U.S. v. Lussier

Decision Date09 January 1997
Docket NumberD,No. 354,354
PartiesUNITED STATES of America, Appellee, v. Roger LUSSIER, Defendant-Appellant. ocket 96-1110.
CourtU.S. Court of Appeals — Second Circuit

John L. Pacht, Burlington, VT (Robert W. Katims, Hoff, Curtis, Pacht, Cassidy & Frame, Burlington, VT, on the brief), for defendant-appellant.

David V. Kirby, Acting U.S. Atty. (Paul J. Van de Graaf, James J. Gelber, Asst. U.S. Attys., Burlington, VT, on the brief), for appellee.

Before: NEWMAN, Chief Judge, and McLAUGHLIN, Circuit Judge. *

JON O. NEWMAN, Chief Judge:

This appeal concerns the relationship between a district court's authority to vacate an illegal sentence and its authority to modify the terms of supervised release. The precise issue is whether one component of a sentence--restitution--that was not challenged either on direct review or under 28 U.S.C. § 2255, may nonetheless be modified because restitution was made a condition of supervised release and supervised release may be modified pursuant to 18 U.S.C. § 3583(e)(2). This issue arises on an appeal by Roger Lussier from the February 8, 1996, order of the District Court for the District of Vermont (Franklin S. Billings, Jr., Judge), dismissing for lack of jurisdiction Lussier's motion under subsection 3583(e)(2) to amend a previously imposed order of restitution on the ground that the order violated the principle of Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), restricting the amount of restitution to the victim's loss directly traceable to the offense underlying a count of conviction. We agree with the District Court that it lacked authority to entertain Lussier's challenge to the legality of the restitution order under subsection 3583(e)(2).

Background

Lussier was the former president and chairman of the board of Lydonville Savings Bank ("LSB"). During the late 1980s and early 1990s, he engaged in a pattern of fraud and deceit relating to his control of LSB. In December 1993, Lussier was convicted on seventeen counts of various banking crimes in connection with his exercise of bank power to further his personal financial interests. He was sentenced to forty-six months' imprisonment followed by two years of supervised release, and ordered to pay a $100,000 fine and $426,204.67 in restitution to LSB. The District Court also required, as a condition of supervised release, that Lussier pay both the fine and the restitution in installments of at least 10 percent of his gross monthly income.

On direct review, Lussier raised numerous challenges to both his conviction and sentence, including a challenge to the District Court's loss calculation under U.S.S.G. § 2F1.1, but did not dispute the restitution order. This Court affirmed the conviction and sentence in their entirety, discussing in detail only Lussier's claim concerning trial counsel's alleged conflict of interest and rejecting his other arguments as "without merit." United States v. Lussier, 71 F.3d 456, 464 (2d Cir.1995).

Within days of the issuance of this Court's mandate in December 1995, Lussier filed a motion in the District Court to rescind the restitution order under 18 U.S.C. §§ 3583(e)(2) & 3663(g). In that motion, he argued for the first time that the order was illegal because the amount of restitution was based on a particular check-kiting scheme that, although properly part of the Court's loss calculation pursuant to U.S.S.G. § 2F1.1 as relevant conduct under U.S.S.G. § 1B1.3, was not the basis of any of the seventeen counts of conviction. Therefore, he contended, the order of restitution was improper under the federal restitution statute, 18 U.S.C. § 3663 et seq., 1 as construed in Hughey, 495 U.S. at 413, 110 S.Ct. at 1981 (restitution statute "authorize[s] an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction" and not for loss caused by relevant conduct properly included in offense level calculation); see United States v Silkowski, 32 F.3d 682, 688 (2d Cir.1994). Lussier further argued that the District Court had jurisdiction to entertain this motion because (i) payment of the restitution in installments was a condition of his supervised release under 18 U.S.C. § 3663(g), and (ii) pursuant to 18 U.S.C. § 3583(e)(2), the sentencing court "may modify, reduce, or enlarge" conditions of supervised release at any time.

The District Court did not reach the merits of Lussier's Hughey claim because it concluded that it lacked the authority under subsection 3583(e)(2) and section 3663(g) to modify the restitution order on the ground of illegality.

