung’s total offense level to 21, which, together with his lack of a criminal
history, made him subject to a sentence of between 37 and 46 months under the
sentencing guidelines. The result was that on January 5, 2000, the district court
sentenced Maung to 39 months imprisonment, followed by three years’ supervised
release.
On the same date it sentenced Maung, the court ordered him to pay
restitution, but it deferred determination of the amount of restitution “pending
further hearing.” More than six months later, on June 16, 2000, the government
moved the district court to set the amount of restitution Maung must pay, noting
that the parties had unsuccessfully attempted to negotiate an agreed amount of
restitution. Maung opposed the government’s motion, in part, on the ground that 18
10
U.S.C. § 3664(d)(5) requires a district court to make a final determination of the
amount of restitution within 90 days of sentencing, and more than 90 days had
passed between Maung’s sentencing and the government’s motion for a final
restitution order.
At a hearing on August 25, 2000, the district court denied Maung’s objection
and accepted the government’s argument that because of negotiations between
Maung and the government about stipulating to the amount of restitution, the 90-
day statutory period should be extended. The court entered an order that Maung
pay $218,895.67 in restitution. On August 29, 2000, the court amended its final
judgment to incorporate that amount of restitution.
Maung timely appealed from the initial judgment and the amended
judgment, and we consolidated the two appeals.
II. DISCUSSION
On appeal, Maung raises a number of challenges to his conviction, his
sentence, and the district court’s order that he pay restitution. Two of them have
merit: his contention that the district court improperly imposed on him the two-
level sentencing enhancement for being “in the business of receiving and selling
11
stolen property”; and his contention that the final restitution order is invalid
because it was entered more than 90 days after he was sentenced.4
A. “IN THE BUSINESS OF RECEIVING AND SELLING STOLEN
PROPERTY”
Under the federal sentencing guidelines, a base offense level governed by
§2B6.1 may be enhanced by two levels if “the defendant was in the business of
receiving and selling stolen property.” U.S.S.G. §2B6.1(b)(2). After properly
applying §2B6.1 to determine Maung’s base offense level, the district court added
the two-level “in the business” enhancement. Maung argues that the district court
erred in doing so because he was not “in the business of receiving and selling
stolen property.” When a defendant challenges the district court’s application of
the sentencing guidelines, we review the district court's underlying findings of fact
for clear error and application of the guidelines to those facts de novo. United
States v. Jamieson, 202 F.3d 1293 (11th Cir. 2000) (citations omitted).
We have never had occasion to discuss the “in the business” sentencing
enhancement. The circuits which have addressed the meaning of the
4
Having carefully considered them, we reject without further discussion Maung’s other
contentions.
12
enhancement5 generally have agreed that a thief who sells goods that he himself
has stolen is not “in the business of receiving and selling stolen property.” See,
e.g., United States v. McMinn, 103 F.3d 216, 219-21 (1st Cir. 1997); United States
v. Sutton, 77 F.3d 91, 94 (5th Cir. 1996); United States v. Warshawsky, 20 F.3d
204, 214-15 (6th Cir. 1994); United States v. Braslawsky, 913 F.2d 466, 468 (7th
Cir. 1990); but see, United States v. Collins, 104 F.3d 143, 144 (8th Cir. 1997)
(holding that a thief was “in the business” when he delivered the goods he had
stolen to an auction house and split the proceeds with the auction house after the
goods were auctioned off).
However, the circuits have split on the proper test for determining whether a
defendant, who was not the actual thief, was “in the business” or not. Two tests
have emerged. The “fence” test, adopted by the Fifth, Sixth, and Seventh Circuits,
requires proof that the defendant was a person who bought and sold stolen
property, and thereby encouraged others to commit property crimes. See
Warshawsky, 20 F.3d at 214; United States v. Esquivel, 919 F.2d 957, 959-60 (5th
Cir. 1990); Braslawsky, 913 F.2d at 468. The “totality of the circumstances” test,
5
Most of the reported cases interpreting the “in the business” enhancement involve
U.S.S.G. §2B1.1(b)(4)(B), which imposes a four-level enhancement for basic theft crimes “[i]f
the offense involved receiving stolen property, and the defendant was a person in the business of
receiving and selling stolen property.” Their analysis of the phrase “in the business of receiving
and selling stolen property” in interpreting §2B1.1(b)(4)(B) applies to the identical language in
§2B6.1.
