           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    United States v. Smith               Nos. 01-1124/2427
        ELECTRONIC CITATION: 2003 FED App. 0335P (6th Cir.)
                    File Name: 03a0335p.06                               Jennifer J. Peregord, ASSISTANT UNITED STATES
                                                                         ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
                                                                         Nancy L. McGunn, Penny R. Beardslee, FEDERAL PUBLIC
UNITED STATES COURT OF APPEALS                                           DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
                                                                         Jennifer J. Peregord, ASSISTANT UNITED STATES
                  FOR THE SIXTH CIRCUIT                                  ATTORNEY, Detroit, Michigan, for Appellee.
                    _________________
                                                                                             _________________
 UNITED STATES OF AMERICA , X
            Plaintiff-Appellee, -                                                                OPINION
                                   -                                                         _________________
                                   -  Nos. 01-1124/2427
           v.                      -                                       CLAY, Circuit Judge. This is a consolidated appeal. In
                                    >                                    Case No. 01-1124, Defendant, James Smith, appeals from the
                                   ,                                     district court’s judgment entered on January 5, 2001,
 JAMES SMITH,                      -
        Defendant- Appellant. -                                          sentencing Defendant to twenty-one months of imprisonment,
                                                                         three years of supervised release, and a restitution payment of
                                  N                                      $61,774.80 following Defendant’s guilty plea conviction for
      Appeal from the United States District Court                       making false statements to the Social Security Administration
     for the Eastern District of Michigan at Detroit.                    (“the SSA”) in violation of 18 U.S.C. § 1001. In Case No.
      No. 00-80112—John Feikens, District Judge.                         01-2427, Defendant appeals from the district court’s order
                                                                         entered on October 4, 2001, granting the government’s
                   Argued: January 31, 2003                              motion to enter a document into the record. For the reasons
                                                                         set forth below, we VACATE IN PART Defendant’s
               Decided and Filed: July 31, 2003*                         sentence in Case No. 01-1124, we REVERSE the district
                                                                         court’s order in Case No. 01-2427, and we REMAND both
  Before: BATCHELDER, MOORE, and CLAY, Circuit                           cases for further proceedings consistent with this opinion.
                   Judges.
                                                                                              BACKGROUND
                      _________________
                                                                           The government filed a criminal complaint on February 14,
                           COUNSEL                                       2000, alleging that Defendant fraudulently collected disability
                                                                         benefits, totaling $61,744.80, from the SSA using the name
ARGUED: Nancy L. McGunn, FEDERAL PUBLIC                                  and social security number of Michael C. Johnson from
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.                      November of 1995 to January of 2000 in violation of 18
                                                                         U.S.C. § 641. On the same day the complaint was filed, the
                                                                         district court issued a warrant for Defendant’s arrest.
    *
      This decision was originally issued as an “unpublished decision”   Defendant turned himself into the United States Marshal
filed on July 31, 2003. On August 28, 2003, the court designated the     Service on February 24, 2000. Thereafter, on March 15,
opinion as one recommend ed for full-text publication.

                                  1
Nos. 01-1124/2427                United States v. Smith        3   4      United States v. Smith               Nos. 01-1124/2427

2000, the district court dismissed the complaint without               before sentence is imposed and will provide a receipt at
prejudice.                                                             sentencing.
   The government filed an information on August 16, 2000,             F. The court can order the defendant to pay restitution
charging Defendant with one count of making false                      for all losses resulting from his relevant offense conduct.
statements to the SSA in violation of 18 U.S.C. § 1001.
Specifically, the information charged Defendant with                   G. The defendant, by entering into this plea agreement,
knowingly and wilfully making the following false                      knowingly and voluntarily gives up any right he may
statements: (1) that his name was Michael C. Johnson, (2) that         have to appeal any sentence which is within the
his social security number was identical to Michael C.                 parameters of this agreement as delineated above.
