                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1452




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"USA v. Marchese" (2004). 2004 Decisions. Paper 1056.
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                                                                 NOT PRECEDENTIAL


                   IN THE UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                     Case No: 03-1452


                           UNITED STATES OF AMERICA


                                             v.


                                 DANIEL G. MARCHESE,


                                             Appellant
                        _________________________________
                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                  (Crim. No. 94-226)
                     District Judge: The Honorable Alan N. Bloch
                       _________________________________
                            Submitted Pursuant to LAR 34.1
                                     January 9, 2004


    BEFORE: BARRY and SMITH, Circuit Judges, and POLLAK, District Judge.*


                       (Filed:     January 30, 2004               )


                                     _____________



* The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
                                OPINION OF THE COURT
                                      _____________


SMITH, Circuit Judge.

       Appellant Daniel G. Marchese challenges an order issued by the District Court on

February 6, 2003, which amended his sentence with respect to the payment of restitution.

Marchese contends that the District Court’s action in modifying his sentence violates his

right to be protected from double jeopardy.1 Because the District Court acted in

accordance with 18 U.S.C. § 3663(g) in amending the restitution order following

Marchese’s failure to comply with the terms of the original order, we will affirm the

District Court.

                                              I.

       On May 12, 1995, Marchese was sentenced to 108 months incarceration, followed

by three years of supervised release for violating 26 U.S.C. § 5861(d) (possession of an

unregistered firearm) and 18 U.S.C. § 2 (aiding and abetting). Marchese was also ordered

to make restitution to the victim of his crime. In his oral sentence, the District Judge




  1
       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291. We undertake a plenary review of claims of
double jeopardy. Ruggiano v. Reish, 307 F.3d 121, 126-27 (3d Cir. 2002); United States
v. Rice, 109 F.3d 151, 153 (3d Cir. 1997); United States v. Aguilar, 849 F.2d 92, 95 (3d
Cir. 1988). We exercise plenary review over whether an award of restitution is permitted
under the law, but we review specific awards for abuse of discretion. United States v.
Graham, 72 F.3d 352, 355 (3d Cir. 1995).
                                              2
stated,

          I will make a finding that the victim is Mr. Schindehette and that the
          amount of loss is $4,199. I will order that the Probation Office determine
          what prison funds the defendant does earn and that half of those funds be
          used to make restitution, whatever that might amount to.

The written order of restitution issued the same day in conjunction with the oral order

confirmed that “[o]ne-half of all of the defendant’s prison wages are to be paid as

restitution to Brian Schindehette,” and listed $4,199 as the “amount of restitution.” The

written order also contained standard language which provided that, “it shall be a

condition of supervised release that the defendant pay any such restitution that remains

unpaid at the commencement of the term of supervised release.” Rule 4 of the Standard

Conditions of Supervision, which are also set out in the written order, instructs that “the

defendant shall . . . follow the instructions of the probation officer.” 2

          While Marchese was incarcerated, a total of $430.25 was deducted from his prison

wages for restitution. After Marchese was released, his probation officer instructed him




  2
        At the time the original sentencing order was issued, probation officers routinely
established restitution payment schedules following release from prison. As the District
Court discussed in the February 6, 2003 proceeding, in the years since the original
sentencing order was rendered, this Court announced that district judges, and not
probation officers, must determine the timing of restitution installment payments. United
States v. Graham, 72 F.3d 352, 357 (3d Cir. 1995). Recognizing this development, the
District Court elected not to find a violation of Marchese’s supervised release for his
failure to comply with the probation officer’s instructions regarding payment of
restitution, and instead amended the original sentencing order to include a schedule of
post-release restitution payments. This approach was appropriate given the change in the
law under Graham and the fact that Marchese had been on notice since the date of his
original sentence that he was obliged to pay $4,199 in restitution to the victim.
                                                3
to pay $111 per month in restitution. When Marchese failed to make the restitution

payments, his probation officer filed a petition seeking revocation of his supervised

release. In a February 6, 2003 proceeding considering that petition, the District Court

amended its May 12, 1995 Judgment to require Marchese to make 28 restitution

payments, but waived interest on those payments. The District Judge noted that a letter

from the Bureau of Prisons advised the Court that Marchese had “chosen to minimize his

work hours in order to avoid meeting the requirements for participation in the Bureau of

Prison’s inmate financial responsibility program,” and that he had “flatly refused” a work

assignment in a prison factory which would have enabled him to receive the highest

possible prison wages. The District Court concluded that, “while incarcerated, the

Defendant took every opportunity to avoid this Court’s order requiring him to pay

restitution.”

                                              II.

       Marchese argues that the District Court’s amended judgment violated the Double

Jeopardy clause of the Fifth Amendment because he had a legitimate expectation that his

restitution obligation had been satisfied upon the collection of one half of all his prison

wages during his period of incarceration.

       It is not clear from the face of the District Court’s oral sentencing order, which sets

$4,199 as the “amount of loss,” whether that amount is the amount of restitution ordered

or whether the District Court intended a lower amount because of the defendant’s



                                              4
indigence.3 The written sentencing order is more specific, listing $4,199 as the “amount

of restitution.”