13
embraced by the First, Third, and Ninth Circuits, and perhaps by the Second
Circuit, employs a “case by case approach with emphasis on the ‘regularity and
sophistication of a defendant’s [criminal] operation.’” United States v. Zuniga,
66 F.3d 225, 228-29 (9th Cir. 1995) (quoting United States v. St. Cyr, 977 F.2d
698, 703 (1st Cir. 1992)); accord United States v. Cottman, 142 F.3d 160, 165-66
(3d Cir. 1998); see also United States v. Salemi, 46 F.3d 207, 209 (2d Cir. 1995).
Under the “totality of the circumstances” test, at least, “[m]ore than isolated,
casual, or sporadic activity [must] be shown before a business is found to exist.”
St. Cyr, 977 F.2d at 703-04.
Some courts have suggested that the difference between the two tests, if
any, is not great. See Cottman, 142 F.3d at 167 n.9 (suggesting that the “totality
of the circumstances” test might include the requirement that the defendant be a
“fence”); Salemi, 46 F.3d at 209 (“We believe that any differences between the two
tests are subtle at best.”); but see Warshawsky, 20 F.3d at 215 (adopting the
“fence” test after criticizing the “totality” approach as a “unwieldy case-by-case
multi-factored balancing test”).
Turning to whether the enhancement was appropriate in this case, Maung
argues that the district court erred in applying the “in the business” enhancement to
him because he did not personally receive or sell stolen property at all. Maung
14
claims he was merely a transporter of stolen property: a middleman, not a “fence.”6
The government responds that the enhancement was appropriate because, under the
“totality of the circumstances,” the sophistication and regularity of Maung’s
conduct in exporting the stolen cars qualifies him as being “in the business of
receiving and selling stolen property.” At the sentencing hearing, the government
also argued that while Maung himself never actually possessed the stolen vehicles,
he took constructive possession of them by preparing the forged shipping
paperwork, arranging for the containerization of the cars, and presenting the
paperwork and the cars to the shipping line. The district court agreed with the
government’s arguments, finding that:
[Maung] was in the business of receiving and selling and exporting
the stolen property, these stolen cars through a regular sophisticated
use of fraudulent documents and the utilization of the freight
forwarding business and clearances through customs which enabled
these stolen vehicles to be processed and shipped outside the United
States.
We disagree.
The guideline requires that the enhancement be imposed when “the
defendant was in the business of receiving and selling stolen property.” U.S.S.G. §
6
Additionally, Maung contends that the shipment of the 33 stolen cars covered by the
conspiracy count comprised so small a portion of Transglobal’s total shipping business that it
lacked the regularity required for a finding that he was “in the business” of dealing in stolen
goods. Because we agree that the “in the business” enhancement does not apply to a defendant
who did not himself receive and sell stolen property, we do not reach that contention.
15
2B6.1(b)(2) (emphasis added). In interpreting a sentencing guideline, we must
adhere to its plain meaning. See United States v. Tham, 118 F.3d 1501, 1506 (11th
Cir. 1997) (“[T]he language of the Sentencing Guidelines is to be given its plain
and ordinary meaning.”); United States v. Pompey, 17 F.3d 351, 354 (11th Cir.
1994) (same). The plain meaning of guideline § 2B6.1(b)(2) is that the defendant
himself, and not just his co-conspirator, must have received and sold stolen
property. A defendant who has not received and sold cannot be “in the business of
receiving and selling.”
This conclusion is supported by contrasting the “in the business”
enhancement with its neighboring guideline, which allows an enhancement if “the
offense involved an organized scheme to steal vehicles . . . .” U.S.S.G. §
2B6.1(b)(3) (emphasis added); see also, e.g., U.S.S.G. § 2B3.1(b)(2)(E) (allowing
a sentencing enhancement “if a dangerous weapon was brandished or possessed”)
The contrast between 2B6.1(b)(2)’s active, specific “the defendant was in the
business” and the next subsection’s more general and passive “the offense
involved” indicates that the (b)(2) enhancement is focused upon the defendant’s
own activities, in contrast to the (b)(3) enhancement’s focus on the offense, which
includes the activities of co-conspirators for which the defendant is held
responsible.
