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


1-23-2004

USA v. Himler
Precedential or Non-Precedential: Precedential

Docket No. 03-1387




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                         PRECEDENTIAL

                               Filed January 23, 2004

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                   No. 03-1387


          UNITED STATES OF AMERICA
                        v.
             HARRY JOSEPH HIMLER
                     aka
                Michael D. Zorn
                     aka
                Michael P. Zunr
             HARRY JOSEPH HIMLER,
                              Appellant

On Appeal From The United States District Court For
        The Western District Of Pennsylvania
               (D.C. No. 02-cr-00137)
  District Judge: Honorable Maurice B. Cohill, Jr.

             Argued October 23, 2003
      Before: ALITO, FUENTES, and BECKER,
                   Circuit Judges

             (Filed January 23, 2004)
                              2


                      SHELLY STARK
                      KAREN S. GERLACH
                      Federal Public Defender
                      MARKETA SIMS (Argued)
                      Assistant Federal Public Defender
                      1450 Liberty Center
                      1001 Liberty Avenue
                      Pittsburgh, PA 15222
                        Attorneys for Appellant
                      MARY BETH BUCHANAN
                      United States Attorney
                      PAUL M. THOMPSON (Argued)
                      BONNIE R. SCHLUETER
                      Assistant United States Attorney
                      700 Grant Street
                      Suite 400
                      Pittsburgh, PA 15219
                        Attorneys for Appellee


                 OPINION OF THE COURT

BECKER, Circuit Judge.
   Defendant Harry Joseph Himler (“Himler”), who
fraudulently bought a condominium in Greensburg,
Pennsylvania by tendering false checks in the amount of
$195,000 in violation of 18 U.S.C. § 513(a), pled guilty to
the offense. After the sentencing hearing, the District Court,
without notice to the parties, departed upward, imposing a
36 month sentence when the applicable United States
Sentencing Guidelines (“U.S.S.G.”) range was 24 to 30
months. See U.S.S.G. Ch. 5 Pt. A. In calculating this
sentence, the District Court found that Himler intended to
cause a loss of between $120,000 and $200,000 pursuant
to U.S.S.G. §2.B1 (b) (1) (F), and ordered restitution to the
victim in the amount of $193,833, the amount paid for the
condominium, to be offset by the amount of the future sale
of the condominium.
  Himler raises five issues on appeal: (1) he contends that
the District Court erred in finding that he intended to cause
                              3


a loss of between $120,000 and $200,000 when he
tendered the counterfeit checks and thereby erred in
applying a ten-level enhancement under the U.S.S.G.; (2)
he claims that the District Court failed to rule on his
motion for downward departure; (3) he argues that the
District Court was not entitled to order the restitution that
it did, (4) he submits that the District Court erred in
departing upward because it failed to give him notice that
it intended to do so; and (5) he argues that, the notice issue
aside, the District Court erred in imposing an upward
departure on the merits of the case.
  We conclude that the District Court did not err in finding
that Himler intended to cause a loss of between $120,000
and $200,000 and that the restitution it ordered was
appropriate as a matter of law. However, because we
conclude that the District Court committed a legal error in
departing upward without giving notice to the parties, we
will vacate the sentence and remand for a new hearing on
this issue. Because we remand based on the District
Court’s failure to provide notice and will instruct the
District Court to hold a new sentencing hearing, we will not
reach the question pertaining to the potential failure to rule
on the motion for downward departure, nor will we reach
the merits of the Court’s imposition of an upward
departure. Rather, in remanding for a new hearing, we will
give the District Court maximum opportunity to reexamine
the appropriateness of both upward and downward
departure during the course of the resentencing.
I.   Facts and Procedural History
   On May 31, 2002, Himler, using a false name, purchased
a condominium using two counterfeit cashier’s checks
totaling $195,000. Himler committed this criminal act,
apparently motivated by a desire to provide a private place
where he and his girlfriend could spend time together away
from their respective families, with whom they lived.
According to Himler, a friend of his who was a realtor
started to look for a condominium on his behalf and soon
one thing led to another: before he knew what hit him,
Carol, his girlfriend, had “fallen in love” with the
condominium at issue and Himler told the realtor to “take
                              4


