FILED United States Court of Appeals Tenth Circuit
June 26, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-2104
BRIAN RUSSELL DOLAN,
Defendant-Appellant.
ORDER
Before MURPHY, ANDERSON, and GORSUCH, Circuit Judges.
Appellant’s petition for rehearing is granted sua sponte for the limited
purpose of adding the following footnote to the end of section II, page 19:
Mr. Dolan argues that our holding conflicts with United States v. Bedonie, 413 F.3d 1126 (10th Cir. 2005). It does no such thing. In Bedonie, we considered whether § 3664(d)(5) authorized the district court to reopen an already entered restitution order sua sponte simply because it had reconsidered the wisdom of its order. We concluded that the MVRA grants the district court no such authority. At the same time, we took pains to emphasize in Bedonie that our decision did not limit the authority of a district court to “‘hold[] open’ . . . a restitution issue at the original sentencing” pending receipt of facts needed to enter an initial restitution order. Id. at 1129. This, of course, is precisely the case we now face: whether and to what degree a “holding open” of the restitution question past the original sentencing hearing and the statutory deadline is permissible – not whether and to what degree a district court’s sua sponte reopening of an existing restitution order is statutorily authorized. A copy of the corrected opinion is attached, filed nunc pro tunc to May 27,
2009.
The petition for rehearing en banc was transmitted to all of the judges of
the court who are in regular active service. As no member of the panel and no
judge in regular active service on the court requested that the court be polled, that
petition is denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
-2- FILED United States Court of Appeals Tenth Circuit
May 27, 2009 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Appeal from the United States District Court for the District of New Mexico (D.C. No. 06-CR-2173-RB)
Sara N. Sanchez, of Sheehan, Sheehan & Steltzner, P.A., Albuquerque, New Mexico, for Defendant-Appellant.
Terri J. Abernathy, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney with her on the brief), Las Cruces, New Mexico, for Plaintiff- Appellee.
GORSUCH, Circuit Judge.
Brian Dolan viciously attacked a hitchhiker, leaving his victim by the side
of the road bleeding, unconscious, with a great many broken bones. Eventually,
officers found the hitchhiker and rushed him to a hospital. He survived, but his medical expenses topped $100,000. When it came time to sentence Mr. Dolan for
his assault, the district court ordered him not only to serve 21 months in prison
but to pay $250 monthly in restitution. Before us, Mr. Dolan doesn’t challenge
his prison sentence but does say his victim should get nothing. He contends that
the district court’s restitution order is void because it was entered too late, after a
statutory deadline passed. Even if the district court had the power to enter an
untimely restitution award, Mr. Dolan argues, $250 per month is more than he can
afford.
We reject both arguments. The district court’s restitution order was
undoubtedly late, coming after the deadline prescribed by the Mandatory Victims
Restitution Act. But a tardy restitution order is not an invalid one. Rather than
creating a jurisdictional bar to untimely restitution orders, the MVRA’s deadline
seeks to prod the government into ensuring victims swift compensation.
Sometimes, of course, the government is not so easily prodded. When that
happens – when the MVRA’s deadline passes without a restitution order entered –
the affected victim may well have cause to complain, and may even seek a
mandamus order compelling action. But the defendant does not get off the hook.
Neither can we say that the district court abused its discretion in pegging Mr.
Dolan’s monthly restitution payments at $250, given the record before us.
-2- I
One evening, Mr. Dolan picked up an acquaintance and fellow tribe
member who was hitchhiking on a road inside the Mescalero Indian Reservation.
At some point, the pair began to argue. The argument grew heated, and
eventually Mr. Dolan parked his car so the men could fight. The encounter
proved a brutal one for the hitchhiker. He later reported that he suffered a
fractured nose, a broken wrist, a fractured leg, a spinal injury, broken ribs, and a
hematoma in his head. Mr. Dolan left the hitchhiker lying on the side of the road
and drove off. Once home, he told his sister, Deanna Dolan, of the assault. In
turn, Ms. Dolan alerted the Bureau of Indian Affairs (“BIA”) police. A
responding BIA officer eventually found the hitchhiker unconscious and bleeding
on the roadside. The hitchhiker was treated briefly at the scene and then
helicoptered to a hospital in El Paso, Texas.
