17-1090 (L)
United States v. Marc Alexander, et al.

                            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 TO 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
1st day of June, two thousand twenty.

Present:
            ROBERT D. SACK,
            RICHARD C. WESLEY,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                  v.                                               17-1090
                                                                   18-558
                                                                   18-2293
                                                                   18-2342

BERNARD HARRIS,

                           Defendant,

MARC ALEXANDER, RACHAEL ALEXANDER, a/k/a
Rachael Vierling,

                  Defendants-Appellants.
_____________________________________

For Defendant-Appellant
Marc Alexander:                              AMY ADELSON, New York, NY.

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For Defendant-Appellant
Rachael Alexander:                             LAWRENCE MARK STERN, New York, NY.

For Appellee:                                  RAYMOND F. MILLER, Assistant United States Attorney
                                               (Marc H. Silverman, Assistant United States Attorney,
                                               on the brief), for John H. Durham, United States
                                               Attorney for the District of Connecticut, New Haven,
                                               CT.

        Appeal from a judgment of the United States District Court for the District of Connecticut

(Arterton, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the April 17, 2017 and February 23, 2018 judgments are AFFIRMED, except as

noted below with respect to the restitution payment schedule set forth in the February 23, 2018

judgment; the July 26, 2018 restitution order is VACATED; and the case is REMANDED to the

district court for further proceedings as to restitution alone.

        Defendants-Appellants Marc Alexander and Rachael Alexander appeal from, inter alia,

judgments entered against them on April 17, 2017 and February 23, 2018, respectively, as well as

a restitution order entered against both Defendants-Appellants on July 26, 2018, in the United

States District Court for the District of Connecticut (Arterton, J.). We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

                                           *        *      *

        1. Marc Alexander’s Appeal

        Marc Alexander first argues that his conviction and sentence should be vacated on the basis

that his guilty plea was not knowing, intelligent, and voluntary due to his mental and physical state

at the time of the change-of-plea hearing.      Because he never challenged the validity of his guilty

plea before the district court, we review for plain error.        See United States v. Adams, 768 F.3d


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219, 223 (2d Cir. 2014) (citation omitted).            Plain error review “requires a defendant to

demonstrate that (1) there was error, (2) the error was plain, (3) the error prejudicially affected his

substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of

judicial proceedings.”     United States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013) (internal

quotation marks and citation omitted). To show plain error in the context of Federal Rule of

Criminal Procedure 11, “a defendant must establish . . . that there is a reasonable probability that,

but for the error, he would not have entered the plea.” United States v. Garcia, 587 F.3d 509, 515

(2d Cir. 2009) (internal quotation marks and citation omitted).

       We conclude that the district court did not plainly err in determining that Marc Alexander

was competent to enter a knowing, intelligent, and voluntary plea.         Before accepting a plea of

guilty, Rule 11 requires that the district judge determine whether the defendant “understands the

nature of the charge against him and whether he is aware of the consequences of his plea.”

McCarthy v. United States, 394 U.S. 459, 464 (1969).        “A district court is not required to follow

any particular formula in determining that defendant understands the nature of the charge to which

he is pleading guilty.” United States v. Andrades, 169 F.3d 131, 135 (2d Cir. 1999).

       Nothing in the record suggests that the district court erred, let alone plainly erred, in

determining that, despite having apparently not eaten for several days prior to the proceeding, Marc

Alexander was able to knowingly and voluntarily enter a plea. The district court’s determination

was well supported by its own observations that the defendant “certainly appear[ed] fully attentive

to what is going on here” based on his demeanor and responses during a robust colloquy with the

court; the defendant’s representation at the outset of the hearing that he understood the nature of

the proceedings and that his mind was clear; his subsequent confirmation following the recess that

he was feeling “refreshed” and “in a more comfortable state”; and defense counsel’s assurances


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that, during the recess, he had “conducted a number of inquiries of Mr. Alexander to see whether

he was aware of what was taking place here,” and determined that Alexander was indeed “aware

of what is taking place” and intended to proceed.     Marc Alexander First App’x at 84–86.      Thus,

this case is unlike United States v. Yang Chia Tien, 720 F.3d 464, 469–71 (2d Cir. 2013), or United

States v. Rossillo, 853 F.2d 1062, 1066 (2d Cir. 1988), where the district court failed to properly

inquire into the effects of medications on a defendant’s state of mind.   Here, the district court did

not plainly err in accepting Marc Alexander’s plea after engaging in a Rule 11 colloquy,

determining that Marc Alexander was competent to change his plea, then taking concrete steps to

address concerns about his mental and physical state that arose in the middle of the proceeding

and conducting an inquiry to ensure the effectiveness of those steps.

         The remainder of Marc Alexander’s arguments on appeal relate to the restitution order

entered as to both Defendants-Appellants on July 26, 2018. Marc Alexander first contends that,

in the circumstances of this case, the district court lacked the statutory power to order restitution

because more than 90 days had elapsed between his sentencing and the entry of the restitution

order.

