United States Court of Appeals, District of Columbia Circuit
Argued February 23, 2015
Appeal from the United States District Court for the District of Columbia. (No. 1:11-cr-00039-1).
Jeremy C. Marwell, appointed by the court, argued the cause for appellant. With him on the briefs was John P. Elwood.
Ricardo Hunter, Pro se, filed the briefs for appellant.
Stephen F. Rickard, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen, Jr., U.S. Attorney at the time the briefs were filed, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant U.S. Attorneys.
Before: TATEL, Circuit Judge, EDWARDS, Senior Circuit Judge, and RANDOLPH, Senior Circuit Judge. OPINION filed by Circuit Judge HARRY T. EDWARDS.
Edwards, Senior Circuit Judge
The Appellant in this case, Ricardo Hunter, pled guilty to federal charges stemming from a series of armed robberies. He was sentenced to fifteen years in prison and ordered to pay $35,157.27 in restitution, along with a " special assessment" of $400.00. Under the District Court's order, both amounts were payable immediately. The sentencing order further provided that, during his incarceration, Appellant was to participate in the Bureau of Prisons Inmate Financial Responsibility Program (" IFRP" ) through which he would make payments to satisfy the restitution obligation. The timing and amounts of the payments to be made by Appellant were left to be determined by IFRP. Appellant's claim on appeal is that the District Court's delegation to IFRP violated 18 U.S.C. § 3664(f)(2), which mandates 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 . . . ."
Appellant's attorney did not raise this statutory argument during the sentencing proceedings before the District Court. About two months after the District Court imposed sentence, Appellant filed a motion pro se seeking to suspend the restitution order. In his initial brief to the District Court in support of this belated motion, Appellant did not raise the statutory argument regarding the District Court's alleged
unlawful delegation to IFRP. The argument was first raised in Appellant's reply brief in support of his motion. The Government did not respond to the reply brief. The District Court denied the motion, United States v. Hunter, No. 11-39-1 (RWR), 2013 WL 4083311, at *1 (D.D.C. Aug. 13, 2013), and Appellant appealed.
An order was issued by this court appointing amicus counsel (" Amicus" ) to brief and argue the case on behalf of Appellant. Amicus has directly and clearly raised the statutory argument resting on 18 U.S.C. § 3664(f)(2). In particular, Amicus argues that the District Court erred in failing to fulfill its statutory duty to assess Appellant's ability to pay restitution, and to establish an appropriate schedule for payments. In response to the Government's argument that Appellant's appeal to this court should be dismissed as untimely, Amicus contends that the filing requirements of Federal Rule of Appellate Procedure 4(b) are non-jurisdictional and presumptively subject to equitable tolling. Amicus thus urges the court not to " dismiss a criminal appeal as untimely where a defendant [acting pro se ], through no fault of his own or lack of diligence, did not know the clock had begun to run." Amicus Br. 4.
The Government asserts that the appeal should be dismissed on any one of four grounds: first, the appeal was not timely filed; second, at sentencing, Appellant expressly waived his right to appeal his plea agreement; third, Appellant forfeited his statutory claim by failing to raise it with the District Court during the sentencing proceedings; and, finally, Appellant's challenge to the District Court's sentencing order is without merit.
Because the filing requirement under Federal Rule of Appellate Procedure 4(b) is a non-jurisdictional, claim-processing rule, see United States v. Byfield, 522 F.3d 400, 403 n.2, 380 U.S. App.D.C. 375 (D.C. Cir. 2008), we may proceed to the merits. We therefore leave for another day the challenging questions raised by Amicus and the Government regarding the timeliness of this appeal. The record in this case makes it clear that Appellant's " counsel did not object to the restitution order at the sentencing hearing, so our review is for plain error." United States v. Baldwin, 563 F.3d 490, 491, 385 U.S. App.D.C. 281 (D.C. Cir. 2009) (citing Fed. R. Crim. P. 52(b)). In Baldwin, we considered whether a restitution order that delegated to IFRP the responsibility for determining a defendant's payment schedule during her incarceration constituted plain error. The court held that, " [g]iven the divergent views of the courts of appeals . . . we cannot say that the district court committed 'plain error' in its restitution order." Id. at 492. Baldwin controls the disposition of this case. We are therefore constrained to deny Appellant's appeal. Given this result, it is unnecessary to reach the other arguments raised by the Government.
A. The Mandatory Victim Restitution Act
The Mandatory Victim Restitution Act (" MVRA" ) governs restitution orders that are issued against federal defendants. Pub. L. No. 104-132, § § 201-11, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 18 U.S.C.). When sentencing a defendant convicted of certain crimes (including any crime of violence), the MVRA requires the court to order the defendant to " make restitution to the victim of the offense." 18 U.S.C. § 3663A(a)(1). The court must " order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic
circumstances of the defendant." Id. § 3664(f)(1)(A). The statute ...