United States v. Norwood
| Decision Date | 08 September 2022 |
| Docket Number | 20-3478 |
| Parties | UNITED STATES OF AMERICA v. MICHAEL NORWOOD, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Argued May 26, 2022
On Appeal from the United States District Court for the District of New Jersey (D. N.J. No. 1-96-cr-00232-001) District Judge Honorable Robert B. Kugler
Beresford L. Clarke [ARGUED]
Sean E. Andrussier
Lauren Johnson
Karen L. Sheng
Margaret (Emmy) Wydman
Duke University School of Law
Court Appointed Amicus Curiae for Appellant
Steven G. Sanders [ARGUED]
Sabrina G. Comizzoli
Mark E. Coyne
Office of United States Attorney
Counsel for Appellee
Before: KRAUSE, PHIPPS, Circuit Judges, and STEARNS [*] , District Judge
In the nearly four decades since Congress enacted the Victim and Witness Protection Act of 1982 ("VWPA"), 18 U.S.C. § 3363 (1994), restitution has become ubiquitous in federal sentencing. Recognizing the importance of making victims of crimes whole to the extent possible, Congress gave district courts discretion to order restitution in addition to any term of imprisonment for certain offenses. But it also recognized that the obligation to make payments indefinitely could saddle criminal defendants, especially those poor and indigent, with insurmountable burdens as they sought to reintegrate into society while subject to collection, compounding interest, the looming threat of default, and the collateral consequences that attach to ongoing criminal liability. The balance it struck in the VWPA was to limit the duration of a defendant's restitutionary liability to twenty years.
A decade later, however, the balance had shifted, and the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. § 3663A, made restitution mandatory and extended the duration of defendants' payment obligations by decades for those sentenced after its effective date-even those, like Appellant Michael Norwood, who had committed their offenses when the VWPA was still in effect. In this appeal, we must decide whether retroactively applying the MVRA to extend the duration of Norwood's restitutionary liability violates the Ex Post Facto Clause of the Constitution, U.S. Const. art. I, § 9, cl. 3. For the reasons that follow, we conclude that it does, and we will reverse the contrary order of the District Court.
When Congress enacted the MVRA in 1996, it amended the law governing restitution for criminal defendants in a number of respects. It also recognized, in doing so, that there might be constitutional limitations on the Act's retroactive application. Congress therefore set an effective date of April 24, 1996, and provided that the MVRA would only apply to sentencings for convictions occurring on or after that date, and only "to the extent constitutionally permissible." 18 U.S.C. § 2248 (statutory notes).
The statute that governed criminal restitution before the MVRA was the Victim and Witness Protection Act of 1982. Under the VWPA, when a court sentenced a defendant convicted of certain crimes, it had discretion to "order, in addition to . . . any other penalty authorized by law, that the defendant make restitution to any victim of such offense." 18 U.S.C. § 3663(a)(1) (1994). Such restitution orders, in turn, could be enforced by the United States "in the manner provided for the collection and payment of fines in subchapter B of chapter 229 of this title." Id. at § 3663(h)(1)(A). That provision referred to 18 U.S.C. § 3613, which provided that a fine-and thus a restitution order-"is a lien in favor of the United States upon all property belonging to the person fined," and that "[t]he lien arises at the time of the entry of the judgment and continues until the liability is satisfied, remitted, or set aside, or until it becomes unenforceable pursuant to the provisions of subsection (b)." Finally, subsection (b) provided that "[a] lien becomes unenforceable and liability to pay a fine expires . . . twenty years after the entry of the judgment." Id. at § 3613(b)(1). In other words, under the VWPA, when a criminal judgment imposed a restitution order, it created a lien by operation of law and started a twenty-year clock running, and when that clock ran out, two things happened: the lien became unenforceable, and the defendant's liability to pay expired.
On April 24, 1996, Congress enacted the MVRA, which amended these laws in significant ways. First, the MVRA- unlike the VWPA-makes restitution mandatory. See 18 U.S.C. § 3663A(a)(1). Second, though the MVRA also provides for restitution orders to be enforced like fines by creating a lien in favor of the United States,[1] it provides that such liens persist as long as a defendant remains liable to pay. See id. at § 3613(c). And-most importantly for purposes of this case-it provides that a defendant's "liability to pay a fine shall terminate the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the person fined." 18 U.S.C. § 3613(b) (emphasis added). In short, under the MVRA, a restitution lien never becomes unenforceable, and a defendant's liability to pay expires not twenty years after entry of the defendant's judgment, but twenty years after the defendant's release from imprisonment, resulting in a significantly longer period of liability than under the VWPA.
B. Factual and Procedural Background
Just twelve days before the MVRA took effect, Appellant Michael Norwood committed a bank robbery in New Jersey, and was charged with a number of federal crimes.[2] He was convicted on all six counts and sentenced on May 30, 1997, to life plus twenty-five years in prison. In connection with his counts of conviction for bank robbery and armed bank robbery, Norwood's sentence also included a restitution order totaling $19,562.87.[3] Norwood appealed his conviction, but we affirmed. See United States v. Norwood, No. 97-5346 (3d Cir. Feb. 10, 1998).
Because Norwood's conduct occurred before the MVRA took effect, his restitution was governed by the VWPA. Cf. United States v. Edwards, 162 F.3d 87, 88-89 (3d Cir. 1998). This meant that the Government's lien was set to become unenforceable, and Norwood's liability to pay was set to expire, twenty years after the entry of judgment-on May 30, 2017.
Since his initial sentencing, Norwood has filed several successful habeas petitions under 28 U.S.C. § 2255 and has been resentenced three times. Because these proceedings are central to both parties' arguments on appeal, we recount them, and their effects on Norwood's restitution obligation, in relevant detail.
First, in 1999, Norwood successfully argued that the District Court miscalculated the offense level for his count of conviction for possession of a firearm by a felon. See Norwood v. United States, No. 1:99-cv-18 (D.N.J. June 29, 1999). The District Court resentenced Norwood to 327 months imprisonment on that count, bringing his total term of imprisonment to 627 months. This resentencing left Norwood's sentences intact as to all other counts, including the bank robbery counts for which restitution had been ordered. Norwood appealed this new sentence, but we denied a certificate of appealability. See United States v. Norwood, Nos. 99-5510 &99-5992 (3d Cir. July 28, 2000).
Second, in 2010, Norwood filed another § 2255 petition claiming a Double Jeopardy violation on the grounds that his conviction for bank robbery was a lesser included offense of his conviction for armed bank robbery. See Norwood v. United States, 1:10-cv-6744 (D.N.J. Dec. 23, 2010). The District Court originally dismissed Norwood's petition as second or successive, but the Government conceded the Double Jeopardy issue on appeal, and we remanded. On remand, the District Court dismissed Norwood's conviction for bank robbery entirely and resentenced him on all other counts. There was no change to his total term of imprisonment, and the sentencing court expressly stated that "all other conditions of the judgment of conviction . . . shall remain in full force and effect." App. 166. The amended judgment also reiterated Norwood's obligation to pay restitution.
Third, in 2013, Norwood appealed his new sentence, arguing that it had been imposed before the Supreme Court held in United States v. Booker, 543 U.S. 220 (2005), that the Sentencing Guidelines were not mandatory, and both Norwood and the Government moved to remand for de novo sentencing, which we granted by issuing an order vacating Norwood's 2012 sentencing order. At resentencing, the District Court reduced Norwood's sentences on two counts and issued a new amended judgment. The District Court made no mention of Norwood's restitution obligations during the resentencing hearing, and its amended judgment again simply reiterated the same restitution obligation that had been in effect since 1997.
Norwood appealed this order on other grounds, but we affirmed. See United States v. Norwood, 566 Fed.Appx. 123, 128 (3d Cir. 2014).
As we trace Norwood's restitution order along this complicated procedural journey, it is clear that his restitution order was not disturbed in any way by his first habeas petition, which only affected a separate count on which restitution had not been imposed. His second habeas petition resulted in the dismissal of one of the two counts on which restitution was based but had no effect on either Norwood's term of imprisonment or his restitution obligation. And though his third habeas petition resulted in his sentence being reduced, it also purported to leave his restitution undisturbed.
Like many inmates, Norwood's personal funds are held in an inmate trust account maintained by the Bureau of Prisons ("BOP"), into which friends and family may make...
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