U.S. v. Cienfuegos

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Wardlaw
• Citation: U.S. v. Cienfuegos, 462 F.3d 1160 (9th Cir. 2006)
• Decision Date: 08 September 2006
• Docket Number: No. 05-10201.,05-10201.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Theodore Anthony CIENFUEGOS, Defendant-Appellee.

Page 1160

462 F.3d 1160

UNITED STATES of America, Plaintiff-Appellant, v. Theodore Anthony CIENFUEGOS, Defendant-Appellee.

No. 05-10201.

United States Court of Appeals, Ninth Circuit.

Submitted May 16, 2006.^*

Filed September 8, 2006.

Paul K. Charlton, United States Attorney; John Joseph Tucki, appellate Deputy Chief; Linda C. Boone, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellant.

Martin Lieberman, Phoenix, AZ, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding. D.C. No. CR-03-00662-FJM.

Before: RYMER and WARDLAW, Circuit Judges, and SELNA,^** District Judge.

OPINION

WARDLAW, Circuit Judge:

The Government appeals the district court's denial of its motion to order restitution for future lost income to a manslaughter victim's estate pursuant to the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. § 3663A(b)(2)(C). Because restitution for future lost income may be ordered under the MVRA so long as it is not based upon speculation, but is reasonably calculable, we reverse and remand to the district court to redetermine the amount of restitution to be awarded.

I

On May 24, 2003, Theodore Anthony Cienfuegos drove to an area on the San Carlos Apache Indian Reservation known as the Windmill, an open circular area where a number of local residents had gathered to socialize. Shortly after he arrived at the Windmill, Cienfuegos engaged in an altercation with several individuals. He then got into his car and drove into six vehicles parked around the Windmill, causing the nearby crowd to rapidly disperse. Billie Jean Noline, a registered member of the San Carlos Apache Indian tribe, tripped and fell as she ran to avoid the path of Cienfuegos' vehicle. Cienfuegos ran over Noline with his car, hit a tree, and then backed up and did it again. Noline was taken to the San Carlos Hospital, where she died as a result of the injuries inflicted by Cienfuegos.

A federal grand jury returned a three-count superseding indictment on August 19, 2004, which charged: (1) second degree murder in violation of 18 U.S.C. §§ 1152, 1111; (2) assault with a dangerous weapon in violation of 18 U.S.C. §§ 1152, 113(a)(3); and (3) assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1152, 113(a)(6). Cienfuegos pleaded guilty on September 22, 2004 to Count Three of the indictment and to involuntary manslaughter, a lesser included offense of Count One. Cienfuegos' plea agreement required him to make restitution, with the total amount to be determined by the court at the time of sentencing.

Before sentencing, on February 2, 2005, the Government moved for restitution for Noline's future lost income pursuant to the MVRA. It submitted a report from a certified public accountant on February 18, 2005, calculating Noline's lifetime future lost income to be $1,851,134.00. The district court denied restitution for future lost income, reasoning that the complexities associated with determining future lost income belong in a civil action brought by the survivors and not as an adjunct to a federal criminal case. The district court further advised the victim's family to file a civil suit, as the statute of limitations had not yet expired. The district court sentenced Cienfuegos to a term of imprisonment of fifty-one months on each count, to be served concurrently, followed by three years of supervised release. It also ordered Cienfuegos to pay a special assessment of $200.00 and restitution to the victims for funeral and related expenses in the amount of $11,629.87.

II

We review a restitution order for an abuse of discretion, provided that it is within the bounds of the statutory framework. See United States v. Phillips, 367 F.3d 846, 854 (9th Cir.2004) (as amended). Factual findings supporting a restitution order are reviewed for clear error, United States v. De La Fuente, 353 F.3d 766, 772 (9th Cir.2003), and the legality of a restitution order is reviewed de novo, Phillips, 367 F.3d at 854.

III

Cienfuegos first argues that because the Government failed to provide the probation officer with a list of the amounts subject to restitution not later than sixty days prior to sentencing, as was required by 18 U.S.C. § 3664(d)(1), the district court was not compelled to consider the Government's motion to include future lost earnings in the restitution amount. Cienfuegos also points out that, under 18 U.S.C. § 3664(d)(5), if the victim's losses are not ascertainable ten days prior to sentencing, then the prosecution is required to notify the court so that the court can set a date for determining the victim's losses within ninety days after sentencing. The Government responds that any failure to follow the procedural requirements of section 3664 was harmless error.