it off the market,” even though he knew that he did not
have the money to pay for it.
  The settlement company that handled the closing,
Complete Settlement Services (“CSS”) was owned by
Matthew Curiale (“Curiale”). At the closing, a CSS
representative took possession of Himler’s counterfeit
checks and paid the seller of the condominium, John
Hanna (“Hanna”), $193,833. (The remaining $1,167 was for
the cost of title insurance and a refund due back to
Himler.) The representative then deposited the checks in
Southwest Bank (“Southwest”).
   Within days of the closing, CSS was overdrawn $130,000
on its Southwest account because Himler’s counterfeit
checks had not been honored, and Southwest tried to cover
the deficit by taking more than $70,000 from other
accounts that it held for CSS, including accounts of other
clients. Southwest eventually sued CSS and Curiale,
seeking more than $130,000 in compensatory damages.
   Approximately one week after the closing, a CSS
representative called Himler to tell him that his checks had
been returned “without reason.” Apparently, Himler
directed her to “redeposit” them. When Himler learned that
the checks had been returned a second time, he created
and cashed several phony payroll checks, again under a
false name, in order to pay CSS some of the money he
owed.
  Finally, CSS ascertained that the Citibank checks Himler
had tendered were, in fact, counterfeit and filed a civil suit
against Himler, seeking an order enjoining him from
possessing, conveying, or encumbering the condominium,
and giving CSS immediate control over the property. On
June 18, 2002, the Court of Common Pleas of
Westmoreland County granted this request for immediate
injunctive relief. Approximately one week later, Himler
deeded the property back to CSS. CSS also informed the
District Attorney of Himler’s criminal conduct and Himler
was arrested on June 19, 2002 and charged with theft by
deception and bad checks. Himler admitted that the checks
were counterfeit and cooperated with the investigation.
                             5


   On July 16, 2002, a federal grand jury handed down a
two-count indictment against Himler. Count I charged him
with possessing fraudulent identification documents, a
violation of 18 U.S.C. § 1028 (a) (6). Count II charged him
with passing fraudulent checks, a violation of 18 U.S.C.
§ 513 (a). Himler eventually pled guilty to the charge in
Count II in exchange for the government’s agreement to
dismiss Count I.
   The District Court held a sentencing hearing on January
30, 2003. According to the presentence report (“PSR”),
Himler’s crime fell under U.S.S.G. § 2B1.1, a provision
carrying an offense level of 6. However, the PSR
recommended a 10-level increase in Himler’s base offense
level on the grounds that he intended to cause a loss of
between $120,000 and $200,000. After subtracting 3 points
for acceptance of responsibility, the PSR arrived at a total
offense level of 13. When combined with a criminal history
category of IV, Himler’s final guideline range was 24 to 30
months’ imprisonment. According to the PSR, there was “no
information concerning the offense or the offender which
would warrant a departure from the prescribed sentencing
guidelines.”
  The PSR also concluded that the victims of the offense,
CSS and Curiale, were entitled to restitution under 18
U.S.C. § 3663A. Recognizing that CSS had lost $193,833
when it accepted Himler’s counterfeit checks in exchange
for the property, the PSR nonetheless noted that CSS had
regained title to the condominium. Accordingly, the PSR did
not recommend a specific restitution amount, stating only
that an “exact figure cannot be determined until the
property actually sells.”
  At the sentencing hearing, Himler raised three objections
to the PSR. First, he objected to its recommendation that
his sentence should be increased by 10 levels under
U.S.S.G. § 2B1.1 (b) (1) (F). Himler submits that he did not
intend to cause any loss and certainly not the amount of
loss ($120,000 to $200,000) suggested by the PSR. Second,
Himler argued that the District Court should depart
downward from the applicable guideline range under
U.S.S.G. § 2B1.1, cmt. n.15 (B) because the offense level in
the guidelines substantially overstated the seriousness of
                               6