For his part, Mr. Dolan was apprehended and pled guilty to assault
resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and
113(a)(6). On July 30, 2007, the district court sentenced Mr. Dolan to 21 months’
imprisonment. At the sentencing hearing, the court also noted that restitution was
required by the MVRA. But, because it did not yet have sufficient information as
to the amount of restitution owed, the court “le[ft] that matter open, pending
receipt of additional information.” The court then informed Mr. Dolan that he
should “anticipate that such an award will be made in the future.” The district
-3- court’s judgment, entered on August 8, 2007, indicated that restitution was
applicable but that the court did not yet have sufficient information to set an
appropriate amount.
On October 5, 2007, the probation office reported that it now had enough
information to calculate a restitution award. The office estimated the victim’s
medical care cost at $105,559.78. It provided the court with documentation for
this figure and recommended that the court order Mr. Dolan to pay that amount in
restitution. The probation office also indicated that, “[p]ursuant to [18 U.S.C. §]
3664(d)(5)” of the MVRA, “the Court shall set a date for the final determination
of the victim’s losses, not to exceed 90 days after sentencing, which in this case
shall be October 28, 2007.” 1
It is here things get tricky. The district court did not hold a hearing for a
final determination on restitution by October 28, 2007, as required by
§ 3664(d)(5), but instead waited until February 4, 2008. At the February hearing,
Mr. Dolan’s counsel argued that the court no longer had authority to order
1 18 U.S.C. § 3664(d)(5) provides: “If the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.”
-4- restitution because more than 90 days had passed since the entry of Mr. Dolan’s
sentence. The court ordered briefing on that question, as well as on Mr. Dolan’s
ability to pay. A hearing followed and, in due course, the district court issued a
memorandum opinion and order. In its order, the court candidly acknowledged
that it had erred “in not complying with the 90-day requirement,” but held that
§ 3664(d)(5) did not deprive it of jurisdiction to enter a restitution award after the
90-day deadline.
The district court then considered how much restitution Mr. Dolan should
pay. The court noted that Mr. Dolan held essentially no assets, had substance
abuse problems, and, at the time of the offense, was unemployed. But the court
also observed that Mr. Dolan receives an annual tribal stipend of $575 and
obtained a GED while incarcerated, thus enhancing his employment potential on
release (which has since occurred). Based on Mr. Dolan’s “lack of financial
resources, income, assets, and potential for future earnings,” the district court
found that he would be unable to pay “any significant amount of restitution now
or in the foreseeable future.” Still, the court believed that Mr. Dolan could afford
monthly payments of $250, and ordered him to do so.
Mr. Dolan now appeals to us on two grounds. First, he argues that, because
the district court acted outside § 3664(d)(5)’s 90-day deadline, its restitution
order is void. Second, he contends that the payment schedule fails to take
adequate consideration of his ability to pay. We address each contention in turn.
-5- II
Mr. Dolan argues that the 90-day deadline set by § 3664(d)(5) is
jurisdictional. Put differently, he thinks the district court’s power to enter any
restitution order expired 90 days after his sentencing on July 30, 2007. Because
the district court failed to carry out its mandatory duty by the deadline, his victim
(and the victim’s third party insurer) should get nothing. We review de novo Mr.
Dolan’s appeal about the meaning of § 3664(d)(5), but even so we cannot agree
with his interpretation of the statute. The plain language of the Act, longstanding
canons of construction, the MVRA’s legislative history, and our own case law all
plot against his interpretation.
First, the language of the Act itself. As its name suggests, the Mandatory
Victims Restitution Act is all about mandating restitution. No longer is the
decision whether to order restitution for certain crimes left to the discretion of the
district court. See United States v. Taylor, 2002 WL 1166166, at 3 (10th Cir.