The Government undisputedly failed to comply with the section 3664 procedures. It submitted its motion for future lost income on February 2, 2005, twenty-one days before the sentencing hearing, and submitted the CPA's calculation of the amount of future lost income on February 18, 2005, five days before sentencing. Because Cienfuegos timely objected to the Government's failure to follow the requirements and procedures of section 3664, we review for harmless error. However, because Cienfuegos fails to demonstrate actual prejudice from the Government's failure to comply with the procedural requirements of section 3664, the only entity to suffer prejudice here was Noline's estate. Therefore, we hold that any error the district court may have made in considering the Government's untimely future lost income motion was harmless. This accords with decisions of the Second, Fourth, Sixth, and Seventh Circuits, which have held that because the procedural requirements of section 3664 were designed to protect victims, not defendants, the failure to comply with them is harmless error absent actual prejudice to the defendant. As the Second Circuit held in United States v. Zakhary, 357 F.3d 186, 191 (2d Cir.2004):

[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. . . . Mindful of these goals, we have ruled that a district court's failure to determine identifiable victims' losses within ninety days after sentencing, as prescribed by § 3664(d)(5), will be deemed harmless error to the defendant unless he can show actual prejudice from the omission.

See also United States v. Johnson, 400 F.3d 187, 198-99 (4th Cir.2005) (failure to comply with the ten-day limit in section 3664(d)(5) is harmless error absent a showing of prejudice); United States v. Vandeberg, 201 F.3d 805, 814 (6th Cir.2000) (failure to afford defendant an opportunity to be heard as to the proposed amount of restitution within the ninety days prescribed by § 3664(d)(5) is harmless error because "the court provided him ample opportunity to object to the amount thereafter"); United States v. Grimes, 173 F.3d 634, 638-39 (7th Cir.1999) (because intended beneficiaries of section 3664(f)(1)(A) are victims, defendants have no rights under section 3664 and trial court's failure to name all of the victims in the restitution order is not error).

Moreover, Cienfuegos was provided the functional equivalent of the notice required under section 3664(d)(5) by the terms of his plea agreement. See United States v. Dando, 287 F.3d 1007, 1010 (10th Cir.2002) ("Defendant . . . received the functional equivalent of the notice required by the statute. Defendant signed a plea agreement in which he acknowledged restitution was mandatory. Although the district court . . . did not establish a date to finalize the restitution amount, the sentence hearing transcript clearly indicates the court recognized restitution was mandatory . . . ."). Therefore, we will not uphold the district court's refusal to order restitution on account of the government's failure to comply with section 3664. See United States v. Catoggio, 326 F.3d 323, 329-30 (2d Cir.2003) (rejecting defendant's argument that because an order of restitution under the MVRA must be entered within 90 days of sentencing, the court should vacate the restitution order without remanding for further proceedings).

IV

The parties do not dispute that the MVRA applies to this case and that it makes victim restitution mandatory for Cienfuegos. The only issue in contention is whether the MVRA permits or requires restitution for future lost income. The Government argues that the district court had a mandatory obligation to order restitution for future lost income. Cienfuegos, on the other hand, argues that restitution for future lost income is neither required nor permitted under the MVRA. Because the plain language of the statute, congressional intent, and federal legal authorities support the conclusion that the MVRA does not per se exclude restitution for lost future income to homicide victims, the district court erred in denying the Government's motion outright.

The plain language of the MVRA contemplates an award of restitution to the victim's estate for future lost income and certainly does not expressly exclude such an award. The MVRA provides:

(a)(1) Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order . . . that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim's estate.

(b) The order of restitution shall require that such defendant—

. . .

(2) in the case of an offense resulting in bodily injury to a victim—

. . .

(C) reimburse the victim for income lost by such victim as a result of such offense. . . .

18 U.S.C. § 3663A. Cienfuegos argues that Congress's use of the term "reimburse"...