the offense. Third, Himler objected to the PSR’s
recommendation that CSS receive monetary restitution
under 18 U.S.C. § 3663A. According to Himler, his return of
the condominium was sufficient restitution under the
statute.
  The Court ruled in the government’s favor on all issues
and departed upward sua sponte. Himler timely appealed.
On April 14, 2003, CSS sold the condominium for
$181,000. The government notified the District Court of the
sale, and requested an order clarifying its restitution order.
The District Court denied the motion, holding that it was
without jurisdiction to issue an order while this case was
pending on appeal. The District Court had jurisdiction
pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 18 U.S.C. § 3742 (a).
II.   Himler’s Intended Loss
    A District Court’s finding of intended loss is one of fact,
and will not be disturbed unless clearly erroneous. See
United States v. Geevers, 226 F.3d 186, 192-93 (3d Cir.
2000). Himler argues that the district court erred in finding
that he intended to cause a loss of between $120,000 and
$200,000. Under the Sentencing Guidelines, “intended loss”
means “the pecuniary harm that was intended to result
from the offense.” U.S.S.G. § 2B1.1 cmt. n.2 (A) (ii).
Pursuant to Application Note 2 (A) (ii), “loss is the greater
of actual loss or intended loss.” See also United States v.
Nathan, 188 F.3d 190, 208 (3d Cir. 1999) (“In general, the
loss from fraud is the financial loss actually suffered by the
victim, or the loss that the criminal intended the victim to
suffer if that is greater.”) (citing United States v. Maurello,
76 F.3d 1304, 1309 (3d Cir. 1996)). Application Note 2 (A)
(ii) further provides: “ ‘Intended loss’ (I) means the
pecuniary harm that was intended to result from the
offense; and (II) includes pecuniary harm that would have
been impossible or unlikely to occur (e.g., as in a
government sting operation, or an insurance claim in which
the claim exceeded the insured value).”
  Himler’s principal argument is that, in order to obtain an
enhancement based on the alleged amount of intended loss,
the government was required to prove that Himler
                              7


subjectively intended to cause that loss, whereas, as a
matter of fact, Himler never actually intended for the loss to
occur. To support this contention, Himler points to his
testimony at the sentencing hearing in which he explained
that he presented the counterfeit checks at the closing
because he had promised his girlfriend that he would buy
the condominium and was embarrassed to tell her he did
not have the money to do so. Himler further explains that
the fact that he did not want to take possession of the
condominium shows that he had no intention of causing a
loss:
    I didn’t want to take possession. When it went through,
    I didn’t know what to tell Carol. I told her the
    condominium was being painted because [I] didn’t
    want to go there. I was making every excuse in the
    world not to go there. I didn’t know what was going to
    happen. I knew somebody is going to have to come
    there, the checks weren’t good. I had no intention of
    taking that property. . . .
  Himler also urges this Court to find that he had no
subjective intent to cause a loss of $120,000 to $200,000
because he did not expect the counterfeit checks to be
accepted at the closing or to be honored by Citibank, the
bank upon which they supposedly were drawn. Further,
Himler stated that he did not anticipate that CSS would
pay out funds it did not have, and that he never intended
for anyone to lose any money as a result of his actions. In
short, the thrust of Himler’s argument is that, although he
handed over forged checks in order to buy the
condominium, he was really just waiting to be caught and
was, in fact, hoping to be caught.
   This line of argumentation is unconvincing. Himler had
many opportunities to come forward and admit to the
forgery had he really wanted to “get caught.” In Geevers, we
explained that to “assume that Geevers did not want it all
is to assume that had one of the banks somehow failed to
detect his fraud and started sending Geevers monthly
balance reports, Geevers would have refrained from taking
any more of the money.” Geevers, 226 F.3d at 193. The
equivalent scenario here would be to imagine that had the
bank not caught on to the forgery, Himler would have
                              8


