United States v. Muzio

Citation757 F.3d 1243
Decision Date08 July 2014
Docket NumberNo. 10–13325.,10–13325.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Michael J. MUZIO, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

757 F.3d 1243

UNITED STATES of America, Plaintiff–Appellee,
v.
Michael J. MUZIO, Defendant–Appellant.

No. 10–13325.

United States Court of Appeals,
Eleventh Circuit.

July 8, 2014.


[757 F.3d 1244]


Harriett Galvin, Anne Ruth Schultz, Jonathan Colan, Wifredo A. Ferrer, Ryan Dwight O'Quinn, Karen Rochlin, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Philip Robert Horowitz, Law Office of Philip R. Horowitz, Esq., Miami, FL, Michael J. Muzio, FCI Elkton, Lisbon, OH, for Defendant–Appellant.


Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:09–cr–20327–JLK–1.
Before TJOFLAT and WILSON, Circuit Judges, and COOGLER,* District Judge.

WILSON, Circuit Judge:

This case requires us to answer a jurisdictional question left open by the Supreme Court in Dolan v. United States, 560 U.S. 605, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010). Specifically, we must determine whether we have jurisdiction to hear appeals from judgments sentencing a defendant to a term of imprisonment and indicating that restitution will later be ordered but deferring determination of the specific amount. For reasons discussed below, we hold that, regardless of whether a final judgment reflecting the amount of restitution has been entered, a judgment imposing a term of imprisonment is “ ‘freighted with sufficiently substantial indicia of finality to support an appeal.’ ” Id. at 617, 130 S.Ct. at 2542 (quoting Corey v. United States, 375 U.S. 169, 174–75, 84 S.Ct. 298, 302–03, 11 L.Ed.2d 229 (1963)). Because the judgment at issue in this appeal sentenced the Appellant, Michael Muzio, to 163 months in prison, we have jurisdiction.

[757 F.3d 1245]

Accordingly, we must address the issues Muzio raises on appeal. Muzio makes the following claims: (1) the evidence presented at trial was insufficient to support a conviction; (2) the district court abused its discretion and violated Federal Rule of Evidence 404(b) by admitting evidence of Muzio's prior conviction; (3) the district court abused its discretion by imposing a substantively unreasonable 163–month prison sentence; (4) the district court erred in concluding that the offense “involved sophisticated means,” which led to an erroneous two-level increase in Muzio's offense level pursuant to U.S.S.G. § 2B1.1(b)(10); (5) the district court clearly erred in concluding that Muzio was “an organizer or leader” in the offense, which led to an erroneous four-level increase in Muzio's offense level pursuant to U.S.S.G. § 3B1.1(a); (6) the district court clearly erred in concluding that Muzio abused a position of trust, which led to an erroneous two-level increase in Muzio's offense level pursuant to U.S.S.G. § 3B1.3. With the benefit of oral argument and after careful review of the record and the parties' briefs, we conclude that these claims lack merit and do not warrant further discussion. Therefore, we affirm.

I.

To understand why we have jurisdiction to hear the instant appeal, it is necessary to briefly summarize the proceedings below. Muzio was convicted in the Southern District of Florida on one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349; two counts of substantive wire fraud, in violation of 18 U.S.C. § 1343; six counts of securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff(a); and two counts of making false statements to agents of the SEC and the FBI, in violation of 18 U.S.C. § 1001(a)(2). The district court entered a judgment on July 1, 2010 (July Judgment), sentencing Muzio to 163 months in prison, three years of supervised release, and $1,100 in assessments. The July Judgment indicated that restitution would be ordered but stated that “[t]he determination of restitution is deferred for [ninety] days. An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination.” On July 15, 2010, Muzio filed a notice of appeal from the July Judgment.1

The district court requested that a magistrate judge prepare a report and recommendation on the appropriate restitution award. Before the magistrate judge, the parties agreed on the amount of restitution Muzio should pay. On October 21, 2010—114 days after the sentencing hearing—the magistrate judge filed a report recommending that Muzio be ordered to pay $631,976.06. On November 3, 2010—127 days after the sentencing hearing—the District Court entered two orders (collectively referred to as the November Order) adopting the report and recommendation and ordering Muzio to pay $631,976.06 in restitution. The November Order also directed the government to prepare and submit a final judgment to the district court. To date, the government has not done so. Consequently, an amended final judgment reflecting the amount of restitution to be paid has not been entered as required by the July Judgment. The instant appeal, filed on July 15, 2010, is an appeal from

[757 F.3d 1246]

the July Judgment, not the November Order.

