U.S.A. v. Jolivette, 99-6492

Decision Date02 November 2000
Docket NumberNo. 99-6492,99-6492
Citation257 F.3d 581
Parties(6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Fabien Miguel Jolivette, Defendant-Appellant. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Tony R. Arvin, Stuart J. Canale, ASSISTANT UNITED STATES ATTORNEYS, Memphis, Tennessee, for Appellee.

Michael M. Losavio, Louisville, Kentucky, for Appellant.

Before: KRUPANSKY, BATCHELDER, and GILMAN, Circuit Judges.

OPINION

BATCHELDER, Circuit Judge.

The Appellant Fabien Miguel Jolivette appeals the sentence imposed after he pled guilty to charges of conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371; armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); and carrying and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Jolivette claims that the imposition of consecutive sentences for the armed bank robbery conviction and for the firearm conviction violates the Fifth Amendment's protection against Double Jeopardy. Because we conclude that the imposition of consecutive sentences for these offenses does not violate the Fifth Amendment, we will affirm the judgment of the district court.

I.

On the morning of June 19, 1998, Jolivette, armed with a nine-millimeter pistol, hid with two similarly armed co-defendants in the woods near a bank and waited for the bank employees to arrive. When the bank opened, the trio entered, tied up the employees and stole money from the safe. The robbery was foiled by a bank customer who walked in, saw what was going on and left to call the police. Realizing that the police were en route, the defendants fled into the woods with an undetermined amount of money. Later that day, the police searched the woods and found Jolivette and his co-defendants. The exact amount of money taken in the heist was never ascertained.

Jolivette pled guilty to a three-count indictment charging him with conspiracy to commit armed bank robbery, armed bank robbery and using and carrying a firearm during a crime of violence. The court sentenced him to two concurrent terms for the bank robbery and conspiracy charges, and a consecutive 60 month term for the 18 U.S.C. § 924(c) firearm violation. The court also sentenced Jolivette to make restitution in an amount to be set upon receipt of a report from the probation officer regarding the appropriate amount of restitution.

II.

Jolivette claims that the district court erred by requiring him to pay an as-yet undisclosed amount of restitution. The government conceded that the restitution was open-ended, and that the sentence should be amended to remove the restitution provision. Neither party raised the question of whether the failure of the district court to set a final amount for the sentence of restitution robs the judgment of finality and deprives this court of jurisdiction to hear the appeal. It is well settled, however, that an appellate court must satisfy itself of its appellate jurisdiction, even if the question is not raised by the parties. Wagner v. Burlington Industries, Inc., 423 F.2d 1319, 1321 (6th Cir. 1970). Because the jurisdictional issue is inextricably bound to the merits of the restitution order, we will review the two issues together.

A federal court's power to order restitution is circumscribed by statute. Title 18 U.S.C. § 3664(d)(1)(5) provides that if a victim's losses are not ascertainable 10 days prior to sentencing, the court shall set a date within 90 days after the sentencing for the final determination of the losses. In this case, the government concedes that more than 90 days has passed and that no final determination of loss has been made by the district court. The first question before this court then, is whether in the absence of such a determination, Jolivette's conviction and sentence are final for purposes of appeal. Examining the decisions of the Supreme Court and our sister circuits, we conclude that the restitution provision of the sentence is void, and the remainder of the sentence imposed by the district court is a final appealable order.

It is axiomatic that "[f]inality as a condition of review is an historic characteristic of federal appellate procedure."Flanagan v. United States, 465 U.S. 259, 263 (1984) (quoting Cobbledick v. United States, 309 U.S. 323, 324 (1940)). The Supreme Court has held that "[f]inal judgment in a criminal case . . . means sentence. The sentence is the judgment." Corey v. United States, 375 U.S. 169, 174 (1963) (interior quotes omitted). See also, United States v. Bratcher, 833 F.2d 69,71 (6th Cir. 1987).

Corey pre-dated the Sentencing Guidelines, and involved a statute that permitted the sentencing court to commit the defendant to the custody of the Attorney General for the maximum period permitted by law, pending the completion of a presentencing investigation, and, after receipt and study of the investigative report, to affirm the initial sentence or to impose a new and lesser sentence. Relying upon its prior pronouncement that "when discipline has been imposed, the defendant is entitled to review," Korematsu v. United States, 319 U.S. 432, 434 (1943), the Court held that the imposition of the initial sentence was "freighted with sufficiently substantial indicia of finality to support an appeal." Corey, 375 U.S. at 175 (1963).

The Eighth Circuit has held that a "sentence of probation is a 'final decision' for purposes of appellate review" even when one of the terms of probation is payment of restitution in an undetermined amount. United States v. McKnight, 771 F.2d 388, 390 (8th Cir. 1985). The Seventh Circuit reached a similar conclusion regarding a sentence provision that required the defendant to reimburse the government for his court-appointed attorney's fees. United States v. Gurtunca, 836 F.2d 283, 285 (7th Cir. 1987). The court reasoned that although the exact amount of repayment was still in question, the sentence "sufficiently satisfie[d] conventional requirements of finality." Id., quoting Corey, at 372.

