Opinion
Cr. No. 85-60011.
July 5, 2001.
ORDER
Defendant committed six bank robberies between September 7, 1984, and December 20, 1984, with a total take of $32,985. After trial, the jury found defendant guilty of six counts of armed robbery and five counts of using a firearm to commit a crime of violence. On November 5, 1985, The Honorable James M. Burns sentenced defendant to 25 years imprisonment for the bank robbery counts and five years on one count of using a firearm to commit a crime of violence and declined to sentence defendant on the remaining counts. On March 9, 1987, the court amended its judgment and sentenced defendant to five years on each of the remaining counts to run concurrently with the sentence regarding the other count of using a firearm to commit a crime of violence for a total of 30 years imprisonment. The court also ordered defendant to pay restitution in the amount of $32,985 as to the bank robbery counts. Defendant was paroled on June 25, 1999, and is currently in the jurisdiction of the United States Parole Commission.
Before the court is defendant's motion to correct sentence and vacate restitution order (#127). Defendant maintains that the restitution component was illegal and should be vacated because the court should have ordered that defendant make monthly payments over a five-year period following his release from prison.
At the time of his sentencing, the restitution order was governed by the Victim Witness Protection Act (VWPA), which provided that the court could order restitution to be made within a specified period, in specified installments, or immediately. See 18 U.S.C. § 3579(f)(1) and (3) (repealed). The VWPA provided that restitution payments must be paid not later than five years after release from confinement. See 18 U.S.C. § 3579(f)(2)(B) (repealed). Judge Burns' order did not specify a time period for repayment. Defendant contends that to the extent that the order permits payments beyond five years after defendant's release from custody, it is an illegal order.
The government responds that the motion is barred because the All Writs Act, 28 U.S.C. § 1651(a), is unavailable, and is procedurally barred under 28 U.S.C. § 2255 under the AEDPA because petitioner has not sought authorization from the Court of Appeals for filing a second petition. Defendant concedes that there is no jurisdiction under 28 U.S.C. § 1651(a) and that the motion is procedurally barred under the AEDPA. Defendant nonetheless argues that the court has jurisdiction under Fed.R.Crim.P. 35(a) (repealed) as it existed at the time of defendant's sentencing. The older version of Fed.R.Crim.P. 35, as it existed prior to 1987, governs sentences for crimes committed before November 1, 1987. United States v. Minor, 846 F.2d 1184, 1187, n. 4 (9th Cir. 1988). The motion was originally filed pro se and this court is mindful of its duty to construe such motions liberally. Accordingly, the court construes the motion under Fed.R.Crim.P. 35 and reaches the merits of the motion.
Fed.R.Crim.P. 35(a) provided that:
The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of the sentence.
A sentence is illegal if it is not authorized by the judgment of conviction, it exceeds the permissible statutory maximum for the crime or when it violates the Constitution. United States v. Fowler, 794 F.2d 1446, 1449. (9th Cir. 1986). A motion to correct an illegal sentence under former Rule 35(a) is the proper vehicle to challenge an illegally imposed restitution component of a sentence. United States v. Weir, 861 F.2d 542, 543 (9th Cir. 1988).
Under the VWPA, the court may order that defendant make restitution to any victim of the offense for which defendant is convicted. 18 U.S.C. § 3579(a)(1). The amount of such restitution is pegged to the actual losses suffered by the victims of the defendant's criminal conduct. United States v. Barany, 884 F.2d 1255, 1260 (9th Cir. 1989). The restitution order in this case set the amount to match the actual amount of loss by the victim banks. The government argues that Judge Burns ordered restitution to be paid immediately.
As noted above, under the VWPA, the court could have ordered restitution be made within a specified period, in specified installments, or immediately. In determining which option is appropriate, the court must consider the amount of the loss, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate. United States v. English, 92 F.3d 909, 916 (9th Cir. 1995). Express findings are not required and the court is given broad discretion in the kind and amount of evidence to consider. Id. Despite the broad discretion, district court orders have been modified when the record does not adequately demonstrate the trial judge considered these payment factors. See e.g., United States v. Keith, 754 F.2d 1388, 1393 (9th Cir. 1985) (defendant's bankrupt status does not bar restitution order, but does warrant payment schedule); United States v. Roberts, 783 F.2d 767, 771 (9th Cir. 1985) (defendant's indigence does not bar restitution order, but warrants payment schedule).
The government notes that in both Keith and Roberts, review of the restitution issues was on direct appeal. Consequently, the government argues that the restitution order in this case is not illegal because the VWPA permitted the court to require immediate payment. Based on the record it is unclear if Judge Burns intended to order immediate payment or simply failed to specify a repayment period. However, the pre-sentence report (PSR) recommended payment within five years of release as a condition of parole.
Immediate payment of the restitution amount is not supported by the record. Defendant was not capable of immediate payment. The PSR stated that defendant said he had no assets, but does note that $26,000 of the total take was traced back to defendant, mainly through cash purchases and some deposits. A logical reading of the sentence leads to the conclusion that Judge Burns intended to require payments over a period of time. Because the restitution component of the sentence does not limit payments to five years following release from confinement, it is not authorized under VWPA. A restitution order that exceeds the authority under the VWPA is equivalent to an illegal order. United States v. Phillips, 174 F.3d 1074, 1076 (9th Cir. 1999). Accordingly, plaintiffs' motion, pursuant to Rule 35(a) is granted. The restitution order is modified to provide that $32,985.00 in restitution be paid in installments ending not later than five years from defendant's release, which is June 24, 2004.
The United States requests that the court order the monthly payments to continue as presently imposed by defendant's parole officer. The request is granted and the amount of the monthly payments shall be 25% of defendant's gross pay.
CONCLUSION
For the reasons stated above, defendant's motion (#127) to correct sentence is granted. Defendant shall make restitution installment payments in the amount of 25% of his gross pay until June 24, 2004, or until the restitution is paid in full, whichever occurs first.