U.S. v. Dolan

• Decision Date: 26 June 2009
• Docket Number: No. 08-2104.,08-2104.
• Citation: 571 F.3d 1022
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian Russell DOLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

571 F.3d 1022

UNITED STATES of America, Plaintiff-Appellee, v. Brian Russell DOLAN, Defendant-Appellant.

No. 08-2104.

United States Court of Appeals, Tenth Circuit.

June 26, 2009.

Sara N. Sanchez, of Sheehan, Sheehan & Steltzner, P.A., Albuquerque, NM, for Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney with her on the brief), Las Cruces, NM, for Plaintiff-Appellee.

Before MURPHY, ANDERSON, and GORSUCH, Circuit Judges.

ORDER

GORSUCH, Circuit Judge.

Appellant's petition for rehearing is granted sua sponte for the limited purpose of adding the following footnote to the end of section II, page 19:

Mr. Dolan argues that our holding conflicts with United States v. Bedonie, 413 F.3d 1126 (10th Cir.2005). It does no such thing. In Bedonie, we considered whether § 3664(d)(5) authorized the district court to reopen an already entered restitution order sua sponte simply because it had reconsidered the wisdom of its order. We concluded that the MVRA grants the district court no such authority. At the same time, we took pains to emphasize in Bedonie that our decision did not limit the authority of a district court to "`hold[] open' ... a restitution issue at the original sentencing" pending receipt of facts needed to enter an initial restitution order. Id. at 1129. This, of course, is precisely the case we now face: whether and to what degree a "holding open" of the restitution question past the original sentencing hearing and the statutory deadline is permissible—not whether and to what degree a district court's sua sponte reopening of an existing restitution order is statutorily authorized.

A copy of the corrected opinion is attached, filed nunc pro tunc to May 27, 2009.

The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, that petition is denied.

OPINION

Brian Dolan viciously attacked a hitchhiker, leaving his victim by the side of the road bleeding, unconscious, with a great many broken bones. Eventually, officers found the hitchhiker and rushed him to a hospital. He survived, but his medical expenses topped $100,000. When it came time to sentence Mr. Dolan for his assault, the district court ordered him not only to serve 21 months in prison but to pay $250 monthly in restitution. Before us, Mr. Dolan doesn't challenge his prison sentence but does say his victim should get nothing. He contends that the district court's restitution order is void because it was entered too late, after a statutory deadline passed. Even if the district court had the power to enter an untimely restitution award, Mr. Dolan argues, $250 per month is more than he can afford.

We reject both arguments. The district court's restitution order was undoubtedly late, coming after the deadline prescribed by the Mandatory Victims Restitution Act. But a tardy restitution order is not an invalid one. Rather than creating a jurisdictional bar to untimely restitution orders, the MVRA's deadline seeks to prod the government into ensuring victims swift compensation. Sometimes, of course, the government is not so easily prodded. When that happens—when the MVRA's deadline passes without a restitution order entered—the affected victim may well have cause to complain, and may even seek a mandamus order compelling action. But the defendant does not get off the hook. Neither can we say that the district court abused its discretion in pegging Mr. Dolan's monthly restitution payments at $250, given the record before us.

I

One evening, Mr. Dolan picked up an acquaintance and fellow tribe member who was hitchhiking on a road inside the Mescalero Indian Reservation. At some point, the pair began to argue. The argument grew heated, and eventually Mr. Dolan parked his car so the men could fight. The encounter proved a brutal one for the hitchhiker. He later reported that he suffered a fractured nose, a broken wrist, a fractured leg, a spinal injury, broken ribs, and a hematoma in his head. Mr. Dolan left the hitchhiker lying on the side of the road and drove off. Once home, he told his sister, Deanna Dolan, of the assault. In turn, Ms. Dolan alerted the Bureau of Indian Affairs ("BIA") police. A responding BIA officer eventually found the hitchhiker unconscious and bleeding on the roadside. The hitchhiker was treated briefly at the scene and then helicoptered to a hospital in El Paso, Texas.

