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


6-15-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2724




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Recommended Citation
"USA v. Latimer" (2004). 2004 Decisions. Paper 596.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/596


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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                       No. 03-2724


                          UNITED STATES OF AMERICA

                                           v.

                               JAMES ALBERT LATIMER

                                                     Appellant


                 Appeal from the District Court of the Virgin Islands
                                Division of St. Croix
                    (D.C. Criminal Action No. 98-cr-0000038-1)
                    District Judge: Honorable Raymond L. Finch


                                  Argued May 7, 2004

                Before: BARRY, AM BRO, and SMITH, Circuit Judges

                           (Opinion filed June 15, 2004 )

Pamela L. Colon, Esquire (Argued)
36C Strand Street
Christiansted, St. Croix
USVI, 00820

      Attorney for Appellant

David M. Nissman
  United States Attorney
Carl F. Morey
  Assistant U.S. Attorney
Bruce Z. Marshack, Esquire (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820

       Attorneys for Appellee


                                         OPINION


AM BRO, Circuit Judge:

       James Albert Latimer appeals the decision of the District Court of the Virgin

Islands ordering him to pay almost $59,000 in restitution. We affirm the order of

restitution and remand for the sole purpose of establishing a payment schedule.

                                             I.

       Latimer was convicted of three violations of 18 U.S.C. § 1920 (“False statement or

fraud to obtain Federal employee’s compensation”). The District Court sentenced

Latimer to fifteen months imprisonment for each of his three violations, to be served

concurrently, and two years of supervised release. The District Court also imposed a

$300 assessment and ordered restitution in the amount of $81,897.94.

       Latimer subsequently filed his first appeal in this case, challenging his sentence

and order of restitution. An earlier panel of our Court affirmed on all issues save one – it

remanded for recalculating the restitution amount. See United States v. Latimer, No. 01-

3238, 54 Fed. Appx. 105, 109-110 (3d Cir. Dec. 18, 2002). On remand, the District Court

ordered Latimer to pay $58,935.75 in restitution to the Office of Workers Compensation.

The District Court, however, failed to establish a regular schedule for restitution



                                              2
payments.

       Latimer is now before us a second time, again arguing the District Court erred in

ordering restitution because he lacks the ability to pay. We have jurisdiction under

28 U.S.C. § 1291. We exercise plenary review over whether the restitution order is

permissible and review the monetary amount of a particular award for clear error. United

States v. Jacobs, 167 F.3d 792, 795 (3d Cir. 1999) (citations omitted).

                                             II.

       Enacted in 1996, the M andatory Victims Restitution Act (“MVRA”) substantially

amended the restitution provisions in the Victims Witness Protection Act (“VWPA”),

18 U.S.C. § 3663 et seq. Courts previously had discretion in ordering restitution. United

States v. Coates, 178 F.3d 681, 683 n.3 (3d Cir. 1999). But the “MVRA makes restitution

mandatory for certain crimes . . . and requires district courts to order the payment of

restitution in the full amount of the victim’s losses ‘without consideration of the

economic circumstances of the defendant.’” Id. at 683 (quoting 18 U.S.C.

§ 3664(f)(1)(A)).

       In fact, 18 U.S.C. § 3663A is entitled “Mandatory restitution to victims of certain

crimes.” Section 3663A(a)(1) states that a court “shall order” restitution if the defendant

is convicted of an offense “described in subsection (c).” This subsection includes “any

offense committed by fraud or deceit.” 18 U.S.C. § 3663A(c)(1)(A). By its very nature,

Latimer’s conviction under 18 U.S.C. § 1920 (“False statement or fraud to obtain Federal

employee’s compensation”) is an offense committed by fraud or deceit. Accordingly,

                                              3
Latimer’s arguments that the District Court somehow lacked authority to order, or abused

its discretion in ordering, restitution fail. 1

       Our review, however, is not complete. The District Court failed to schedule any

restitution payments. Although somewhat unclear, it appears this decision was due to

uncertainty over whether Latimer had sufficient funds to make restitution payments. See

JA at 58 (“I will leave the government to collect the best it can. I will not schedule any

payments, because I’m not convinced that the money is there as has been represented [by

the Government] without some further proof.”).

       The District Court’s approach fell short of what the MVRA requires. It provides

that the “court shall . . . specify in the restitution order the manner in which, and the

schedule according to which, the restitution is to be paid.” 18 U.S.C. § 3664(f)(2)

(emphasis added). Upon considering a defendant’s financial resources, projected

earnings and financial obligations, 18 U.S.C. §§ 3664(f)(2)(A)-(C), a sentencing court has

two options. If the defendant is capable of making payments, it has considerable

flexibility in structuring the manner in which that is done. See 18 U.S.C. § 3664(f)(3)(A).

Second, if a defendant is deemed unable to pay the “full amount of a restitution order in

the foreseeable future under any reasonable schedule of payments,” then the sentencing

court may direct him to make nominal periodic payments. 18 U.S.C. § 3664(f)(3)(B).

The District Court, however, may not delegate the matter. See Coates, 178 F.3d at 684



  1
   Latimer’s reliance on United States v. Copple, 74 F.3d 479 (3d Cir. 1996), is
misplaced. This case was published prior to the effective date of the MVRA.

                                                  4
(“Since the MVRA mandates that district courts schedule restitution payments after

taking into account the defendant's financial resources, the District Court's failure to do so

here constitutes plain error.”) On remand, the parties should present appropriate

evidence, and the District Court should make the necessary findings and establish a

restitution schedule in accordance with § 3664(f).

                                          *****

       In this context, we affirm the decision of the District Court ordering Latimer to pay

restitution. We remand to the District Court for the sole purpose of establishing a

restitution schedule.




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