Johnson’s social security number, and (3) that he had never
used a different name or social security number. On the same           ....
day the information was filed, Defendant filed a waiver of
indictment.                                                            J. This agreement incorporates the complete
                                                                       understanding between the parties, and no other promises
  At his arraignment held on September 11, 2000, Defendant             have been made by the United States Attorney’s Office
entered a guilty plea to the information pursuant to a Rule 11         for the Eastern District of Michigan to the defendant or
plea agreement. The plea agreement provides in relevant part:          to the attorney for the defendant.

  A. . . . The defendant stipulates that all the allegations       (J.A. at 14-15.) Before accepting Defendant’s guilty plea, the
  set forth in the information are true and constitute a           district court explained the provisions of the plea agreement
  violation of the statute.                                        to Defendant. The district court then asked Defendant
                                                                   whether he understood the plea agreement, and Defendant
  B. The maximum term of imprisonment shall not                    replied “Yes, sir.” (J.A. at 98.)
  exceed twenty-one (21) months.
                                                                     The United States Probation Office issued a Presentence
  C. The maximum term of supervised release shall not              Investigation Report (“PSR”) on December 18, 2000. The
  exceed three (3) years. Violation of any condition of            PSR determined that Defendant caused the SSA loss in the
  supervised release may result in the defendant being             amount of $61,744.80, and recommended that Defendant pay
  imprisoned for the entire term of supervised release or          restitution in that amount. The PSR also determined that
  being prosecuted for contempt of court under 18 U.S.C.           Defendant had a total offense level of 11 and a criminal
  § 401(3).                                                        history category of IV. The PSR therefore recommended a
                                                                   sentencing range of 18 to 24 months of imprisonment.
  D. The maximum fine shall not exceed the statutory
  maximum.                                                           Defendant filed a sentencing memorandum on
                                                                   December 27, 2000, objecting to, inter alia, the PSR’s
  E. The court is required to impose a $100 special                determination of the amount of loss. Defendant argued that
  assessment. The defendant will pay the assessment                had he used his own name and social security number, he
                                                                   could have legally collected $28,064.00 in social security
Nos. 01-1124/2427                 United States v. Smith       5    6    United States v. Smith               Nos. 01-1124/2427

income benefits from the SSA due to his diagnosed mental            (J.A. at 53.) Defendant timely filed a notice of appeal on
illness. Defendant argued that the $28,064.00 in social             January 9, 2001, appealing the district court’s judgment (Case
security income benefits he could have legally collected            No. 01-1124).
should be offset against the $61,744.80 in disability benefits
he fraudulently collected. Defendant therefore argued that the        By letter dated September 5, 2001, the SSA notified the
SSA sustained loss in the amount of $33,710.00, and that he         government that it had a policy of not paying social security
should pay restitution in that amount.                              income benefits retroactively to an individual who, like
                                                                    Defendant, fraudulently collected disability benefits. On
  At the sentencing hearing held on January 3, 2001, the            September 13, 2001, the government filed a motion to admit
government argued that the amount of loss and restitution           the SSA’s September 5, 2001 letter into the record pursuant
should equal the amount of disability benefits Defendant            to Federal Rule of Appellate Procedure 10(e)(2). In its
fraudulently collected, $61,774.80. The district court agreed       motion, the government claimed that it was unaware of the
and stated that it will order Defendant to pay restitution in the   district court’s notation in the judgment directing the SSA to
amount of “roughly $61,000.” (J.A. at 124.) The district            resolve the offset dispute until Case No. 01-1124 was on
court further stated that it will order the “matter . . . be        appeal. Defendant filed a response to the government’s
resolved with the Social Security Administration as to              motion on September 28, 2001. In his response, Defendant
whether or not . . . [the alleged $28,064.00 in social security     objected to the admission of the letter into the record and
income benefits Defendant could have legally collected] is a        requested a hearing on the matter. By order entered on
legitimate offset.” (J.A. at 125-26.) Defense counsel stated        October 4, 2001, the district court granted the government’s
that Defendant would agree to the district court’s order if the     motion without conducting a hearing on the matter.