voluntarily returned the condominium and simply walked
away. Given Himler’s continued silence in the face of the
unraveling of his scheme, the “District Court could reject
this proposition as unlikely.” Id.
   Himler also argues that the District Court based its
finding solely on the face value amount of the forged checks
and that, because this Court has rejected a per se rule that
intended loss can be inferred from the face value of the
check, the District Court committed an error of law. See id.
at 188 (holding that intended loss “does not equal the face
value of the deposited checks as a matter of law.”). Himler’s
analysis is flawed. Geevers does establish that the “face
value of the deposited checks is not to be mechanically
assumed to be the intended loss.” Id. at 194. However,
Geevers also holds that “a sentencing court may consider
that as sufficient evidence that it was the intended loss.” Id.
What Geevers stands for is not only that it is reasonable to
infer that a defendant in Geevers’ position intends the full
loss of the face value of his false checks, but also that the
matter “is not to be determined as a question of law, but as
one of fact.” Id. at 193.
   In the case at bar, Himler handed over two forged checks
in the combined amount of $195,000 for the purpose of
buying a condominium. It was reasonable for the District
Court to infer that he intended to reap the benefit of all
$195,000, despite his assertions to the contrary, in light of
the fact that in the time between the closing and his arrest,
he never once made any move to reveal his fraudulent
actions. In a case involving fraudulent checks, the
defendant may “proffer evidence about his or her true
intentions in order to rebut the presumption that his or her
fraudulent deposits may create.” Id. at 188. Himler
proffered such evidence, but the District Court obviously
did not credit it.
   Since a finding of intended loss is one of fact, it must be
upheld on appeal absent clear error. See id. at 194. There
was ample evidence for the District Court to find that
Himler intended a loss between $120,000 and $200,000:
first, while not dispositive, there was the face value of the
checks themselves, equaling $195,000. Second, there was
Himler’s continued silence and even affirmative acts to
                                   9


perpetuate the fraud in the face of mounting questions
about the authenticity of those checks. Those acts included
his directions to “redeposit” the checks when the real estate
agent called to tell him that the checks had been returned
“without reason,” and, after the checks had been returned
a second time, creating and cashing several phony payroll
checks in order to placate CSS and keep the scheme alive.
Given the totality of the evidence against him, including but
not limited to the face value of the forged checks, we
conclude that the District Court did not commit clear error
in finding that Himler intended to cause a loss between
$120,000 and $200,000.
III.   The District Court’s Sua Sponte Upward Departure
  This Court’s review of the permissibility of an upward
departure is plenary. See United States v. Holmes, 193 F.3d
200, 203 (3d. Cir. 1999). In Burns v. United States, 501
U.S. 129, 138-39 (1991), the Supreme Court held that a
district court cannot depart upward without providing
notice to the parties that it intended to do so:
       [B]efore a district court can depart upward on a ground
       not identified as a ground for upward departure either
       in the presentence report or in a prehearing
       submission by the Government, [Fed. R. Crim. P.] 32
       requires that the district court give the parties
       reasonable notice that it is contemplating such a
       ruling. This notice must specifically identify the ground
       on which the district court is contemplating an upward
       departure.
   Himler argues, and the government concedes, that the
District Court erred when it departed upward without
providing notice to the parties. Both parties agree that the
PSR did not identify any ground for upward departure and
that the government never requested one. Under these
circumstances, the District Court erred as a matter of law
in making an upward departure.1

1. The parties disagree as to the grounds on which the District Court
departed upward. Relying on the written judgment, Himler concludes
that the upward departure was made due to his “past record” and
“problems [he] created for the victim.” The government relies on the oral
                                   10


