Blaik v. U.S.

• Citation: 117 F.3d 1288
• Decision Date: 24 July 1997
• Docket Number: No. 94-8323,94-8323
• Parties: 11 Fla. L. Weekly Fed. C 227 Robert BLAIK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1288

117 F.3d 1288

11 Fla. L. Weekly Fed. C 227

Robert BLAIK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 94-8323.

United States Court of Appeals,

Eleventh Circuit.

July 24, 1997.

Paul S. Kish, Federal Defender Program, Atlanta, GA, for Petitioner-Appellant.

Amy Levin Weil, Assistant U.S. Attorney, Atlanta, GA, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and GODBOLD, Senior Circuit Judge.

BIRCH, Circuit Judge:

In this appeal from the denial of a 28 U.S.C. § 2255 motion, we determine whether a plea agreement, under which the petitioner specifically agreed to pay restitution to all victims of a fraudulent scheme, can be invalidated collaterally under Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). The district court ordered restitution in accordance with the plea agreement and denied the section 2255 motion on that basis. We reverse, vacate petitioner's sentence as to the restitution, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

In a thirty-count indictment filed on July 28, 1987, petitioner-appellant, Robert Blaik, was charged with using the mail to defraud optometrists by marketing a system to manufacture plastic prescription eyeglass lenses in violation of 18 U.S.C. § 1341. Blaik, as president of Clearlite Laboratories, Inc./Clearlite America, located in Marietta, Georgia, engaged in this fraudulent scheme from September 30, 1982, until February 4, 1985. The indictment identified thirty victims that Blaik had defrauded.

Trial was scheduled for February 11, 1988, but Blaik did not appear on that date. He was apprehended and charged in a separate indictment for knowingly failing to appear for trial. On June 7, 1988, in open court, Blaik signed a negotiated plea agreement with the government. He pled guilty to the failure to appear charge as well as to Counts 1 and 2 of the mail fraud indictment in exchange for the government's agreement to dismiss the remaining twenty-eight counts. In relevant part, the plea agreement provides:

The defendant authorizes and agrees to allow the Court to impose as a condition of his sentence the payment of restitution in an amount which may reflect the loss to all thirty (30) victims named in the indictment; however, the government agrees to make no recommendation to the Court as to the specific amount to be imposed.

Original R1-21-2.

Following Blaik's guilty plea, the United States Probation Office prepared his presentence report ("PSR") and determined that thirty victims had been defrauded of $58,000.00. In his objections to the PSR, Blaik did not contest paying restitution to each of the thirty victims named in the indictment. Instead, Blaik requested credit for refunds and the value of items received by the victims. In response, the probation office adjusted the $58,000.00 loss to the victims to account for the refunded amount of $6,736.12. The final adjustment showed that Blaik owed $51,623.88 to the victims of his fraudulent scheme.

On August 8, 1988, the district court conducted a sentencing hearing. At that hearing, Blaik's sole objection to the restitution amount was that it did not reflect the value of the items actually received by the victims during the course of his fraudulent scheme. Blaik did not object to restitution being made to all thirty victims of the scheme. The district court sentenced Blaik to two consecutive five-year sentences for the two counts to which he pled guilty and imposed restitution in the amount of $51,623.88. ¹ Neither the PSR nor the judgment and commitment order states that restitution was imposed pursuant to the Federal Probation Act, 18 U.S.C. § 3651 (repealed Nov. 1, 1986) ("FPA") or the Victim and Witness Protection Act, 18 U.S.C. § 3663-3664 (1988) ("VWPA"). ² In accordance with the plea agreement, the government dismissed Counts 3 through 30 of the indictment.

On direct appeal, Blaik argued that the district court had abused its discretion in ordering restitution in the amount of $51,623.88. He did not argue that the victims were not entitled to restitution or that it should have been limited to the counts of conviction. Rather, he contended that the district court erroneously imposed restitution without making specific factual findings on the issues that Blaik contested. This court affirmed Blaik's sentence. United States v. Blaik, 885 F.2d 878 (11th Cir.1989) (mem.).

On May 21, 1990, the Supreme Court decided Hughey, which limited restitution under the VWPA to losses caused by the offenses of conviction. On January 15, 1993, Blaik filed a motion to correct his sentence under Federal Rule of Criminal Procedure 35. ³ Arguing that his restitution was unlawful under Hughey, Blaik sought to reduce the restitution amount from $51,623.88 to $3,000.00, the amount of victim loss in the two mail fraud counts to which he pled guilty. He further asserted that Hughey applied retroactively to invalidate his restitution.

