[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 17, 2002
THOMAS K. KAHN
No. 01-14114 CLERK
________________________
D. C. Docket No. 99-00476 CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MICHAEL KAPELUSHNIK, a.k.a. Michael Kapel,
Defendant-Appellee.
________________________
No. 01-14115
________________________
D. C. Docket No. 99-00476 CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ALEXANDER VOLIS, a.k.a. Alex Kline,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(September 17, 2002)
Before EDMONDSON, Chief Judge, BLACK and COX, Circuit Judges.
COX, Circuit Judge:
The Government appeals the court’s grant of downward sentencing departures
to Michael Kapelushnik and Alexander Volis based on their voluntary restitution of
some rare American coins following the district court’s acceptance of their guilty
pleas. We raised sua sponte a jurisdictional issue in this case stemming from the fact
that, at the time the Government filed its notice of appeal, the district court had not yet
fixed the amount of restitution. Because we have satisfied ourselves of jurisdiction,
and because we conclude that there was no evidence to support such departures, we
vacate Kapelushnik’s and Volis’s sentences and remand for the imposition of new
sentences.
I. BACKGROUND AND PROCEDURAL HISTORY
In April 1999, Kapelushnik and Volis traveled to Milwaukee, Wisconsin to
attend a rare coin convention. Also at the coin convention was Thomas Reynolds, a
dealer and collector of rare American coins. Reynolds displayed a large collection of
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coins at the convention, some of which belonged to him and others of which belonged
to dealers who had entrusted their collection to Reynolds. After departing the
convention, Reynolds traveled to his home in Omaha, Nebraska. Unbeknownst to
Reynolds, however, Kapelushnik and Volis were following him. When Reynolds
arrived at his home and briefly left his vehicle unattended, Kapelushnik and Volis
stole from his vehicle the entire collection of coins that he had displayed at the
convention. According to the sentencing court, the value of the stolen coins was
$800,000.
After stealing the coins, Kapelushnik and Volis attempted to dispose of their
loot by selling the coins to rare coin dealers. One purchaser of the coins recognized
them as being part of Reynolds’s distinctive collection, and he contacted Reynolds to
confirm his suspicion. Reynolds positively identified the coins as his, and the police
were notified. Kapelushnik was then arrested as he attempted to sell some of the
stolen coins to an undercover officer, and Volis was arrested after selling some of the
coins to a dealer in New York.
Subsequently, Kapelushnik and Volis were charged in a multi-count indictment
with: (1) conspiracy to transport stolen goods, in violation of 18 U.S.C. § 871; (2)
transportation of stolen goods, in violation of 18 U.S.C. § 2314; and (3) the sale and
possession of stolen goods, in violation of 18 U.S.C. § 2315. The parties sought to
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reach plea agreements whereby Kapelushnik and Volis would receive reduced
sentences in exchange for a return of the remaining coins, but Kapelushnik and Volis
missed the deadline for returning the stolen coins. The Government then withdrew
its plea offer, and Kapelushnik and Volis eventually pleaded guilty to all of the
charges in the indictment.
Then, before the court sentenced Kapelushnik and Volis, some of the stolen
coins were returned to a New York City police station by a person or persons
unknown. Subsequently, Kapelushnik and Volis filed motions for downward
sentencing departures under U.S.S.G. § 5K2.0, claiming that they were responsible
for arranging the return of the coins via a third party, and that their efforts were so
extraordinary that they took the case out of the heartland of the guidelines and
warranted downward departures.
At sentencing, the court ruled in favor of Kapelushnik and Volis on their
motions for downward departures and granted them a two-level reduction in their
sentences. Over objection from the Government, the court concluded that since the
guidelines do not expressly mention post-adjudication, voluntary restitution, and since
the return of stolen property post-adjudication is extraordinary, the case fell outside
of the heartland of the guidelines. The court ultimately sentenced Kapelushnik to
eight months’ imprisonment, eight months’ home confinement, and three years of
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supervised release. The court sentenced Volis to seven months’ imprisonment, seven
months’ home confinement, and three years of supervised release.
