United States v. Jimmy Dale Gomer

764 F.2d 1221, 1985 U.S. App. LEXIS 19829

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 11, 1985
• Docket: 84-1463
• Status: Published

Opinions

SWYGERT, Senior Circuit Judge.

Jimmy Dale Gomer pled guilty to bank robbery and was sentenced to twenty-five years imprisonment and ordered to forfeit $7,272.00 as restitution to the victims of the robberies, pursuant to the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 1512-14, 3579-80 (1982) (“VWPA”). He appeals only from the restitution sentence. Because the VWPA requires the sentencing judge to consider “the financial needs and earning ability of the ... defendant’s dependents,” 18 U.S.C. § 3580(a), we vacate the restitution sentence and remand for resentencing in light of this consideration.

At the sentencing hearing, the district judge stated that a restitution award was “fairly mandatory” under the VWPA and that he could find no “valid or sufficient reason not to order restitution.” Transcript of Proceedings, Vol. A at 3 (“TA.”). Gomer personally objected to forfeiting the $7,272.00 seized from him, contending that these funds were not the proceeds of the robberies. He claimed that the funds accrued from the sale of his wife’s car and from money he had saved while in prison. TA. 3. The district judge reasoned that the source of the funds was irrelevant, and Gomer’s counsel agreed. TA. 4-5. Counsel objected to the restitution award only on the ground that the statute itself was unconstitutional. TA. 11. The district judge ordered the $7,272.00 forfeited as restitution without any findings or further explanation for the basis of the award, other than his determination to “follow the mandate of Congress.” TA. 11.

On appeal Gomer contends for the first time that the VWPA requires the sentencing judge to consider the financial needs and earning ability of the defendant’s dependents. Appellant’s Brief at 22.¹ We hold that the district judge erred in failing to consider this factor and that this was plain error that may be noticed by the appellate court even though not raised below. Fed.R.Crim.P. 52(b).

The VWPA expressly requires the sentencing judge to consider “the financial needs and earning ability of the ... defendant’s dependents.” 18 U.S.C. § 3580(a). The sentencing judge here did not state on the record that he considered this factor. No error was committed, however, if (1) the issue was not properly before the court, (2) the judge implicitly considered this factor in ordering restitution, or (3) the funds in fact were' the proceeds of the bank robbery.

The VWPA places on the defendant the burden of demonstrating the financial needs of his dependents. 18 U.S.C. § 3580(d). Therefore, if the defendant did not at least produce some evidence on this issue, the issue was not properly before the district judge, and the latter did not err in failing to consider it.² It is true that Gomer himself presented no evidence on this issue.³ Nevertheless, the record contained ample evidence⁴ of the financial dependency of family members on Gomer. According to the two presentence reports presented to the judge, see Appellee’s Appendix, Gomer had been married three times and had had four children by his first marriage. The two eldest sons, aged 17 and 18, resided with him; the two younger sons resided with their mother. Gomer sent money to the mother and his children, though there is no evidence of a divorce decree.⁵ See Appellee’s Appendix (reprinting Presen-tence Report of February 29, 1984 at 3). One of his stated reasons for an earlier bank robbery committed in 1978 was that he “had four boys to support, and things started getting bad as for having money to live on.” See Appellee’s Appendix (reprinting Presentence Report of December 11, 1978 at 6). As for the other two wives, the only evidence of dependency in the record was Gomer’s notation on his request-for-counsel form that his third wife was a dependent. We believe this evidence sufficed to discharge Gomer’s burden of production and that, accordingly, the issue was properly before the district judge.

As for the possibility that the district judge implicitly considered the needs of Gomer’s dependents, it is true that an explicit statement of the sentencing factors relied on is not generally required. United States v. Harris, 558 F.2d 366, 374 (7th Cir.1977). Nevertheless, this court has stated that it is “always advisable” to do so and has cautioned against adopting a rule “which will have the natural and probable effects of encouraging trial judges to avoid giving reasons for sentencing decisions.” Id. at 374-75. Accordingly, the defendant need not show explicit reliance on an improper sentencing factor to obtain relief: it is “sufficient to show that it was not improbable the trial judge was influenced by improper factors in imposing sentence.” Id. at 375.

