U.S. v. Dubose

• Decision Date: 31 August 1998
• Docket Number: Nos. 96-30369,97-30035,97-30067,s. 96-30369
• Citation: 146 F.3d 1141
• Parties: 98 Cal. Daily Op. Serv. 5080, 98 Cal. Daily Op. Serv. 6780, 98 Daily Journal D.A.R. 7017, 98 Daily Journal D.A.R. 9410 UNITED STATES of America, Plaintiff-Appellee, v. Colby DUBOSE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Antoine Jamar DEAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1141

146 F.3d 1141

98 Cal. Daily Op. Serv. 5080, 98 Cal. Daily

Op. Serv. 6780,

98 Daily Journal D.A.R. 7017,

98 Daily Journal D.A.R. 9410

UNITED STATES of America, Plaintiff-Appellee, v. Colby DUBOSE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Antoine Jamar DEAN, Defendant-Appellant.

Nos. 96-30369, 97-30035, 97-30067.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 3, 1997.

Decided June 26, 1998.

As Amended on Denial of Rehearing Aug. 31, 1998.

Christine Stebbins Dahl, Assistant Federal Public Defender, Portland, Oregon, for defendant-appellant Dubose.

Christopher J. Schatz and Thomas J. Hester, Assistant Federal Public Defenders, Portland, Oregon, for defendant-appellant Dean.

Stephen F. Peifer, Assistant United States Attorney, Portland, Oregon, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Owen M. Panner, Senior District Judge, Presiding. CR-96-00203-OMP,CR-96-00203-1-OMP.

Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CR-96-00295-MFM.

Before: SKOPIL and HAWKINS, Circuit Judges, and MERHIGE, ^* District Judge.

MICHAEL DALY HAWKINS, Circuit Judge:

We consolidate, for the purposes of this disposition, the sentencing appeals of Antoine Jamar Dean ("Dean") and Colby Dubose ("Dubose"). Dean pleaded guilty to one count of arson, in violation of 18 U.S.C. § 844(i), admitting that he intentionally set fire to the Immanuel Christian Fellowship Church. Dubose pleaded guilty to bank robbery, in violation of 18 U.S.C. § 2113(a). Dean was ordered to pay restitution in the amount of $121,403.10 and Dubose in the amount of $4,510.00, both pursuant to the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. §§ 3663A-3664.

Dean and Dubose both argue that the MVRA's requirement of full restitution violates the Eighth Amendment's proscription against excessive monetary sanctions and that the MVRA results in discrimination based on wealth in violation of the guarantee of equal protection of the law. They further contend that the MVRA's imposition of a restitution obligation enforceable for 20 years after their release from prison violates the Eighth Amendment's Cruel and Unusual Punishments Clause. Finally, they argue that the Seventh Amendment requires a jury trial prior to imposition of a substantial restitution debt obligation that is enforceable as a civil judgment lien by the victim of a criminal offense.

We hold the Mandatory Victims Restitution Act is constitutional both facially and as applied to Dean and Dubose.

STANDARD OF REVIEW

We review the constitutionality of a statute de novo. See United States v. Hicks,

103 F.3d 837, 847 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1483, 137 L.Ed.2d 694 (1997).

FACTS AND PROCEDURAL HISTORY

In June 1996, Dean set fire to the Immanuel Christian Fellowship Church in Portland, Oregon. Waiving Grand Jury indictment, Dean pleaded guilty to one count of arson in violation of 18 U.S.C. § 844(i). Dean concedes that the arson produced an actual loss of $121,403.10.

The district court imposed a sentence of 60 months imprisonment followed by a three-year term of supervised release. The court also imposed a restitution obligation of $121,403.10 under the MVRA, with nominal payments, based on Dean's indigency, of $5.00 per month during Dean's incarceration after his qualification for in-custody employment and $25.00 per month for 20 years following his release. Dean appeals, challenging the constitutionality of the MVRA.

In 1996, Colby Dubose robbed the First Interstate Bank in Albany, Oregon of $4,510.00. After Grand Jury indictment for one count of bank robbery in violation of 18 U.S.C. § 2113(a), Dubose pleaded guilty. At sentencing, the court imposed a sentence of 151 months and entered a restitution order of $4,510.00 pursuant to the MVRA; the court also ordered nominal periodic payments based on Dubose's indigency. The court ordered Dubose to make payments of $5.00 per month after qualifying for in-custody employment and $25.00 per month for 20 years after release. Dubose appeals, challenging the constitutionality of the MVRA. ¹

I. The Mandatory Victims Restitution Act

The Victim and Witness Protection Act of 1982 ("VWPA"), the MVRA's predecessor statute, permitted courts to impose restitution to victims as part of any sentence. See 18 U.S.C. §§ 3663-3664 (1994). ²

Congress enacted the MVRA in 1996. See Pub.L. No. 104-132, Title II, §§ 201-211, 110 Stat. 1214; 18 U.S.C. §§ 3663A-3664 (Supp. II 1996). It makes restitution mandatory, without regard to a defendant's economic situation, see 18 U.S.C. § 3664(f)(1)(a), to identifiable victims who have suffered physical injury or pecuniary loss, ³ from crimes of violence, crimes against property, and crimes related to tampering with consumer products, see 18 U.S.C. § 3663A(c).

