U.S. v. Vance

• Decision Date: 21 February 1989
• Docket Number: No. 88-1224,88-1224
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond W. VANCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1167

868 F.2d 1167

UNITED STATES of America, Plaintiff-Appellee, v. Raymond W. VANCE, Defendant-Appellant.

No. 88-1224.

United States Court of Appeals,

Tenth Circuit.

Feb. 21, 1989.

Carl Hughes (Michael E. Grant, Oklahoma City, Okl., with him on the briefs), Oklahoma City, Okl., for defendant-appellant.

David O'Meilia (Tony M. Graham, U.S. Atty., and Susan W. Pennington, Asst. U.S. Atty., on the brief), Asst. U.S. Atty., for plaintiff-appellee.

Before LOGAN, SETH and TACHA, Circuit Judges.

TACHA, Circuit Judge.

This appeal is from an order of the district court requiring defendant Raymond Vance to pay restitution in the amount of $212,098.35 to the Bank of Oklahoma, and $42,610.93 to the Century National Bank of Oklahoma. Both banks are located in Pryor, Oklahoma. The issue raised on appeal is whether the district court abused its discretion in ordering restitution for the amount of the total loss to the banks, rather than limiting restitution to the amounts directly associated with the two counts of the indictment to which Vance pleaded guilty. We hold that the district court did not abuse its discretion in issuing the restitution order and affirm.

Vance owned and operated a recreational vehicle sales lot in Chouteau, Oklahoma. In 1985 Vance entered into a floor plan financing agreement with the Bank of Oklahoma (BOK). The agreement provided that BOK would finance 100 percent of the purchase price of certain recreational vehicles in exchange for a security interest in those vehicles. Upon the sale of a vehicle, Vance was to reimburse BOK the amount of money borrowed for that vehicle including interest. Vance secured a similar financing arrangement with the Century National Bank of Oklahoma (Century Bank), also located in Pryor, Oklahoma. Pursuant to a floor plan agreement, Century Bank also financed the purchase price of recreational vehicles in exchange for Vance's execution of a promissory note and security interest agreement in favor of Century Bank.

Vance violated the terms of the floor plan agreements by selling vehicles covered by the plans and failing to remit the proceeds to BOK and Century Bank. Vance was indicted on six counts of bank fraud under 18 U.S.C. Sec. 1344. ¹ Each count of the indictment recited a vehicle that was sold in violation of one of the floor plan agreements. Vance entered a plea of guilty to Counts II and VI of the indictment pursuant to a plea agreement with the United States Attorney. All other counts of the indictment were dismissed. The judgment of the district court imposed a suspended sentence of five years and ordered as a condition of probation that Vance make restitution for the full loss sustained by the two banks as a result of the entire scheme covered by the original indictment: $212,098.35 to BOK and $42,610.93 to Century Bank. ²

Counts II and VI of the indictment related to specific vehicles involved in the fraudulent scheme. The total loss related to those vehicles was $28,600. Vance challenges the restitution order, claiming that it should have been limited to the $28,600 directly associated with Counts II and VI of the indictment.

The Government argues that Vance failed to object to the court's order of restitution at sentencing and therefore waived his right to review. The sparse record designated in this case makes it impossible to determine whether Vance effectively waived his right to review. Because the imposition of an illegal sentence would constitute plain error, we assume but do not decide that the objection was preserved for review by this court. See Fed.R.Crim.P. 52(b); C. Wright, 3A Federal Practice and Procedure, Sec. 851, at 294-95 (2d ed. 1982).

The imposition of restitution rests within the discretion of the trial court. See Herzfeld v. United States Dist. Court, 699 F.2d 503, 505-06 (10th Cir.), cert. denied, 464 U.S. 815, 104 S.Ct. 70, 78 L.Ed.2d 84 (1983). A restitution order will not be overturned absent an abuse of discretion. Cf. United States v. Richard, 738 F.2d 1120, 1122 (10th Cir.1984) (discussing review of restitution order under VWPA).

The Probation Act provides, in relevant part, as follows:

Upon entering a judgment of conviction ... any court ... when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.

....

The period of probation ... shall not exceed five years.

While on probation and among the conditions thereof, the defendant--

May be required to pay a fine in one or several sums; and May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had....

