United States v. Hunter

• Decision Date: 22 May 2015
• Docket Number: No. 13–3098.,13–3098.
• Citation: 786 F.3d 1006
• Parties: UNITED STATES of America, Appellee v. Ricardo HUNTER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

786 F.3d 1006

UNITED STATES of America, Appellee

v.Ricardo HUNTER, Appellant.

No. 13–3098.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 23, 2015.

Decided May 22, 2015.

Rehearing En Banc Denied July 7, 2015.

Jeremy C. Marwell, appointed by the court, argued the cause for appellant. With him on the briefs was John P. Elwood.

Ricardo Hunter, pro se, filed the briefs for appellant.

Stephen F. Rickard, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen, Jr., U.S. Attorney at the time the briefs were filed, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant U.S. Attorneys.

Before: TATEL, Circuit Judge, EDWARDS, Senior Circuit Judge, and RANDOLPH, Senior Circuit Judge.

Opinion

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

EDWARDS, Senior Circuit Judge:

The Appellant in this case, Ricardo Hunter, pled guilty to federal charges stemming from a series of armed robberies. He was sentenced to fifteen years in prison and ordered to pay $35,157.27 in restitution, along with a “special assessment” of $400.00. Under the District Court's order, both amounts were payable immediately. The sentencing order further provided that, during his incarceration, Appellant was to participate in the Bureau of Prisons Inmate Financial Responsibility Program (“IFRP”) through which he would make payments to satisfy the restitution obligation. The timing and amounts of the payments to be made by Appellant were left to be determined by IFRP. Appellant's claim on appeal is that the District Court's delegation to IFRP violated 18 U.S.C. § 3664(f)(2), which mandates that “the court shall ... specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid....”

Appellant's attorney did not raise this statutory argument during the sentencing proceedings before the District Court. About two months after the District Court imposed sentence, Appellant filed a motion pro se seeking to suspend the restitution order. In his initial brief to the District Court in support of this belated motion, Appellant did not raise the statutory argument regarding the District Court's alleged unlawful delegation to IFRP. The argument was first raised in Appellant's reply brief in support of his motion. The Government did not respond to the reply brief. The District Court denied the motion, United States v. Hunter, No. 11–391(RWR), 2013 WL 4083311, at *1 (D.D.C. Aug. 13, 2013), and Appellant appealed.

An order was issued by this court appointing amicus counsel (“Amicus”) to brief and argue the case on behalf of Appellant. Amicus has directly and clearly raised the statutory argument resting on 18 U.S.C. § 3664(f)(2). In particular, Amicus argues that the District Court erred in failing to fulfill its statutory duty to assess Appellant's ability to pay restitution, and to establish an appropriate schedule for payments. In response to the Government's argument that Appellant's appeal to this court should be dismissed as untimely, Amicus contends that the filing requirements of Federal Rule of Appellate Procedure 4(b) are non-jurisdictional and presumptively subject to equitable tolling. Amicus thus urges the court not to “dismiss[ ] a criminal appeal as untimely where a defendant [acting pro se ], through no fault of his own or lack of diligence, did not know the clock had begun to run.” Amicus Br. 4.

The Government asserts that the appeal should be dismissed on any one of four grounds: first, the appeal was not timely filed; second, at sentencing, Appellant expressly waived his right to appeal his plea agreement; third, Appellant forfeited his statutory claim by failing to raise it with the District Court during the sentencing proceedings; and, finally, Appellant's challenge to the District Court's sentencing order is without merit.

Because the filing requirement under Federal Rule of Appellate Procedure 4(b) is a non-jurisdictional, claim-processing rule, see United States v. Byfield, 522 F.3d 400, 403 n. 2 (D.C.Cir.2008), we may proceed to the merits. We therefore leave for another day the challenging questions raised by Amicus and the Government regarding the timeliness of this appeal. The record in this case makes it clear that Appellant's “counsel did not object to the restitution order at the sentencing hearing, so our review is for plain error.” United States v. Baldwin, 563 F.3d 490, 491 (D.C.Cir.2009) (citing Fed.R.Crim.P. 52(b) ). In Baldwin, we considered whether a restitution order that delegated to IFRP the responsibility for determining a defendant's payment schedule during her incarceration constituted plain error. The court held that, “[g]iven the divergent views of the courts of appeals ... we cannot say that the district court committed ‘plain error’ in its restitution order.” Id. at 492. Baldwin controls the disposition of this case. We are therefore constrained to deny Appellant's appeal. Given this result, it is unnecessary to reach the other arguments raised by the Government.

I.Background

A. The Mandatory Victim Restitution Act

The Mandatory Victim Restitution Act (“MVRA”) governs restitution orders that are issued against federal defendants. Pub.L. No. 104–132, §§ 201–11, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 18 U.S.C.). When sentencing a defendant convicted of certain crimes (including any crime of violence), the MVRA requires the court to order the defendant to “make restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(1). The 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). The statute provides, however, that:

(2) Upon determination of the amount of restitution owed to each victim, the court shall, 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.

(3)(A) A restitution order may direct the defendant to make a single, lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments.

(B) A restitution order may direct the defendant to make nominal periodic payments if the court finds from facts on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments.

Id. § 3664(f)(2), (f)(3).

The statute also allows for the adjustment of restitution orders after sentencing. On this point, the statute states:

A restitution order shall 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. The court may also accept notification of a material change in the defendant's economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require.

Id. § 3664(k).

B. Appellant's Challenge to His Restitution Order

Appellant was charged in September 2011 after a spree of armed robberies. He pled guilty to two counts of armed robbery under the Hobbs Act, 18 U.S.C. § 1951, one count of attempted armed robbery of an armored car under 18 U.S.C. § 2113, and one count of possession of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1). As part of his plea agreement, Appellant agreed to forfeit $35,157.27, the total proceeds of his Hobbs Act robberies, and to pay restitution in the same amount.

On March 1, 2013, the District Court orally sentenced Appellant to fifteen years in prison followed by three years of supervised release. The court also ordered Appellant to pay $35,157.27 in restitution (jointly and severally with his codefendant), as provided in the plea agreement, along with a “special assessment” of $400. The court made both amounts immediately payable. The District Court's order further provided that, during his incarceration, Appellant should make payments by participating in IFRP, leaving the timing and amounts of his payments up to the Bureau of Prisons. Finally, the District Court ordered that, when he was out of prison on supervised release, Appellant would be required to pay down the balance of his restitution at a rate of no less than $50 each month. Appellant's counsel did not object to the restitution order. When Appellant entered prison, IFRP imposed a schedule of restitution payments of $25 every three months.

On May 17, 2013, Appellant filed a pro se motion asking the District Court to suspend his restitution payments. He did not claim that the restitution order should be suspended due to changed circumstances. Rather, he argued that the District Court had failed to inquire into his economic situation when determining his payment schedule, and that the payments required by IFRP imposed a significant hardship on him. In an affidavit accompanying the motion, Appellant explained that he could not make his restitution payments because there were few jobs available in the prison offering sufficient wages, his poor health made it hard to work,...