United States v. Romines

204 F.3d 1067

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 18, 2000
• Docket: 98-5401
• Status: Published

Opinion

[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ------------------------ ELEVENTH CIRCUIT 02/18/2000 No. 98-5401 THOMAS K. KAHN ------------------------ CLERK D.C. Docket No. 96-00349-CR-SH

UNITED STATES OF AMERICA Plaintiff-Appellee,

versus

KENNETH ROMINES

Defendant-Appellant.

---------------------- Appeal from the United States District Court for the Southern District of Florida ---------------------- (February 18, 2000)

Before BLACK and HULL, Circuit Judges, and GOODWIN*, Senior Circuit Judge.

PER CURIAM:

Kenneth Romines appeals an order of restitution imposed upon revocation of

a term of supervised release. The government concedes that the district court plainly

erred, although disagreeing to some extent with Romines on the grounds. For the

reasons outlined below, we hereby vacate the restitution order.

* Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation. After being originally convicted and sentenced for interstate transportation of

stolen goods, Romines completed the custodial term of that sentence, but violated his

supervised release. He was next sentenced to ten additional months of imprisonment.

Confined in a half-way house, he escaped, was caught, and convicted of escape from

custody. This conviction resulted in a sentence of fifteen months of additional

imprisonment to be followed by two years of supervised release.

After serving the custodial portion of the escape sentence, Romines again

commenced a period of supervised release. He obtained residence and employment

from Stephen and Vicki Gailey, who trusted him to their detriment. On April 29,

1997, Romines drew and cashed an $8000 check on the Gailey’s corporate bank

account, and rode away on a motorcycle owned by the Gaileys. After a year of

freedom, he was again apprehended and brought into the district court to show cause

why his supervised release on the escape sentence should not be revoked, and an

enhanced sentence imposed.

At his revocation and sentencing hearing, Romines admitted that he had

violated the conditions of his release following his conviction on the escape charge.

Romines also admitted that he had victimized the Gaileys when he absconded from

the supervised release on the escape sentence. However, no court charged him with

embezzlement, and the Gaileys elected not to press charges.

2 The district court then (1) revoked Romines’s supervised release, on the escape

sentence, (2) sentenced him to twenty-one months of imprisonment to be followed by

an additional fifteen months of supervised release, and (3) ordered him to pay the

Gaileys $8000 in restitution. Romines did not object to the restitution at time of

sentencing, but now appeals the restitution provision of the latest supervised release

sentence.

This court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742. Romines filed a motion for leave to file a late notice of appeal, and the

district court granted the motion. Accordingly, for our purposes, the appeal is timely.

See Brooks v. Britton, 669 F.2d 667 (11th Cir.1982); Fed R. App. P. 4(b). Because

Romines failed to object to the restitution order at sentencing, we review only for

plain error. See United States v. Davis, 117 F.3d 459, 462 (11th Cir.), cert. denied, 118

S.Ct. 355 (1997). Unfortunately for the planned sentence, plain error is present. The

crime of conviction, for which Romines has been sentenced to serial periods of

supervised release after his conspicuous failures to comply with earlier sentencing

conditions, was the crime he committed when he escaped from the half-way house,

now some years in the past. The only victim of that crime was the government,

whose confidence in Romines’s rehabilitation seems to have been misplaced.

The Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3556,

3663(a)(1), authorizes restitution to compensate “victims of the offense,” which has

3 been interpreted to allow district courts to impose restitution only for losses caused

by the conduct underlying the offense of conviction. See Hughey v. United States,

495 U.S. 411, 412-13 (1990); United States v. McArthur, 108 F.3d 1350, 1352 (11th

Cir. 1997).1 Restitution here was ordered as a condition of supervised release, rather

than under the VWPA. Still, the same limitation applies to orders as conditions of

probation and supervised release, because the rules regarding probation and

supervised release adopt the VWPA standard and authorize restitution for “victims of

the offense.” 18 U.S.C. § 3563(b)(2) (regarding probation); 18 U.S.C. § 3583(d)

(applying § 3563(b) to supervised release); Gall v. United States, 21 F.3d 107, 108 (6th

Cir. 1994); United States v. Cottman, 142 F.3d 160, 169 (3rd Cir. 1998).

Romines’s original federal offense (interstate transportation) resulted in a

conviction and sentence which did not include a provision for restitution. The next

crime for which he was sentenced was the escape from custody. The challenged

restitution provision was prompted by conduct which did not underlie, or have

anything to do with, either his original offense or his first escape. The violation of the

terms of his supervised release (absconding from supervision) resulted not in a

conviction of crime, but in the revocation of his supervised release on the escape

1 The two 1990 post-Hughey amendments to the VWPA do not apply here. First, restitution was not ordered as a part of a plea agreement. See 18 U.S.C. § 3663(a)(3). Second, revocation of supervised release is not “an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity.” 18 U.S.C. § 3663(a)(2). Thus, the Hughey rule limiting restitution to “victims of the offense” still applies.

4 sentence and an increased custodial term. This additional penalty relates back to the

conviction for the escape from the half-way house.

The restitution order here was unauthorized because while the Gaileys were

victims, they were not victims of the “offense of conviction” – the escape from the

half-way house. That escape had no victim but the government and was completely

unrelated to the embezzlement and flight from the Gaileys. The revocation of

supervised release was not the offense of conviction, but was “part of his original

sentence” – the escape from the half-way house – “and constituted punishment for the

crimes underlying that sentence.” United States v. Woods, 127 F.3d 990, 992 (11th

Cir. 1997).

As for the embezzlement itself, it remains uncharged. The restitution order was

imposed in a commendable effort to provide some remedy to innocent victims of the

defendant’s effort to regain his liberty at the Gailey’s expense. In the absence of

textual authority to grant restitution, however, this is a matter better left to the criminal

or civil courts of Florida.

Accordingly, the judgment of restitution is VACATED.