         Not so.   To be sure, the Mandatory Victims Restitution Act requires courts to “set a date

for the final determination of the victim’s losses, not to exceed 90 days after sentencing,” 18 U.S.C.

§ 3664(d)(5), and the district court’s issuance of a restitution order more than fifteen months after

the entry of Marc Alexander’s judgment far exceeded this statutory deadline.           However, the

Supreme Court has made clear that “a sentencing court that misses the 90–day deadline

nonetheless retains the power to order restitution—at least where . . . the sentencing court made

clear prior to the deadline’s expiration that it would order restitution, leaving open (for more than

90 days) only the amount.” United States v. Dolan, 560 U.S. 605, 608 (2010). This holding was


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not cabined by any of the considerations emphasized by Marc Alexander on appeal, such as

whether the court extended the time period for the determination of restitution within the 90-day

period or provided an explanation or good cause for its delay.           Here, the district court clearly

indicated prior to the expiration of the 90-day period—both on the record at sentencing and in the

written judgment—that it would order restitution, leaving open only the amount. Accordingly,

the district court retains the power to order restitution as to Marc Alexander in this case.

        By contrast, we find merit in Marc Alexander’s due process challenge to the procedures

undertaken by the district court in fashioning the restitution order.      “‘Decisions as to what types

of procedure are needed [in resolving sentencing disputes] lie within the discretion of the

sentencing court and are reviewed for abuse of discretion.’ . . . This principle applies as well to

disputes about restitution orders.” United States v. Maurer, 226 F.3d 150, 152 (2d Cir. 2000)

(quoting United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996)). 1 “[I]n the context of

contested issues regarding the propriety of a restitution award . . . the sentencing procedures

employed to resolve such disputes are within the district court’s discretion so long as the defendant

is given an adequate opportunity to present his position.” United States v. Sabhnani, 599 F.3d

215, 257–58 (2d Cir. 2010).




1
   We are unpersuaded by the government’s contention that plain error review is applicable. Even
assuming that Marc Alexander was obligated to raise the argument in his Federal Rule of Criminal
Procedure 35(a) motion, that motion sufficiently preserved the argument for appeal because it repeatedly
pointed out that the restitution order was entered without prior notice to Marc Alexander. See Gov. App’x
58–60. Indeed, the district court addressed the argument in its decision denying the Rule 35(a) motion,
reasoning that the figures set forth in the PSR and arguments made in defense counsel’s sentencing
memorandum provided adequate notice and opportunity to be heard as to restitution. See Marc Alexander
Second App’x at 233–34. Moreover, Marc Alexander has articulated a challenge to the restitution amount
in a 28 U.S.C. § 2255 motion pending before the district court, see Dist. Ct. Docket 19-cv-545 (JBA), Doc.
No. 1-1 at 16 n.8, and we cannot conclude on the present record that the deprivation of adequate notice and
opportunity to be heard was harmless or otherwise did not affect Marc Alexander’s substantial rights.


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          The procedures employed by the district court in this case fail to satisfy the minimal

requirement of notice and an opportunity to be heard. First, we are unpersuaded by the district

court’s conclusion that Marc Alexander had an opportunity to be heard with respect to restitution

because the Presentence Investigation Report (“PSR”) set forth a loss figure as to Count One and

a proposed restitution figure as to Count Fourteen, and defense counsel “responded to those

proposed amounts at length in his Sentencing Memorandum.” Marc Alexander Second App’x at

233–34. To the contrary, defense counsel’s sentencing memorandum focused solely on the

question of loss amount for Guidelines calculation purposes, including urging the court to make a

reasonable estimate as to loss and apply only a twelve-level offense level increase; it did not raise

arguments as to the distinct question of restitution. See United States v. Certified Envtl. Servs.,

Inc., 753 F.3d 72, 102 (2d Cir. 2014) (“Though restitution and loss involve closely related

calculations, which ultimately produce the same figure in many cases, the inquiries are not

identical.”). Defense counsel never raised specific arguments about the appropriate restitution

amounts in the case, including any granular analysis of which vehicles should be considered in

determining actual, as opposed to intended or estimated, loss for restitution purposes—figures

which were later determined in the context of Rachael Alexander’s Fatico hearing, without any

participation by Marc Alexander or his counsel.        Given the parties’ understanding that the

restitution issue remained open for determination at a later date, the sentencing memorandum did

not provide an adequate opportunity for Marc Alexander to be heard with respect to restitution

issues.

          Furthermore, as the government essentially concedes, Marc Alexander was not provided

with notice of, or an opportunity to participate in, the Fatico hearing held as to Rachael Alexander

on February 15, 2018, where the court determined the restitution figures it later used in the July


                                                 6
26, 2018 restitution order. Electronic case notifications received by Marc Alexander’s appellate

counsel referencing a hearing “as to Rachael Alexander” could not have furnished sufficient notice

of the proceedings, particularly given Marc Alexander’s lack of district court representation at that

time. Gov. App’x 70. At bottom, following the withdrawal of his district court counsel with the

understanding that the restitution issue remained open, Marc Alexander was provided with no

further notice of the restitution amounts being considered by the district court, and had no occasion

to object or make any argument with respect to restitution, whether at his codefendant’s Fatico

hearing or in another format.      Accordingly, we conclude that the district court abused its

discretion in failing to provide Marc Alexander with the requisite opportunity to present his

position prior to entering the restitution order. We therefore vacate the order and remand for

further proceedings at which Marc Alexander, represented by counsel, can raise objections to the

restitution amount.

