25-334-cr United States v. Apolinaris
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of January, two thousand twenty-six.
Present:
WILLIAM J. NARDINI, STEVEN J. MENASHI, EUNICE C. LEE, Circuit Judges. ____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 25-334-cr
CALEB APOLINARIS, AKA KAPPA,
Defendant-Appellant. _____________________________________
For Appellee: BRACHAH GOYKADOSH, Assistant United States Attorney (Dylan A. Stern, Assistant United States Attorney, on the brief), for Joseph Nocella, Jr., United States Attorney for the Eastern District of New York, Brooklyn, NY
For Defendant-Appellant: SIOBHAN C. ATKINS, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY 1 Appeal from a judgment of the United States District Court for the Eastern District of New
York (Margo K. Brodie, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED in part and REMANDED.
Defendant-Appellant Caleb Apolinaris appeals from an amended judgment entered on
February 12, 2025, in the United States District Court for the Eastern District of New York,
following a guilty plea to one count of distribution of, and possession with intent to distribute,
fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
In the early hours of April 12, 2022, Apolinaris sold what he believed to be heroin to a
person (the “victim”) who had texted Apolinaris. The substance contained fentanyl. A few
hours after ingesting the drugs, the victim was found dead in his parents’ home. In March 2024,
Apolinaris and the government entered into a plea agreement, in which the parties “agree[d]” to a
number of things. As relevant to this appeal, paragraph 1 of the plea agreement, which recounted
the statutory penalties that the parties agreed were applicable to the charged violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C), contained a bullet stating: “Restitution: N/A.” Apolinaris entered his
guilty plea in open court on March 27, 2024. During the plea hearing, the district court apprised
Apolinaris of the consequences of pleading guilty to this crime, but it did not mention the
possibility of restitution. 1 The Probation Office filed a pre-sentence report (“PSR”) on October
22, 2024. Contrary to the parties’ agreement that restitution was “N/A”—not applicable—the
PSR stated that the district court could order restitution pursuant to 18 U.S.C. § 3663(a)(1)(A), and
separately stated that the victim’s mother reported a financial loss of $222,729: $32,209 was for
1 Although the district court did not discuss restitution at the plea hearing, Apolinaris has not argued that his plea was invalid under Federal Rule of Criminal Procedure 11(b)(1)(K). 2 the victim’s funeral expenses, and the remainder reflected the mother’s lost income and medical
expenses. Apolinaris filed a sentencing memorandum on November 15, 2024. The
memorandum did not address the Probation Office’s statement that the district court could impose
restitution. Nor did the government’s submission filed on November 20.
On November 25, 2024, the district court ordered the parties to “submit their arguments, if
any, regarding the restitution award recommended in the Presentence Investigation Report” and to
file those arguments on or before November 26, 2024—the day before sentencing. App’x at 11.
Apolinaris filed a written submission arguing that the statute authorizing restitution for his offense,
the Victim and Witness Protection Act (“VWPA”), did not authorize restitution to compensate for
lost wages and medical expenses incurred by the victim’s family and instead authorized restitution
only to pay for the victim’s funeral expenses. See 18 U.S.C. § 3663(a)(2) (defining victim as “a
person directly and proximately harmed as a result of the commission of an offense for which
restitution may be ordered”); id. § 3663(b)(3) (“in the case of an offense resulting in . . . the death
of a victim,” a defendant may be ordered to “pay an amount equal to the cost of necessary funeral
and related services”). Apolinaris further argued that, given his indigency and the likelihood
(based on his background) that his future earnings would be from a minimum or low-wage job,
“the Court should order restitution of no more than $10,000.” App’x at 80. Apolinaris also
asked that “any restitution shall not be payable until Mr. Apolinaris has been released from custody
and that interest shall not accrue while he is in custody.” Id. The government’s concurrently
filed submission argued that the victim’s mother was a “victim” within the meaning of the VWPA
and therefore that all of her losses were compensable.
