U.S. v. Balentine

• Decision Date: 01 July 2009
• Docket Number: No. 08-1871.,08-1871.
• Citation: 569 F.3d 801
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felicia Marie BALENTINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

569 F.3d 801

UNITED STATES of America, Plaintiff-Appellee, v. Felicia Marie BALENTINE, Defendant-Appellant.

No. 08-1871.

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2009.

Filed: July 1, 2009.

Scott Braden, AFPD, argued, Little Rock, AR, Angela Lorene Pitts, AFPD, Fayetteville, AR, on the brief, for appellant.

Linda B. Lipe, AUSA, argued, Little Rock, AR, for appellee.

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

BYE, Circuit Judge.

Felicia Marie Balentine appeals the district court's¹ order imposing restitution. We affirm.

I

On October 12, 2005, Balentine pleaded guilty to bank burglary in violation of 18 U.S.C. § 2113(a). On February 17, 2006, she was sentenced to 20 months imprisonment. At the sentencing hearing, a dispute arose over the amount of restitution Balentine owed. The government argued Balentine was responsible for an $18,676 cash loss, and $8,987.84 in other damages.² Balentine conceded the $18,676 cash loss, but disputed the other damages because she had not been provided documentation verifying the losses. The district court directed the government to provide defense counsel with invoices verifying the other damages within one week, and indicated it would order restitution as soon as Balentine responded to the additional information. Thereafter, the court imposed sentence—omitting the restitution order— and judgment was entered February 21, 2006.

The government provided the invoices as ordered and Balentine responded. The district court, however, failed to enter a restitution order. In February 2008, after Balentine had completed her sentence of incarceration, the probation office ordered her to begin making restitution as a condition of her supervised release. Because no order of restitution had issued, Balentine refused and moved the district court for an order denying restitution. Balentine argued the court no longer had authority to order restitution under the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. § 3663A-3664, because § 3664(d)(5) required the court to issue the restitution order within 90 days of sentencing.

At the motion hearing, the government withdrew its request for restitution of the related costs, but argued Balentine had admitted responsibility for the $18,676 cash loss at sentencing. According to the government, the court had "implicitly" ordered restitution at the sentencing hearing, and the failure to enter a timely restitution order was harmless error.

The district court found it had failed to order restitution within the 90-day period set forth under § 3664(d)(5). The court concluded, however, the 90-day time limit was subject to harmless error review, and the delay did not prejudice Balentine's substantial rights. Additionally, the district court concluded Congress' intent in passing the MVRA was to ensure crime victims were paid restitution, and strict adherence to the 90-day limit would thwart the purpose of the MVRA. Accordingly, the court denied the motion and ordered restitution.

On appeal, Balentine argues the district court erred in considering Congress' intent in passing the MVRA, because its plain language requires a restitution order be entered within 90 days of sentencing. Additionally, Balentine contends there is no basis for concluding the failure to comply with the 90-day time limit is subject to harmless error review.

II

We review the district court's interpretation of the MVRA de novo. United States v. Wilcox, 487 F.3d 1163, 1176 (8th Cir.2007).

"Because `federal courts possess no inherent authority to order restitution, and may do so only as explicitly empowered by statute,' we begin our analysis with the statute itself." United States v. Farr, 419 F.3d 621, 623 (7th Cir.2005) (quoting United States v. Donaby, 349 F.3d 1046, 1048-49 (7th Cir.2003)). The starting point for ascertaining the intended meaning of any statute is the language of the statute itself, and if the language is unambiguous, the statute should be enforced as written unless there is clear legislative intent to the contrary. United States v. S.A., 129 F.3d 995, 998 (8th Cir.1997)). "Courts are obligated to refrain from embellishing statutes by inserting language that Congress has opted to omit." Root v. New Liberty Hosp. Dist., 209 F.3d 1068, 1070 (8th Cir. 2000).

Section 3664(d)(5) provides:

If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.

§ 3664(d)(5) (emphasis added).³

The authority of a district court to order restitution beyond the 90-day limit is a matter of first impression in the Eighth Circuit. Other circuits have addressed the issue with varying results.