order specified that the government has the burden of proving       Defendant timely filed a notice of appeal on October 11,
Defendant is not entitled to an offset. The district court stated   2001, appealing the district court’s order (Case No. 01-2427).
that it was “not going to get involved in a quarrel as to who
has the burden of proof.” (J.A. at 126.)                                                   DISCUSSION

  The district court entered judgment against Defendant on          I. WAIVER OF RIGHT TO APPEAL (Case No. 01-1124)
January 5, 2001, sentencing Defendant to twenty-one months
of imprisonment, three years of supervised release, and a             This Court reviews the question of whether a defendant
restitution payment of $61,774.80. In the judgment, the             waived his right to appeal his sentence in a valid plea
district court noted:                                               agreement de novo. United States v. Stubbs, 279 F.3d 402,
                                                                    411 (6th Cir. 2002).
  Defendant Smith contends that he was legally entitled to
  receive social security benefits in the amount of                   It is well settled that a defendant in a criminal case may
  $28,064.00 and that this should be off-set against his            waive his right to appeal his sentence in a valid plea
  illegal receipt of $61,774,80. If the Social Security             agreement. See United States v. Fleming, 239 F.3d 761, 763-
  Administration on inquiry of the Office of the United             64 (6th Cir. 2001); Stubbs, 279 F.3d at 410. For a plea
  States Attorney for the Eastern District of Michigan              agreement to be constitutionally valid, a defendant must have
  agrees with this contention, then this amount of                  entered into the agreement knowingly and voluntarily. See
  restitution will be reduced by that amount.                       Fleming, 239 F.3d at 764. “When a [d]efendant waives his
Nos. 01-1124/2427                 United States v. Smith      7    8     United States v. Smith                Nos. 01-1124/2427

right to appeal his sentence in a valid plea agreement, this           Section 5E1.1 of the Sentencing Guidelines provides in
Court is bound by that agreement and will not review the           relevant part that “[i]n the case of an identifiable victim, the
sentence except in limited circumstances.” Stubbs, 279 F.3d        court shall . . . enter a restitution order for the full amount of
at 410.                                                            the victim’s loss, if such order is authorized under 18 U.S.C.
                                                                   § . . . 3663.” United States Sentencing Commission,
  In the plea agreement, Defendant agreed to “pay restitution      Guidelines Manual, § 5E1.1(a)(1) (Nov. 2002). Section 3663
for all losses resulting from his relevant offense conduct,” and   provides in relevant part that “[t]he court, when sentencing a
to “knowingly and voluntarily give[ ] up any right he may          defendant convicted of an offense under this title [Title 18],
have to appeal any sentence which is within the parameters of      . . . may order . . . that the defendant make restitution to any
this agreement[.]” (J.A. at 15.) The government argues that        victim of such offense . . . ” 18 U.S.C. § 3663(a)(1)(A).
the above-quoted language indicates that Defendant                 Section 3663(a)(3) provides that “[t]he court may also order
knowingly and voluntarily waived his right to appeal his           restitution in any criminal case to the extent agreed to by the
sentence in any respect. Defendant, on the other hand, argues      parties in a plea agreement.” 18 U.S.C. § 3663(a)(3).
that he did not knowingly and voluntarily waive his right to
appeal the manner in which the district court determined the          Section 3664 provides in relevant part that “the court shall
amount of restitution.                                             order the probation officer to obtain and include in its
                                                                   presentence report, or in a separate report, as the court may
   The plea agreement is ambiguous as to the amount and            direct, information sufficient for the court to exercise its
manner of determining restitution. The plea agreement merely       discretion in fashioning a restitution order. The report shall
provides that the district court can order Defendant to pay        include, to the extent practicable, a complete accounting of
restitution for all losses resulting from his relevant offense     the losses to each victim, any restitution owed pursuant to a
conduct. The plea agreement, however, does not provide the         plea agreement, and information relating to the economic
manner in which the district court can determine the amount        circumstances of each defendant.” 18 U.S.C. § 3664(a).