2002). The absolute nature of the district court’s obligation is unmistakable from
the very first paragraph of the Act. There, Congress has prescribed that
“[n]otwithstanding any other provision of law, when sentencing a defendant
convicted of [an offense covered by the Act], the court shall order . . .
restitution.” 18 U.S.C. § 3663A(a)(1) (emphasis added). Plainly, Congress has
decided that defendants who have committed certain offenses should never be
able to avoid restitution.
-6- As Mr. Dolan emphasizes, later in the Act, in § 3664(d)(5), Congress added
that restitution “shall” be awarded within 90 days after sentencing. But this
deadline, while real, is no doubt encompassed within § 3663A(a)(1)’s phrase “any
other provision of law.” So, while the 90-day deadline is surely a command of
the Act, it can be reasonably understood only as a subsidiary command to the
Act’s primary and overriding directive that restitution must be ordered for certain
crimes. Read together, the statute thus suggests that restitution shall be awarded
within 90 days but also that, notwithstanding any missed deadline, restitution
must be awarded. As the Supreme Court has explained when faced with an
analogous statutory rubric, “the use of such a ‘notwithstanding’ clause clearly
signals the drafter’s intention that the provisions of the ‘notwithstanding’ section
override conflicting provisions of any other section.” Cisneros v. Alpine Ridge
Group, 508 U.S. 10, 18 (1993); see also Liberty Maritime Corp. v. United States,
928 F.2d 413, 416 (D.C. Cir. 1991) (explaining that notwithstanding clauses
“supersede all other laws” because “[a] clearer statement is difficult to imagine”)
(brackets in original).
Confirming Congress’s point, § 3664(d)(5) itself authorizes the district
court to revise a restitution order anytime – days, months, years, or decades –
after the 90-day deadline, should the victim discover additional losses caused by
the defendant’s conduct. Even viewing § 3664(d)(5) in isolation, then, it is
evident that Congress did not intend to divest the district court of all power over
-7- restitution awards after 90 days. See United States v. Moreland, 509 F.3d 1201,
1224 (9th Cir. 2007), vacated on other grounds by 129 S. Ct. 997 (2009); United
States v. Cheal, 389 F.3d 35, 48-50 (1st Cir. 2004); United States v. Vandeberg,
201 F.3d 805, 814 (6th Cir. 2000). Cf. 18 U.S.C. § 3664(k) (authorizing district
courts to revise payment schedules).
Any possible lingering ambiguity on this point is dispelled by § 3664’s
title. See Carter v. United States, 530 U.S. 255, 267 (2000) (resort to statutory
titles is permissible to address statutory ambiguities). As our sister circuit has
observed, the subsection’s title practically “advertises” the 90-day time limit’s
non-jurisdictional nature by declaring that it concerns the “Procedure for issuance
and enforcement of order of restitution.” 18 U.S.C. § 3664 (emphasis added);
Moreland, 509 F.3d at 1224; Cheal, 389 F.3d at 48-49. Procedures for processing
claims and arguments are of course important, and respect for them may be
mandatory in certain circumstances when timely invoked, but they do not strip a
court of subject matter jurisdiction to entertain a dispute. See, e.g., Bowles v.
Russell, 127 S. Ct. 2360 (2007); Kontrick v. Ryan, 540 U.S. 443 (2004).
Congress is surely well aware of this distinction between claims processing
procedures and federal court subject matter jurisdiction, and it knows how to
restrict the latter when it wishes to do so. The fact that Congress conceived of
§ 3664 as a claims processing procedure is evidence that it had no intent to do so
here.