We hold that a similar test applies where the defendant charges that the district judge failed to consider a mandatory sentencing factor. Although the sentencing judge need not explicitly state he is relying on the mandatory factor, the appellate court must reverse where the defendant shows either (1) that the judge explicitly repudiated the mandatory factor, or (2) that it was not improbable that the judge failed to consider the mandatory factor and was influenced thereby.

The strongest evidence that the district judge implicitly considered the needs of Gomer’s dependents was the prosecutor’s statement that $7,672.00 had been seized, of which $400.00 was subsequently returned to Gomer’s children. TA. 8. It could be argued that the district judge implicitly concluded that this $400.00 adequately provided for the children’s needs and that it was therefore equitable to award the remaining $7,272.00 to the victims.

We conclude, however, that it was not improbable that the district judge failed to consider the dependents’ needs. First, a return of $400.00 to the children would not provide for the needs of Gomer’s wives. Second, although the VWPA does not necessarily require full satisfaction of the defendant’s obligations to his dependents before awarding any sum to the victims, it does require some principled balancing between the needs of both potential classes of recipients.⁶ It is improbable that the district judge would have given such short shrift to the continuing needs of Gomer’s dependents. Third, the district judge’s statements indicate that he did not understand that the statute required him to consider the needs of Gomer’s dependents. He conceded his unfamiliarity with the VWPA: “It’s a new — we haven’t had much experience with the act.” TA. 8. His only explanation of the VWPA was that restitution was “mandatory” unless he could state some reasons not to make the award. See TA. 3, 11. It is not improbable that the district judge was familiar in general terms with the tough restitution requirements of the VWPA, but was not familiar with the less-publicized restrictions on restitution detailed in 18 U.S.C. § 3580.

We also conclude that it is not improbable that the district judge’s failure to consider the dependents’ needs influenced his judgment. The VWPA requires some principled balancing between the needs of the victims and the needs of the dependents. See supra note 6 and accompanying text. It is not improbable that one such principled balance would be to reduce or even eliminate the restitution award, especially because the victims in the case at bar are insurance companies and, as such, are perhaps better able to absorb a loss than Gomer’s dependents. Accordingly, we reject the United States’ argument that the district judge implicitly considered this sentencing factor.

The third and final argument against finding error below is that the seized funds were in fact the proceeds of the bank robberies. If the funds were stolen, then neither Gomer nor his dependents had any claim to them, whatever their financial straits.⁷ While there may have been evidence to support such a finding, the district judge did not deem it necessary to reach the issue. Instead, he advised Gomer that the funds confiscated from him could be applied toward restitution regardless of their origin. TA. 4-5. This was not completely correct. Although it is true that a restitution order could reach any of Gomer’s funds regardless of their source, the origin of the funds was relevant in the sense that the district judge had to consider the needs of Gomer’s dependents if he found that the funds were not the proceeds of the bank robberies. The district judge therefore erred in refusing to reach this issue.

In sum, the district court erred in not considering the needs of Gomer’s dependents when awarding restitution. Nevertheless, because Gomer did not raise this issue below, we can vacate the restitution sentence and remand only if we can define the error as plain error.

To be plain error, the error must be “conspicuous” and must have “probably changed the outcome of the trial.” United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984). It is surprising that the district judge did not explicitly acknowledge a sentencing factor expressly required by statute in all cases. This, combined with ample record evidence as to Gomer’s support of various dependents and an ultimate restitution award that reflected no balancing between the needs of victims and dependents, lead us to conclude that the error of omission is “conspicuous.” The “outcome” in this case is not guilt or innocence, but the ultimate sentence. A finding that the $7,272.00 was not the proceeds of the robbery and that family members were dependent on the defendant for living expenses would reduce, or even eliminate, the restitution award. It was therefore “probable” that consideration of the omitted sentencing factor would have changed the outcome.