       This Court has held that when a sentencing court’s oral sentence and its written

sentence conflict, the oral sentence prevails. Ruggiano, 307 F.3d at 133 (citing United

States v. Faulks, 201 F.3d 208, 211 (3d Cir. 2000)). Where the oral sentence is merely

ambiguous, however, the oral sentencing order must be construed “in the context of the

overall proceeding.” Rios v. Wiley, 201 F.3d 257, 269 (3d Cir. 2000), cited by Ruggiano,

307 F.3d at 134.

       We conclude that the oral sentence is ambiguous rather than in conflict with the

written order. This Court requires that, at the time of sentencing, a district judge make

factual findings concerning, “(1) the amount of loss sustained by the victims, (2) the

defendant’s ability to make restitution, and (3) how the amount of restitution imposed

relates to any loss caused by the conduct underlying the offenses for which [defendant]

remains convicted.” United States v. Logar, 975 F.2d 958, 961 (3d Cir. 1992) (internal

citations, quotations and ellipses omitted). The District Court complied with these

requirements, specifically finding that the amount of loss was $4,199 and that Marchese

was able to begin restitution payments while in prison. After hearing of the defendant’s



  3
   We note that this distinction would now be of no consequence to a sentencing court as
18 U.S.C. § 3664 was amended in April 1996, adding § (f)(1)(A) which instructs courts to
“order restitution to each victim in the full amount of each victim’s losses as determined
by the court and without consideration of the economic circumstances of the defendant.”
At the time Marchese was sentenced, however, “amount of loss” and “amount of
restitution” were not necessarily one and the same.
                                             5
indigence, the District Judge initially expressed his inclination not to order restitution:

       THE COURT:            Yes. It is your burden to show the financial resources
                             of the defendant to pay restitution.
       MR. BARTKO:           Well, the financial burden is placed forth in the
                             presentence report, showing that my client was
                             indigent and has no money right now and with a
                             sentence of even 87 months does not look in the near
                             future to have the financial ability to pay restitution.
       THE COURT:            That would appear to be correct, as far as I can see.
       MR. SWEENEY:          I can’t refute that, Your Honor.
       THE COURT:            The Court therefore will not order restitution, finding
                             that the defendant is not financially able to pay
                             restitution.

The prosecutor persisted, however, pointing out that Marchese could earn money while in

prison to apply toward restitution:

       MR. SWEENEY:          Your Honor, could I ask that the Court order in
                             connection with the sentence that through the Inmate
                             Financial Responsibility Program, that a certain
                             amount of the wages earned on the prison term be
                             applied to restitution?
       THE COURT:            I don’t have any problem with that. We wouldn’t
                             know at this time–Well, what I will do is, I will make a
                             finding that the victim is Mr. Schindehette and that the
                             amount of loss is $4,199. I will order that the
                             Probation Office determine what prison funds the
                             defendant does earn and that half of those funds be
                             used to make restitution, whatever that might amount
                             to.
       MR. SWEENEY:          Thank you, Your Honor.

Although the oral decree did not specify that M archese’s restitution obligation was to

continue following his release, it did indicate that “[w]hile on supervised release

[Marchese] . . . shall comply with the standard conditions that have been adopted by this

Court.” Those standard conditions are set forth in detail in the written order, including

                                              6
that “it shall be a condition of supervised release that the defendant pay any such

restitution that remains unpaid at the commencement of the term of supervised release.”

The standard conditions also provided that the defendant shall follow the instructions of

the probation officer, which at the time, included the probation officer’s directives as to

the payment of restitution. We therefore conclude that an ambiguity existed in the oral

sentencing order, but that the written order resolved that ambiguity and that Marchese

was required to pay $4,199 in restitution as a term of his supervised release. This

obligation did not cease upon his release from prison.

       Because restitution was a condition of Marchese’s supervised release, “[t]he court

may revoke probation or a term of supervised release, or modify the term or conditions of

a term of supervised release . . . if the defendant fails to comply with such an order.” 18

U.S.C. § 3663(g) (1995). That section goes on to instruct the court that

       [i]n determining whether to . . . modify the term or conditions of probation
       or supervised release . . . the court shall consider the defendant’s
       employment status, earning ability, financial resources, the willfulness of
       the defendant’s failure to pay, and any other special circumstances that may
       have a bearing on the defendant’s ability to pay.

Id. The District Court considered these factors after hearing argument and ordered that

Marchese make 27 monthly restitution payments of $133.53 per month and one payment

of $133.44. In doing so, the District Judge noted that, “this is a reasonable monthly

installment schedule which will allow the Defendant to make full restitution to the victim

of his offense and provide for the needs of his family.” Marchese’s failure to avail

himself of the opportunity to satisfy this obligation while in prison does not provide a

                                              7
basis for reducing its amount.

                                             III.
       Because we conclude that the District Court properly amended Marchese’s

restitution order following his failure to comply with the terms of the original order under

18 U.S.C. § 3663(g), we hold that the amended order is not a violation of the Double

Jeopardy Clause. Accordingly, we will affirm the order of the District Court.




______________________________________
TO THE CLERK:

       Please file the foregoing Opinion.

                                               /s/ D. Brooks Smith
                                            Circuit Judge




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