The interests of justice require that the appellate process move as expeditiously as practicable. If a defendant was properly convicted and sentenced, then public policy demands that his punishment be swift and certain. If a defendant was wrongfully convicted, justice requires timely review and corrective action. See Corey, 375 U.S. at 172 ("The dominant philosophy embodied in these rules reflects the twin concerns that criminal appeals be disposed of as expeditiously as the fair and orderly administration of justice may permit, and that the imposition of actual punishment be avoided pending disposition of the appeal."). Jolivette was properly convicted and has not contested any aspect of the trial or pre-trial proceedings. He was also sentenced to a definite period of incarceration and restitution. The only issue remaining for determination is the precise amount of that restitution. Since no question exists regarding the propriety of defendant's conviction, we think that the requirements of Corey and Korematsu have been met.

The language of the statute pursuant to which Jolivette's sentence of restitution was imposed also points to a conclusion that the judgment in this case is final for purposes of appeal. The statute states that "[a] sentence that imposes an order of restitution is a final judgment notwithstanding the fact that the sentence" can be subsequently corrected, appealed, modified or adjusted. 18 U.S.C. §3664(o). According to the statute, a correction means the repair of an earlier error. See 18 U.S.C. §3664(o)(1)(A). Modification also presumes a change made to a pre-determined amount. See 18 U.S.C. §3664(o)(1)(B). The amendment and adjustment provisions also cite to specific code sections that allow changes to the earlier restitution amount when the defendant's financial conditions change. See 18 U.S.C. §3664(o)(1)(C-D). These provisions allowing corrections and amendments after a significant period of time has passed but affirming the finality of the sentence, militate strongly in favor of our finding finality in the district court's order.

Most importantly, the statutory deadline for calculating the amount of restitution due has passed. The statute requires that if the probation department is unable to determine the victim's losses prior to the sentencing hearing, the court shall set a final date for such determination, not later than 90 days from the hearing date. 18 U.S.C. §3664(d)(5). If within 60 days of such determination, the victim discovers further losses, the victim may, upon a showing of good cause, reopen the matter. Id. Those time periods having passed, the district court could not now, consistent with the terms of the statute, set an amount of restitution. In the absence of such an amount, the court cannot specify "the manner in which, and the schedule according to which, the restitution is to be paid . . ." See 18 U.S.C. § 3664(f)(1)(B)(2).

We believe that the statute makes clear the congressional intent to prohibit courts from making restitution determinations after the statutory period has run. But even if we found Congress's silence on the issue of what occurs if, as in this case, the court does not make such a determination, we would apply the well-settled rule requiring that any ambiguity in criminal statutes be resolved against the government and in favor of the criminal defendant. Staples v. United States, 511 U.S. 600, 619, n. 17 (1994) (rule of lenity requires that "ambiguous criminal statute[s] . . . be construed in favor of the accused").

Accordingly, we hold that when the 90-day clock runs out, the judgment of conviction and sentence, including the restitution provision, becomes final by operation of the statute. We therefore have jurisdiction to review the...

To continue reading

Request your trial
40 cases
  • U.S. v. Johnson
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 8 Marzo 2005
    ...restitution order even though defendant did not have an opportunity to object within ninety-day period). But see United States v. Jolivette, 257 F.3d 581, 584 (6th Cir.2001) (holding, without reference to Vandeberg, that "when the 90-day clock runs out, the judgment of conviction and senten......
  • U.S. v. Williams
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 5 Marzo 2009
    ...F.3d 386, 389 (8th Cir. 2000)), and that the Sixth Circuit has cited these cases with approval, see id. (citing United States v. Jolivette, 257 F.3d 581, 587 (6th Cir.2001)). We distinguished Alaniz and Collins by pointing out that the defendants in those cases, like Williams, were convicte......
  • U.S. S.E.C. v. Blackwell
    • United States
    • U.S. District Court — Southern District of Ohio
    • 20 Marzo 2007
    ...in a Final Judgment on the Merits A criminal conviction and sentence is a final judgment on the merits. See, e.g., United States v. Jolivette, 257 F.3d 581, 583 (6th Cir.2001). Defendants argue that because they have an expedited appeal pending before the Sixth Circuit, this Court should ei......
  • U.S. v. Cheal
    • United States
    • U.S. Court of Appeals — First Circuit
    • 15 Noviembre 2004
    ...no meaning unless the order had been entered." United States v. Stevens, 211 F.3d 1, 4 (2d Cir.2000). See also United States v. Jolivette, 257 F.3d 581, 584 (6th Cir.2001); United States v. Maung, 267 F.3d 1113, 1121 (11th Cir.2001); United States v. Grimes, 173 F.3d 634, 639-40 (7th Cir.19......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT