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United States of America v. Nicole Grant

May 9, 2013

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
NICOLE GRANT, A/K/A NICOLE JONES, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda Wright Allen, District Judge. (2:10-cr-00014-AWA-DEM-1)

The opinion of the court was delivered by: Traxler, Chief Judge:

PUBLISHED

Argued: January 29, 2013

Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit Judges.

Vacated by published opinion. Chief Judge Traxler wrote the opinion, in which Judge Gregory joined. Judge Shedd wrote a separate concurring opinion.

OPINION

Nicole Grant appeals a district court order adding to her previously imposed sentence a new requirement that she apply all tax refunds and other money she receives from any "anticipated or unexpected financial gains" toward an out- standing restitution obligation imposed on her as part of her sentence for the crime of theft of government property. Con- cluding that the district court abused its discretion by later amending the original sentence in the absence of evidence of the impact the amendment would have on Grant's ability to support herself and her family, we vacate the order.

I.

Insofar as this appeal pertains to the law of criminal restitution and conditions of probation, we begin our discussion with some brief background in those areas.

Although restitution has deep common law roots, it was only in the Victim and Witness Protection Act of 1982, ("VWPA") Pub. L. No. 97-291, 96 Stat. 1248 (1982), "that Congress first gave the federal district courts general statutory authority to order restitution as part of a criminal sentence outside of the probation context." United States v. Amato, 540 F.3d 153, 159 (2d Cir. 2008); see S. Rep. No. 97-532, at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2536.

Thirteen years later, Congress passed the Mandatory Victims Restitu- tion Act of 1996 ("MVRA") as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, Title II, Subtitle A, 110 Stat. 1214. The legislation's stated purpose was to ensure that offenders realized the damage they caused with their criminal actions and make the victims whole. See S. Rep. 104-179, at 12 (1995), reprinted in 1996 U.S.C.C.A.N. 924; see also Dolan v. United States, 130 S. Ct. 2533, 2539 (2010) (noting that the MVRA "seeks primarily to assure that victims of a crime receive full restitution").

The MVRA also served to "replace an existing patchwork of dif- ferent rules governing orders of restitution under various Fed- eral criminal statutes with one consistent procedure." S. Rep. 104-179, at 12 (1995), reprinted in 1996 U.S.C.C.A.N. 924.

Under the MVRA, for any defendant convicted of certain enumerated offense categories, including, as is relevant here, offenses against property, the sentencing court is required to order the defendant to pay restitution in accordance with 18 U.S.C. § 3664. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii), (d). Pursuant to that section, a sentencing 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). However, upon determining the total restitu- tion amount owed to each victim, the district court must, pursuant to section 3572, specify in the restitution order the manner in which, and the schedule accord- ing to which, the restitution is to be paid, in consid- eration of--

(A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled;

(B) projected earnings and other income of the defendant; and

(C) any financial obligations of the defendant; including obligations to dependents. Id. § 3664(f)(2).*fn1

If the restitution order requires payment over time, the time must be "the shortest . . . in which full payment can reasonably be made." Id. § 3572(d)(2).

The MVRA also requires that the restitution order "provide that the defendant shall notify the court and the Attorney Gen- eral of any material change in the defendant's economic cir- cumstances that might affect the defendant's ability to pay restitution." Id. § 3664(k). Once the victim or victims owed restitution are also notified, and the court finds that a material change has indeed occurred, the court is authorized to adjust the payment schedule "as the interests of justice require." Id.; see Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003).

An order to pay restitution is a part of a criminal sentence. See United States v. Cohen, 459 F.3d 490, 496 (4th Cir. 2006). Additionally, however, under the MVRA, the sentenc- ing court must make compliance with the restitution order a condition ...


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