Arguing that Hughey was not retroactive, the government additionally responded that Hughey was inapplicable because the counts of conviction concerned mail fraud acts that occurred on September 30, 1982, and December 2, 1982, respectively, and the VWPA was not effective until January 1, 1983. Therefore, the government argued that Blaik's restitution was imposed under the FPA. The district court denied Blaik's Rule 35 motion because, "[a]s part of a negotiated plea the defendant, Robert Blaik, agreed to allow the court to order restitution in an amount to afford restitution to all thirty (30) victims named in the indictment." R1-13-1.

Blaik appealed the denial of his Rule 35 motion. Although this court found that Blaik's notice of appeal was filed untimely, it nevertheless remanded the case to the district court for a determination of excusable neglect. United States v. Blaik, No. 93-8214 (11th Cir. July 27, 1993) (per curiam). In a motion in district court for a finding of excusable neglect, Blaik's public defender explained his error in calculating the requisite ten-day period under Federal Rule of Appellate Procedure 4(b) for filing an appeal from the district court's denial of Blaik's Rule 35 motion and also argued that Blaik's restitution was unlawful under Hughey. ⁴ Finding that Blaik's counsel's explanation for missing the deadline for filing the notice of appeal did not constitute excusable neglect, the district court denied the motion without ruling on the merits of the Hughey issue raised therein. This court dismissed Blaik's appeal of the denial of his Rule 35 motion.

Blaik then filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. While he argued that neither the FPA nor the VWPA could have been the basis for the restitution, he also asserted that, if the VWPA was the basis, then Hughey made his restitution unlawful. Blaik requested that the restitution component of his sentence be eliminated and that all the restitution that he had paid be reimbursed to him. Alternatively, Blaik contended that he should be permitted to file a late appeal from the denial of his Rule 35 motion based on his counsel's ineffective assistance in failing to file a timely notice of appeal.

In its opposition to Blaik's section 2255 motion, the government contended that the petition was an abuse of the writ, since Blaik had raised the Hughey argument in his Rule 35 motion, and the district court had "already addressed the merits of this claim, and ruled against the defendant." R1-26-7. The government further argued that "Hughey does not control the restitution order in this case since the counts of the indictment to which the defendant pled guilty outlined his entire scheme to defraud." R1-25-12. The government additionally contended that Hughey should not be applied retroactively.

The district court denied Blaik's section 2255 motion. In its order, the district court determined that Blaik's section 2255 motion "possibly constitutes an abuse of the writ because the issue raised in the motion has already been raised by the defendant and has been decided adversely to him by this court." R1-27-2. Significantly, the district court found that Blaik was not prejudiced by his attorney's alleged ineffectiveness in the untimely appeal of the denial of his Rule 35 motion because the motion was meritless and, further, that Blaik's attorney was not ineffective in allowing him to agree to pay restitution in exchange for a lighter incarceration sentence. The district court made the following distinctions between this case and Hughey: (1) the entire mail fraud scheme was alleged in the counts to which Blaik pled guilty; (2) Blaik agreed as part of his plea bargain to reimburse all victims of his scheme; (3) Hughey does not preclude a defendant from agreeing to pay restitution as part of a negotiated plea with the government; and (4) Hughey is neither substantive nor procedural as to retroactivity, and Blaik failed to show that there would be any miscarriage of justice by the district court's not applying Hughey retroactively. Id. at 2-3.

Blaik appeals the denial of his section 2255 motion. He pursues his arguments that his restitution is unlawful under the FPA, the VWPA, and Hughey. Because we conclude that the district court abused its discretion in imposing restitution which was unlawful at the time of the plea agreement as well as at sentencing, we need not address Blaik's other appellate issues which relate to the primary relief that he requests, invalidating his restitution.

II. ANALYSIS

We review restitution imposed by a district court at sentencing for abuse of discretion. ⁵ United States v. Remillong, 55 F.3d 572, 574 (11th Cir.1995) (per curiam). In deciding whether Blaik's restitution was lawful, we must determine the applicable law. ⁶ Blaik argues that neither the FPA nor the VWPA apply and that Hughey applies...