At sentencing, the district court imposed a term of imprisonment of 168 months and three
years of supervised release. The district court deferred its decision on restitution so it could 3 receive further briefing from the parties, but stated that “there is no question that at the very least
the funeral expenses must be paid.” Id. at 144. Judgment was entered on December 2, 2024,
with the understanding that the district court would later amend it to order any restitution. On
December 19, 2024, Apolinaris submitted a further memorandum regarding restitution.
Apolinaris pointed out on the first page of his submission that “[i]n the plea agreement executed
by the parties, they agreed that restitution was not applicable” and that the government was now
“in breach of that agreement” by asking “the Court to impose $222,729 in restitution.” Id. at 157.
He also restated his legal position that the victim’s family were not “victims” within the meaning
of the VWPA and accordingly that the Court could order restitution of no more than $32,209 for
the victim’s funeral costs, as well as his request that the Court not order restitution of more than
$10,000 due to his limited financial resources. The government’s responsive submission
conceded that the VWPA did not authorize compensation for the victim’s mother’s lost income
and medical costs, and instead asked that the Court award the $32,209 in funeral expenses. The
government did not respond to the assertion that it breached the plea agreement.
On February 11, 2025, the district court ordered restitution of $32,209 to cover the funeral
costs in light of the parties’ agreement that the VWPA authorized those costs. The same day,
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25-334-cr United States v. Apolinaris
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of January, two thousand twenty-six.
Present:
WILLIAM J. NARDINI, STEVEN J. MENASHI, EUNICE C. LEE, Circuit Judges. ____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 25-334-cr
CALEB APOLINARIS, AKA KAPPA,
Defendant-Appellant. _____________________________________
For Appellee: BRACHAH GOYKADOSH, Assistant United States Attorney (Dylan A. Stern, Assistant United States Attorney, on the brief), for Joseph Nocella, Jr., United States Attorney for the Eastern District of New York, Brooklyn, NY
For Defendant-Appellant: SIOBHAN C. ATKINS, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY 1 Appeal from a judgment of the United States District Court for the Eastern District of New
York (Margo K. Brodie, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED in part and REMANDED.
Defendant-Appellant Caleb Apolinaris appeals from an amended judgment entered on
February 12, 2025, in the United States District Court for the Eastern District of New York,
following a guilty plea to one count of distribution of, and possession with intent to distribute,
fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
In the early hours of April 12, 2022, Apolinaris sold what he believed to be heroin to a
person (the “victim”) who had texted Apolinaris. The substance contained fentanyl. A few
hours after ingesting the drugs, the victim was found dead in his parents’ home. In March 2024,
Apolinaris and the government entered into a plea agreement, in which the parties “agree[d]” to a
number of things. As relevant to this appeal, paragraph 1 of the plea agreement, which recounted
the statutory penalties that the parties agreed were applicable to the charged violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C), contained a bullet stating: “Restitution: N/A.” Apolinaris entered his
guilty plea in open court on March 27, 2024. During the plea hearing, the district court apprised
Apolinaris of the consequences of pleading guilty to this crime, but it did not mention the
possibility of restitution. 1 The Probation Office filed a pre-sentence report (“PSR”) on October
22, 2024. Contrary to the parties’ agreement that restitution was “N/A”—not applicable—the
PSR stated that the district court could order restitution pursuant to 18 U.S.C. § 3663(a)(1)(A), and
separately stated that the victim’s mother reported a financial loss of $222,729: $32,209 was for
1 Although the district court did not discuss restitution at the plea hearing, Apolinaris has not argued that his plea was invalid under Federal Rule of Criminal Procedure 11(b)(1)(K). 2 the victim’s funeral expenses, and the remainder reflected the mother’s lost income and medical
expenses. Apolinaris filed a sentencing memorandum on November 15, 2024. The
memorandum did not address the Probation Office’s statement that the district court could impose
restitution. Nor did the government’s submission filed on November 20.
