                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-1999

USA v. Coates
Precedential or Non-Precedential:

Docket 98-1173




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Recommended Citation
"USA v. Coates" (1999). 1999 Decisions. Paper 139.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/139


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Filed May 21, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1173

UNITED STATES OF AMERICA

v.

GERALD A. COATES

Gerald Coates,

Appellant
  2370           <HRULE X=001270 L=000720 W=000005>

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(96-cr-00388-2)
(District Judge: Honorable Ronald L. Buckwalter)

Submitted Under Third Circuit LAR 34.1(a)
January 12, 1999

Before: NYGAARD, ALITO, and LEWIS, Circuit Judges.

(Opinion Filed: May 21, 1999)

       FEDERAL COURT DIVISION
       DEFENDER ASSOCIATION OF PHILADELPHIA
       Ellen T. Greenlee, Defender
       Maureen Kearney Rowley, Chief Federal
        Defender
       David L. McColgin, Assistant Federal Defender
       Suite 800 -- Lafayette Building
       437 Chestnut Street
       Philadelphia, Pennsylvania 19106-2414

       Counsel for Appellant
       UNITED STATES DEPARTMENT OF JUSTICE
       UNITED STATES ATTORNEY
       EASTERN DISTRICT OF PENNSYLVANIA
       Michael R. Stiles, United States Attorney
       Ewald Zittlau, Assistant United States Attorney
       615 Chestnut Street
       Suite 1250
       Philadelphia, Pennsylvania 19106-4476

       Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal by Gerald Coates ("Coates") from a
judgment and sentence in a criminal case. Coates pleaded
guilty to armed robbery and related offenses, and as a part
of his sentence, the District Court ordered him to pay
restitution in the amount of $4,028. Coates now challenges
the restitution order. Because the District Court erred by
imposing restitution without specifying a payment schedule
or considering the factors set forth in 18 U.S.C. S 3664(f)(2),
we vacate the restitution order and remand for resentencing
in accordance with this opinion.

I.

In June and July of 1996, Coates and a co-conspirator,
Haywood White, committed three bank robberies in which
they obtained a total of $8,056. Coates pleaded guilty to
two counts of conspiracy to commit armed bank robbery
and one count of conspiracy to commit bank robbery, in
violation of 18 U.S.C. S 371; two counts of armed bank
robbery and one count of bank robbery, in violation of 18
U.S.C. S 2113(d); and two counts of use of afirearm during
and in relation to a crime of violence, in violation of 18
U.S.C. S 924(c). The District Court sentenced Coates to a
term of 291 months of imprisonment,1 to be followed by five
_________________________________________________________________

1. Specifically, Coates received 60 months of imprisonment on the three
conspiracy counts; 87 months of imprisonment on the three robbery

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years of supervised release, and imposed an $800 special
assessment. The Court also ordered Coates to pay
restitution in the amount of $4,028, without anyfindings or
further explanation of the award. Coates then took this
appeal.

Counsel for Coates filed a motion to withdraw and
submitted a brief in support of his motion pursuant to
Anders v. California, 386 U.S. 738 (1967). Counsel's Anders
brief advised that there is no non-frivolous issue that can
be raised on Coates's behalf. Coates was provided with a
copy of the motion, and he filed a pro se brief in support of
his appeal, raising two issues: (1) that the District Court
erred in enhancing his sentence on the second weapons
conviction because Congress did not intend 18 U.S.C.
S 924(c)(1) to permit enhancement where a second or
subsequent weapons conviction is charged in the same
indictment as the first weapons conviction; and (2) that the
District Court committed plain error by failing to make
specific factual findings concerning Coates'sfinancial
ability to pay $4,028 in restitution and by failing to order
an appropriate payment schedule.

After examining the record, we found that Coates's
second argument raised a non-frivolous issue.2 Accordingly,
we denied counsel's motion to withdraw and requested
additional briefing on "[w]hether the District Court erred in
failing to specify in the restitution order `the manner in
which, and the schedule according to which, the restitution
is to be made,' pursuant to the Mandatory Victims
_________________________________________________________________

counts, to be served consecutively to the sentence imposed on the
conspiracy counts; 60 months on the first weapons count, to be served
consecutively to the conspiracy and robbery counts; and an enhanced
sentence of 84 months on the second weapons count, to be served
consecutively to all other sentences.