of loss. Because Defendant argues on appeal that the district      Section 3664(f)(1)(A) provides that “[i]n each order of
court erred in determining that the SSA sustained a loss in the    restitution, the court shall order restitution to each victim in
amount of $61,744.80, the manner in which the district court       the full amount of each victim’s losses as determined by the
determined the amount of loss is the primary issue on appeal,      court and without consideration of the economic
which falls outside the scope of the plea agreement. We            circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A).
therefore hold that Defendant’s appeal is not waived. See          Section 3664(e) provides “[a]ny dispute as to the proper
United States v. Johnson, 979 F.2d 396, 399 (6th Cir. 1992)        amount or type of restitution shall be resolved by the court by
(stating that “ambiguity [in a plea agreement] must be             the preponderance of the evidence. The burden of
construed against the government”).                                demonstrating the amount of the loss sustained by a victim as
                                                                   a result of the offense shall be on the attorney for the
II. RESTITUTION (Case No. 01-1124)                                 Government.” 18 U.S.C. § 3664(e).
  This Court reviews the propriety of ordering restitution de
novo and the amount of restitution ordered for abuse of
discretion. United States v. Bearden, 274 F.3d 1031, 1040
(6th Cir. 2001).
Nos. 01-1124/2427                       United States v. Smith            9    10    United States v. Smith                Nos. 01-1124/2427

   Federal Rule of Criminal Procedure (“Rule”) 32(c)(1)1                       the amount of $33,710.00, and that he should pay restitution
provides in relevant part that “[a]t the sentencing hearing . . .              in that amount.
[f]or each matter controverted, the court must make either a
finding on the allegation or a determination that no finding is                  At the sentencing hearing, Defendant again presented his
necessary because the controverted matter will not be taken                    argument to the district court. The government responded by
into account in, or will not affect, sentencing.” Fed. R. Crim.                arguing that the amount of loss and restitution should equal
P. 32(c)(1). This Court requires “literal compliance” with                     the amount of disability benefits Defendant fraudulently
Rule 32(c)(1). United States v. Fry, 831 F.2d 664, 667 (6th                    collected. The district court acknowledged both parties’
Cir. 1987). This Court has made it clear that Rule 32(c)(1)                    arguments, but failed to make any factual findings regarding
“prohibits a court faced with a dispute over sentencing factors                the offset dispute. Rather, the district court stated that it will
from adopting the factual findings of the presentence report                   order Defendant to pay restitution in the amount of “roughly
without making factual determinations of its own.” United                      $61,000,” and that the “matter . . . be resolved with the Social
States v. Monus, 128 F.3d 376, 396 (6th Cir. 1997). USSG                       Security Administration as to whether or not . . . [the alleged
§ 6A3.1(b) provides that “[t]he court shall resolve disputed                   $28,064.00 in social security income benefits Defendant
sentencing factors at a sentencing hearing in accordance with                  could have legally collected] is a legitimate offset.” (J.A. at
[Federal] Rule [of Criminal Procedure] 32(c)(1).”                              124, 125-26.) When defense counsel stated that Defendant
                                                                               would agree to the district court’s order if the order specified
  Defendant argues that the district court violated Rule                       that the government has the burden of proving Defendant is
32(c)(1) by failing to make factual findings regarding the                     not entitled to an offset, the district court stated that it was
disputed amount of loss sustained by the SSA at the time of                    “not going to get involved in a quarrel as to who has the
sentencing. Defendant points out that the dispute was                          burden of proof.” (J.A. at 126.)
