                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2008

USA v. Abuhouran
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4802




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ALD-191                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-4802
                                     ___________

                          UNITED STATES OF AMERICA

                                           v.

                             HITHAM ABUHOURAN
                              a/k/a STEVE HOURAN,
                                        Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Crim. No. 95-cr-00560-LP-1)
                      District Judge: Honorable Louis H. Pollak
                     ____________________________________

           Submitted for Possible Dismissal Due to a Jurisdictional Defect and
               Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     May 1, 2008

            Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges

                                 (Filed: May 7, 2008 )
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      In September 1996, Hitham Abuhouran pled guilty to an indictment charging him

with various crimes arising out of fraudulent schemes, executed in 1990 and 1991, which
resulted in the theft of more than $9 million from the Bank of the Brandywine Valley of

West Chester, Pennsylvania. In addition to a prison term of 188 months and other

sanctions, Abuhouran was ordered to pay restitution in the amount of $6,917,246.10.

This Court affirmed. See United States v. Abuhouran, 161 F.3d 206 (3d Cir. 1998). His

repeated efforts to obtain post-conviction relief have been unsuccessful. Among those

efforts was a motion, filed in November 2006, seeking termination of the restitution order

pursuant to “the former [18 U.S.C.] § 3579(f)[(2)], and the later [18 U.S.C.]

§ 3663(f)(2).” By order entered December 18, 2007, the District Court denied the

motion, noting that those statutory provisions were not in effect at the time Abuhouran

was sentenced. Abuhouran appealed.1

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Because this dispute is purely

a matter of statutory interpretation, we review the District Court’s ruling de novo. See

Kapral v. United States, 166 F.3d 565, 567 (3d Cir. 1999); United States v. Rostoff, 164

F.3d 63, 66 (1st Cir. 1999).

       Relying on United States v. Holland, 380 F. Supp. 2d. 1264 (N.D. Ala. 2005),

Abuhouran argues that his restitution order has “expired.” In Holland, the defendant’s




       1
        The notice of appeal sought generally to appeal the order of December 18, 2007,
which disposed of at least nine other motions filed by appellant. Abuhouran has since
requested, however, that the appeal be narrowed to only “the issue of the statute of
limitation on the collectibility of restitution under 18 U.S.C. § 3579(f)(2)(C).”

                                             2
order of restitution was entered pursuant to the Victim and Witness Protection Act of

1982 (“VWPA”), which provided, in relevant part:

       The end of such period [of restitution payments], or the last of such installments
       shall not be later than --
       (A)    the end of the period of probation, if probation is ordered;
       (B)    five years after the end of imprisonment imposed, if the court does
              not order probation; and
       (C)    five years after the date of sentencing in any other case.

18 U.S.C. § 3663(f)(2).2 The Holland court held that this provision “clearly provides a

five-year time limit on all restitution obligations.” Holland, 380 F. Supp. 2d at 1269.

Therefore, even though the defendant’s 1995 restitution order purported to create a

continuing payment obligation during his 210 month sentence, the Holland court ordered

the Bureau of Prisons to stop collecting restitution payments.3 Id. at 1269-70.

       Congress eliminated § 3663(f) with the passage of the Mandatory Victims

Restitution Act (“MVRA”) in 1996. The MVRA became “effective for sentencing

proceedings in cases in which the defendant is convicted on or after the date of enactment

of this Act,” April 24, 1996. See United States v. Cottman, 142 F.3d 160, 168 n.10 (3d

       2
        Section § 3579(f) of Title 18, which Abuhouran cited in his November 2006
motion, is the predecessor to § 3663(f). The provision was renumbered without
substantive change in 1984. See Hughey v. United States, 495 U.S. 411, 412-13 & n.1
(1990).
       3
        Of course, Holland is not binding upon this Court. Perhaps more importantly,
though, Holland involved a defendant who was “left . . . holding the bag” while his co-
defendant, who was jointly responsible for the restitution payment, “escaped” his
obligation. Holland, 380 F. Supp. 2d at 1269. The Holland court found those
circumstances “outrageous” and “a travesty that calls for correction.” Id. The same
cannot be said of Abuhouran’s situation.

                                             3
Cir. 1998) (quoting Antiterrorism and Effective Death Penalty Act of 1996, § 211).

Because Abuhouran was convicted in September 1996, the District Court held that former

§ 3663(f) did not apply to his case.

       Importantly, however, this conclusion overlooks United States v. Edwards, 162

F.3d 87 (3d Cir. 1998), where we held that applying the MVRA to a defendant whose

offenses pre-dated the Act violated the Ex Post Facto Clause. See id. at 91. Abuhouran

committed his crimes prior to the MVRA’s enactment. Therefore, the VWPA applied to

the imposition of his restitution order. See United States v. Holmes, 193 F.3d 200, 205

(3d Cir. 1999). Under the VWPA, sentencing judges were permitted to order a defendant

to pay restitution immediately, within a specified period, or in installments. See 18

U.S.C. §§ 3663(f)(1), (3). As noted above, however, the statute provided that the

payment period could not extend beyond the term of probation where no term of

imprisonment is imposed, § 3663(f)(2)(A), beyond five years after the end of any term of

imprisonment imposed, § 3663(f)(2)(B), or beyond five years after the date of sentencing

in any other case, § 3663(f)(2)(C).

       Abuhouran asserts that § 3663(f)(2)(C) effectively voided the restitution order five

years after he was sentenced.4 Notably, however, that provision applies only where the


       4
         If Abuhouran was ordered to pay restitution immediately, something that is not
clear from the record, he arguably could not invoke the time limitations in § 3663(f)(2).
See FDIC. v. Dover, 453 F.3d 710, 713-15 (6th Cir. 2006) (holding that time limits
contained in § 3663(f)(2) did not apply because the sentencing court had ordered the
restitution to be paid immediately); United States v. House, 808 F.2d 508, 511 (7th

                                             4
defendant is sentenced to neither probation nor imprisonment. Defendants like

Abuhouran, who was sentenced to a term of imprisonment, are subject to § 3663(f)(2)(B).

That provision prohibits the sentencing court from establishing a period or setting a

schedule of installments more than five years after the “end of the term of imprisonment.”

Because Abuhouran is currently serving his term of imprisonment, he is within the period

established by § 3663(f)(2)(B), and any payment schedule set by the sentencing court is

still applicable.

       We conclude that no substantial issue is presented on appeal. Therefore, we will

grant the Appellee’s motion for summary action and will summarily affirm the District

Court’s order. See L.A.R. 27.4; I.O.P. 10.6.




Cir.1986) (same).
       If those limitations apply to an order requiring immediate payment, however,
Abuhouran is still required to pay the restitution under § 3663(f)(2)(B), as discussed
below.

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