2. We agree with counsel that Coates's first argument is frivolous. Coates
contends that the District Court misapplied 18 U.S.C. S 924(c)(1) by
enhancing Coates's sentence on the second weapons conviction even
though it arose from the same indictment as hisfirst weapons
conviction. Both the Supreme Court and our court already have rejected
this argument. See Deal v. United States, 508 U.S. 129 (1993); United
States v. Casiano, 113 F.3d 420 (3d Cir.), cert. denied, 118 S. Ct. 221
(1997).

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Restitution Act of 1996, 18 U.S.C. S 3664(f)(2)." After
reviewing the parties' briefs, we conclude that the District
Court erred.

II.

Coates contends that the District Court erred by ordering
him to pay restitution without specifying in the restitution
order the manner and schedule of payments to be made
and without considering his financial resources, projected
earnings, and financial obligations. Because Coates did not
object to the restitution order at the sentencing hearing, we
review this issue for plain error. See Fed. R. Crim. P. 52(b)
("Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of
the court."); United States v. Olano, 507 U.S. 725 (1993).

Congress enacted the Mandatory Victims Restitution Act
("MVRA") in 1996. See Pub. L. No. 104-132, Title II, SS 201-
211, 110 Stat. 1214; 18 U.S.C. SS 3663A-3664 (West Supp.
1996).3 The MVRA applies to sentencing proceedings in
cases in which the defendant is convicted on or after April
24, 1996. See 18 U.S.C. S 3664 (statutory notes). Coates
pleaded guilty on October 11, 1996, for criminal activity
that took place during the summer of 1996. Therefore,
application of the MVRA to Coates is appropriate here. Cf.
United States v. Edwards, 162 F.3d 87 (3d Cir. 1998)
(imposing restitution on defendant for criminal conduct
occurring prior to MVRA's enactment violates Ex Post Facto
Clause).

The MVRA makes restitution mandatory for certain
crimes, see 18 U.S.C. S 3663(A)(1), 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." See 18 U.S.C.
_________________________________________________________________

3. The MVRA substantially amended the provisions for restitution set out
in the Victim and Witness Protection Act, 18 U.S.C. S 3663 et seq. (West
1985). Under the VWPA, district courts had discretionary authority to
award restitution. In ordering restitution, however, courts were required
to consider, among other factors, the defendant'sfinancial ability to pay
restitution in establishing the amount of restitution to be ordered. 18
U.S.C. S 3664(a) (West 1985).

                               4
S 3664(f)(1)(A); see also United States v. Jacobs, 167 F.3d
792, 796 (3d Cir. 1999) (stating that MVRA's "clear and
unambiguous mandatory language" requires defendants to
pay full restitution to their victims). After ordering full
restitution, the district court "shall specify in the restitution
order the manner in which, and the schedule according to
which, the restitution is to be paid." See 18 U.S.C.
S 3664(f)(2); see also United States v. Crandon, No. 98-5161,
1999 WL 147606, at *3 n.3 (3d Cir. Mar. 18, 1999) ("[A]fter
ordering full restitution, the district court must set a
payment schedule."). In so doing, the district court is
required to consider the financial resources, projected
earnings, and financial obligations of the defendant. See 18
U.S.C. S 3664(f)(2)(A)-(C). The court may order the
defendant to make a single lump-sum payment, reasonable
periodic payments, or, if the defendant is indigent, nominal
periodic payments. See 18 U.S.C. S 3664(f)(3)(A), (B).

The District Court in this case complied with the MVRA
by ordering Coates to pay the full amount of his share of
the victim's losses, $4,028. After doing so, however, the
District Court failed to satisfy the remaining statutory
requirements. It did not specify in the restitution order the
"manner in which, and schedule according to which," the
restitution is to be made. Nor did it state on the record that
it had considered Coates's financial situation in
determining his ability to make a single lump-sum payment
of $4,028. 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. See United States v.
Turcks, 41 F.3d 893, 901-02 (3d Cir. 1994) (stating that the
court's failure to make factual findings under the VWPA
constitutes plain error), cert. denied, 514 U.S. 1074 (1995).

We are unpersuaded by the government's arguments to
the contrary. The government maintains that the District
Court complied with the statutory requirements because
under section 3572, and in view of the District Court's
silence, full payment was due immediately. Section 3572
provides, in pertinent part:

       A person sentenced to pay a fine or other monetary
       penalty, including restitution, shall make such

                               5
       payment immediately, unless, in the interest of justice,
       the court provides for payment on a date certain or in
       installments. . . .