       2. Rachael Alexander’s Appeal

       Rachael Alexander raises two arguments on appeal.        First, she seeks vacatur and remand

of the restitution order, arguing that the district court’s imposition of an immediate restitution

payment obligation pursuant to ambiguous, inconsistent orders, while failing to impose a similar

condition as to Marc Alexander, amounts to plain error.      The government concedes that remand

is appropriate to allow for clarification and additional findings.

       We agree.      The district court’s conflicting orders make it difficult to conclusively

determine the intended payment schedule.      While the court was silent at sentencing with respect

to when the payment schedule would begin, the judgment indicates that payment was required to

begin immediately. The restitution order, however, sets forth conflicting directives with respect

to the payment schedule, checking the boxes for payment in a “lump sum, immediately”; “in


                                                  7
installments of not less than $200.00, payable on the [blank] of each month”; and “as specified by

the Court: See Judgment”—options that are impossible to reconcile with one another. Rachael

Alexander App’x at 136. Moreover, if the district court did intend to set an immediate payment

schedule for Rachael Alexander’s restitution, it failed to make sufficient findings as to her present

ability to pay restitution. See United States v. Mortimer, 52 F.3d 429, 436 (2d Cir. 1995); see

also 18 US.C. § 3664(f)(2).    Because the present record is insufficient to justify an immediate

payment schedule, we remand to permit the district court to make the requisite findings with

respect to the factors enumerated in 18 U.S.C. § 3664(f)(2) and to issue an amended judgment and

restitution order reflecting a clarified payment schedule. On remand, the district court should

also consider whether the restitution amounts already paid by Rachael Alexander should be

reimbursed.

       Rachael Alexander next challenges the district court’s imposition of a special condition of

supervised release requiring her to obtain prior approval from the U.S. Probation Office before

opening new lines of credit or incurring credit card charges in excess of $500.     Where, as here,

the defendant had advance notice of the challenged condition and failed to object during

sentencing, we review for plain error. See United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019).

       We conclude that the district court did not plainly err in imposing the challenged condition.

District courts exercise broad discretion in imposing conditions of supervised release. United

States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018).       A sentencing court may impose special

conditions that are reasonably related to “the nature and circumstances of the offense and the

history and characteristics of the defendant”; “the need for the sentence imposed to afford adequate

deterrence to criminal conduct”; “the need to protect the public from further crimes of the

defendant”; and “the need to provide the defendant with needed educational or vocational training,


                                                 8
medical care, or other correctional treatment in the most effective manner,” and which “involve

no greater deprivation of liberty than is reasonably necessary” for these purposes. U.S.S.G. §

5D1.3(b); see also 18 U.S.C. § 3583(d). In imposing a condition of supervised release, the court

must “make an individualized assessment” and “state on the record the reason for imposing it; the

failure to do so is error.” Betts, 886 F.3d at 202 (citation omitted).     Absent an explanation, this

Court may uphold the condition “only if the district court’s reasoning is self-evident in the record.”

Id. (internal quotation marks and citation omitted).

        Here, the district court’s reasoning for imposing the condition is self-evident. Rachael

Alexander admitted to using credit cards in furtherance of the motor vehicle fraud. Accordingly,

the condition relates to “the nature and circumstances of the offense” as well as the need “to protect

the public from further crimes of the defendant.”        18 U.S.C. § 3553(a).     Moreover, far from

involving “a greater deprivation of liberty than is reasonably necessary,” U.S.S.G. § 5D1.3(b), the

condition is carefully circumscribed, requiring the Probation Office’s approval only for charges

exceeding $500—a more accommodating threshold than the $200 threshold recommended in the

PSR, to which Rachael Alexander did not object at sentencing.

        While the district court stated on the record at sentencing that the credit card condition

would apply “until your financial obligations are paid,” Rachael Alexander App’x at 120, Rachael

Alexander’s contention on appeal that this limitation somehow negated the relationship between

this condition and the § 3553(a) factors is unpersuasive.    To the contrary, this temporal limitation

represents another means by which the court ensured that the limitation was not a “greater

deprivation of liberty than is reasonably necessary.”       U.S.S.G. § 5D1.3(b). Accordingly, the

district court did not err, let alone plainly err, in imposing the condition.




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       We have considered the parties’ remaining arguments and find them to be without merit.

Accordingly, we AFFIRM as to the April 17, 2017 and February 23, 2018 judgments, except as

noted above with respect to Rachael Alexander’s restitution payment schedule.     We VACATE

the July 26, 2018 restitution order and REMAND the case for further proceedings as to restitution

consistent with this order.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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