                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3909




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"USA v. Richards" (2003). 2003 Decisions. Paper 447.
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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No. 02-3909

                            UNITED STATES OF AMERICA

                                             v.

                                    DON RICHARDS,
                                            Appellant


          On Appeal from the United States District Court for the Virgin Islands
                     District Court Judge: Hon. Thomas K. Moore
                              (Criminal No. 98-cr-00227)
                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     April 29, 2003

                  Before: ROTH, McKEE and COWEN, Circuit Judges

                                   (Filed: June 20, 2003)

                               OPINION OF THE COURT

PER CURIAM.

       Don Richards appeals the district court’s imposition of restitution as part of his

sentence following his conviction for first degree robbery and aiding and abetting, in

violation of 14 V.I.C. §§ 1862 and 11, interference with commerce and aiding and

abetting, in violation of 18 U.S.C. §§ 1951 and 2, possession of a firearm during a crime

of violence in violation of 18 U.S.C. §924(C)(1) and conspiracy in violation of 18 U.S.C.

§371. He contends that the district court erred by failing to hold an evidentiary hearing to

calculate an accurate amount for restitution. He makes a related argument that the district
court erred by failing to consider his financial position in imposing restitution and

requiring that he adhere to a schedule of payments as a special condition of supervised

release.1 For the reasons that follow, we will dismiss the appeal for lack of jurisdiction.

       Since we write only for the parties, it is unnecessary to recite the facts of this case.

Rather, it is sufficient for our purposes to briefly note the procedural history in the course

of reaching our conclusion. The district court adopted the Presentence Report, which

contained the Probation Office’s calculation of the total loss resulting from the robbery.

The court used that calculation to determine the amount of restitution Richards should be

ordered to pay. On May 2, 2001, Richards filed a motion to modify his term of

imprisonment pursuant to 18 U.S.C. §3582(C)(2). That provision of Title 18 provides for

modification of a sentence following an amendment to the relevant Sentencing Guideline.

At resentencing, Richards also argued for a reduction in restitution, claiming that the

district court erred in imposing restitution in the amount the court had ordered. App. at

46-49. Although the court did modify Richards’ term of imprisonment at the

resentencing based upon an intervening amendment to the Sentencing Guidelines, the

court refused to change the order of restitution. App. 62. Richards now contests the



   1
     Richards also argues that the district court erred by failing to consider his financial
ability by ordering restitution due in full immediately. In making this argument it is clear
that he misunderstands how the restitution order is to be satisfied. Although he is to make
a diligent effort toward satisfying the restitution order while incarcerated, a condition of
his supervised release requires that any unpaid portion be paid in monthly installments to
the Clerk of the District Court. See App. 14 (Amended Judgment in a Criminal Case
outlining conditions of supervised release).

                                               2
restitution order.

                                             II.

       We begin by noting that the appropriate scope of a sentencing court’s inquiry

under § 3582 is necessarily narrow. United States v. McBride, 283 F.3d 612, 615 (3d Cir.

2002). Here, Richards was entitled to a modification of his sentence due to a limited

change in the Guidelines that only impacted the calculation of his offense level. See

U.S.S.G. Amendment 599 (amending §2K2.4). The amendment had no effect on the

amount of Richards’ restitution, or the manner in which it should have been calculated.

Given the limited nature of the proceedings under §3582(C)(2), we will therefore not

consider Richards’ attempt to use it as a vehicle to appeal his restitution order.

        We have, however, reviewed the possible contentions which the defendant could

raise on appeal as set forth in the brief that counsel has filed pursuant to Anders v.

California, 386 U.S. 738 (1967). Our review clearly shows that there are no conceivable

non-frivolous issues present in this record. Accordingly, we will dismiss the appeal for

lack of jurisdiction.2



   2
      Moreover, even if we were to consider Richards’ arguments, we would find them
without merit. We exercise plenary review over the question of whether an award of
restitution is permitted under law and we review specific awards of restitution for abuse
of discretion. United States v. Crandon, 173 F.3d 122, 125 (3d Cir. 1999). We review
factual findings, such as the amount of the loss, for clear error. United States v. Napier,
273 F.3d 276, 278 (3d Cir. 2001). An evidentiary hearing was not necessary to determine
the amount of restitution here because the Probation Office correctly calculated the total
loss resulting from the robbery and reported it in the Presentence report. Furthermore,
Richards never objected to the total loss as set forth in the report. Finally, in fashioning a

                                              3
restitution payment schedule, the district court carefully considered Richards’ financial
condition, as evidenced by its decision to waive fine, imprisonment and supervision
costs.

                                             4
