United States v. Grant

• Decision Date: 09 May 2013
• Docket Number: No. 12-4037,12-4037
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NICOLE GRANT, a/k/a Nicole Jones, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.NICOLE GRANT, a/k/a Nicole Jones, Defendant-Appellant.

No. 12-4037

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: January 29, 2013

Decided: May 9, 2013

PUBLISHED

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Arenda Wright Allen, District Judge.

(2:10-cr-00014-AWA-DEM-1)

Before TRAXLER, Chief Judge, and GREGORY and

SHEDD, Circuit Judges.

Vacated by published opinion. Chief Judge Traxler wrote the opinion, in which Judge Gregory joined. Judge Shedd wrote a separate concurring opinion.

COUNSEL

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Robert John Krask, OFFICE OF THE UNITED STATESATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Keith Loren Kimball, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

OPINION

TRAXLER, Chief Judge:

Nicole Grant appeals a district court order adding to her previously imposed sentence a new requirement that she apply all tax refunds and other money she receives from any "anticipated or unexpected financial gains" toward an outstanding restitution obligation imposed on her as part of her sentence for the crime of theft of government property. Concluding that the district court abused its discretion by later amending the original sentence in the absence of evidence of the impact the amendment would have on Grant's ability to support herself and her family, we vacate the order.

I.

Insofar as this appeal pertains to the law of criminal restitution and conditions of probation, we begin our discussion with some brief background in those areas.

Although restitution has deep common law roots, it was only in the Victim and Witness Protection Act of 1982, ("VWPA") Pub. L. No. 97-291, 96 Stat. 1248 (1982), "that Congress first gave the federal district courts general statutory authority to order restitution as part of a criminal sentence outside of the probation context." United States v. Amato, 540 F.3d 153, 159 (2d Cir. 2008); see S. Rep. No. 97-532, at 30(1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2536. Thirteen years later, Congress passed the Mandatory Victims Restitution Act of 1996 ("MVRA") as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, Title II, Subtitle A, 110 Stat. 1214. The legislation's stated purpose was to ensure that offenders realized the damage they caused with their criminal actions and make the victims whole. See S. Rep. 104-179, at 12 (1995), reprinted in 1996 U.S.C.C.A.N. 924; see also Dolan v. United States, 130 S. Ct. 2533, 2539 (2010) (noting that the MVRA "seeks primarily to assure that victims of a crime receive full restitution"). The MVRA also served to "replace an existing patchwork of different rules governing orders of restitution under various Federal criminal statutes with one consistent procedure." S. Rep. 104-179, at 12 (1995), reprinted in 1996 U.S.C.C.A.N. 924.

Under the MVRA, for any defendant convicted of certain enumerated offense categories, including, as is relevant here, offenses against property, the sentencing court is required to order the defendant to pay restitution in accordance with 18 U.S.C. § 3664. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii), (d). Pursuant to that section, a sentencing court must "order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant." Id. § 3664(f)(1)(A). However, upon determining the total restitution amount owed to each victim, the district court must,

pursuant to section 3572, specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, in consideration of—

(A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled;

(B) projected earnings and other income of the defendant; and(C) any financial obligations of the defendant; including obligations to dependents.

Id. § 3664(f)(2).¹ If the restitution order requires payment over time, the time must be "the shortest . . . in which full payment can reasonably be made." Id. § 3572(d)(2).

The MVRA also requires that the restitution order "provide that the defendant shall notify the court and the Attorney General of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution." Id. § 3664(k). Once the victim or victims owed restitution are also notified, and the court finds that a material change has indeed occurred, the court is authorized to adjust the payment schedule "as the interests of justice require." Id.; see Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003).

An order to pay restitution is a part of a criminal sentence. See United States v. Cohen, 459 F.3d 490, 496 (4th Cir. 2006). Additionally, however, under the MVRA, the sentencing court must make compliance with the restitution order a condition of any probation sentence. See 18 U.S.C. § 3563(a)(6)(A). There are certain conditions other than the payment of restitution that the sentencing court must place on any probation sentence, see id. § 3563(a), and sentencing courts have discretion to add still more conditions of the court's choosing "to the extent that [they] are reasonablyrelated to the factors set forth in section 3553(a)(1) and (a)(2) and . . . involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 3553(a)(2)," id. § 3563(b). After imposition of the initial conditions of a probation are set, "[t]he court may modify, reduce, or enlarge [those] conditions . . . at any time prior to the expiration or termination of the term of probation, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the conditions of probation." Id. § 3563(c).

With this general background, we now turn to the facts of this case. In 2009, Grant was indicted and pled guilty in the Northern District of Florida on one count of theft of government property in excess of $1,000, see 18 U.S.C. § 641, as a result of her receipt of Supplementary Security Income ("SSI") from the Social Security Administration ("SSA") after her eligibility for such payments had ended. Grant had been receiving the money on behalf of her special-needs daughter but failed to notify the government when she subsequently married and her husband's income made her ineligible for SSI.

Grant's presentence report ("PSR") outlined her financial circumstances relating to her ability to pay fines and restitution. According to the report, her monthly income at the time of sentencing was $2,795.00 (including $1,865.00 in spousal income and support for her two children and $930 in estimated net salary) and her monthly expenses were $2,533.75, yielding a net monthly cash flow of $261.25. Her expenses included her payments on a debt of $807 owed to her cellular telephone company, as well as $17,016 in credit card debt and a $22,100 car loan. The report further noted that she had received tax refunds of $2,722, $2,862, $600, and $3,987, respectively, for the tax years 2005, 2006, 2007, and 2008. In light of Grant's anticipated restitution obligation, the PSR noted it did not appear she would have the present or futureability to pay a fine. See 18 U.S.C. § 3572(b) (providing that a fine should be imposed only to the extent that it would not impair the defendant's ability to fulfill her restitution obligations).

On October 28, 2009, the district court sentenced Grant to five years' probation, with six months of home confinement and a $100 special assessment, to be paid immediately. Her sentence also required her to pay $42,152 in restitution to the SSA in $250 monthly installments and to notify the court of any material changes in her economic circumstances. As is relevant here, the district court also conditioned her probation on her compliance with her restitution payment schedule and her "provid[ing] the probation office with access to all requested financial information, both business and personal, during the term of supervision." J.A. 17.

In January 2010, the district court reduced Grant's required monthly restitution payment to $125, presumably based on a showing that Grant's financial circumstances relating to her ability to pay restitution had materially worsened. Later that same month, the Florida district court transferred jurisdiction over Grant's case and supervision of her probation to the Eastern District of Virginia.

In 2010 and 2011, Grant received tax refunds for the 2009 and 2010 tax years in the approximate amounts of $2,900 and $3,300, respectively. Apparently as a result of these most recent refunds, Grant's new probation officer petitioned the district court in November 2011 to add a new special condition to Grant's probation that she must "apply monies received from income tax refunds, lottery winnings, inheritances, judgments, and any anticipated or unexpected financial gains to the outstanding court ordered financial obligations." J.A. 22. Because Grant did not consent to this change, the district court appointed counsel to represent her and set a hearing.

Grant argued that the requested condition would amount to an unauthorized amendment to her sentence. She particularly emphasized that the additional burden would be unwarranted in light of the fact that the financial circumstances affecting her ability to pay restitution had not materially improved. The government countered that district courts have broad authority to modify probation conditions and that the condition...