U.S. v. Atkinson, 673

• Decision Date: 18 April 1986
• Docket Number: No. 673,D,673
• Citation: 788 F.2d 900
• Parties: UNITED STATES of America, Appellee, v. Anderson ATKINSON, Defendant-Appellant. ocket 85-1336.
• Court: U.S. Court of Appeals — Second Circuit

Page 900

788 F.2d 900

UNITED STATES of America, Appellee, v. Anderson ATKINSON, Defendant-Appellant.

No. 673, Docket 85-1336.

United States Court of Appeals Second Circuit.

Argued Jan. 13, 1986.

Decided April 18, 1986.

Richard Reeve, Asst. Fed. Public Defender, D. Conn., New Haven, Conn. (Thomas G. Dennis, Federal Public Defender, D. Conn., of counsel), for defendant-appellant.

Calvin B. Kurimai, Asst. U.S. Atty., D. Conn., New Haven, Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. Conn., of counsel), for appellee.

Before CARDAMONE, and PRATT, Circuit Judges, and WYZANSKI, District Judge of the United States District Court for the District of Massachusetts, sitting by designation.

GEORGE C. PRATT, Circuit Judge:

Anderson Atkinson pled guilty to three counts of bank robbery and, as part of his sentence, was ordered by the United States District Court for the District of Connecticut, Warren G. Eginton, Judge, pursuant to the Victim and Witness Protection Act (VWPA), 18 U.S.C. Secs. 3579, 3580, to make restitution to the three victim banks of the full amount of their losses. Atkinson argues that in ordering full restiution the district judge did not comply with the provisions of the VWPA because he failed to consider all the statutory factors and that, in any event, ordering full restitution here, when defendant was indigent, was an abuse of discretion. We remand to allow Judge Eginton to perform the statutory balancing mandated by congress in 18 U.S.C. Sec. 3580(a) and to consider whether, under 18 U.S.C. Sec. 3579(e)(1), any third-party payments have been or will be made to any of the banks as reimbursement for losses sustained in the robberies.

BACKGROUND

Atkinson and a codefendant were charged with the commission of armed robberies of three different banks during December 1983 and January 1984, in violation of 18 U.S.C. Secs. 2113(a), (b), (d). Atkinson ultimately pled guilty to three counts of unarmed bank robbery in violation of 18 U.S.C. Sec. 2113(a) and was sentenced to 20 years on each count, to run concurrently with each other as well as with a prior state sentence he was already serving. In addition, Atkinson was ordered to make restitution to the three banks: $3,196.76 to Connecticut Bank & Trust, $4,117.00 to Dime Savings Bank, and $22,500.00 to American National Bank, for a total restitution amount of $29,813.76. In arriving at the restitution amounts for each bank, the district judge relied on undisputed figures in the victim impact statements that were supplied by the respective banks and incorporated into Atkinson's presentence report.

Atkinson did not appeal from the judgment of conviction ordering restitution, but he did move under Fed.R.Crim.P. 35(b) for reduction of his sentence. On this motion, counsel for Atkinson argued that the restitution order should be vacated as inappropriate in light of Atkinson's troubled past and dim prospects for the future. Atkinson had been a heroin addict for most of his life and had minimal employment experience. In addition, counsel averred that, in light of Connecticut's sentencing procedures, the earliest Atkinson would be released from prison was at age 55. Given his drug addiction, dearth of work experience and skills, and probable age upon release, counsel argued that Atkinson could not possibly pay the restitution amount of nearly $30,000 and suggested that the burdens imposed by that order would negatively affect Atkinson's attitude upon release. That motion and a subsequent motion to reconsider the motion for reduction of sentence, on which oral arguement was heard, were both denied, leading to this appeal.

DISCUSSION

A. Section 3580(a).

Atkinson first asserts that the district judge erred by failing to consider all the stated factors in 18 U.S.C. Sec. 3580(a). That section directs that:

The court, in determining whether to order restitution under section 3579 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.

