United States Court of Appeals
For the First Circuit
Nos. 04-2076
04-2579
UNITED STATES OF AMERICA,
Appellee,
v.
BRUCE ZISKIND; BRUCE TURNER,
Defendants, Appellants
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
James M. Fox for appellant Bruce Ziskind.
Robert L. Sheketoff for appellant Bruce Turner.
John A. Capin, Assistant United States Attorney, and Michael
J. Sullivan, United States Attorney, for appellee.
December 22, 2006
LYNCH, Circuit Judge. Bruce Ziskind and Bruce Turner
pled guilty in federal district court to theft from an interstate
shipment and conspiracy to steal from an interstate shipment. The
district court sentenced Ziskind to twenty-four months'
imprisonment and twelve months of supervised release. Turner was
sentenced to eighteen months' imprisonment and thirty-six months of
supervised release. Both were required to pay restitution.
Ziskind and Turner appeal their sentences. They argue
that because no loss amount was charged in the indictment, United
States v. Booker, 543 U.S. 220 (2005), barred the district court
from ordering restitution in any amount. Ziskind further argues
that the government lacks standing to enforce the restitution order
because the victim waived restitution. Finally, Turner argues that
the district court sentenced him to terms of imprisonment and
supervised release above the statutory maxima.
As the government concedes, the district court erred in
imposing a thirty-six-month term of supervised release on Turner,
and we thus vacate this term of supervised release and remand to
the district court to impose a term of supervised release of no
more than one year. Otherwise, we reject the arguments made by
Ziskind and Turner and affirm their sentences.
I.
On December 29, 2002, Ziskind and Turner, along with
others, participated in the theft of a shipment of Gillette Company
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merchandise consisting primarily of Mach3® razors. A portion of
the stolen shipment was recovered. On March 26, 2003, a grand jury
in the District of Massachusetts returned an indictment charging
Ziskind and Turner with theft from an interstate shipment in
violation of 18 U.S.C. §§ 2 and 659 (Count One), and conspiracy to
steal from an interstate shipment in violation of 18 U.S.C. § 371
(Count Three).1 The indictment did not allege a loss amount.
Ziskind and Turner pled guilty to both charges on March
23, 2004. At an evidentiary hearing on July 30, 2004, the district
court found the value of the stolen shipment to be $254,000.
The same day, the court sentenced Ziskind to twenty-four
months' imprisonment, twelve months of supervised release, and to
pay $145,142 in restitution. Twelve months of Ziskind's term of
imprisonment was to run concurrently with an undischarged term of
imprisonment he was then serving. On November 1, 2004, the court
sentenced Turner to eighteen months' imprisonment, thirty-six
months of supervised release,2 and, jointly and severally with
1
The indictment also charged Ziskind and Turner with
possession of goods stolen from an interstate shipment in violation
of 18 U.S.C. § 659 (Count Two). That count was dismissed as a
lesser included offense to Count One.
In addition, the indictment charged Russell Jones with
Counts One through Three and Brendan Bottino with Count Two. Both
pled guilty. Jones was sentenced to twelve months' probation and
ordered to pay $5000 in restitution, and Bottino was sentenced to
twelve months' imprisonment. Neither has appealed his sentence.
2
At the sentencing hearing, the court ordered Turner to
serve a five-year term of supervised release. The court did not at
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Ziskind, to pay $145,142 in restitution. Turner's term of
imprisonment was to run concurrently with a 235-month sentence that
he received the same day on an unrelated felon-in-possession
charge.
II.
We review sentencing issues involving questions of law de
novo. United States v. McCarthy, 77 F.3d 522, 535 (1st Cir. 1996).
Normally, "decisions to impose concurrent or consecutive sentences
are committed to the judgment of the sentencing court, and such
decisions are reviewed only for an abuse of discretion." Id. at
536. However, unpreserved claims are reviewed for plain error.
Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 35-36 (1st Cir. 2006).
To prevail on a claim reviewed for plain error, a defendant must
demonstrate that:
"(1) an error was committed; (2) the error was
'plain' (i.e.[,] obvious and clear under
current law); (3) the error was prejudicial
(i.e.[,] affected substantial rights); and (4)
review is needed to prevent a miscarriage of
justice," meaning that "the error 'seriously
impaired the fairness, integrity, or public
reputation of judicial proceedings.'"
Id. at 36 (alterations in original) (quoting Rivera Castillo v.
Autokirey, Inc., 379 F.3d 4, 10 (1st Cir. 2004) (quoting Smith v.
that time specify whether the five-year sentence was attributable
to an unrelated felon-in-possession charge, on which Turner was
also sentenced that day, the theft charges, or both. However, the
judgment in this case specifies a thirty-six-month period of
supervised release, and the judgment in the firearms case indicates
a sixty-month term of supervised release.
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Kmart Corp., 177 F.3d 19, 26 (1st Cir. 1999))); see also United
States v. Olano, 507 U.S. 725, 732 (1993).