-8- Second, Mr. Dolan’s interpretation runs afoul not just of the statute’s
language and structure, but also an essential canon of statutory construction. The
Supreme Court has cautioned us against “readily infer[ring] congressional intent
to limit an agency’s power to get a mandatory job done merely from a
specification to act by a certain time.” Barnhart v. Peabody Coal, 537 U.S. 149,
160 (2003). Where, as here, a statute seeks to “direct[] official action” by a
particular deadline, the Court has directed us that a statute “needs more than a
mandatory ‘shall’ before the grant of power can sensibly be read to expire when
the job is supposed to be done.” Id. at 161. Absent some specifically identified
consequence for failing to comply with the deadline, we are obliged to read such
a statute “as a spur to prompt action, not as a bar to the tardy completion of the
business” Congress mandated. Id. at 172; see also Regions Hosp. v. Shalala, 522
U.S. 448, 459 n.3 (1998) (explaining that a Cabinet Secretary’s failure to meet
statutory deadline did “not mean that official lacked power to act beyond it”);
United States v. James Daniel Good Real Prop., 510 U.S. 43, 63-64 (1993)
(unless a statute “specif[ies] a consequence for noncompliance with statutory
timing provisions,” generally we may not “impose [our] own coercive sanction”);
United States v. Montalvo-Murillo, 495 U.S. 711, 721 (1990) (“We do not agree
that we should, or can, invent a remedy to satisfy some perceived need to coerce
the courts and the Government into complying with the statutory time limits.”);
Brock v. Pierce County, 476 U.S. 253, 265 (1986) (statute providing that
-9- Secretary of Labor “shall” take action within 120 days did not divest the
Secretary of authority to act beyond deadline); 3 Norman J. Singer & J.D.
Shambie Singer, Sutherland on Statutes and Statutory Construction § 57:19 (6th
ed.) (“The general rule is that if a provision of a statute states a time for
performance of an official duty, without any language denying performance after
a specified time, it is directory [rather than jurisdictional].”) (emphasis added).
Call this the better-late-than-never principle. Congress imposes deadlines
on other branches of government to prod them into ensuring the timely
completion of their statutory obligations to the public, not to allow those branches
the chance to avoid their obligations just by dragging their feet. It would be a
strange thing indeed if a bureaucracy or court could avoid a congressional
mandate by unlawful delay. As the Supreme Court has explained, its canon of
construction recognizes the “great principle of public policy, applicable to all
governments alike, which forbids that the public interests should be prejudiced by
the negligence of the officers or agents to whose care they are confided.” Brock,
476 U.S. at 260 (quoting United States v. Nashville, C. & St. L.R. Co., 118 U.S.
120, 125 (1886)).
Here, of course, § 3664(d)(5) requires restitution to be ordered within 90
days, and it has no other language purporting to deny district courts the authority
to enter late restitution orders. The canon against a jurisdictional reading thus
applies with full force. In this respect, our case is very much like the one we and
-10- the Supreme Court faced in Montalvo-Murillo. See United States v. Montalvo-
Murillo, 876 F.2d 826 (10th Cir. 1989), rev’d by 495 U.S. 711 (1990). The
statute at issue there was the Bail Reform Act of 1984, which required district
courts to hold a hearing at an arrestee’s first appearance to consider whether or
not the arrestee should be detained pending trial. Montalvo-Murillo, 495 U.S. at
714. As it happened, however, the magistrate judge assigned to the case failed to
make this assessment at the arrestee’s first appearance. Id. at 715. Reading the
statute as imposing a jurisdictional deadline, the district court held that, as a
result of the magistrate judge’s oversight, it lacked authority to detain the
defendant and was bound to release him. Id. at 716. This court concurred with
the district court’s analysis, Montalvo-Murillo, 876 F.2d at 827, but the Supreme
Court reversed, explaining that it found “nothing in the statute to justify” an
interpretation that the courts have no power to detain “once the statutory time for
hearing has passed.” Montalvo-Murillo, 495 U.S. at 721. To the contrary, the
Court held, such an interpretation impermissibly “expos[ed] the public to an
increased likelihood of violent crime by persons on bail, an evil the statute aims
to prevent.” Id. at 720. Exactly the same might be said here: Nothing in the
MVRA suggests that a defendant should be freed from the obligation of paying
restitution just because the district court was slow in ordering it; such a result
would thwart rather than effect Congress’s express desire that all victims of
covered crimes receive restitution.