presented to the district court in the pleadings and at the
sentencing hearing.      For instance, in his sentencing                         Thereafter, the district court entered judgment against
memorandum, Defendant argued that had he used his own                          Defendant sentencing him to pay restitution in the precise
name and social security number, he could have legally                         amount of disability benefits he fraudulently collected,
collected $28,064.00 in social security income benefits from                   $61,744.80, as the PSR had recommended. In addition, the
the SSA due to his diagnosed mental illness. Defendant                         district court delegated its duty of resolving the offset dispute
argued that the $28,064.00 in social security income benefits                  to the SSA by noting in the judgment that “[i]f the Social
he could have legally collected should be offset against the                   Security Administration on inquiry of the Office of the United
$61,744.80 in disability benefits he fraudulently collected.                   States Attorney for the Eastern District of Michigan agrees
Defendant therefore argued that the SSA sustained a loss in                    with . . . [Defendant’s] contention, then this amount of
                                                                               restitution will be reduced by . . . [$28,064.00].” (J.A. at 53.)
                                                                                 We hold that the district court violated Rule 32(c)(1) by
    1
      The December 1, 2002 amendments to the Federal Rules of
                                                                               failing to make factual findings, at the time of sentencing,
Criminal Procedure replaced R ule 32(c)(1) with Rule 32(i)(3). United          regarding whether the alleged $28,064.00 in social security
States v. Treadway, 328 F.3d 87 8, 885 n.3 (6th Cir. 2003). Because we         income benefits Defendant claims he could have legally
are reviewing the district court’s failure to make specific factual findings   collected had he used his own name and social security
at Defendant’s sentencing hearing held on January 3, 2001, we are              number should have been offset against the $61,744.80 in
applying the rule in effect at that time–Rule 32(c)(1).
Nos. 01-1124/2427                       United States v. Smith           11   12   United States v. Smith                Nos. 01-1124/2427

disability benefits Defendant fraudulently collected from the                 III. EXPANSION OF THE RECORD
SSA. The district court erred in delegating its duty to resolve
the offset dispute to the SSA, and in refusing to respond to                    Federal Rule of Appellate Procedure (“Appellate Rule”) 10
Defendant’s objection that the government had the burden of                   provides in relevant part:
proof. We therefore vacate Defendant’s sentence as to the
amount of restitution and remand this case for resentencing in                  (a) Composition of the Record on Appeal. The
compliance with Rule 32(c)(1). See United States v. Monus,                      following items constitute the record on appeal:
128 F.3d 376, 396-97 (6th Cir. 1998) (holding that the district                 (1) the original papers and exhibits filed in the district
court violated Rule 32(c)(1) by failing to make factual                         court;
findings as to the amount of loss attributed to the defendant);                 (2) the transcript of proceedings, if any; and
United States v. Parrott, 148 F.3d 629, 633 (6th Cir.1998)                      (3) a certified copy of the docket entries prepared by the
(holding that a district court cannot adopt “the factual                        district clerk.
findings of the presentence report without making factual                       ....
determinations of its own” when the facts are in dispute).                      (e) Correction or Modification of the Record.
                                                                                ....
  Defendant also argues that the district court violated 18                     (2) If anything material to either party is omitted from or
U.S.C. § 3572(d)(1)2 by not establishing a restitution payment                  misstated in the record by error or accident, the omission
schedule. We hold that Defendant’s argument is without                          or misstatement may be corrected and a supplemental
merit. The district court stated in the judgment that Defendant                 record may be certified and forwarded:
“shall PAY THE BALANCE OF RESTITUTION OWED IN                                   (A) on stipulation of the parties;
MONTHLY PAYMENTS AS RECOMMENDED BY THE                                          (B) by the district court before or after the record has
PROBATION DEPARTMENT AND APPROVED BY THE                                        been forwarded; or
COURT.”        This Court has approved such payment                             (C) by the court of appeals.
scheduling. See Weinberger v. United States, 268 F.3d 346,                      (3) All other questions as to the form and content of the
359-60 (6th Cir. 2001).                                                         record must be presented to the court of appeals.
