              Case: 17-14049      Date Filed: 06/04/2018   Page: 1 of 7


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-14049
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:95-cr-00114-FAM-3



UNITED STATES OF AMERICA,

                                                                 Plaintiff - Appellee,

                                        versus

ANTONIO ROSELLO,
a.k.a. Antonio Rosello Herrero,

                                                             Defendant - Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                    (June 4, 2018)

Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Antonio Rosello, a federal prisoner, appeals the denial of his motion to

terminate restitution ordered as part of his criminal judgment. The district court

ruled that the Victim and Witness Protection Act, as amended by “the Mandatory

Victim Restitution Act[, 18 U.S.C. § 3613(b) (1996),] extends [Rosello’s] liability

to pay [his] restitution judgment for 20 years after [his] release from

imprisonment” and that his “restitution judgment has not expired because [he]

remains incarcerated.” Rosello argues that applying amended section 3613(b) to

crimes he committed in 1994 violates the Ex Post Facto Clause of Article I,

Section 9, clause 3 of the United States Constitution. Because the application of

amended section 3613(b) does not “increas[e] the measure of punishment . . . [for

Rosello’s] crimes,” California Dep't of Corr. v. Morales, 514 U.S. 499, 509

(1995), we affirm the denial of his motion to terminate restitution.

      In June 1996, a jury found that Rosello committed six crimes related to his

robberies of armored cars between July 1992 and November 1994. In August 1996,

the district court sentenced Rosello to 45 years of imprisonment and ordered him to

pay $1,218,000 in restitution. We affirmed Rosello’s convictions and sentence.

United States v. Rosello, 250 F.3d 746 (11th Cir. 2001) (unpublished table

decision).

       We “review ex post facto challenges de novo.” United States v. Muench,

153 F.3d 1298, 1300 (11th Cir. 1998).


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      Effective April 24, 1996, Congress extended the period in which criminal

defendants remain liable to pay restitution. Before the amendment, the Victim

Protection Act provided that an order of restitution became unenforceable “twenty

years after the entry of the judgment” or when the defendant died. 18 U.S.C.

§ 3613(b) (1994). Before Rosello’s trial, Congress passed the Mandatory

Restitution Act, which amended the Victim Protection Act to provide that “liability

to pay restitution shall terminate on the date that is the later of 20 years from the

entry of judgment or 20 years after the release from imprisonment of the person

ordered to pay restitution.” Id. § 3613(b) (1996). Congress made the amendment

“effective for sentencing proceedings in cases in which the defendant is convicted

on or after [April 24, 1996].” Victim Restitution Act of 1995, Pub.L. No. 104–132,

§ 211, 110 Stat. 1214.

      Article I, Section 9, clause 3 of the United States Constitution states, “No . . .

ex post facto law shall be passed.” The Ex Post Facto Clause prohibits Congress

from enacting a law that “appl[ies] to events occurring before its enactment . . .

[and] disadvantage[s] the offender affected by it[.]” Lynce v. Mathis, 519 U.S. 433,

441 (1997) (internal quotation marks and citations omitted). An “ex post facto

inquiry . . . [focuses] not on whether a legislative change produces some

ambiguous sort of ‘disadvantage,’ . . . but on whether any such change alters the

definition of criminal conduct or increases the penalty by which a crime is


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punishable.” Morales, 514 U.S. at 506 n.3. The Clause does not “forbid[] any

legislative change that has any conceivable risk of affecting a prisoner’s

punishment.” Id. at 508. Instead, the Clause prohibits only those retroactively

applied laws that “produce[] a sufficient risk of increasing the measure of

punishment attached to the covered crimes,” id. at 509, or affects “the quantum of

punishment” imposed, Dobbert v. Fla., 432 U.S. 282, 294 (1977). That prohibition

“operates not to protect an individual’s right to less punishment, but rather as a

means of assuring that an individual will receive fair warning of criminal statutes

and the punishments they carry.” Hock v. Singletary, 41 F.3d 1470, 1472 (11th Cir.

