                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5353




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-5353
                                    ____________

                          UNITED STATES OF AMERICA

                                            v.

                                   KEITH FISHER,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 01-cr-00203-1)
                     District Judge: Honorable R. Barclay Surrick
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 16, 2007

      Before: SMITH and FISHER, Circuit Judges, and DOWD,* District Judge.

                                (Filed: March 7, 2007)
                                    ____________

                              OPINION OF THE COURT
                                   ____________




      *
        The Honorable David D. Dowd, Jr., United States District Judge for the Northern
District of Ohio, sitting by designation.
FISHER, Circuit Judge.

       Appellant Keith Fisher argues that the District Court erred by limiting the scope of

his hearing on remand to the issue of establishing a payment schedule for restitution. For

the reasons set forth below, we will affirm the judgment of the District Court.

                                             I.

       Because we write for the parties only, we will forgo a lengthy recitation of the

factual and procedural history of this case. Fisher was indicted by a grand jury in the

Eastern District of Pennsylvania, which charged him with two counts of bank fraud in

violation of 18 U.S.C. § 1344, and aiding in abetting, in violation of 18 U.S.C. § 2. This

case, No. 01-203, was consolidated with two additional cases. In one of these additional

cases, No. 02-641, Fisher was charged with one count of mail fraud, in violation of 18

U.S.C. § 1341, and one count of bank fraud, in violation of 18 U.S.C. § 1344. In the

other, No. 03-199, he was charged with four counts of mail fraud, in violation of 18

U.S.C. § 1341, and aiding and abetting, in violation of 18 U.S.C. § 2.

       In each of these cases, Fisher pleaded guilty as charged pursuant to written plea

agreements that included various Guidelines stipulations, including stipulations to loss

under U.S.S.G. § 2B1.1. Prior to sentencing, Fisher filed a motion to withdraw his plea

agreement stipulations as to loss. On July 17, 2003, the District Court held a sentencing

hearing. At that hearing, the District Court denied Fisher’s motion to withdraw his

stipulations as to loss. It imposed a sentence with terms of ninety-six months of



                                             2
imprisonment and sixty months of imprisonment to run concurrently, a term of five years

supervised release, $800 in special assessments, and restitution totaling $408,501.19.

       Fisher appealed the judgments of conviction and sentence. In two of these

appeals, Nos. 03-3165 and 03-3169, we granted the Government’s motions to dismiss

based on appellate waivers conceded by Fisher in his plea agreements. In a third appeal,

No. 03-3164, Fisher argued, and the Government agreed, that the District Court should

have established a payment schedule for the restitution ordered. On February 4, 2005, we

remanded the case for that limited purpose. See United States v. Fisher, No. 03-3164,

2005 U.S. App. LEXIS 1848 (3d Cir. 2005). Fisher then filed a petition for rehearing in

which he raised, inter alia, the same challenges as to the scope of remand that he raises in

this appeal. On March 18, 2005, we denied that petition.

       On remand, Fisher again challenged the scope of the hearing and requested that the

District Court revisit its determination as to the amount of restitution required and reopen

the sentencing proceedings. The District Court rejected this challenge, stating that the

mandate from this Court directed it to do one thing only – establish a payment schedule

for the entire amount of restitution. After hearing argument from both parties, the District

Court ordered Fisher to begin paying $100.00 per month after his release from custody, to

be applied to the full amount of restitution. Fisher filed a timely notice of appeal.




                                              3
                                             II.

       The District Court had jurisdiction over this criminal matter pursuant to 18 U.S.C.

§ 3231 and we have jurisdiction over the matter under 28 U.S.C. § 1291. We review de

novo the question of whether the District Court properly limited the scope of the hearing

on remand to the issue of establishing a payment schedule for the full amount of

restitution. We need not devote much analysis to this question as we have already

addressed it. In our previous opinion, we dismissed Fisher’s substantive appeal as

frivolous but noted that counsel’s Anders brief correctly pointed out that the District

Court failed to set a payment schedule for the total required restitution of $408,501.19, as

is required by 18 U.S.C. § 3664(f)(1)(A)(2). We remanded the case “for the limited

purpose of establishing a payment schedule for restitution.” Fisher, No. 03-3164, 2005

U.S. App. LEXIS 1848 at *11.

       The record before us indicates that the District Court did precisely what we

directed it to do – it established a payment schedule for the full amount of restitution

previously ordered. Fisher asserts that our order only remanded one of his cases, the one

that survived dismissal, for scheduling of restitution payment. This is clearly incorrect.

We found that the District Court had erred in failing to set a payment schedule not for

only a part of the restitution ordered, which was $6,500 for the case that survived

dismissal, but “for the total required restitution of $408,501.19,” and remanded for




                                              4
correction of that error.1 Id. In addition, it was not erroneous for the District Court to

refuse Fisher’s request to revisit its determination of the restitution amount or reopen the

entire sentencing hearing. To the contrary, it would have been erroneous for the District

Court to grant that request given our clear mandate to limit the proceedings to the issue of

establishing a payment schedule. Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d

943, 949 (3d Cir. 1985) (“It is axiomatic that on remand for further proceedings after

decision by an appellate court, the trial court must proceed in accordance with the

mandate and the law of the case as established on appeal.”) (citations omitted).

                                             III.

       For the foregoing we reasons, we will affirm the judgment of the District Court.




       1
         Fisher cites to case law establishing that 18 U.S.C. § 3664(d)(5) requires the
district court to enter a restitution order within 90 days of sentencing. See, e.g., United
States v. Maung, 267 F.3d 1113 (11th Cir. 2001). In this case, the District Court did so
and we reject Fisher’s assertion that a failure to also determine a payment schedule for a
restitution order means that the order itself is “void at inception.” The appropriate
remedy for a district court’s failure to impose a restitution payment schedule is a limited
remand to correct that error, United States v. Coates, 178 F.3d 681 (3d Cir. 1999), which
is the remedy we have already provided.


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