  The government, however, contends that “this is only half
the story,” and that the District Court’s error was harmless.
A district court’s failure to provide notice before departing
upward may be considered harmless unless the defendant
can prove that he would have done things differently had
notice been given. See, e.g., United States v. Reynoso, 254
F.3d 467, 475-76 (3d Cir. 2001) (failure to comply with
Burns did not affect the defendant’s substantial rights
because, had proper notice been given, there was nothing
that defense counsel would have done differently at the
sentencing hearing); United States v. Nappi, 243 F.3d 758,
770 (3d Cir. 2001) (failure to provide notice under Fed. R.
Crim. P. 32 does not affect “substantial rights” unless the
defendant “would have done something by way of argument
or proof . . . that probably would have impacted upon the
Court’s sentence”); United States v. Rivera, 192 F.3d 81, 88
(2d Cir. 1999) (holding that failure to provide notice before
departing upward “may be harmless error unless the
defendant can specify arguments he would have made that
the district court did not consider”).
  The government contends that “the sentencing hearing
focused primarily on the very issue upon which the court
departed upward: the effect that Himler’s crime had on
CSS.” The government argues that Himler and his counsel
availed themselves of the opportunity at that hearing to

judgment and argues that the District Court based the upward
departure on its conclusion that Himler had caused an “economic
tragedy” for the victim. Since we are not reaching the merits of the
upward departure, we will not attempt to analyze what the grounds for
the upward departure were, though we note that the grounds do seem
somewhat confused and indeterminate. We also note that if, as Himler
contends, the District Court departed upward based on the “problems
[Himler] created for the victim,” the U.S.S.G. only provide for an upward
departure when those problems rise to the level of extreme psychological
injury. See U.S.S.G. § 5K2.3. If the District Court wishes to depart
upward based on extreme psychological injury to the victim, it must
make specific factual findings and articulate the reasons for the extent
of the departure. See United States v. Jacobs, 167 F.3d 792, 798-801
(3d. Cir. 1999) (reversing an upward departure for extreme psychological
injury based on the District Court’s failure to make findings). No such
findings have been made in the case at bar.
                             11


present oral and written argument about why the offense
level overstated the seriousness of the offense and that
“every piece of evidence, every word of testimony, and every
argument that could have been marshaled against an
upward departure was raised in Himler’s defense.” In short,
the government contends that notice of the District Court’s
intention to depart upward would not have changed “either
the substance or tenor of the debate.” We disagree.
   The burden is on the government to prove that the error
was harmless. See United States v. Stevens, 223 F.3d 239,
242 n.4 (3d Cir. 2000). Some of our sister Circuits have
held or implied that a district court’s failure to give notice
of its intention to depart upward amounts to constitutional
error, and thus that the government must prove that the
error was harmless beyond a reasonable doubt. See, e.g.,
United States v. Lopreato, 83 F.3d 571, 577 (2d Cir. 1996);
United States v. Paslay, 971 F.2d 667, 674 (11th Cir. 1992).
We have not reached the issue whether a district court’s
failure to give notice that it is contemplating an upward
departure is constitutional error, and we need not do so
here since the government has not met even the standard
burden of proving that the error was harmless in this case.
   Both in her briefs and at oral argument, Himler’s counsel
laid out a reasoned set of actions she would have
undertaken on behalf of her client had she been on notice
that an upward departure was being contemplated. She
represents that, in addition to filing briefs arguing that the
upward departure was not warranted under either the facts
or the law, she would have “subpoenaed CSS’s and
Matthew Curiale’s financial records to undermine those
parties’ claims of calamitous losses, and to investigate
whether those clients suffered losses, and whether those
losses were paid out of Mr. Curiale’s personal funds as he
claimed.” This information would bear upon whether the
offense “endangered the solvency or financial security,”
U.S.S.G. § 2B1.1 cmt. n.15 (A) (v), of CSS or Curiale, the
victims of the scheme under Fed. R. Crim. P. 32 (i) (4) (B).
Counsel explains that those records had not been
subpoenaed because the presentence report and the Court
made it clear that Himler was going to be sentenced on the
basis of intended rather than actual loss.
                              12


