U.S. v. Hawthorne

• Citation: 806 F.2d 493
• Decision Date: 05 December 1986
• Docket Number: No. 86-1168,86-1168
• Parties: UNITED STATES of America v. HAWTHORNE, Sylvane, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 493

806 F.2d 493

55 USLW 2382

UNITED STATES of America v. HAWTHORNE, Sylvane, Appellant.

No. 86-1168.

United States Court of Appeals,

Third Circuit.

Argued Oct. 29, 1986.

Decided Dec. 5, 1986.

William T. Cannon, (argued), Philadelphia, Pa., for appellant.

Bucky P. Mansuy, (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before ADAMS, HIGGINBOTHAM, Circuit Judges, and VAN DUSEN, Senior Circuit Judge.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

Appellant Sylvane Hawthorne appeals from the order of the district court denying appellant's motion for correction of sentence requesting a reduction of the amount of restitution imposed as a condition of her probationary sentence. We must decide whether the district court erred in imposing an order of restitution in the amount of $28,280.00, where the dollar amount charged in the counts upon which appellant's plea of guilty was tendered was $231.00.

I.

On October 30, 1985, the grand jury returned a 69-count indictment against defendant/appellant Sylvane Hawthorne and two co-defendants. Specifically, Hawthorne was charged with one count of conspiracy, in violation of 18 U.S.C. Sec. 371 (1982); thirty counts of making false statements, in violation of 18 U.S.C. Sec. 1001 (1982); nine counts of mail fraud, in violation of 18 U.S.C. Sec. 1341 (1982); one count of false representation of a Social Security number, in violation of 42 U.S.C. Sec. 408(g)(2) (1982); and twenty-three counts of unauthorized possession of food coupon authorizations, in violation of 7 U.S.C. Sec. 2024(b) (1982).

On December 30, 1985, pursuant to a plea bargain agreement, Hawthorne entered a plea of guilty to one count of mail fraud (Count 26), one count of false representation of a Social Security account number (Count 33), and one count of unauthorized possession of food coupon authorizations (Count 40). The pleas were entered pursuant to Federal Rule of Criminal Procedure 11(e)(1)(A), with the government agreeing to move the district court to dismiss the remaining counts of the indictment.

Subsequently, Hawthorne was sentenced to two years incarceration and a fine of $10,000.00 on Count 40. On Count 26, Hawthorne received a suspended sentence. On Count 33, the focus of this appeal, the district court, in apparent reliance on the Government's Sentencing Memorandum, ¹ see App. at 12-17, sentenced Hawthorne to four years incarceration, the execution of which was suspended, and a probationary period of five years conditioned upon restitution in the amount of $28,280.00 payable over the period of probation. Hawthorne challenges that portion of the district court's sentence that orders payment of $28,280.00, arguing that, absent a plea agreement, restitution may be ordered only for the amount directly attributable to the counts to which she pleaded guilty, viz. $131.00 underlying Count 26 and $100.00 underlying Count 40, or a total of $231.00. The government contends that the district court "properly imposed a condition of full restitution upon Hawthorne because each count to which she pleaded guilty was a small, but essential, step in a unitary scheme." Brief of Appellee at 10.

II.

Pursuant to 18 U.S.C. Sec. 3651 (1982) a district court is authorized to order restitution as a condition of probation. ² That section provides: "While on probation and among conditions thereof, the defendant ... [m]ay be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had." Id. This section has been consistently interpreted in this Circuit to limit the district court's authority to impose restitution to actual damages or loss caused by the offense to which defendant pleads or is convicted. See United States v. Buechler, 557 F.2d 1002, 1007 (3d Cir.1977); United States v. Stoehr, 196 F.2d 276, 283 (3d Cir.1952); United States v. Follette, 32 F.Supp. 953 955 (E.D.Pa.1940); see also United States v. Kutner, 631 F.Supp. 126 (E.D.Pa.1986) (reviewing the case law construing section 3651).

The government maintains, however, that this Court's recent decisions in United States v. Martin, 788 F.2d 184 (3d Cir.1986) and United States v. Woods, 775 F.2d 82 (3d Cir.1985), support the proposition that where the count to which the defendant has entered a guilty plea charges one component of a "unitary scheme," the defendant may be required to make full restitution for all of the losses caused by the scheme. ³ The crime charged in Count 33, as characterized by the government, "is the use of a false social security number with the intent to deceive, for the purpose of obtaining payments to which the defendant was not entitled, from 1975 to 1984." Letter Brief of the United States at 2 (Nov. 5, 1986). The government contends that this crime constitutes a unitary scheme and, therefore, that the district court was authorized under Sec. 3651 to order restitution in an amount representing the entire loss suffered as a result of the scheme. The government's argument misses the point of Hawthorne's appeal.