-11- Of course, mandatory (“shall”) deadlines abound in other contexts and are
often interpreted as jurisdictional. So, for example, the Supreme Court recently
found jurisdictional a statutory deadline prescribing the time period in which a
notice of appeal must be filed. Bowles, 127 S. Ct. at 2362. How, then, can we
explain the difference between our case and those like Bowles? While no doubt
there are other points of distinction, most critical for our purposes is this one:
The statute at issue in Bowles affords all parties a discretionary opportunity to
appeal if they meet a deadline, while the statutes at issue in Montalvo-Murrilo,
Barnhart, and our case impose mandatory obligations on government officials to
perform duties on behalf of the public. The former statute pertains to all parties;
the others only to governmental actions designed to advance a congressionally
identified public interest. The former affords a discretionary opportunity; the
other concerns a mandatory obligation. In this latter respect, Bowles is something
like the father who tells his daughter, “to receive ice cream, you shall eat all your
dinner by 7 o’clock.” Meanwhile, Montalvo-Murillo, Barnhart, and our case are
more like the father who tells his daughter “you shall eat everything on your plate
and you shall do it by 7 o’clock.” In the first example, the child won’t receive ice
cream if dinner remains on the plate after 7, but the choice is the child’s. In the
second example, dinner had better be eaten by the deadline, but even if it is not,
no one would expect the child to be free to skip off to bed without clearing her
-12- plate. So it is with the MVRA – district courts must order restitution by the
deadline, but even if they are late they cannot avoid the restitution obligation.
Third, while the Supreme Court has acknowledged that legislative history
can sometimes prove “[a] murky, ambiguous, and contradictory” business, Exxon
Mobil Corp. v. Allapattah Servs. Inc., 545 U.S. 546, 568 (2005), it has sometimes
studied that history for guidance in analogous cases, see, e.g., Barnhart, 537 U.S.
at 165-66 (2003); Montalvo-Murillo, 495 U.S. at 720; Brock, 476 U.S. at 263-65.
Doing so may not be strictly necessary in this case in light of all we have said
already, but any such examination only reinforces our conclusion.
Mr. Dolan submits that the Senate Committee Report aids his cause when it
discusses “the need for finality and certainty in the sentencing process” and
indicates that this need “dictates that th[e] determination [of restitution] be made
quickly.” S. Rep. 104-179, at 20 (1995). But Mr. Dolan misses the point of this
discussion. The Committee Report makes plain that its emphasis on the need for
speed and finality arises out of concern for victims, not victimizers. The Report
proceeds to explain that the “sole due process interest of the defendant being
protected during the sentencing phase” isn’t the right to a speedy determination,
but only “the right not to be sentenced on the basis of invalid premises or
inaccurate information.” Id. (emphasis added). By contrast, when it comes to
victims, the Report stresses that “justice cannot be considered served until full
restitution is made.” Id. In the Committee’s words, “[i]t is essential that the
-13- criminal justice system recognize the impact that crime has on the victim, and, to
the extent possible, ensure that [the] offender be held accountable to repay these
costs.” Id. at 18. As we have explained previously, any complete examination of
the Report or the entirety of the Act’s legislative history can fairly lead only to
the conclusion that “Congress intended the 90 day limitation period to protect
victims against the dissipation of defendants’ assets and not to protect defendants
from a drawn-out sentencing process or to establish finality.” United States v.
Dando, 287 F.3d 1007, 1010 n.4 (10th Cir. 2002).
Finally, our holding today is in full harmony with our prior decisions in
Dando and United States v. Reano, 298 F.3d 1208 (10th Cir. 2002). In both
cases, we upheld the authority of a district court to enter a restitution order after
§ 3664(d)(5)’s 90-day deadline – results that strongly suggest the deadline’s non-
jurisdictional nature.
Mr. Dolan seeks to avoid this conclusion by stressing that we allowed late-
entered restitution orders in Dando and Reano only because the defendants in
those cases were at least partially responsible for the delay. Here, by contrast,
Mr. Dolan notes, he is not at all to blame for the missed deadline. On this basis,
Mr. Dolan submits, neither Dando or Reano can control our decision.