                                                                              Fed. R. App. P. 10(a) & (e). “The purpose of . . . [Appellate
                                                                              Rule 10(e)(2)] is to allow the [ ] court to correct omissions
                                                                              from or misstatements in the record for appeal, not to
                                                                              introduce new evidence in the court of appeals.” S & E
                                                                              Shipping Corp. v. Chesapeake & O. Ry. Co., 678 F.2d 636,
                                                                              641 (6th Cir. 1982).
    2
        Section 3572 (d)(1) provides:                                           In compliance with the district court’s directive as set forth
    A person sentenced to pay a fine or other monetary penalty,
                                                                              in the judgment, the SSA notified the government, by letter
    including restitution, shall make such paym ent imm ediately,             dated September 5, 2001, that it had a policy of not paying
    unless, in the interest of justice, the court provides for payment        social security income benefits retroactively to an individual
    on a date certain or in installments.                                     who, like Defendant, fraudulently collected disability
                                                                              benefits. The government filed a motion to admit the letter
18 U.S.C. § 35 72(d)(1).
Nos. 01-1124/2427                         United States v. Smith          13   14     United States v. Smith                       Nos. 01-1124/2427

into the record pursuant to Appellate Rule 10(e)(2). In its                    finalize the restitution order within 90 days after sentencing.
motion, the government claimed that it was unaware of the                      See United States v. Vandeberg, 201 F.3d 805, 814 (6th Cir.
district court’s directive until Case No. 01-1124 was on                       2000) (holding that the district court erred in unilaterally
appeal. Defendant filed a response to the motion objecting to                  amending and finalizing the restitution order without
the admission of the letter into the record and requesting a                   affording the parties an opportunity to object within the 90
hearing on the matter. The district court issued a one-page                    days after sentencing, as required by § 3664(d)(5)). We
conclusory order admitting the letter into the record, without                 therefore vacate the district court’s order and remand this case
conducting a hearing on the matter.                                            for further proceedings consistent with Rule 32(c)(1) and
                                                                               § 3664(d)(5).
   Defendant argues that the district court erred in admitting
the letter into the record because the letter neither qualifies as                                         CONCLUSION
a document under Appellate Rule 10(a) nor as an omission
under Appellate Rule 10(e)(2). Defendant points out that the                     For the forgoing reasons, we VACATE IN PART
letter was not in existence until eight months after the                       Defendant’s sentence in Case No. 01-1124, we REVERSE
judgment in Case No. 01-1124 was entered on January 5,                         the district court’s order in Case No. 01-2427, and we
2001. Defendant argues that because the letter was not in                      REMAND both cases for further proceedings.
existence while Case No. 01-1124 was pending before the
district court, the district court did not have the right to
consider the contents of the letter in finalizing its restitution
order.
   The government concedes that the letter neither qualifies as
a document under Appellate Rule 10(a) nor as an omission
under Appellate Rule 10(e)(2). The government, however,
argues that we may consider the contents of the letter because
it was admitted into the record in direct response to the
district court’s directive.
   Under these circumstances, the district court’s decision to
admit the letter into the record was plainly unreasonable. The
district court neither afforded Defendant the opportunity to
respond or comment upon the letter, nor made factual
findings regarding the contents of the letter. In addition, the
district court violated 18 U.S.C. § 3664(d)(5)3 by failing to

    3
                                                                                    probation officer shall so inform the court, and the court shall set
        Section 36 64(d)(5 ) provides in relevant part:                             a date fo r the final determination o f the victim's losses, not to
                                                                                    exceed 90 d ays after sentencing.
    If the victim’s losses are not ascertainable by the date that is 10
    days prior to sentencing, the attorney for the Governme nt or the          18 U.S.C. § 36 64(d)(5).