In United States v. Maung, 267 F.3d 1113, 1120-21 (11th Cir.2001), the Eleventh Circuit held a district court is required to enter a restitution order within 90 days of sentencing, and refused to consider the legislative history of the MVRA because its meaning was clear.⁴ In United States v. Jolivette, 257 F.3d 581, 584 (6th Cir.2001), the Sixth Circuit concluded the plain meaning of the statute prohibited the district court from setting the amount of restitution after the 90-day time limit had passed. The court held "when the 90-day clock runs out, the judgment of conviction and sentence, including the restitution provision, becomes final by operation of the statute." Id. Similarly, the Seventh Circuit has held a district court lacks the authority to order a defendant to pay restitution more than 90 days after imposing sentence. Farr, 419 F.3d at 624. In Farr, the Seventh Circuit distinguished its earlier decision in United States v. Grimes, 173 F.3d 634 (7th Cir.1999), which upheld the entry of a restitution order beyond the 90-day limit. Id. at 625. The court concluded "[t]he point of both Grimes and [United States v.] Zakhary[, 357 F.3d 186 (2d Cir.2004)] is that where an illegal restitution order is vacated, § 3664(d)(5) will not always preclude the issuance of a new restitution order on remand where the original sentence was entered more than ninety days earlier." Id.⁵

[G]iven the clear time limit set forth in § 3664(d)(5), it cannot be said that it was Congress's intent to allow district courts to order restitution at any time. The statutory language in § 3664(d)(5) sets forth an unambiguous requirement that courts ordering restitution as a condition of supervised release do so within ninety days of sentencing. We may not overlook the statute's plain language to further what may be a broader statutory purpose.

Id. (citation omitted).

Other circuits have concluded the 90-day limit is subject to equitable tolling if the delay in entering a restitution order is attributable to the defendant. In United States v. Dando, 287 F.3d 1007, 1011 n. 5 (10th Cir.2002), the Tenth Circuit held § 3664(d)(5) placed a 90-day limit on making a determination of the victim's losses, but was subject to equitable tolling "[w]here a defendant's own conduct delayed the timely entry of a restitution order ...." Id. (citing United States v. Stevens, 211 F.3d 1, 4-5 (2d Cir.2000)) (tolling the 90-day period where the defendant's purposeful misconduct caused the delay); see also Maung, 267 F.3d at 1122 ("[W]e are not willing to say that the 90-day limitation is inexorable and can never be equitably tolled."); United States v. Terlingo, 327 F.3d 216, 220, 222 (3d Cir.2003) (holding the 90-day limitation in § 3664(d)(5) was subject to equitable tolling if the defendant's "bad faith tactics caused the delay" or if the delay is otherwise caused "in significant part by the defendant").

Finally, the Ninth and Second Circuits have applied harmless error review to violations of the 90-day limit, concluding the error is harmless unless the delay prejudiced the defendant's rights. See United States v. Cienfuegos, 462 F.3d 1160, 1163 (9th Cir.2006); United States v. Zakhary, 357 F.3d 186, 191 (2d Cir.2004); cf. United States v. Johnson, 400 F.3d 187, 198-99 (4th Cir.2005) (applying harmless error review to violations of the 10-day notice rule in § 3664(d)(5)); United States v. Vandenberg, 201 F.3d 805, 814 (6th Cir.2000) (holding district court erred by failing to provide defendant an opportunity to object to amount of restitution ordered but error was harmless).

In so holding, these courts have concluded the procedural requirements of § 3664 are intended to protect victims, "not the victimizers." Grimes, 173 F.3d at 639. "[T]he purpose behind the statutory ninety-day limit on the determination of victims' losses is not to protect defendants from drawn-out sentencing proceedings or to establish finality; rather, it is to protect crime victims from the willful dissipation of defendants' assets." Zakhary, 357 F.3d at 191. Thus, "[a]bsent a defendant's clear showing that his substantial rights have been prejudiced by a § 3664(d)(5) delay, it would in fact, defeat the statutory purpose to allow a defendant to invoke this provision in order to avoid paying restitution to the victims of his crime." Id. at 192-93 (internal quotation marks and citation omitted).

The district court, following this line of decisions, concluded § 3664(d)(5)'s 90-day time provision was intended to benefit victims by ensuring district courts did not delay entry of restitution orders, thereby allowing defendants to dissipate assets. The court turned to the legislative history of the MVRA, and determined that if a violation of the 90-day time...