To some extent, Mr. Dolan is surely right. Neither Dando nor Reano had
occasion to address the question before us today and neither, strictly speaking,
controls our disposition. In Dando, we held the 90-day deadline “tolled” by
-14- virtue of the defendant’s request for a continuance and evidentiary hearing. 287
F.3d at 1011. In Reano, we held that the 90-day period was “tolled” by the
defendant’s appeal of a restitution award. 298 F.3d at 1211-12. But even
spotting all this to Mr. Dolan, the fact remains that in neither Dando nor Reano
did we hold that a failure to order restitution before the 90-day deadline deprived
the district court of jurisdiction to act. In both cases, we allowed late-entered
restitution orders. And there is nothing in the language, structure, or history of
the statute to suggest that the MVRA imposes a jurisdictional limit on the district
court’s authority to award restitution when the government or district court is at
fault for the delay but not when the defendant is to blame.
Put differently, while neither Dando or Reano addressed the question now
before us – what to do about delay caused by the government or district court,
rather than by the defendant – neither case is in any way inconsistent with our
holding today that § 3664(d)(5)’s deadline is non-jurisdictional. And it is surely
notable that our decision today is consistent not only with our prior precedent but
with the decisions of the First, Second, Fourth, and Ninth Circuits, each of which
has held, as we do, that the passing of § 3664(d)(5)’s deadline does not toll the
death knell of the district court’s subject matter jurisdiction. See United States v.
Douglas, 525 F.3d 225, 252-53 (2d Cir. 2008); Moreland, 509 F.3d at 1224;
-15- United States v. Johnson, 400 F.3d 187, 198-99 (4th Cir. 2005); Cheal, 389 F.3d
at 48-50. 2
Having concluded that the MVRA’s deadline seeks to spur prompt
restitution orders, not spurn belated ones, the question naturally arises whether
any remedy exists for a district court’s failure to comply with the 90-day
deadline. The MVRA is of course silent on this score, and we have read the 90-
day deadline as non-jurisdictional in part precisely because of that silence. In
these circumstances, the Supreme Court has sometimes indicated that “[w]e do
not agree that we should, or can, invent a remedy to satisfy some perceived need
to coerce the courts and the Government into complying with the statutory time
limits. Magistrates and district judges can be presumed to insist upon compliance
with the law[.]” Montalvo-Murillo, 495 U.S. at 721. Arguably, as well, there is
no need for courts to “invent” a remedy given the existence of the All Writs Act.
2 The Sixth Circuit appears to have decisions on both sides of the question. Compare Vandeberg, 201 F.3d at 814 with United States Jolivette, 257 F.3d 581, 584 (6th Cir. 2001). The Seventh Circuit also arguably appears to have competing trends in its jurisprudence. Compare United States v. Farr, 419 F.3d 621, 625 (7th Cir. 2005) (invalidating restitution order entered more than 90 days after sentencing) with United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999) (defendant not prejudiced by district court’s failure to identify within 90 days of sentence all the crime victims entitled to restitution). See also United States v. Maung, 267 F.3d 1113, 1122 (11th Cir. 2001) (invalidating restitution order entered more than 90 days after sentencing but reserving question whether restitution could be validly entered after the deadline if the delay was caused by the “defendant’s bad faith delay”); United States v. Stevens, 211 F.3d 1, 5 (2d Cir. 2000) (holding that 90-day deadline may be tolled by defendant’s purposeful misconduct).
-16- Should a district court fail to comply with the 90-day deadline, it would be hardly
surprising if a victim sought and obtained a writ of mandamus to compel the
district court to enter a restitution order forthwith. See In re Antrobus, 519 F.3d
1123, 1124 (10th Cir. 2008) (noting that one of the traditional offices of the writ
has been to compel an inferior court “to exercise its authority when it is its duty
to do so”) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)
(per curiam)).