II.

Thus, the question before us is whether judgments, like the July Judgment, that defer the issue of restitution can nevertheless be final for appellate jurisdictional purposes. Under the law of this circuit as it existed prior to Dolan, an appeal from a sentencing judgment that deferred the issue of restitution was premature—that is, the judgment was not final and appealable—until one of two possible events occurred, thus causing the appeal to ripen. The district court had to either (1) order restitution, or (2) lose the power to do so. See United States v. Kapelushnik, 306 F.3d 1090, 1094 (11th Cir.2002). Prior to Dolan, we held that the second ripening event would occur ninety days after entry of the initial judgment based on our interpretation of 18 U.S.C. § 3664(d)(5). See United States v. Maung, 267 F.3d 1113, 1122 (11th Cir.2001), abrogated by Dolan, 560 U.S. 605, 130 S.Ct. 2533. We reasoned that because the statute states that a district “court shall set a date for the final determination of [restitution], not to exceed 90 days after sentencing,” district courts lost the power to order restitution after that deadline. Id. Thus, one of the two ripening events would occur, at the latest, ninety days after initial sentencing.

Applying the Kapelushnik framework after Dolan creates injustice and potentially, a constitutional violation. In Dolan, the Court held that “[t]he fact that a sentencing court misses the statute's 90–day deadline ... does not deprive the court of the power to order restitution.” 560 U.S. at 611, 130 S.Ct. at 2539. Thus, Dolan deeply affected one of the two ripening events: before Dolan, the district court necessarily lost the power to order restitution ninety days after the defendant was initially sentenced; after Dolan, the district court could delay indefinitely. The other ripening event under the Kapelushnik framework—the district court ordering restitution—is also not subject to a deadline. Consequently, in light of Dolan, our framework creates the possibility that defendants whose initial sentences include a deferred order of restitution will be denied their right to appeal indefinitely, as both events triggering appellate jurisdiction may fail to occur.

Meanwhile, defendants sentenced under initial judgments sit in prison. And this case proves that the prospect of an indefinite delay under the Kapelushnik framework is not merely a hypothetical fear. Muzio has been imprisoned pursuant to the July Judgment for nearly four years, and an amended final judgment ordering restitution has yet to be entered. Thus, under Kapelushnik, Muzio's premature appeal arguably has not ripened even though nearly four years have passed since the judgment sending Muzio to prison was entered. The Dissent tells Muzio that this remains the law even after Dolan and that, as a result, Muzio must wait to appeal until the prosecution does what the district court told it to do in November of 2010—prepare an amended final judgment reflecting the court's order of restitution so that Muzio's appeal can finally ripen. This would give district courts—and even worse in an adversarial system, the prosecution—the power to indefinitely delay a defendant's right to appeal.

Whether Muzio has a right to appeal from the July Judgment—that is, whether we have jurisdiction to hear his appeal—ultimately turns on whether a judgment imposing a term of imprisonment but leaving

[757 F.3d 1247]

restitution unresolved is “final.” See28 U.S.C. § 1291 (noting that appellate courts “shall have jurisdiction of appeals from all final decisions of the district courts” (emphasis added)).2 The Dissent assumes that the July Judgment is not final—referring Muzio's appeal from that judgment as “premature”—because a judgment cannot be “final” for appellate jurisdictional purposes until the district court acts on its intention to order restitution.3

The Supreme Court explicitly refused to make this assumption, however, stating that it did “not mean to imply that we accept the ... premise ... that a sentencing judgment is not ‘final’ until it contains a definitive determination of the amount of restitution.” Dolan, 560 U.S. at 617, 130 S.Ct. at 2542. The Dissent reads as if that is exactly what the Court implied. We see no reason to do exactly what the Supreme Court explicitly said it would not do, particularly when defendants would be indefinitely deprived of their right to appeal as a result. In Dolan, the Court recognized the possibility of this injustice and explained in dicta why that problem would not materialize. Ultimately, however, the Dolan Court had to leave the “matter[ ] for another day.” Id. at 618, 130 S.Ct. at 2543. That day has now arrived, and we pick up where the Supreme Court left off.

III.

Based on Supreme Court precedent, we conclude that the July Judgment is final for purposes of appeal because it sentenced Muzio to a term of imprisonment. See Dolan, 560 U.S. at 617, 130 S.Ct. at 2542 (explaining that “a judgment ... impos[ing]...

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