It is true that the plain error rule must be used “sparingly” and that the ultimate judgment to be reached is that the rule’s application is necessary to prevent a “miscarriage of justice.” United States v. Young, — U.S.-, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985); accord Silverstein, 732 F.2d at 1349. Perhaps because sentencing errors have such a definite and immediate adverse effect on the defendant, or perhaps because it is necessary to place some checks on the enormous discretion of the sentencing judge, appellate courts have been less reluctant to invoke the plain error rule in the sentencing context. See, e.g., Harris, 558 F.2d at 375-77 (failure to object to errors in presentence report despite opportunity to do so held to be plain error in light of potential prejudice to defendant, notwithstanding general rule of enforcing such waivers); United States v. Robin, 545 F.2d 775, 779 (2d Cir.1976) (“a court’s failure to take appropriate steps to ensure the fairness and accuracy of the sentencing process must be held to be plain error”). In any event, it would be a miscarriage of justice to enforce a waiver, under the guise of reinforcing the “efficien[cies]” and “premises of an adversary system,” Silverstein, 732 F.2d at 1349, where the persons most prejudiced by the waiver were not even represented by counsel: Gomer’s dependents. And if indeed Gomer’s dependents require his financial assistance, the resulting prejudice would be compelling. Given these concerns, as well as the potentially profound effect consideration of this sentencing factor may have on the restitution award, we hold such an omission to be plain error.

In sum, the district judge committed plain error in awarding restitution without considering the financial needs and earning ability of Gomer’s dependents. We therefore vacate the restitution sentence. On remand, the district judge should first consider whether the seized funds were part of the proceeds of the bank robberies. If they were not, then Gomer’s restitution sentence should be reconsidered in light of the financial needs and earning ability of his dependents. Because we resolve this case on statutory grounds, we need not reach the issue of the VWPA’s constitutionality.⁸

1 . In an apparent attempt to circumvent the waiver problem, Gomer purports to frame the issue as a constitutional one. He argues that the due process clause requires the government to follow the procedures it sets for itself by statute. Appellant's Brief at 22. At oral argument, however, Gomer also framed the issue in statutory terms. The appellee interpreted the issue as a statutory one. See Appellee’s Brief at 30-33. In view of the lack of prejudice to the appellee and in view of our reluctance to reach constitutional issues unnecessarily, see infra note 8, we hold that Gomer has stated a statutory claim and address it before reaching any constitutional issues.

2 . A failure to discharge this production burden might itself be plain error, though we need not reach that issue here.

3 . On the other hand, by arguing that the money was in part the proceeds of the sale of his wife’s car, Gomer alerted the district judge to the potential claims of his family members to the seized funds.

4 . We use the word “evidence” advisedly, inasmuch as the usual strictures of the Federal Rules of Evidence do not apply in a sentencing hearing. See United States v. Ray, 683 F.2d 1116, 1120 (7th Cir.), cert. denied, 459 U.S. 1091, 103 S.Ct. 578, 74 L.Ed.2d 938 (1982).

5 . Indeed, the presentence report suggests that he is a bigamist, see Appellee’s Appendix (reprinting Presentence Report of December 11, 1978 at 11). This would not affect Gomer’s obligation to support the "wives” and children involved, nor would it affect the district judge’s obligation to consider the needs of the various families in awarding restitution.

6 . The Committee recognizes that an offense— particularly one causing bodily injury or death — may have lifelong cost implications for the victim or the victim’s family, but it also recognizes that there may sometimes be a practical necessity in limiting both the amount of restitution ordered and the period during which restitution payments are ordered to be made. In line with the American Bar Association Criminal Justice Standard 18-2.3, the Committee’s intention is that the offender's ability to pay will be a factor in the restitution order, and that the order will cover a period that will reasonably assure full and complete payment of the restitution order notwithstanding any maximum period of probation or incarceration the defendant could have served.

S.Rep. No. 532, 97th Cong., 2d Sess. 31-32, reprinted in 1982 U.S.Code Cong. & Ad.News 2515, 2537-38.

7 . Conversely, if the funds belonged in whole or in part to Gomer’s wife and he had no entitlement to the funds other than as a bailee, it would be inappropriate to use the wife's funds to discharge Gomer’s restitution obligation.

8 . It is true that if the VWPA does unconstitutionally deprive Gomer of his right to jury trial, see, e.g., Note, The Unconstitutionality of the Victim and Witness Protection Act Under the Seventh Amendment, 84 Columb.L.Rev. 1590 (1984), Gomer will suffer constitutional harm by not being allowed, on remand, a jury trial on the restitution issue. But if the district judge declines to award any restitution, the issue will be moot and any constitutional error will have been harmless. Because resolution of the constitutional issue in this case may ultimately prove unnecessary, it would be imprudent for us to decide the issue at this stage.