While saying all this, we also must acknowledge that some of our sister
circuits have held out the possibility that, if a defendant could establish prejudice
arising from the district court’s failure to enter restitution within the 90-day
deadline, they might well craft some remedy to address any such prejudice. See
Moreland, 509 F.3d at 1224-25; Johnson, 400 F.3d at 199; see also Montalvo-
Murillo, 495 U.S. at 721-22 (emphasizing that defendant was not prejudiced by
court’s failure to hold hearing in conformity with Bail Reform Act’s timing
requirements). For reasons we have already articulated, we are unsure whether
Congress has authorized us to excuse a defendant from the obligation to pay
restitution for offenses covered by the MVRA under any circumstances. Neither
is it altogether obvious how a defendant might be prejudiced by an untimely
restitution order: it would seem “a fortiori more than highly probable” that a
delayed restitution order would “not adversely affect [the defendant’s] substantial
rights.” United States v. Stevens, 211 F.3d 1, 6 (2d Cir. 2000). After all, it is
-17- usually better to pay a dollar tomorrow than to pay one today. Happily, however,
we can leave the final resolution of all this for another case because, in the one
actually before us, Mr. Dolan does not purport to identify any way in which his
substantial rights were infringed by the district court’s decision requiring him to
pay restitution later rather than sooner.
While we today decide the 90-day deadline is not a jurisdictional limit on
the district court’s authority to order restitution, our holding should not be
misconstrued as suggesting the government has the discretion to seek, and the
district court has discretion to enter, restitution on any time schedule they find
convenient. The law remains that the district court shall enter a restitution order
within 90 days. And this directive serves important congressionally identified
purposes – to ensure victims timely compensation and to prevent the potential
dissipation of defendants’ assets. District courts and the government must take
steps to ensure compliance with the MVRA’s deadline and the public interests it
serves, just as they must with any other congressional command. Though district
courts do not lose the authority to enter restitution after 90 days, the law remains
the law and courts and the government alike are bound to follow it. As the
Supreme Court explained in Montalvo-Murillo, though “the sanction for breach is
not loss of all later powers to act,” the duty remains a “mandatory” one. 495 U.S.
-18- at 718. Failure to abide Congress’s instruction still “represent[s] a default on a
statutory duty.” Barnhart, 537 U.S. at 157. 3
III
Having said that the district court retained authority to enter a restitution
award despite its failure to comply with the 90-day deadline, we must still ask
whether the amount the district court ordered Mr. Dolan to pay each month, $250,
adequately accounts for his financial condition.
While the MVRA requires that the total amount of restitution be ordered
“without consideration of the economic circumstances of the defendant,” 18
U.S.C. § 3664(f)(1)(A), the district court can and must consider the defendant’s
economic circumstances in fashioning a restitution payment schedule, id. at
§ 3664(f)(2). Specifically, the district court must consider “(A) the financial
resources and other assets of the defendant, including whether any of the assets
3 Mr. Dolan argues that our holding conflicts with United States v. Bedonie, 413 F.3d 1126 (10th Cir. 2005). It does no such thing. In Bedonie, we considered whether § 3664(d)(5) authorized the district court to reopen an already entered restitution order sua sponte simply because it had reconsidered the wisdom of its order. We concluded that the MVRA grants the district court no such authority. At the same time, we took pains to emphasize in Bedonie that our decision did not limit the authority of a district court to “‘hold[] open’ . . . a restitution issue at the original sentencing” pending receipt of facts needed to enter an initial restitution order. Id. at 1129. This, of course, is precisely the case we now face: whether and to what degree a “holding open” of the restitution question past the original sentencing hearing and the statutory deadline is permissible – not whether and to what degree a district court’s sua sponte reopening of an existing restitution order is statutorily authorized.
-19- are jointly controlled; (B) projected earnings and other income of the defendant;
and (C) any financial obligations of the defendant[,] including obligations to
dependents.” Id. If, after consideration of these factors, the court finds that “the
economic circumstances of the defendant do not allow . . . for the payment of the
full amount of a restitution order in the foreseeable future under any reasonable
schedule of payments,” the district court can direct the defendant to make
“nominal periodic payments.” Id. at § 3664(f)(3)(B).
Mr. Dolan does not (and cannot) argue that the district court failed to
consider his economic circumstances. The district court engaged in a thorough
examination of Mr. Dolan’s financial resources, his projected earnings, and his
financial obligations. Dist. Ct. Op. at 15. Neither does (or could) he argue that
the facts found by the district court regarding his economic circumstances were
erroneous; before us they are undisputed. Instead, Mr. Dolan argues only that, in
light of the facts found by the district court as part of its duty to consider his
ability to pay restitution, $250 per month is simply too high.