A. Restitution
Ziskind and Turner argue that the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. §§ 3663A, 3664, which mandates
imposition of restitution orders in their cases, is
unconstitutional as applied to them because no loss amount was
charged in the indictment or found by a jury beyond a reasonable
doubt. They argue that Booker prohibits the post-conviction
judicial factfinding underlying their restitution orders.3
We bypass the question of whether Ziskind and Turner
preserved their Booker arguments and assume for the sake of
argument that they did.4
The argument that Booker applies to judicial
determination of the amount of restitution is without merit.
"Booker and its antecedents do not bar judges from finding the
3
Ziskind also relies on Blakely v. Washington, 542 U.S.
296, 303 (2004), and Ring v. Arizona, 536 U.S. 584, 602 (2002).
4
Ziskind and Turner argue that they preserved the Booker
argument because both objected under Blakely to the court's
determining the loss amount on which the restitution orders were
based. See United States v. Antonakopoulos, 399 F.3d 68, 76 (1st
Cir. 2005) ("The argument that a Booker error occurred is preserved
if the defendant below argued Apprendi or Blakely error . . . .").
Ziskind's position has additional complications: because his plea
agreement provided that the U.S. Attorney would recommend to the
sentencing judge a sentence that included "restitution in an amount
to be determined at sentencing," the district court believed that
any Blakely objection was waived. Ziskind argued to the district
court that the objection was not waived.
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facts necessary to impose a restitution order. . . . Post-
conviction judicial fact-finding to determine [loss] amount 'by no
means impos[es] a punishment beyond that authorized by jury-found
or admitted facts' or 'beyond the "statutory maximum"' . . . ."
United States v. Milkiewicz, --- F.3d ---, No. 06-1192, slip op. at
30-31 (1st Cir. Dec. 6, 2006) (second alteration in original)
(quoting United States v. Leahy, 438 F.3d 328, 336-37 (3d Cir.
2006) (en banc)).
Judicial determination of the loss amount underlying the
restitution orders was constitutionally permissible.
B. Government Standing To Enforce Ziskind's Restitution
Order
Ziskind argues that Gillette, the victim, waived
restitution and did not assign its interest in any restitution to
the Crime Victims Fund of the United States Treasury, and that the
government therefore has no legally cognizable interest in the
restitution award. He argues that the government's standing with
respect to restitution was conferred by the MVRA "as a
convenience," so that the government could "litigate on behalf of
the victims in lieu of their own participation." As a result, he
argues, the government does not have standing to litigate or
enforce the July 30, 2004 restitution order, and the order must be
vacated. Ziskind did not make these arguments to the district
court, so we review only for plain error.
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There was no error here, much less plain error. First,
the record does not establish that the victim, Gillette, in fact
waived restitution. Gillette stated in the course of its motion to
quash a subpoena seeking a valuation of the stolen merchandise that
it was willing to give up any claim of restitution in an effort to
avoid involvement in the case. That device did not work. Gillette
became involved, and thereafter, Gillette agreed to the ordering of
restitution.
More importantly, the prosecution's standing to seek
restitution under the MVRA does not depend on a victim's actions.
This is because, contrary to Ziskind's assertion, restitution
ordered as part of a criminal sentence is a criminal penalty, not
a civil remedy.5 United States v. Savoie, 985 F.2d 612, 619 (1st
Cir. 1993); see also Kelly v. Robinson, 479 U.S. 36, 52 (1986)
("Although restitution does resemble a judgment 'for the benefit
of' the victim, the context in which it is imposed undermines that
conclusion. The victim has no control over . . . the decision to
award restitution."); United States v. Rostoff, 164 F.3d 63, 71
(1st Cir. 1999) ("The nature of restitution is penal and not
5
Nor do we necessarily accept Ziskind's assumption that
government standing in a civil case, see, e.g., 15 U.S.C. § 78u(5),
derives from the victim's standing. See U.S. Dep't of Hous. &
Urban Dev. v. Cost Control Mktg. & Sales Mgmt. of Va., Inc., 64
F.3d 925, 928 (4th Cir. 1995) (suggesting that in a civil action,
the government can have a penal interest in enforcing the repayment
of a debt to a third party).
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compensatory."). In Savoie, we held that restitution imposed as
part of a criminal sentence "is not a civil affair; it is a
criminal penalty meant to have deterrent and rehabilitative
effects. Private parties cannot simply agree to waive the
application of a criminal statute." 985 F.2d at 619 (citation
omitted); cf. United States v. Parsons, 141 F.3d 386, 393 (1st Cir.
1998) ("[A] release by the victim does not preclude or cap
restitution of losses as part of criminal sentencing in a case
where there is no double recovery.").
To the extent Ziskind argues that the MVRA itself does
not authorize restitution in this case, that argument fails.