For his part, Mr. Dolan was apprehended and pled guilty to assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6). On July 30, 2007, the district court sentenced Mr. Dolan to 21 months' imprisonment. At the sentencing hearing, the court also noted that restitution was required by the MVRA. But, because it did not yet have sufficient information as to the amount of restitution owed, the court "le[ft] that matter open, pending receipt of additional information." The court then informed Mr. Dolan that he should "anticipate that such an award will be made in the future." The district court's judgment, entered on August 8, 2007, indicated that restitution was applicable but that the court did not yet have sufficient information to set an appropriate amount.

On October 5, 2007, the probation office reported that it now had enough information to calculate a restitution award. The office estimated the victim's medical care cost at $105,559.78. It provided the court with documentation for this figure and recommended that the court order Mr. Dolan to pay that amount in restitution. The probation office also indicated that, "[p]ursuant to [18 U.S.C. § ]3664(d)(5)" of the MVRA, "the Court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing, which in this case shall be October 28, 2007."¹

It is here things get tricky. The district court did not hold a hearing for a final determination on restitution by October 28, 2007, as required by § 3664(d)(5), but instead waited until February 4, 2008. At the February hearing, Mr. Dolan's counsel argued that the court no longer had authority to order restitution because more than 90 days had passed since the entry of Mr. Dolan's sentence. The court ordered briefing on that question, as well as on Mr. Dolan's ability to pay. A hearing followed and, in due course, the district court issued a memorandum opinion and order. In its order, the court candidly acknowledged that it had erred "in not complying with the 90-day requirement," but held that § 3664(d)(5) did not deprive it of jurisdiction to enter a restitution award after the 90-day deadline.

The district court then considered how much restitution Mr. Dolan should pay. The court noted that Mr. Dolan held essentially no assets, had substance abuse problems, and, at the time of the offense, was unemployed. But the court also observed that Mr. Dolan receives an annual tribal stipend of $575 and obtained a GED while incarcerated, thus enhancing his employment potential on release (which has since occurred). Based on Mr. Dolan's "lack of financial resources, income, assets, and potential for future earnings," the district court found that he would be unable to pay "any significant amount of restitution now or in the foreseeable future." Still, the court believed that Mr. Dolan could afford monthly payments of $250, and ordered him to do so.

Mr. Dolan now appeals to us on two grounds. First, he argues that, because the district court acted outside § 3664(d)(5)'s 90-day deadline, its restitution order is void. Second, he contends that the payment schedule fails to take adequate consideration of his ability to pay. We address each contention in turn.

II

Mr. Dolan argues that the 90-day deadline set by § 3664(d)(5) is jurisdictional. Put differently, he thinks the district court's power to enter any restitution order expired 90 days after his sentencing on July 30, 2007. Because the district court failed to carry out its mandatory duty by the deadline, his victim (and the victim's third party insurer) should get nothing. We review de novo Mr. Dolan's appeal about the meaning of § 3664(d)(5), but even so we cannot agree with his interpretation of the statute. The plain language of the Act, longstanding canons of construction, the MVRA's legislative history, and our own case law all plot against his interpretation.

First, the language of the Act itself. As its name suggests, the Mandatory Victims Restitution Act is all about mandating restitution. No longer is the decision whether to order restitution for certain crimes left to the discretion of the district court. See United States v. Taylor, 41 Fed.Appx. 380, 383-84 (10th Cir.2002). The absolute nature of the district court's obligation is unmistakable from the very first paragraph of the Act. There, Congress has prescribed that "[n]otwithstanding any other provision of law, when sentencing a defendant convicted of [an offense covered by the Act], the court shall order ... restitution." 18 U.S.C. § 3663A(a)(1) (emphasis added). Plainly, Congress has decided that defendants who have committed certain offenses should never be able to avoid restitution.

As Mr. Dolan emphasizes, later in the Act, in § 3664(d)(5), Congress added that restitution "shall" be awarded within 90 days after sentencing. But this deadline, while real, is no doubt encompassed within § 3663A(a)(1)'s phrase "any other provision of law." So, while the 90-day deadline is surely a command of the Act, it can be reasonably understood only as a subsidiary command to the Act's primary and overriding directive that restitution must be ordered for certain crimes. Read together, the statute thus suggests that restitution shall be awarded within 90 days but also that, notwithstanding any missed deadline, restitution must be awarded. As the...