Also at sentencing, the court ordered both defendants to pay restitution, but the
court deferred for a later hearing its ruling on the amount of restitution owed. After
sentencing but before the restitution hearing, the court entered the judgments of
conviction, and the Government filed its notice of appeal on the downward departures.
We sua sponte raised a jurisdictional issue stemming from the fact that, at the time the
Government filed its notice of appeal, the court had not yet fixed the amount of
restitution. The amount of restitution remains unsettled.
II. CONTENTIONS OF THE PARTIES
With regards to the jurisdictional issue, both parties originally contended that
we lacked jurisdiction over this appeal. Then, following our decision in United States
v. Maung, 267 F.3d 1113 (11th Cir. 2001), which sheds light on this issue, the
Government amended its response and argued that the court’s failure to set restitution
within the statutory limitations period rendered the restitution orders unenforceable
and the judgments of conviction final and appealable as of the date they were entered.
Kapelushnik and Volis have not addressed the effect of Maung on jurisdiction.
On the merits of the appeal, the Government contends that the court erred as a
matter of law in determining that post-adjudication, voluntary restitution forms a
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permissible basis for a downward departure under § 5K2.0. The Government also
contends that, even if such a departure is permissible, there is no evidence in the
record to support the court’s finding that Kapelushnik and Volis were responsible for
the return of stolen coins. Kapelushnik and Volis, on the other hand, contend that
since the guidelines do not address post-adjudication, voluntary restitution, the court
did not abuse its discretion in granting them downward departures.
III. STANDARD OF REVIEW
On the downward departure issue, we review the sentencing court’s factual
findings for clear error and the application of the Sentencing Guidelines to those facts
de novo. See United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998).
IV. DISCUSSION
A. Jurisdiction
Before we can resolve the downward departure issue, we must first satisfy
ourselves of jurisdiction. Title 18 U.S.C. § 3664(d)(5) governs the procedure for the
issuance and enforcement of orders of restitution. Section 3664(d)(5) provides that,
when the amount of restitution is not ascertainable at the time of sentencing, the
district court may set a date for the final determination of that amount not to exceed
90 days after sentencing. In United States v. Maung, 267 F.3d 1113, 1121 (11th Cir.
2001), we interpreted the plain language of § 3664(d)(5) as requiring district courts
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to determine the amount of restitution within the 90-day limitations period. Where,
as here, the district court fails to make such a determination within the 90-day
limitations period, the judgment of conviction becomes final and contains no
enforceable restitution provision. See id; United States v. Jolivette, 257 F.3d 581, 584
(6th Cir. 2001) (“[W]e hold that when the 90-day clock runs out, the judgment of
conviction and sentence, including the restitution provision, becomes final by
operation of statute.”). Thus, since in this case the district court failed to determine
the amount of restitution within 90 days of sentencing, the judgments of conviction
became final by operation of law, and the judgments contain no enforceable restitution
provision. And, once the judgments of conviction became final, the Government’s
premature notice of appeal ripened into an effective notice as of that date. See United
States v. Curry, 760 F.2d 1079, 1079-80 (11th Cir. 1985) (holding that, where
defendant filed notice of appeal after verdict but before sentencing, “premature notice
of appeal is effective to perfect an appeal as of the date the sentence is entered as the
judgment.”).
What is complicated about this case is that the district court refrained from
setting the amount of restitution within the 90-day limitations period because it
believed that the Government’s notice of appeal — which was filed prematurely
before the expiration of the 90-day limitations period — divested it of the jurisdiction
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to do so. While we understand how the district court might have arrived at this
conclusion, it nonetheless was in error. Our precedent holds that a premature notice
of appeal does not divest the district court of jurisdiction over the case. See United
States v. Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979) (en banc) (“We are persuaded
that filing a notice of appeal from a nonappealable order should not divest the district
court of jurisdiction and that the reasoning of the cases that so hold is sound.”);1
accord Euziere v. United States, 266 F.2d 88, 91 (10th Cir. 1959) (“An attempt to
appeal a non-appealable order remains just that, an attempt. It is a nullity and does not
invest the appellate court with jurisdiction, and consequently does not divest the trial
court of its jurisdiction.”). In fact, our holding in Maung — that the district court’s
failure to set the amount of restitution within the 90-day limitations period renders the
restitution provision unenforceable — implicitly recognizes that the district court
retains jurisdiction to set the amount of restitution during the 90-day limitations
period. Thus, since the judgments of conviction are now final, and since the
Government's notice of appeal ripened into a timely notice, we have jurisdiction to
address the merits of this appeal.