On November 25, 2024, the district court ordered the parties to “submit their arguments, if
any, regarding the restitution award recommended in the Presentence Investigation Report” and to
file those arguments on or before November 26, 2024—the day before sentencing. App’x at 11.
Apolinaris filed a written submission arguing that the statute authorizing restitution for his offense,
the Victim and Witness Protection Act (“VWPA”), did not authorize restitution to compensate for
lost wages and medical expenses incurred by the victim’s family and instead authorized restitution
only to pay for the victim’s funeral expenses. See 18 U.S.C. § 3663(a)(2) (defining victim as “a
person directly and proximately harmed as a result of the commission of an offense for which
restitution may be ordered”); id. § 3663(b)(3) (“in the case of an offense resulting in . . . the death
of a victim,” a defendant may be ordered to “pay an amount equal to the cost of necessary funeral
and related services”). Apolinaris further argued that, given his indigency and the likelihood
(based on his background) that his future earnings would be from a minimum or low-wage job,
“the Court should order restitution of no more than $10,000.” App’x at 80. Apolinaris also
asked that “any restitution shall not be payable until Mr. Apolinaris has been released from custody
and that interest shall not accrue while he is in custody.” Id. The government’s concurrently
filed submission argued that the victim’s mother was a “victim” within the meaning of the VWPA
and therefore that all of her losses were compensable.
At sentencing, the district court imposed a term of imprisonment of 168 months and three
years of supervised release. The district court deferred its decision on restitution so it could 3 receive further briefing from the parties, but stated that “there is no question that at the very least
the funeral expenses must be paid.” Id. at 144. Judgment was entered on December 2, 2024,
with the understanding that the district court would later amend it to order any restitution. On
December 19, 2024, Apolinaris submitted a further memorandum regarding restitution.
Apolinaris pointed out on the first page of his submission that “[i]n the plea agreement executed
by the parties, they agreed that restitution was not applicable” and that the government was now
“in breach of that agreement” by asking “the Court to impose $222,729 in restitution.” Id. at 157.
He also restated his legal position that the victim’s family were not “victims” within the meaning
of the VWPA and accordingly that the Court could order restitution of no more than $32,209 for
the victim’s funeral costs, as well as his request that the Court not order restitution of more than
$10,000 due to his limited financial resources. The government’s responsive submission
conceded that the VWPA did not authorize compensation for the victim’s mother’s lost income
and medical costs, and instead asked that the Court award the $32,209 in funeral expenses. The
government did not respond to the assertion that it breached the plea agreement.
On February 11, 2025, the district court ordered restitution of $32,209 to cover the funeral
costs in light of the parties’ agreement that the VWPA authorized those costs. The same day,
Apolinaris asked the district court to alter the judgment to clarify the payment schedule, and the
district court granted the motion and amended the judgment on February 12.
On appeal, Apolinaris argues that the order imposing restitution should be vacated because
the government breached the plea agreement by arguing that restitution should be imposed. We
agree. The proper course of action for the government in response to the district court’s request
for briefing would have been to answer any questions about the district court’s statutory authority
to impose restitution while making clear that, in accordance with the plea agreement, it was not 4 advocating for the imposition of any restitution. See, e.g., United States v. Riera, 298 F.3d 128,
134–135 (2d Cir. 2002); United States v. Goodman, 165 F.3d 169, 173 (2d Cir. 1999); United
States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999).
Accordingly, we VACATE the restitution award and REMAND to the district court for
the limited purpose of determining whether restitution is warranted. See Lawlor, 168 F.3d at 638.
And, “as we have done in other cases in which the government has breached a provision of a plea
agreement, we remand this case for resentencing before a different district judge.” Id. “We
hasten to add” that “granting this relief implies not even the slightest criticism of the actions of the
district judge” and instead results from “the government’s failure to adhere to its contractual
obligation.” Id.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk