Opinion
No. CR-95-0202 EFL
08-22-2012
UNITED STATES OF AMERICA, Plaintiff, v. SHAWN WEBB FITZGERALD, Defendant.
ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S "MOTION
TO TERMINATE RESTITUTION RESPONSIBILITIES"
(Docket No. 54)
Defendant Shawn Webb Fitzgerald, acting pro se, has filed a motion asking that his restitution responsibilities be terminated. Having considered the parties' briefs and accompanying submissions, the Court hereby DENIES without prejudice the request for relief.
I. FACTUAL & PROCEDURAL BACKGROUND
In May 1995, a grand jury returned a four-count indictment charging Mr. Fitzgerald with two counts of possession of stolen United States mail (18 U.S.C. § 1708); one count of possession of a forged postal access key (§ 1704); and one count of possession of unauthorized access devices (§ 1029(a)(3)). See Opp'n, Ex. A (indictment).
In July 1995, Mr. Fitzgerald, while represented by counsel, entered a plea agreement. The agreement provided, inter alia, that Mr. Fitzgerald would plead guilty to one count of possession of stolen United States mail and one count of possession of a forged postal access key. See Opp'n, Ex. B (Plea Agreement ¶ 1). In addition, Mr. Fitzgerald would agree to an order for restitution, pursuant to 18 U.S.C. § 3663(a)(3) (1995), in the amount of $23,000. See Opp'n, Ex. B (Plea Agreement ¶ 8(c)). The judgment entered by Judge Lynch in October 1995 contained these terms of the plea agreement. See Opp'n, Ex. C (judgment). Mr. Fitzgerald did not appeal either his conviction or the sentence.
Section 3663 is part of the Victim and Witness Protection Act of 1982 ("VWPA"). Section 3663(a)(3) provided as follows: "The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement." 18 U.S.C. § 3663(a)(3) (1995).
II. DISCUSSION
In the currently pending motion, Mr. Fitzgerald now challenges the restitution portion of the sentence. More specifically, he argues that the restitution portion should be terminated because Judge Lynch never made any factual findings regarding Mr. Fitzgerald's ability to pay prior to imposing the obligation. Alternatively, he contends that this Court should now terminate the restitution portion of his sentence because he does not have the present ability to pay and it is unlikely that he will have the ability to pay in the future. Mr. Fitzgerald suggests that, at the very least, the Court should conduct an evidentiary hearing regarding his likely future ability to pay. For the reasons discussed below, none of these arguments has merit. A. Factual Findings
Mr. Fitzgerald's first argument - i.e., that Judge Lynch was obligated to make factual findings regarding Mr. Fitzgerald's ability to pay prior to ordering restitution - is foreclosed by Ninth Circuit precedent.
First, "the Ninth Circuit does not require that the defendant be able to pay in order to justify a restitution award. Imposing restitution on indigent persons is deemed appropriate in the Ninth Circuit because the defendant's future financial status is indeterminable and could change." United States v. Jackson, 982 F.2d 1279, 1284 (9th Cir. 1992).
Second, contrary to what Mr. Fitzgerald suggests, 18 U.S.C. § 3664 (1995) (also part of the VWPA) did not require Judge Lynch to make factual findings. The statute simply provided that
[t]he court, in determining whether to order restitution under section 3663 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and18 U.S.C. § 3664(a) (emphasis added). As the Ninth Circuit held in United States v. Cannizzaro, 871 F.2d 809 (9th Cir. 1989), this "shall consider" language in § 3664 establishes that specific factual findings were not required. See id. at 810-11 (adding that "[t]here is a material difference between requiring a district court to make findings of fact and requiring it to consider certain factors").
earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.
Moreover, the Ninth Circuit in Cannizzaro specifically rejected the defendant's argument that factual findings were necessary in order to assure meaningful appellate review. See id. at 811 (stating that "[a]ppellate courts may not work substantive changes in the law in order to facilitate 'meaningful appellate review'"). Under Cannizzaro, the record must simply "reflect that the district judge had at his disposal information bearing on the considerations enumerated in section 3664." Id. In this case, the record reflects that Judge Lynch was aware of Mr. Fitzgerald's inability to pay restitution. At the hearing of October 27, 1995, Judge Lynch expressly noted that Mr. Fitzgerald should make a good faith effort to pay restitution - "[o]nly put something on every month that's reasonable in light of the assets which at the present time are nothing." Opp'n, Ex. E (Tr. at 12).
In light of the above, the Court rejects Mr. Fitzgerald's first argument in support of relief. B. Present and Future Inability to Pay
The Court likewise rejects Mr. Fitzgerald's second argument. Federal Rule of Criminal Procedure 35 does not provide an avenue for relief since the petition was not timely filed within seven (7) days of imposition of sentence as was required by Rule 35(a) at the time of the sentence in 1995. Nonetheless, the district court may have other authority to alter a sentence if provided for e.g., by a statute. See United States v. Barragan-Mendoza, 174 F.3d 1024, 1028 (9th Cir. 1999). As the government has conceded, the Ninth Circuit has indicated that a defendant may ask a court for a remittitur based on inability to pay. See Jackson, 982 F.2d at 1284-85; see also 18 U.S.C. § 3664(k) (stating that "[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" and that, "[u]pon 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"). However, as the Ninth Circuit made clear in Jackson, the defendant must "demonstrate[] that he has made a good-faith effort at payment." Jackson, 982 F.2d at 1284.
Here, Mr. Fitzgerald has provided no evidence to support his claim that, "over the last 17 years," he has "tried to make payments on the restitution owed." Reply at 1. While the Court understands that Mr. Fitzgerald has asked for an evidentiary hearing on his ability to pay, as a practical matter, the Court will not hold a hearing without at least some evidentiary basis to indicate that he has in fact made a good faith effort at payment. Moreover, he must present some evidence showing there has been a change in his economic circumstances since his sentencing. Cf. United States v. Chan, No. CR 00-40146 CW, 2007 U.S. Dist. LEXIS 77303, at *5-6 (N.D. Cal. Oct. 10, 2007) (stating that, under § 3664(k), the defendant should provide "evidence of a material change in her economic circumstances that would warrant such a reduction [in monthly restitution payments[;] [s]uch evidence would be in the form of a statement of Defendant's income and expenses, and her assets and liabilities").
III. CONCLUSION
For the foregoing reasons, the Court denies without prejudice Mr. Fitzgerald's motion to terminate restitution responsibilities.
This order disposes of Docket No. 54.
IT IS SO ORDERED.
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EDWARD M. CHEN
United States District Judge