1
This court adopted as binding precedent all decisions of the Fifth
Circuit handed down prior to October 1, 1981. See Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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In future cases, district courts would be well advised not to enter the written
judgment of conviction until the amount of restitution has been fixed.2 The parties
would also be well advised not to file a notice of appeal until such time or until the
expiration of the 90-day limitations period — i.e. when the judgment of conviction
becomes final. We turn now to the merits.
B. Downward Departures
The court granted Kapelushnik and Volis downward sentencing departures
under § 5K2.0 of the sentencing guidelines, which permits the court to impose a
sentence outside the range established by the applicable guideline when “there exists
an aggravating or mitigating circumstance of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission in formulating the guidelines
. . . .” U.S. Sentencing Guidelines Manual § 5K2.0 (1998). In granting such a
departure, the sentencing court must determine: “(1) whether any factor makes the
case atypical, meaning that it takes the case out of the ‘heartland’ of cases involving
the conduct described in the applicable guideline, and (2) whether that factor should
result in a different sentence.” United States v. Regueiro, 240 F.3d 1321, 1324 (11th
2
Once the written judgment is entered, the time period for filing a
notice of appeal commences. See generally, Fed. R. App. P. 4(b); see also United
States v. Rothseiden, 680 F.2d 96, 97 (11th Cir. 1982) (explaining that period for
filing notice of appeal begins to run “from the entry in the criminal docket of the
judgment . . . (as opposed to running from the rendition of the judgment . . . ).”).
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Cir. 2001). Of course, the factor which removes the case from the heartland of the
guidelines and warrants a downward departure must be supported by evidence in the
record. See e.g. United States v. Onofre-Segarra, 126 F.3d 1308, 1312 (11th Cir.
1997) (vacating sentence where evidence did not support grant of downward departure
under § 5K2.0).
The factor relied upon by the court in granting Kapelushnik and Volis
downward sentencing departures was their post-adjudication, voluntary restitution of
some of the stolen coins. Implicit in the court’s grant of the downward departures is
a finding that Kapelushnik and Volis were responsible — either directly or indirectly
— for the return of those coins. There is no evidence in the record, however, to
support such a finding. The defendants do not point us to any evidence in the record
to support a finding that they were responsible for the return of some of the stolen
coins, and we find no such evidence in our review of the record. The only grounds
on which the court might have relied in making such a finding are the allegations by
defense counsel at sentencing, but as we have held previously, such allegations are an
insufficient basis upon which to grant a downward departure. See United States v.
Tomono, 143 F.3d 1401, 1404 (11th Cir. 1998) (“[T]he arguments of counsel are
generally an insufficient basis upon which to depart from the guidelines.”); Onofre-
Segarra, 126 F.3d at 1310-11 (vacating sentence where court based downward
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departure on arguments of counsel at sentencing). Thus, the court committed
reversible error in granting Kapelushnik and Volis downward departures.
Since we conclude that there is no evidence to support the court’s finding that
Kapelushnik and Volis were responsible for the return of some of the stolen coins, we
need not address the Government’s argument that the court erred as a matter of law
in determining that post-adjudication, voluntary restitution forms a permissible basis
for a downward departure under § 5K2.0.
V. CONCLUSION
Because the record does not support a finding that Kapelushnik and Volis were
responsible — either directly or indirectly — for the return of some of the stolen
coins, the court erred in granting them downward departures for their post-
adjudication, voluntary restitution of those coins. We therefore vacate Kapelushnik’s
and Volis’s sentences and remand for the imposition of new sentences without such
departures.
VACATED AND REMANDED.
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EDMONDSON, Chief Judge, concurs in the result.
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