16
Case law further supports this interpretation of the §2B6.1(b)(2) “in the
business” enhancement. The government has cited us to no case, and we have
discovered hardly a one, in which a federal appellate court upheld the “in the
business” enhancement against a defendant who did not personally participate in
receiving and selling (or intending to sell) stolen property. See United States v.
Coviello, 225 F.3d 54, 65-66 (1st Cir. 2000); United States v. Myers, 198 F.3d
160, 164 (5th Cir. 1999); Cottman, 142 F.3d at 162-63; Sutton, 77 F.3d at 92;
Zuniga, 66 F.3d at 229; Salemi, 46 F.3d at 208; United States v. MacKay, 33 F.3d
489, 497 (5th Cir. 1994); Warshawsky, 20 F.3d at 206, 215; Esquivel, 919 F.2d at
959.7
In this case Maung, the defendant, was not personally “receiving and
selling” stolen cars. Instead, he was processing phony paperwork and making
arrangements to illegally export the cars to Eastern Europe. Even if we accepted
the government’s argument that Maung’s actions put him in constructive
7
Our own search located only one federal appellate case that is even arguably an
exception. United States v. Collins, 104 F.3d 143, 144 (8th Cir. 1997). Collins upheld the
application of the “in the business” enhancement to a defendant who had not himself sold stolen
property, but who had delivered it to an auction house, which then sold it and split the profits
with the defendant. Collins goes against the heavy weight of authority, as well as the plain
meaning of the word “receiving,” in concluding that the “in the business” enhancement can
apply to the person who actually stole the property. This calls into question more generally the
soundness of its interpretation of the “in the business” requirement. Moreover, in Collins, the
defendant subjected to the “in the business” enhancement was splitting the profits of the sales of
the stolen property with the auction house that was selling it. A partnership arrangement, which
is not present here, arguably makes the defendant more of a seller of the property.
17
possession of the cars, and thereby constituted “receiving” them; there is no
indication that Maung sold the cars. He was paid for his export services by
Kubicki, but it was Kubicki and not Maung who sold the cars. There is no
evidence that Maung had any contact with the purchasers or shared in the proceeds
from the sale. Because Maung was not selling stolen property, he could not have
been “in the business of receiving and selling stolen property.” The district court
therefore erred when it added the “in the business” enhancement to Maung’s base
offense level.8
B. TIMELINESS OF THE RESTITUTION ORDER
Maung next contends that the district court erred by entering an order setting
the amount of restitution he was to pay after the 90-day statutory limit for finally
determining the victims’ losses had passed. We review de novo statutory
interpretation issues and issues involving the legality of a criminal sentence,
including a restitution order. United States v. Cobbs, 967 F.2d 1555, 1556 (11th
Cir. 1992); United States v. Hooshmand, 931 F.2d 725, 737 (11th Cir. 1991).
8
Because we reverse Maung’s sentence based on the plain language of the statute, we
need not choose between the “fence” test and the “totality” test as alternative ways of applying
of the “in the business” enhancement. However, the conflicts in the decisions interpreting this
guideline indicate the need for a clarifying amendment or commentary from the Sentencing
Commission.
18
The controlling statute provides that:
If the victim’s losses are not ascertainable by the date that is 10 days
prior to sentencing, the attorney for the Government or the probation
officer shall so inform the court, and the court shall set a date for the
final determination of the victim’s losses, not to exceed 90 days after
sentencing.
18 U.S.C. § 3664(d)(5). Three other circuits have read this provision as requiring
the district court to enter the restitution order within 90 days of sentencing. See
U.S. v. Jolivette, 257 F.3d 581, 584 (6th Cir. 2001) (“[W]hen the 90-day clock runs
out, the judgment of conviction and sentence, including the restitution provision,
becomes final by operation of the statute. . . . [B]ecause there was no timely
judicial determination of the restitution amount, the judgment contains no
enforceable restitution provision.”); accord United States v. Stevens, 211 F.3d 1, 5
(2d Cir. 2000); United States v. Grimes, 173 F.3d 634, 639-40 (7th Cir. 1999). We
agree with this reading of the statute. If the court believes more time is required to
ascertain the amount of victim losses, it can postpone sentencing and thereby put
off the start of the 90-day period. What a court generally may not do, however, is
impose a sentence and then delay determination of the amount of losses more than
90 days from sentencing.