18 U.S.C. Sec. 3651 (repealed effective November 1, 1987).

The issue here is whether the phrase "caused by the offense for which conviction was had" limits the discretion of the trial judge to order that the defendant pay restitution only for the amounts associated with the counts to which the defendant pleaded guilty. We decline to follow the circuits that define that phrase in such narrow terms. See, e.g., United States v. Black, 767 F.2d 1334, 1342-44 (9th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88 L.Ed.2d 557 (1985); United States v. Johnson, 700 F.2d 699, 701 (11th Cir.1983). ³ We join the Third, Fourth, and Seventh Circuits, which hold that when the original indictment charged a conspiracy or fraudulent scheme, the restitution order may permissibly encompass all losses related to the scheme or conspiracy and need not be limited to those associated with the counts to which the defendant pleaded guilty. See United States v. Woods, 775 F.2d 82, 88 (3d Cir.1985); United States v. McMichael, 699 F.2d 193, 195 (4th Cir.1983); United States v. Davies, 683 F.2d 1052, 1054 (7th Cir.1982).

Here, Vance perpetrated a scheme to defraud BOK and Century Bank. Although the scheme was furthered by separate acts of failing to report the sales of specific recreational vehicles in violation of the floor plan agreements, "[i]t is the overall scheme that is central to all the counts [charged in the indictment] and gives rise to the victims' financial loss." United States v. Woods, 775 F.2d at 88. We therefore hold that the scheme as a whole may be treated as a unitary offense for the purpose of determining restitution under section 3651.

Restitution under the Probation Act "serves an important rehabilitative function because it requires a defendant to acknowledge guilt and accept responsibility for his or her actions." United States v. Whitney, 785 F.2d 824, 825 (9th Cir.1986), amended, 838 F.2d 404 (9th Cir.1988) (amendment not affecting quoted portion); see also Davies, 683 F.2d at 1055. In our view, interpreting the term "offense" broadly to encompass all the acts of a scheme to defraud--thereby permitting a sentencing judge to order restitution up to the entire amount associated with the fraudulent scheme rather than limiting restitution to the amounts associated with the counts to which a defendant pleaded guilty--furthers the rehabilitative purposes of the Probation Act.

Furthermore, a broad interpretation of the scope of the sentencing judge's discretion under the Probation Act avoids unnecessary restrictions in the plea bargaining process. We agree with the Seventh Circuit that:

Restriction of restitution as proposed by the defendant would severely restrict plea-bargaining in multicount indictment cases, because the Government would be prohibited from entering plea bargains as to some counts if that would eliminate restitution for further illegal proceeds, even though receipt of such proceeds was acknowledged by the defendant, as here. It would also require the Government to obtain indictments with hundreds of counts in cases ... where the scheme is one of widespread but individually small acts of fraud.

Davies, 683 F.2d at 1055.

In Davies the defendant pleaded guilty to two counts of a multicount indictment for mail fraud. The court held that restitution could properly be awarded

in the amount of actual damage and loss to the victim, even if that exceeds the amount in the counts pleaded to, when (a) the defendant has obtained the proceeds as part of an ongoing scheme to defraud which extends over time, and (b) the amount of the damages to the victim has been established with specificity and admitted to by the defendant in the indictment, the plea agreement, and plea and presentence proceedings.

Id. at 1054.

In this case, Vance obtained proceeds as part of an ongoing scheme to defraud BOK and Century Bank. Vance does not contest the amount owed to either bank. Further, the plea agreement between Vance and the Government clearly stated that sentencing discretion remained with the trial court:

There are no agreements whatsoever as to what sentence your client will or should receive pursuant to the plea agreement. In other words, sentencing will remain in the total discretion of the trial court judge. Accordingly, pursuant to the terms of this agreement, your client faces a maximum punishment of ten (10) years' imprisonment and/or faces the imposition of a maximum fine of $500,000.00 and a $100 special assessment. Finally, there will be no agreements or understandings regarding this plea agreement other than those set forth in this document.

(emphasis in original). We therefore hold that the district court did not abuse its discretion in ordering restitution for the entire amount Vance obtained in the fraudulent scheme.

Although the court can properly order restitution in an amount representing the total loss to the victims of a crime under the Probation Act, the federal rules may require that the defendant first be given notice that restitution is a possibility prior to entering a guilty plea. See Fed.R.Crim.P. 11(c). A 1985...