United States v. Reifler, 446 F.3d 65 (2d Cir. 2006), on
which Ziskind relies, is inapposite. The court in Reifler vacated
orders that awarded restitution to people who did not qualify as
victims under the MVRA. Id. at 125-27, 132; cf. United States v.
Paradis, 219 F.3d 22, 25 (1st Cir. 2000) (vacating order awarding
restitution to bankruptcy trustee, who was not a victim of the
offense). There is no question in this case that Gillette was
injured by the defendants' conduct and is a victim within the
meaning of the MVRA.
Nor is United States v. Pawlinski, 374 F.3d 536 (7th Cir.
2004), on which Ziskind also relies, applicable. In Pawlinski, the
court held that unclaimed restitution could not be transferred to
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the Crime Victims Fund because the Crime Victims Fund was not a
victim or victim representative. Id. at 539-40. This case raises
no such issue because Gillette accepted the district court's
decision to impose restitution, and the order of restitution states
that it will be paid to Gillette.
The restitution order was proper.
C. Turner's Term of Imprisonment
Turner argues that the district court erred in sentencing
him to a total of eighteen months' imprisonment through consecutive
sentences. Eighteen months, he argues, is above the authorized
statutory maximum. He argues, and the government concedes, that
because the government did not allege a loss amount in the
indictment, it charged only misdemeanors. See United States v.
Scanzello, 832 F.2d 18, 22-23 (3d Cir. 1987). Under 18 U.S.C.
§ 371, if the object of the conspiracy is a misdemeanor, "the
punishment for such conspiracy shall not exceed the maximum
punishment for such misdemeanor." Thus, because the maximum term
of imprisonment under Count One was one year, the maximum term
under Count Three also was one year. Turner argues that the
imposition of consecutive sentences on Counts One and Three
impermissibly increased the term of imprisonment on Count Three
beyond one year.6 We disagree.
6
The court did not explicitly state how much of the
sentence was attributable to the theft conviction and how much to
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As an initial matter, Turner may well be barred from
raising such a claim because his counsel urged the district court
to impose a twenty-four-month sentence. Cf. United States v.
Angiulo, 897 F.2d 1169, 1216 (1st Cir. 1990) ("[W]e do not think
that defendants can properly challenge on appeal a proposal they
themselves offered to the trial court.").
Even giving Turner the benefit of review, however, there
was neither error nor plain error. "By statute, Congress empowered
district courts to utilize either concurrent or consecutive
sentences." United States v. Quinones, 26 F.3d 213, 216 (1st Cir.
1994); see also 18 U.S.C. § 3584(a) (providing that "[i]f multiple
terms of imprisonment are imposed on a defendant at the same time
. . . the terms may run concurrently or consecutively"). In
determining whether to impose consecutive or concurrent sentences,
courts are required to consider specific factors enumerated in 18
U.S.C. § 3553(a). 18 U.S.C. § 3584(b). These factors include "the
nature and circumstances of the offense[,] the history and
characteristics of the defendant[,] the need for [a consecutive]
sentence[,] . . . [and] the kinds of sentences available." Id.
§ 3553(a). In imposing Turner's sentence the court commented on
Turner's "terrible criminal record" and considered the range set
the conspiracy conviction, but it did note that each carried a
maximum penalty of one year.
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forth in the Sentencing Guidelines. It complied with the
sentencing protocol.
Further, Turner was not prejudiced: his eighteen-month
sentence runs concurrently with a 235-month sentence. See United
States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004) ("[R]elief
for error is tied in some way to prejudicial effect . . . [and
requires a] showing of 'a reasonable probability that, but for [the
error claimed], the result of the proceeding would have been
different.'" (third alteration in original) (quoting United States
v. Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.))).
D. Turner's Term of Supervised Release
Turner also argues that the district court erred in
sentencing him to thirty-six months of supervised release. He
argues that because the maximum term of supervised release for
Count One was one year, the maximum term under Count Three also was
one year, and that his term of supervised release thus was
unauthorized.
The government concedes that the thirty-six-month
supervised release term was error. 18 U.S.C. § 3583(b) provides
that the maximum period of supervised release for a misdemeanor is
one year. This maximum applies to both the substantive crime and
the conspiracy. 18 U.S.C. § 371. Under 18 U.S.C. § 3624(e), a
term of supervised release "runs concurrently with any [other] term
. . . [of] supervised release . . . for another offense to which
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the person is subject or becomes subject during the term of
supervised release." See also United States v. Hernandez-Guevara,
162 F.3d 863, 877 (5th Cir. 1998) ("Even when federal law requires
consecutive terms of imprisonment, the supervised release term 'is
to run concurrently with any other term of supervised release
imposed.'" (quoting U.S. Sentencing Guidelines Manual § 5G1.2
commentary (1997))).
We thus vacate Turner's term of supervised release and
remand for the imposition of a new term of supervised release not
to exceed one year. Otherwise, the judgments entered by the
district court are affirmed.
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