APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D.C. No. 2:08-CR-00766-CW-1).
David B. Barlow, United States Attorney, and Elizabethanne C. Stevens, Assistant United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellant.
Richard David Wyss, Pro se.
Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.[*]
BALDOCK, Circuit Judge.
The issue before us is whether 18 U.S.C. § 3563(c), which generally authorizes a district court to modify a defendant's conditions of probation, authorized the court in this case to modify an order of restitution imposed pursuant to the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A, over three years after the judgment of sentence became final. Reviewing this question of statutory interpretation de novo, United States v. Rentz, 735 F.3d 1245, 1248 (10th Cir. 2013), we hold § 3563(c) did not authorize the district court to modify the order of restitution, and reverse.
Defendant Richard Wyss pled guilty in December 2008 to one count of making false statements to the Federal Transportation Security Administration (TSA), in violation of 18 U.S.C. § 1001. Defendant concealed from TSA that he was working full-time for the Utah Department of Public Safety (DPS) while also employed full time by TSA. In his plea agreement and at his plea hearing, Defendant agreed he owed DPS $188,548.92 in restitution. See 18 U.S.C. § 3663A(a)(3) (directing the court to order, " if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense" ). At Defendant's April 7, 2009 sentencing hearing, his counsel reiterated: " Mr. Wyss has agreed to make restitution in the amount stated in the plea agreement. We are not backing away from that." Aplt's App. at 225.
The district court sentenced Defendant to three years probation, a downward variance from the guideline range of 12-18 months imprisonment. Because Defendant committed his crime " by fraud or deceit," an order of restitution was a mandatory condition of his probation. See 18 U.S.C. § § 3563(a)(6)(A), 3663A(c)(1)(A)(ii). The court ordered Defendant to remit $188,548.92 to DPS, the full amount of loss agreed to by the parties, or a minimum of $5,238.00 monthly until paid in full. See id. § 3664(f)(1)(A) (directing the district court to order restitution " in the full amount" of loss). In imposing restitution, the court commented:
It is evident that the defendant has agreed to an amount for restitution that is a substantial amount, and I don't believe that the court is free to vary from that amount based on the [plea] agreement between the parties that that is the appropriate amount.... I think that both the United States and the defendant are bound by their statement and [the court] will honor that agreement in imposing what the restitution should be.
Aplt's App. at 245.
On August 29, 2012, over 40 months after his sentencing hearing, Defendant filed a motion asking the district court to
grant him credit against the order of restitution. He claimed he was entitled to credit based on annual, sick, and holiday leave he earned while at DPS. Defendant asked for credit amounting to $68,647.16. DPS objected to Defendant's motion: " He already received all of the credit to which he is entitled." Id. at 42. The Government did not submit a response. At an initial hearing on October 3, 2012, the court framed the issue as " whether or not there are additional credits that [Defendant] is entitled to from the state for which he is not being given credit." Id. at 265. The Government suggested the court lacked authority to grant Defendant's motion:
[Government]: As Your Honor knows, the Tenth Circuit is very clear that absent statutory authority, a court ...