Appellant contends "that pursuant to 18 U.S.C. Section 3651 and this Court's decision in U.S. v. Buechler, 557 F.2d 1002 (3d Cir.1977), absent a plea agreement which specifies restitution in an amount greater than the conviction as a condition of probation, or the defendant agreeing to such excess restitution, an order of restitution greater than the conviction is improper." Brief of Appellant at 4. ⁴ Thus, Hawthorne does not challenge the inference from Woods and Martin that restitution may properly be imposed in an amount greater than the losses charged in the indictment counts to which a plea is entered if the offense charged constitutes part of a unitary scheme. ⁵ Rather, Hawthorne maintains that those cases

did not broaden the authority of the Court to impose restitution as a condition of probation but merely reaffirmed the principle that a court has the authority to order restitution as a condition of probation in an amount exceeding the amount of loss attributable to the particular count for which conviction was had where a defendant agrees to make restitution as part of the plea agreement.

Brief of Appellant at 12 (emphasis in original). Although appellant perhaps overstates the limitation on the district court's power to impose restitution as a condition of probation, ⁵ her position is not without merit.

In United States v. Buechler, supra, we reserved the question "whether restitution in an amount exceeding that involved in the count to which a guilty plea is entered may be imposed as a condition of probation where the defendant explicitly agrees to it as one of the terms of a plea bargain in a multiple count indictment." 557 F.2d at 1008 n. 10. ⁶ Since Buechler, several courts have resolved this question in the affirmative. See Phillips v. United States, 679 F.2d 192, 194 (9th Cir.1982) ("when defendant consents pursuant to a plea agreement to pay ... [restitution] ... the Court is bound by law to carry out that specific agreement"); United States v. McLaughlin, 512 F.Supp. 907, 908 (D.Md.1981) (court authorized to order full restitution because, inter alia, "defendant consents, freely and voluntarily to make full restitution and that it be a condition of probation"). Appellant now urges us to consider the converse of this query and to hold that absent such agreement restitution may not be imposed in an amount exceeding that charged in the counts to which a defendant pleads guilty. Although appellant's position is not without support, see United States v. Whitney, 785 F.2d 824 (9th Cir.1986); United States v. Orr, 691 F.2d 431 (9th Cir.1982), on this record, we are not prepared to go so far.

Our decisions in Woods and Martin indicate our approval of the broader conception of the term "offense" in Sec. 3651 that has been accepted in other circuits. See, e.g., United States v. Davies, 683 F.2d 1052, 1055 (7th Cir.1982) (offense involved "a continuing scheme to defraud"); Phillips v. United States, 679 F.2d 192, 194 (9th Cir.1982) (in mail fraud cases, offense includes fraudulent scheme alleged as element of offense); United States v. Tiler, 602 F.2d 30, 34 (2d Cir.1979) (conspiracy to defraud covers actual damages incurred as result of scheme). Under this broader conception, the district court may properly order restitution in an amount exceeding that charged in the particular count(s) to which defendant pleaded guilty. Here, appellant essentially asks us to condition the exercise of that authority on the defendant's explicit agreement thereto. We decline to do so. At a minimum, however, a defendant is entitled to some notice, from the prosecution or the district court, that restitution may be imposed as a result of his or her plea. ⁷

In the instant case, the failure of the district court and the government to inform Hawthorne of the possibility of restitution cannot be considered to have been without significance. The plea agreement indicates that, although the government specifically maintained that it would recommend that Hawthorne be sentenced to a period of incarceration, ⁸ restitution in any amount was never raised as a possibility either as part of the sentence or as a condition of probation. In United States v. Runck, 601 F.2d 968 (8th Cir.1979), the Eighth Circuit considered the question whether the condition of restitution imposed sua sponte by the district judge subsequent to a guilty plea substantially altered the plea agreement and exceeded the role of the judge. Noting that "a plea bargain severely limits the discretion of a sentencing judge," id. at 970, the court held:

While the condition of restitution of a small amount might be acceptable because it would not necessarily materially alter the expectations of the parties to the bargain, restitution of a large amount should have been part of the plea bargain or the possibility of its inclusion as a condition of probation...