1995) (citing Dobbert, 432 U.S. at 298, and Weaver v. Graham, 450 U.S. 24, 28–

30 (1981)).

      The continued enforcement of Rosello’s judgment of restitution under

amended section 3613(b) does not violate the Ex Post Facto Clause. Amended

section 3613(b) does not retroactively increase Rosello’s sentence. The amended

statute merely extends the span of time in which Rosello’s victims can collect

restitution from him. And the application of amended section 3613(b) did not

“compromise . . . [Rosello’s] right to receive fair notice of the punishment his

offense carries.” Id. at 1473. The extension of the collection period has no effect on

the amount of restitution that Rosello owes. “His punishment remains what it was




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when he committed the offense, at which time he had received fair notice of the

crime and the punishment it carries.” Id.

      The prolongment of the period to collect restitution is like the extension of

the statute of limitation to prosecute a criminal charge, which we long have held

does not infringe the Ex Post Facto Clause, see United States v. De La Mata, 266

F.3d 1275, 1286 (11th Cir. 2001); United States v. Grimes, 142 F.3d 1342, 1351

(11th Cir. 1998). Even if a “change in the law obviously ha[s] a detrimental impact

upon the defendant, . . . the law [is] not ex post facto . . . [unless the law] ma[kes]

criminal a theretofore innocent act, . . . aggravate[s] a crime previously committed,

. . . provide[s] greater punishment, []or change[s] the proof necessary to convict.”

Dobbert, 432 U.S. at 293. None of these concerns are implicated in an extension of

the statute of limitation. De La Mata, 266 F.3d at 1286. Extending the period in

which a defendant remains obligated to pay restitution likewise does not alter the

definition of his criminal conduct or increase his punishment.

      Rosello argues that United States v. Seigel, 153 F.3d 1256 (11th Cir. 1996),

bars the district court from applying amended section 3613(b) to him, but Rosello

interprets Seigel too broadly. No doubt, Seigel “h[e]ld that the M[andatory]

V[ictims] R[estitution] A[ct] cannot be applied to a person whose criminal conduct

occurred prior to April 24, 1996.” Id. at 1260. But “judicial decisions cannot make

law beyond the facts of the cases in which those decisions are announced.” Pretka


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v. Kolter City Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010). Seigel addressed

whether the Ex Post Facto Clause prohibited the retroactive application of

amendments to the Victim Protection Act that made restitution in the full amount

of each victim’s losses mandatory, 18 U.S.C. § 3664(f)(1)(A) (1996), and

eliminated the discretion previously given to the district court to determine whether

and how much restitution to award, see id. § 3664(a) (1985). 153 F.3d at 1258–60.

The Court in Seigel concluded that the amended provision constituted an ex post

facto law because amended section 3664 had the potential to increase the amount

of restitution owed. Id. at 1260 (discussing United States v. Baggett, 153 F.3d

1319, 1322 (9th Cir. 1997)). Unlike amended section 3664, amended section

3613(b) creates no “risk of increasing the measure of punishment,” Morales, 514

U.S. at 509, that would violate the Ex Post Facto Clause. See United States v.

Blackwell, 852 F.3d 1164, 1166 (9th Cir. 2017) (rejecting an Ex Post Facto

challenge to amended section 3613(b)).

      The district court did not err by denying Rosello’s motion to terminate.

“[T]he ex post facto clause does not extend to every change which may work to a

defendant’s disadvantage . . . .” Dufresne v. Baer, 744 F.2d 1543, 1549 (11th Cir.

1984). Because an extension of the period to collect restitution does not “increase[]

the penalty by which a crime is punishable,” Morales, 514 U.S. at 506, the




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retroactive application of amended section 3613(b) to Rosello does not violate the

constitutional prohibition against ex post facto laws.

      We AFFIRM the denial of Rosello’s motion to terminate restitution.




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