Dean and Dubose are subject to that part of the statute which provides that restitution must consist of the full value of the property loss or damage, see 18 U.S.C. § 3663A(b)(1)(B), and all victim expenses incurred as a result of the investigation and prosecution of the offense, see 18 U.S.C. § 3663A(b)(4). In considering the manner and schedule of payment, the court is required to consider the defendant's financial resources, assets, projected income, and financial obligations, based on an affidavit supplied by the defendant. See 18 U.S.C. § 3664(d)(3) & (f)(2).

The court may then "direct the defendant to make a single, lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments." 18 U.S.C. § 3664(f)(3)(A). The court also may allow nominal payments if the defendant's financial situation does "not allow the payment of any amount of a restitution order, and [does] not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments." 18 U.S.C. § 3664(f)(3)(B). If a defendant's financial situation materially changes, the court and the Attorney General must be notified. The court may then adjust the payment schedule or order immediate full payment. See 18 U.S.C. § 3664(k).

Restitution liability lasts for 20 years after incarceration (or until defendant's death). See 18 U.S.C. § 3613(b). Interest accrues on restitution, see 18 U.S.C. § 3612(f), and restitution is non-dischargeable in bankruptcy, see 18 U.S.C. § 3613(e).

The conviction giving rise to the restitution order "estop[s] the defendant from denying the essential allegations of that offense in any subsequent Federal civil proceeding ..., to the extent consistent with State law, brought by the victim." 18 U.S.C. § 3664(l ). The MVRA also provides that upon a victim's request, the "clerk of the court shall issue an abstract of judgment certifying that a judgment has been entered in favor of such victim in the amount specified in the restitution order." 18 U.S.C. § 3664(m)(1)(B). When recorded, this abstract becomes a lien on the property of the defendant "located in such State in the same manner and to the same extent and under the same conditions as a judgment of a court of general jurisdiction in that State." Id.

If a defendant defaults on a restitution order, the court has nine options: revoking supervised release or probation, modifying the terms or conditions of supervised release or probation, resentencing the defendant under 18 U.S.C. § 3614, holding the defendant in contempt of court, entering a restraining order or injunction, ordering the sale of the defendant's property, accepting a performance bond, entering or adjusting a payment schedule, or "tak[ing] any other action necessary to obtain compliance." 18 U.S.C. § 3613A(a)(1). In determining the appropriate action, the court must consider "the defendant's employment status, earning ability, financial resources, the willfulness in failing to comply with the ... restitution order, and any other circumstances that may have a bearing on the defendant's ability or failure to comply with the order." 18 U.S.C. § 3613A(a)(2). A defendant who knowingly fails to make payment or for whom "alternatives to imprisonment are not adequate to serve the purposes of punishment and deterrence," may be resentenced, see 18 U.S.C. § 3614(a) & (b), but "[i]n no event shall a defendant be incarcerated ... solely on the basis of inability to make payments because the defendant is indigent," 18 U.S.C. § 3614(c).

II. Eighth Amendment Challenges

Dean and Dubose each contend that the MVRA violates the Eighth Amendment prohibitions against excessive fines and cruel and unusual punishment.

The sanction at issue must be construed as punishment for the Eighth Amendment to be implicated. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Although one district court has held that restitution is not punishment, see United States v. Marron, No. CRIM.A.93-90, CIV.A.95-2231, 1996 WL 677511, at * 7 (E.D.Pa. Nov. 22, 1996), restitution under the MVRA is punishment because the MVRA has not only remedial, but also deterrent, rehabilitative, and retributive purposes, see Austin v. United States, 509 U.S. 602, 610, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (if a sanction has a remedial purpose, but it also has a retributive or deterrent purpose, the Eighth Amendment is invoked). The legislative history of the Act makes this clear. See, e.g., H.R.Rep. No. 104-16, at 5 (1995), reprinted in 1995 WL 43586 (stating that the law both "strives to provide [victims] with some means of recoup[ment]" and "requir[es] the offender to face the harm suffered by his victims and to others harmed by his unlawful actions."); S.Rep. No. 104-179, at 18 (1995), reprinted in 1996 U.S.C.C.A.N. 924, 931 (emphasizing "the benefits that even nominal restitution payments have for the victim of crime, as well...