U.S. v. Sclafani
Decision Date | 11 March 1998 |
Docket Number | No. CRIM. 97-405.,CRIM. 97-405. |
Citation | 996 F.Supp. 400 |
Parties | UNITED STATES of America v. Leonard SCLAFANI. |
Court | U.S. District Court — District of New Jersey |
Faith S. Hochberg, U.S. Atty., Jeremy D. Frey, Asst. U.S. Atty., U.S. Atty's Office, Mitchell H. Cohen U.S. Courthouse, Camden, NJ, for U.S.
Anne C. Singer, Earp, Cohn & Pendery, A Professional Corp., Westmont, NJ, for Leonard Sclafani.
After pleading guilty to a one-count information charging conspiracy to commit bank larceny, the defendant was sentenced by a magistrate judge to a three-year term of probation and ordered to pay $15,000 in restitution. The defendant has appealed to this Court from the restitution order on the grounds that: (1) the magistrate judge erred by failing to make specific factual findings regarding the defendant's ability to pay restitution as required by a Third Circuit supervisory rule; and (2) the magistrate judge abused his discretion in setting the amount of restitution. The defendant, however, raises these objections for the first time on this appeal. The resolution of this appeal requires this Court to unravel the tangled web of federal appellate "waiver-forfeiture" jurisprudence.
The Third Circuit has issued contradictory decisions regarding a defendant's ability to obtain appellate review of a restitution order to which the defendant did not object below. Compare United States v. Kendis, 883 F.2d 209 (3d Cir.1989) ( ) and United States v. Cannistraro, 871 F.2d 1210 (3d Cir.1989) ( ) with United States v. Turcks, 41 F.3d 893 (3d Cir.1994) (, )cert. denied, 514 U.S. 1074, 115 S.Ct. 1716, 131 L.Ed.2d 575 (1995).
To decide this appeal, therefore, I must reconcile these conflicting panel decisions. I conclude that Kendis and Cannistraro were undermined by the Supreme Court's decision in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and that the Turcks court implicitly relied upon that decision in establishing new Third Circuit precedent. Thus, pursuant to Olano and Turcks, I must determine whether the defendant "waived" his objections to the restitution order effectively precluding appellate review, or merely "forfeited" his objections permitting review for plain error.
For the reasons set forth below, I conclude that the defendant "forfeited," rather than "waived," his objections and that the magistrate judge's failure to make specific factual findings amounted to plain error. Therefore, the restitution order will be vacated and this matter remanded for further proceedings consistent with this Opinion.
On April 3, 1997, the defendant, Leonard Sclafani (formerly known as Leonardo Sclafani), pled guilty before the Honorable Robert B. Kugler, United States Magistrate Judge, to a one-count information charging him with conspiracy to commit bank larceny in violation of 18 U.S.C. §§ 2113(b), 371. See Transcript of Plea before Hon. Robert B. Kugler, dated April 3, 1997 ("Plea Tr."). On July 16, 1997, Magistrate Judge Kugler sentenced Sclafani to a three-year term of probation and ordered Sclafani to make restitution in an amount totaling $15,000.00. See Judgment, United States v. Sclafani, Magistrate No. 97-1045 (D.N.J. Jul. 17, 1997); see also Transcript of Sentencing before Hon. Robert B. Kugler, dated July 16, 1997 () .
The plea agreement between Sclafani and the government provided that the sentencing judge "may order Leonardo Sclafani to pay restitution pursuant to 18 U.S.C. §§ [sic] 3663A." Plea Agreement with Leonardo Sclafani, dated March 31, 1997 ("Plea Agreement" or "Plea Agr."), 2. The Plea Agreement also contained the following stipulation:
The loss figure attributable to this defendant for purposes of the Guidelines and restitution is $16,800. As a result, 5 levels are added under Section 2B1.1(b)(1). The offense involved more than minimal planning and 2 levels are added under Section 2B1.1(b)(4).
Plea Agr. at 5, ¶ 2; accord Presentence Investigation Report ("PSI"), ¶ 5.2.
The PSI incorporated the stipulations contained in the Plea Agreement. See PSI at ¶¶ 59, 5. Moreover, the PSI stated:
Pursuant to 18 U.S.C. § 3663, restitution may be ordered in this case. If the Court does not order restitution or only partial restitution, it must state its reasons for doing so, pursuant to 18 U.S.C. § 3553. Per the plea agreement, restitution in the amount of $16,800 is outstanding. The U.S. Attorney's Office reported that $3,800 is due to CitiBank ... and that $11,200 is due to The Chase Manhattan Bank ... for a total restitution due of $15,000.
Id. at ¶ 66. Sclafani made no objections to the PSI relating to restitution. See id. at Addendum; Sent. Tr. at 3.
At the sentencing hearing, the Assistant United States Attorney stated that "the United States would request that the Court consider restitution as well." Id. at 5; see id. at 3 ( ). Jay Blumberg, Esq., counsel for Sclafani at his sentencing,1 discussed this request with Magistrate Judge Kugler as follows:
Id. at 8-9. Following that exchange, Mr. Blumberg advocated a sentence of probation, arguing in part that, "if there is going to be an order of restitution, it certainly will allow him to continue and attempt to pay off whatever restitution that the Court orders." Id. at 11.
Near the end of the sentencing hearing, the Assistant United States Attorney broached the subject of restitution again:
Id. at 17. On July 21, 1997, Sclafani filed a Notice of Appeal to this Court from the restitution order imposed by Magistrate Judge Kugler. See Fed.R.Crim.P. 58(g)(2)(B). The magistrate judge had jurisdiction of this matter pursuant to 18 U.S.C. § 3401, and this Court has jurisdiction over the appeal pursuant to 18 U.S.C. § 3402.
On appeal, Sclafani contends that the restitution order must be vacated and the case remanded for resentencing. Sclafani argues that Magistrate Judge Kugler failed to make specific findings of fact regarding Sclafani's financial circumstances as required by a Third Circuit supervisory rule, and that, given Sclafani's financial straits, the entry of the restitution order in this instance was an abuse of discretion.
This Court reviews a magistrate judge's sentencing order under the same legal standards as a court of appeals reviews a district court's sentencing order. See Fed. R.Crim.P. 58(g)(2)(D); United States v. Mather, 902 F.Supp. 560, 562 (E.D.Pa.1995), aff'd mem., 91 F.3d 127 (3d Cir.1996); United States v. Peck, 545 F.2d 962, 964 (5th Cir.1977). Accordingly, I review the legality of the imposition of restitution under a de novo standard. See, e.g., United States v. Copple, 74 F.3d 479, 482 (3d Cir.1996). The amount of the restitution order imposed by the magistrate judge, however, is reviewed only for an abuse of discretion. See id.
The Victim and Witness Protection Act of 1982 ("VWPA"), 18 U.S.C. §§ 3663-3664, provides for the formulation and imposition of a restitution order as part of a defendant's sentence. See United States v. Copple, 74 F.3d 479, 482 (3d Cir.1996). In 1996, however, Congress passed the Mandatory Victims Restitution Act of 1996 ("MVRA"), Pub.L. No. 104-321, 110 Stat. 1227, which substantially amended the relevant provisions of the VWPA. See generally United States v. Baggett, 125 F.3d 1319, 1322 (9th Cir.1997).
Prior to the passage of the MVRA, the VWPA provided in relevant part: "The court, in determining...
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