    In the same vein, counsel also points out that the District
Court made no findings as required by Fed. R. Crim. P. 32
(i)(3)(B) and argues that had the Court provided Himler with
notice that it intended to depart on this ground, Himler
would have been entitled to discovery concerning the effect
of the offense on the solvency or financial security of the
victims. Similarly, counsel claims that she would also have
mounted an additional defense against upward departure
based on the fact that once the condominium sold on April
14, 2003 for $181,000, the figure of the actual loss caused
by Himler plunged precipitously. Furthermore, counsel
explained that she would have investigated the relationship
between CSS, Curiale, and Hanna, the seller of the
condominium, with an eye toward uncovering why CSS
never attempted to void the transaction once the fraud was
discovered. Finally, she states that she would have
presented arguments that an upward departure was not
permitted by U.S.S.G. § 2B1.1 cmt. n.15 (A)(iii)-(v).
   The government’s bare assertion that Himler would have
done nothing differently had notice been given is
convincingly refuted by defense counsel’s detailed
explanations as to what, in fact, would have been done
differently  had     notice    been    given.  Under    these
circumstances, we cannot agree with the government’s
contention that the District Court’s error was harmless. We
will therefore vacate the judgment and remand to the
District Court for resentencing so that it can provide Himler
with the opportunity to put on a defense against the
upward departure. Since we are remanding this case for a
new sentencing hearing, we need not decide whether the
District Court did, in fact, rule on the motion for downward
departure, nor will we reach the merits of granting such a
departure. Similarly, we will not reach the merits of the
imposition of an upward departure. Rather, in order to give
the District Court maximum flexibility at the resentencing
hearing, we will leave these questions open for the District
Court’s reconsideration and enable it to review the sentence
as a whole.
IV.   Restitution
  At the sentencing hearing, the District Court ordered
Himler to pay restitution in the amount of $193,833 — the
                              13


amount he paid for the condominium — to be reduced by
the ultimate net proceeds from the sale of the
condominium. On appeal, Himler challenges that order on
two grounds. First, he argues that the District Court erred
when it ordered any restitution at all. Second, he complains
that the court “postponed” the final determination of the
amount of restitution pending CSS’s sale of the
condominium, a postponement it is not empowered to make
under 18 U.S.C. § 3664 (d) (5). We exercise plenary review
as to whether restitution is permitted by law and apply an
abuse of discretion standard as to the appropriateness of a
particular award. See United States v. Simmonds, 235 F.3d
826, 829 (3d Cir. 2000).
  Himler argues that the District Court was not allowed to
order restitution pursuant to 18 U.S.C. § 3664 (j) (2) which
provides that “[a]ny amount paid to a victim under an order
of restitution shall be reduced by any amount later
recovered as compensatory damages for the same loss by
the victim in — . . . (B) any State civil proceeding to the
extent provided by the law of the State.” Himler contends
that because he deeded the condominium to CSS before the
sentencing as part of the settlement of the civil law suit, the
condominium was not “later recovered as compensatory
damages for the same loss.” We disagree.
   Under the Mandatory Victims Restitution Act (“MVRA”),
restitution is mandatory for particular crimes, including
property offenses committed by fraud or deceit. See 18
U.S.C. § 3663A (c) (1) (A) (ii). Under this provision,
restitution may come in many forms, including cash
payments or “in-kind payments,” such as property. 18
U.S.C. § 3664 (f) (3) (A). In many cases involving damage,
loss, or destruction of property, return of the property is
enough to satisfy a restitution obligation. See 18 U.S.C.
§ 3663A (b) (1) (A). In some cases, however, where return of
the property is “inadequate,” the MVRA authorizes
restitution of the difference between the value that the
property had on the date of the crime and any value that
the property retained after the criminal act. 18 U.S.C.
§ 3663A (b) (1) (B).
  In the case at bar, CSS was not a seller of the
condominium who was returned to his or her pre-crime
                                   14


