Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the Central District of California, Edward Rafeedie, Senior Judge, of mail fraud. Defendant appealed. The Court of Appeals held that: (1) Court would only review challenge to term of supervised release for plain error, when defendant failed to challenge it in district court; (2) without explicit finding of effect on financial institution, more than three years of supervised release was plain error; and (3) restitution amount could not constitute error, when properly calculated pursuant to statute.
Affirmed in part, and vacated and remanded in part.
Appeal from the United States District Court for the Central District of California
Page 985.
, Edward Rafeedie, Senior District Judge, Presiding.
Before KOZINSKI and THOMAS, Circuit Judges, and COLLINS, District Judge.
Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Defendant Ivar Pugliese appeals his custodial sentence, his supervised release term and the district court's restitution order. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, and vacate and remand in part.
Because Pugliese made a knowing and voluntary waiver of his right to appeal his custodial sentence, it is not subject to review. See United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994).
Because Defendant failed to challenge his term of supervised release in the district court, we review it for plain error. See Fed.R.Civ.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Defendant's sentence for committing mail fraud in violation of 18 U.S.C. § 1341 included a supervised release term of five years. The maximum custodial sentence for violating 18 U.S.C. § 1341 is generally five years, but if the offense affected a financial institution the maximum is thirty years. See 18 U.S.C. § 1341. An offense subject to a maximum custodial sentence of five years is a Class D felony, see 18 U.S.C. § 3559(a)(4), for which the maximum period of supervised release is three years, see 18 U.S.C. § 3583(b)(2). The district court classified Defendant's crimes as Class B felonies, which are offenses carrying a maximum custodial sentence of twenty-five years or more, see 18 U.S.C. § 3559(a)(2), and a maximum supervised release term of five years, see 18 U.S.C. § 3583(b)(1). By classifying Defendant's crimes as Class B felonies and sentencing him to five years of supervised release, the district court made an implicit finding that his crimes affected a financial institution. Because the district judge's finding increased the maximum statutory period of supervised release to which Defendant could be sentenced from three years to five years, it violated Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court committed plain error in sentencing Defendant to a period of supervised release greater than three years.
We review the legality of a restitution order de novo, and the amount of a restitution order for an abuse of discretion. See United States v. Laney, 189 F.3d 954, 964-66 (9th Cir.1999). The restitution amount ordered by the district court did not constitute error because it was properly calculated pursuant to 18 U . S.C. § 3663A(b).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.