Discussion

Lussier's argument is as follows. First, he points to section 3663(g), which states that if a defendant is placed on probation or sentenced to a term of supervised release, "any restitution ordered under this section shall be a condition of such probation or supervised release." 2 Next, he points to subsection 3583(e)(2), which permits the sentencing court, after considering factors set forth in section 3553(a), to "modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release." Reading the two sections together, 3 Lussier argues that the District Court has authority under these sections to modify or reduce--or vacate altogether--its order of restitution as a violation of Hughey, even though Lussier failed to raise this claim on direct appeal and does not now invoke 28 U.S.C. § 2255 as the basis of the District Court's jurisdiction. Because the court can modify conditions of supervised release under subsection 3583(e)(2), he concludes, it can modify a restitution order that was made a condition of supervised release pursuant to section 3663(g).

Even if we assume that subsection 3583(e)(2) authorizes the District Court to make some modifications of restitution orders that are conditions of supervised release, we believe that the District Court was without authority to modify such orders on the ground of illegality. Lussier's assumption that the District Court can use subsection 3583(e)(2) to rescind its restitution order as violative of Hughey is inconsistent with the plain language of subsection 3583(e)(2), ignores the context in which this provision appears, and disrupts the established statutory scheme governing appellate review of illegal sentences.

The plain language of subsection 3583(e)(2) indicates that the illegality of a condition of supervised release is not a proper ground for modification under this provision. Subsection 3583(e)(2) requires the court, as it decides whether or how to modify the conditions of supervised release, to consider many of the same factors that it is required to consider in originally imposing a sentence upon a convicted defendant. 18 U.S.C. § 3583(e)(2) (cross-referencing several provisions of section 3553(a), which delineates the "[f]actors to be considered in imposing a sentence." See S.Rep. No. 98-225, at 75-78 (1984) ("Senate Report "), reprinted in 1984 U.S.C.C.A.N. 3182, 3258-61 (discussing section 3553(a))). Specifically, section 3583(e)--of which subsection 3583(e)(2) is a part--provides that the court may modify conditions of supervised release, "after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6)." 18 U.S.C. § 3583(e); see also Senate Report at 124-25, reprinted in 1984 U.S.C.C.A.N. at 3307-08 ("Subsection (e) permits the court, after considering the same factors considered in the original imposition of a term of supervised release to ... modify, reduce or enlarge the conditions of supervised release...."). 4 These factors include:

(i) "the nature and circumstances of the offense and the history and characteristics of the defendant," 18 U.S.C. § 3553(a)(1);

(ii) the need for the sentence imposed "to afford adequate deterrence to criminal conduct," id. § 3553(a)(2)(B), "to protect the public from further crimes of the defendant," id. § 3553(a)(2)(C), and "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner," id. § 3553(a)(2)(D);

(iii) the "kinds of sentence and the sentencing range established for the applicable category of offense [or violation of probation or supervised release] committed by the applicable category of defendant" under the Sentencing Guidelines, id. § 3553(a)(4);

(iv) "any pertinent policy statement issued by the Sentencing Commission," id. § 3553(a)(5); and

(v) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct...." Id. § 3553(a)(6).

Subsection 3583(e)(2), in sum, requires the court to consider general punishment issues such as deterrence, public safety, rehabilitation, proportionality, and consistency, when it decides to "modify, reduce, or enlarge" the term or conditions of supervised release.

Conspicuously absent from the list of relevant considerations is the legality of the condition. Although the question of whether a condition of release is authorized by law is surely a necessary one for the sentencing court to answer, it is a question logically distinct from the court's decision to impose a punishment that best serves the often conflicting goals of the criminal law. Subsection 3583(e)(2) on its face authorizes the court to modify conditions of supervised release only when general punishment goals would be better served by a modification. It does not authorize the court to assess the lawfulness of a condition of release. Other procedures, such as a direct appeal under 18 U.S.C. § 3742 or a collateral attack under 28 U.S.C. § 2255, are available to challenge the legality of a condition of supervised release, as long as the requirements of those procedures have been met.

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