position upon reobtaining title to the condominium. Rather,
CSS was the settlement company that facilitated the
purchase and sale between Hanna and Himler. At the
closing, CSS took Himler’s counterfeit checks and paid
Hanna $193,833. By the time the closing was complete,
Hanna had $193,833, Himler had title to the condominium,
and CSS had a loss of $193,833. Even though Himler
deeded the condominium back to CSS, he had purchased it
at an inflated price; similar units were generally selling
between $150,000 and $160,000 as opposed to $193,833,
the amount that Himler had paid.2 Consequently, we
conclude that even though the property was deeded back to
CSS, that return did not adequately compensate CSS for its
loss and the District Court was entitled to enter the
restitution order as a matter of law.3
   Himler also argues that in not valuing the property on
the day of sentencing, but in stating that the restitution
would be $193,833 minus the amount the condominium
eventually sold for, the court abused its discretion. See
United States v. Lomow, 266 F.3d 1013, 1020 (9th Cir.
2001) (“[T]he amount of restitution must be reduced by the
value of the property as of the date the victim took control
of the property. . . . A district court abuses its discretion by
valuing the property at the time of the final disposition by
the victim rather than at the time the victim gained control
of the property.” (emphasis deleted; alterations, quotation
marks, and citations omitted)). Himler characterizes the
District Court’s decision on this issue as a postponement of
the final determination of the amount of restitution. We
disagree with this characterization of the District Court’s

2. Even Himler’s counsel conceded that it was unlikely that anyone
would purchase the condominium for a price approaching $193,833
admitting that Hanna, the original owner, “got a real windfall because he
was able to sell his condo for more than it was worth.”
3. The situation would be different if Himler had entered into a direct
purchase and sale agreement with Hanna. In that case, return of the
property would have been adequate restitution. Under the facts of this
case, however, CSS is entitled to restitution for the full amount of money
it paid Hanna on Himler’s behalf: the $193,833 minus the sale price of
$181,000. The only way for CSS to recoup the missing $12,833 is for
Himler to pay CSS.
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action. The District Court did not “postpone” final
determination of the restitution award: rather, it ordered
Himler to pay full restitution in the amount of $193,833,
allowing for reduction in that amount when the property
sold.
  The government concedes that 18 U.S.C. § 3663A (b) (1)
(B) (ii) requires a District Court to “value” the property “as
of the date the property is returned” to the victim. See
Lomow, 266 F.3d at 1020. However, it submits that the
District Court properly accepted Curiale’s testimony that
“real estate is only worth what you can get for it.” We agree
that the District Court’s decision to order restitution in the
amount of $193,833 minus the amount that would
eventually be recouped from the future sale was not a
postponement of the order of restitution but simply a way
to ensure that Himler would not be stuck with a larger bill
than was necessary.
  On April 14, 2003, the condominium sold for $181,000.4
Thus, by subtracting the sale price, $181,000 from Himler’s
purchase price of $193,833, Himler is left owing $12,833.
Had the District Court been forced to set a defined value for
the condominium at the sentencing hearing, it would
probably have valued it at somewhere between $150,000
and $160,000 because that is what similar units were
selling for and even Himler’s counsel conceded that it was
unlikely that anyone would buy it for $193,833. As luck
would have it, market forces enabled the condominium to
sell for a considerably higher price than was originally
anticipated. Thus, Himler was left with a much smaller bill,
$12,833 than the amount he would have owed had the
District Court placed a fixed price on the condominium at
the sentencing hearing. The District Court did not abuse its
discretion in setting the amount of restitution it did, and its
judgment on this issue will be affirmed.

4. Upon the sale, the government notified the District Court and
requested that the restitution order be clarified to reflect the sale price
of the condominium. The District Court refused to do so because it
believed that it lacked jurisdiction while this case was pending on
appeal.
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V.   Conclusion
  For the foregoing reasons, the judgment of the District
Court will be affirmed in part and vacated in part and
remanded for further proceedings consistent with this
opinion.

A True Copy:
        Teste:
                  Clerk of the United States Court of Appeals
                              for the Third Circuit
