U.S. v. Caddell, 87-1262

• Citation: 830 F.2d 36
• Decision Date: 02 October 1987
• Docket Number: No. 87-1262,87-1262
• Parties: 17 Collier Bankr.Cas.2d 1008, Bankr. L. Rep. P 72,028 UNITED STATES of America, Plaintiff-Appellee, v. Dwain L. CADDELL, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 36

830 F.2d 36

17 Collier Bankr.Cas.2d 1008, Bankr. L. Rep. P 72,028

UNITED STATES of America, Plaintiff-Appellee, v. Dwain L. CADDELL, Defendant-Appellant.

No. 87-1262

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 2, 1987.

Rehearing and Rehearing En Banc Denied Oct. 28, 1987.

W.V. Dunnam, Jr., Waco, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Janet E. Bauerle, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, GARWOOD, and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant Caddell appeals the revocation of his probation for failure to comply with one of its conditions, namely, that he make restitution. We affirm.

Caddell was charged in a three-count information with violations of 18 U.S.C. Sec. 658. In July 1985, he pleaded guilty to count three which alleged that in December 1980 he, "with intent to defraud, did knowingly ... convert to his own use and to that of another, property mortgaged and pledged to the Farmer's Home Administration...." The plea agreement called for the other two counts to be dismissed, and the government also agreed not to prosecute any of Caddell's family in respect to the matters alleged in the information. At the guilty plea hearing, the government recited that on the occasion in question Caddell had sold 407 head of cattle for $259,000, and received out of this net proceeds of $165,000; these cattle were mortgaged to the Farmer's Home Administration, which did not consent to the sale, and no part of the proceeds of the sale were applied on the debt. Caddell agreed that this was correct. Count three of the information was read in open court, and Caddell admitted that that was what he had done. It was also evident from the context of the proceedings that Caddell was the debtor on the mortgage to the Farmer's Home Administration.

Caddell appeared before the court for sentencing on October 10, 1985, and was sentenced to one year's confinement. The court suspended execution of the sentence and placed Caddell on probation, with supervision, for three years. As a special condition of the probation, he was ordered to make restitution to the Department of Agriculture, through the Farmer's Home Administration, of the $165,000, the restitution to be made during the first year of probation, by payment to the district clerk. The first two counts of the information were thereupon dismissed. On November 24, 1986, the probation officer filed a petition for revocation of probation on the ground that Caddell had failed to make any payments toward restitution. A hearing was had on this motion on December 22, 1986, and a further hearing on April 3, 1987. Following the latter hearing, the district court revoked the probation and ordered Caddell committed to the custody of the attorney general for the one-year term provided for in the original October 10, 1985 sentence. Caddell brings this appeal from the order of revocation.

One of the issues Caddell asserts in his appeal is whether the court's power to impose conditions of restitution is controlled by the Victim and Witness Protection Act of 1982, 18 U.S.C. Sec. 3579 et seq., or by the general probation statute, 18 U.S.C. Sec. 3651. Caddell implicitly argues that the latter statute controls because the former was not in effect when the offense was committed. However, this is really not an issue at all, inasmuch as the district court's oral pronouncement of sentence and its written judgment and probation/commitment order both expressly reflect that the court acted under section 3651, which specifically authorizes, as a condition of probation, that the defendant "be required to make restitution ... to aggrieved parties." This Court has expressly recognized that power. See, e.g., United States v. Turner, 741 F.2d 696 (5th Cir.1984). Caddell contends that the restitution condition was improper because the amount of the loss was not alleged in the information and restitution was not a part of the plea bargain, citing United States v. Whitney, 785 F.2d 824 (9th Cir.1986), and United States v. Ferrera, 746 F.2d 908 (1st Cir.1984). Caddell does not, however, seek to withdraw his plea or claim that it was improper or that there was any breach of the plea agreement. Indeed, we observe that there is nothing whatever in the plea agreement that Caddell would or would not receive probation, or that if he did receive probation it would be without a restitutory condition. Nor did the plea agreement in any way prevent Caddell's sentence to one year's confinement. Under the plea agreement, Caddell could plainly receive any sentence not exceeding the maximum for the offense. Since his probation was revoked, Caddell is merely required to serve the one-year sentence originally imposed, and he is no longer under any restitutory obligation by virtue of the instant proceedings. See United States v. Irvin, 820 F.2d 110 (5th Cir.1987). Because Caddell did not attack the restitutory condition of his probation by appeal from his sentence or by motion under Rule 35, Fed.R.Crim.P., he is foreclosed from attacking it on appeal from the order revoking his probation. Irvin, supra. ¹

Caddell's remaining contentions urge that the revocation was improper. He points to the fact that he has been in Chapter 11, as a debtor in possession, apparently ever since sometime prior to his sentencing although after the offense in question. He contends that the district court's restitution order illegally required him to divert funds from the Chapter 11 estate without bankruptcy court approval and impermissibly preferred Farmer's Home Administration as a creditor. We disagree. First, the automatic stay in bankruptcy does not bar "the commencement or continuation of a criminal action or proceeding against the debtor...." 11 U.S.C. Sec. 362(a)(1). The district court's authority to sentence Caddell was in no way hampered by his reorganization proceeding. Second, as the Supreme Court held in Kelly v. Robinson, --- U.S. ----, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), there is no principled distinction, applicable in bankruptcy proceedings, between the imposition of restitution and other types of fines by criminal sentencing authorities. While we recognize that Kelly dealt with dischargeability and was partially influenced by federalism concerns, id. 107 S.Ct. at 358-60, the language in the opinion extends generally to penal sanctions of restitution without regard to whether the court imposing the sanction is a state or federal court. Id. at 362. Consequently, the specific authority of the district court to impose restitution upon Caddell as a condition of probation cannot be doubted. That such restitution, if it had been paid, might have benefited Farmer's Home Administration ahead of other creditors, is a consideration squarely precluded by the rationale of Kelly. We conclude that Caddell's status as a Chapter 11 debtor in possession does not of itself discharge or suspend the restitutory condition of his probation so as to automatically prevent revocation of the probation for failure to comply with that condition. ²

Turning to the facts here, it was stipulated at the revocation hearing that Caddell had not at any time made any restitutory payments whatever. Nor had he ever requested any extension or modification of that condition, or previously sought to inform the court that he would not be able to comply. Caddell argues that he was unable to make restitution, and that hence revocation for his failure to do so violated his constitutional rights under Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), or at the least constituted an abuse of discretion. We disagree. Bearden held that "in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to...