18 U.S.C. S 3572(d)(1). This section applies to all monetary
penalties, including fines and restitution orders, and it
creates a preference for immediate payment. Contrary to
the government's suggestion, however, this provision in no
way eliminates the district court's obligation under section
3664 -- "Procedure for issuance and enforcement of order
of restitution" -- to consider the defendant'sfinancial
situation and schedule restitution payments accordingly.
We therefore reject the government's claim that section
3572 permitted the District Court to satisfy its duties under
section 3664 through its silence.

The government next maintains that the District Court
complied with the MVRA by making payments due during
the term of the defendant's imprisonment. In making this
contention, the government points to a paragraph of
standard-form language in the restitution order that
provides:

       Unless the court has expressly ordered otherwise in the
       special instructions above, if this judgment imposes a
       period of imprisonment[,] payment of criminal
       monetary penalties shall be due during the period of
       imprisonment. All criminal monetary penalty
       payments, except those payments made through the
       Bureau of Prisons' Inmate Financial Responsibility
       Program, are to be made as directed by the court, the
       probation officer, or the United States attorney.

Supplemental Appendix at 7a. Like section 3572, this
paragraph does not establish a payment schedule, nor does
it indicate that the District Court considered Coates's
financial circumstances. It is therefore insufficient to satisfy
section 3664(f)(2).

As an alternative argument, the government contends
that the District Court's failure to comply with the statutory
requirements is not fatal because, through its silence, the
Court delegated responsibility to establish a payment
schedule to the probation office. See 28 C.F.R. S 545.10
(permitting Bureau of Prisons to determine payment

                               6
schedules). In making this contention, the government cites
Montano-Figueroa v. Crabtree, 162 F.3d 548 (9th Cir. 1998),
in which the Ninth Circuit held that the district court may
delegate its statutory responsibilities to a probation officer.
The government's reliance on Montano-Figueroa is
misplaced.

Like most other federal appellate courts that have
addressed the issue, we have held that the fixing of
restitution payments is a judicial act that may not be
delegated to a probation officer. See United States v.
Graham, 72 F.3d 352, 357 (3d Cir. 1995) (holding that,
under the VWPA, the duty to establish payment schedules
is non-delegable), cert. denied, 116 S. Ct. 1286 (1996); see
also United States v. Mohammad, 53 F.3d 1426, 1438-39
(7th Cir. 1995); United States v. Porter, 41 F.3d 68, 71 (2d
Cir. 1994); United States v. Johnson, 48 F.3d 806, 808 (4th
Cir. 1995); United States v. Albro, 32 F.3d 173, 174 n.1 (5th
Cir. 1994) (per curiam). A court abdicates its judicial
responsibility when it permits a probation officer to
determine the manner and schedule of restitution
payments. Although we recognize that federal regulations
permit the Bureau of Prisons to make payment schedules
for all monetary penalties, see 28 C.F.R.S 545.10, the plain
language of the MVRA, vesting sole authority in the district
courts, see 18 U.S.C. S 3664(f)(2) ("[T]he court shall . . .
specify . . . the manner . . . and the schedule . . . [of]
restitution"), contradicts, and thus overrides, the
regulations.

That Graham was decided under the Victim and Witness
Protection Act, the former statute setting out the
requirements for court-ordered restitution, does not make
its conclusion inapplicable here. Unlike the MVRA, the
VWPA provides the district courts with discretionary
authority to schedule restitution payments. See 18 U.S.C.
S 3663(f)(1) (West 1995) ("The court may require that [the]
defendant make restitution . . . within a specified period or
in specified installments.") (emphasis added). Even under
this more lenient standard, Graham holds that the
scheduling of restitution payments is non-delegable. We fail
to see how the result under the MVRA, which imposes a
mandatory obligation on the district court to schedule

                               7
restitution payments, see 18 U.S.C. S 3664(f)(2) (stating
that "the court shall . . . specify . . . the manner . . . and
the schedule . . . [of] restitution"), can be any different.

We conclude that the District Court's failure to satisfy the
MVRA's mandatory requirements under section 3664(f)(2),
and its implicit delegation of its responsibilities to the
probation office, constitute plain error. Accordingly, we
vacate the restitution order and remand to the District
Court for resentencing in light of the factors set forth in the
MVRA, 18 U.S.C. S 3664(f)(2).

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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