We have previously explained that a district court enjoys “substantial
discretion” in setting monthly payment schedules, see United States v. Wilson,
416 F.3d 1164, 1170 (10th Cir. 2005), and does not abuse this discretion so long
as “the evidence indicates a defendant has some assets or earning potential and
thus possibly may be able to pay the amount ordered.” United States v. Rogat,
-20- 924 F.2d 983, 985 (10th Cir. 1991). 4 Admittedly, asking whether a defendant
possibly may be able to pay the amount ordered is a very narrow inquiry and
surely poses the defendant with a daunting hurdle. But the limited nature of our
appellate inquiry becomes sensible when considered in light of the MVRA’s
purpose of ensuring maximum restitution to victims; its requirement that
restitution awards take account of the defendant’s future earning potential, 18
U.S.C. § 3664(f)(2)(B), an exercise that necessarily involves the district court in
“a delicate balancing of diverse, sometimes incomparable factors, some which not
only lack certainty but may indeed be based on mere probabilities, expectations,
guesswork, even a ‘hunch,’” United States v. Ismail, 219 F.3d 76, 78 (2d Cir.
2000); as well as the fact that no restitution payment schedule is ever fixed
immutably in stone. As we have already alluded to, if and whenever there is a
“material change in the defendant’s economic circumstances,” the MVRA
authorizes the district court to adjust the defendant’s payment schedule “as the
interests of justice require.” 18 U.S.C. § 3664(k). So if a district court’s
assessment of a defendant’s future earning potential doesn’t pan out and its
4 In Rogat, we were asked to determine whether a restitution order entered pursuant to the Victims and Witness Protection Act was more than the defendant was able to pay. Given the strong similarities between that statute and the MVRA, however, it provides appropriate guidance here. See, e.g., United States v. Mahone, 453 F.3d 68, 74 & n.3 (1st Cir. 2006); United States v. Randle, 324 F.3d 550, 556 n.3 (7th Cir. 2003). In fact, we have previously relied on Rogat in evaluating a challenge to a payment schedule imposed under the MVRA, albeit in an unpublished decision. See Taylor, 2002 WL 1166166, at 3.
-21- payment schedule proves too onerous, the defendant is not stuck, overwhelmed
with an obligation he cannot meet and without the means to seek redress.
Congress has specifically directed that the doors of the district court should
remain open to the defendant, and that the court is free to revise its payment
schedule at any time.
Applying our governing standard of review to this case, we are constrained
to affirm. We admit many record facts suggest that Mr. Dolan could have
difficulty paying the amount of restitution ordered. His income is small, his
employment history poor, his substance abuse problem apparent. There is,
however, other evidence in the record suggesting that it is not impossible for Mr.
Dolan to meet his monthly payment obligation. The record shows that Mr. Dolan
has a GED, has been able to win jobs in the past, is physically able to work, and
has few financial obligations because he lives with and is supported by his aunt.
The record also reveals that he receives a modest annual stipend from his tribe.
Based on the evidence before us, we cannot disagree with the district court that
Mr. Dolan has the potential to win a job and earn a living that would allow him to
meet a monthly obligation of $250; neither can we ignore the fact we and others
have upheld similar restitution orders on similar records against similar
challenges. See, e.g., Wilson, 416 F.3d 1164, 1170 (10th Cir. 2005) (upholding
restitution order requiring indigent defendant to pay restitution while incarcerated
because he did not show that there were insufficient opportunities to work in
-22- prison or that he was physically unable to do so); Rogat, 924 F.2d at 986
(upholding restitution award against indigent defendants based on their future
earnings potential); Ismail, 219 F.3d 76, 78 (same); United States v. Booth, 309
F.3d 566, 576 (9th Cir. 2002) (upholding $500 per month payment schedule for
defendant with “financial difficulties” on the grounds that he had worked in the
past and “might reasonably look forward to being able to pay after his term of
imprisonment”). Should events as they unfold reveal a material change in Mr.
Dolan’s circumstances, he and the district court can and will, pursuant to
§ 3664(k), adjust the payment schedule.
Affirmed.
-23-