Maung was sentenced on January 5, 2000, while the order setting the
amount of restitution was not entered until August 25, 2000, way beyond the 90-
19
day period. The government argues that the 90-day statutory period can be tolled,
and that it was tolled in this case because the delay did not prejudice Maung. The
government may be correct on the first point, at least one circuit having held that
the 90-day period can be tolled under certain circumstances. See Stevens, 211 F.3d
at 4-5. In Stevens, however, the delay in determining the amount of the victims’
losses was caused by the defendant’s “pattern of obfuscation” and “willful defiance
of the court’s orders.” Id. at 4-5. The government does not argue that any
obfuscation or defiance by Maung caused the delay in entry of the order setting the
amount of restitution.
Although Maung was not at fault for the delay, the government argues that
the 90-day period should still be tolled. It is enough, the government says, that
Maung had a full opportunity to contest the amount of the restitution award at the
August 25, 2000 hearing, and so was not prejudiced by the delay. But there is no
prejudice requirement in the statute, and we are not convinced that we should read
one into it. The government argues that the 90-day time limit was designed by
Congress to protect victims against the dissipation of a defendant’s assets, and not
to protect defendants against a drawn-out sentencing process. See Stevens, 211
F.3d at 4-5; Grimes, 173 F.3d at 639. Vacating the restitution award against
Maung for untimeliness will, according to the government, thwart the
20
Congressional intent behind the 90-day provision by denying Maung’s victims any
repayment at all. But we are governed by the language Congress enacts, not by
purported designs or intentions that conflict with that language. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 452-53, 107 S.Ct. 1207, 1224 (1987) (Scalia,
concurring) (“Judges interpret laws rather than reconstruct legislators’
intentions.”).
In interpreting a statute we look first to the plain meaning of its words, and
do not consider legislative history unless the statutory text is unclear. United
States v. Gonzales, 520 U.S. 1, 6, 117 S.Ct. 1032, 1035 (1997) (“Given [a]
straightforward statutory command, there is no reason to resort to legislative
history.”); CBS, Inc., v. Primetime 24 Joint Venture, 245 F.3d 1217, 1222 (11th
Cir. 2001) (“[W]e assume the Supreme Court, in saying that, said what it meant.”).
If the meaning of a statute is clear on its face, we may only look to legislative
history if that plain meaning produces “a result that is not just unwise but is
clearly absurd.” Id. at 1228 (quoting Merritt v. Dillard Paper Co., 120 F.3d 1181,
1188 (11th Cir. 1997)).
The requirement, plain on the face of § 3664(d)(5), that a district court
enter a restitution order within 90 days of sentencing, and not thereafter, generally
will not produce an absurd result. A strict 90-day limit might produce an absurd
21
result in cases where the defendant’s own bad faith causes the entry of the order to
be delayed beyond 90 days. See Stevens, 211 F.3d at 4-5 (“Congress could not
have intended to permit offenders to subvert the VWPA by using dilatory
maneuvering to defeat a sentence of restitution.”). Allowing the defendant’s own
bad faith delay to foreclose the entry of a restitution order could conceivably put
restitution in some cases in the defendant’s own discretion. For that reason, we are
not willing to say that the 90-day limitation is inexorable and can never be
equitably tolled. We have no occasion to decide that issue in this case, anyway.
The delay in this case was not caused by obstruction or bad faith tactics of the
defendant. By all accounts, the parties negotiated in good faith, but were unable to
reach agreement on the amount of restitution. There is no indication that the
defendant was any more at fault for the delay than the government. In this
situation, it is not plainly absurd to let the chips fall where the plain language of the
statute indicates they should.
The district court failed to enter an order of restitution within 90 days of
sentencing. The August 25, 2000 restitution order is therefore invalid.
III. CONCLUSION
22
Maung’s conviction is AFFIRMED; Maung’s prison sentence is
REVERSED and the case is REMANDED for re-sentencing; the order that Maung
pay $218,895.68 in restitution is REVERSED.
23