18 U.S.C. Sec. 3580(a) (emphasis added). Atkinson contends that the district judge ignored the statutory directive to consider the financial condition of the defendant and, instead, simply ordered restitution of the undisputed amounts claimed by the banks in their victim impact statements. Arguing that the VWPA envisions a balancing of factors, Atkinson alleges that the district judge's findings were inadequate.

The third circuit has recently used its supervisory power to require district courts "to make specific findings as to the factual issues that are relevant to the application of the restitution provisions of the VWPA." United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985). Believing that such fact finding would unnecessarily encumber a sentencing proceeding, we respectfully decline to follow the course taken by our third circuit colleagues. The plain language of section 3580(a) requires only that the district judge "consider" the listed factors; there is no requirement, as urged by defendant, that specific findings be made on each factor. Nor would specific findings on any factor other than the amount of the loss seem to be of much assistance in arriving at a particular dollar amount of restitution. Like other aspects of sentencing, restitution orders require an exercise of discretion within the legislative parameters provided for the court's consideration, see United States v. Ciambrone, 602 F.Supp. 563, 566 (S.D.N.Y.1984), and this requires a delicate balancing of diverse, sometimes incomparable factors, some of which not only lack certainty but may indeed be based on mere probabilities, expectations, guesswork, even a "hunch". In such a context, detailed findings on each statutory factor would be worse than useless; they would be misleading because they would not reflect the judgmental process actually traversed by the court. Therefore, the most a district judge should be required to do before imposing a sentence of restitution is to give consideration to all the material that would be relevant under section 3580(a).

It would be possible to interpret the district judge's language at the sentencing hearing on September 7, 1984, as indicating, erroneously, that the mere filing by the banks of victim impact statements is sufficient to support an order of restitution regardless of any other conditions. However, in fairness we note that Judge Eginton at that time was not so much focusing on the conditions for restitution as he was primarily concerned with the then-undecided question of the constitutionality of the VWPA, and, therefore, invited defendant's counsel to make a Rule 35 motion attacking the restitution order. Coincidentally, however, in an opinion decided the same day as Atkinson was sentenced, this court upheld the constitutionality of the VWPA, see United States v. Brown, 744 F.2d 905 (2d Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984), making that issue academic for the district court.

Thus, at the subsequent hearing on August 9, 1985 on Atkinson's motion for reconsideration of the motion for reduction of sentence, the district judge's attention was brought more forcefully to Atkinson's allegations that the court had not considered all the elements of section 3580(a). At several points during that hearing the district judge noted and referred to the various elements of the statute that he was required to consider. For example, at one point he noted, "[t]he factors which the Court should consider are the amount of loss sustained by the victim. Of course, I certainly did consider that and put it right on the record, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and any other factors the Court deems appropriate." Appellant's appendix at 55. Most significantly, with this information at his disposal, Judge Eginton stated on the record that he had considered all the statutory factors. This demonstrated sufficient consideration of the statutory factors, and no specific findings of fact were necessary.

Atkinson further argues that in light of his personal history, even if all the appropriate statutory elements were considered, the district court nevertheless abused its discretion by ordering Atkinson, who was indigent, to make restitution in the total amount of $29,813.76. After stating he had considered all the relevant factors, the district judge expressly declined to order restitution of less than the total undisputed amount claimed by the banks, concluding that any balancing of the factors arguing for a compromise figure should occur not at sentencing but at the time of any future attempt to enforce the restitution order. Referring to a tenth circuit decision in which a compromise order was upheld, United States v. Richard, 738 F.2d 1120, 1123 (10th Cir.1984), Judge Eginton stated:

They're saying, well, we're going to take into account the demands of the people who want the restitution, but we're also going to take into account the ability to pay, and so on. They jumble up all these factors, then they come out with what looks to be a completely compromised figure, and you don't know what the basis of their ... figure is at all. It looks to me like a pure balancing of all these factors. That type of balancing in my judgment ought to be made in the future.

Appellant's appendix at 63. In this view of the statutory scheme, the district court erred.

Congress recognized that restitution orders were being infrequently used and noted that "federal criminal courts have gone the way of their state counterparts, reducing restitution from being an inevitable if not exclusive sanction to being an occasional afterthought." S.Rep. No. 532,...