October 11, 2016
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
federal agents found child pornography on petitioner's
computer, he pleaded guilty to possessing a visual depiction
of a minor engaging in sexually explicit conduct, in
violation of 18 U.S.C. §§2252(a)(4)(B) and (b)(2),
an offense requiring a district court to "make
restitution to the victim of the offense, "
§3663A(a)(1). The District Court entered an initial
judgment sentencing petitioner to a term of imprisonment. It
also acknowledged that restitution was mandatory but deferred
determination of the restitution amount. Petitioner filed a
notice of appeal from this initial judgment. Months later,
the District Court entered an amended judgment, ordering
petitioner to pay restitution to one of his victims.
Petitioner did not file a second notice of appeal from the
amended judgment. When he nonetheless challenged the
restitution amount before the Eleventh Circuit, the
Government argued that he had forfeited his right to do so by
failing to file a second notice of appeal. The Eleventh
Circuit agreed, holding that petitioner could not challenge
the restitution amount.
A defendant wishing to appeal an order imposing
restitution in a deferred restitution case must file a notice
of appeal from that order. If he fails to do so and the
Government objects, he may not challenge the restitution
order on appeal. Pp. 3-9.
(a) Both 18 U.S.C. §3742(a), which governs criminal
appeals, and Federal Rule of Appellate Procedure 3(a)(1)
contemplate that a defendant will file a notice of appeal
after the district court has decided the issue
sought to be appealed. Here, petitioner filed only one notice
of appeal, which preceded by many months the sentence and
judgment imposing restitution. He therefore failed to
properly appeal the amended judgment. Whether or not the
requirement that a defendant file a timely notice of appeal
from an amended judgment impos ing restitution is a
jurisdictional prerequisite, it is at least a mandatory
claim-processing rule, which is "unalterable" if
raised properly by the party asserting a violation of the
rule. Eberhart v. United States, 546 U.S. 12, 15.
Because the Government timely raised the issue, "the
court's duty to dismiss the appeal was mandatory."
Id., at 18. Pp. 3-5.
(b) Petitioner's argument that his single notice of
appeal sufficed under the Federal Rules to appeal both
judgments depends on two premises: First, in a deferred
restitution case, there is only one "judgment, " as
that term is used in Rules 4(b)(1) and (b)(2); and second, so
long as a notice of appeal is filed after the initial
judgment, it "springs forward" under Rule 4(b)(2)
to appeal the amended judgment imposing restitution. Each
premise is rejected. Pp. 5-7.
(1) This Court's analysis in Dolanv. United
States, 560 U.S. 605, makes clear that deferred
restitution cases involve two appealable judgments, not one.
The Dolan Court did not decide the question
presented here, but the Court was not persuaded by the
argument that "a sentencing judgment is not
'final' until it contains a definitive determination
of the amount of restitution." Id., at 617-618.
Instead, the Court recognized, "strong arguments"
supported the proposition that both the initial judgment and
the restitution order were each immediately appealable final
judgments. Ibid. Pp. 5-6.
(2) Because petitioner's notice of appeal was filed well
before the District Court announced the sentence imposing
restitution, the notice of appeal did not "spring
forward" to become effective on the date the court
entered its amended restitution judgment. By its own terms,
Rule 4(b)(2) applies only to a notice of appeal filed after a
sentence has been announced and before the judgment imposing
the sentence is entered on the docket. Even if the District
Court's acknowledgment in the initial judgment that
restitution was mandatory could qualify as a
"sentence" that the District Court
"announced" under Rule 4(b)(2), petitioner has
never disputed that restitution is mandatory for his offense.
Rather, he argued on appeal that the amount imposed
is unlawful. Pp. 6-7.
(c) Petitioner's alternative argument that any defect in
his notice of appeal should be overlooked as harmless error
is rejected. Lemke v. United States, 346 U.S. 325,
on which he relies, has been superseded by the Federal Rules
of Appellate Procedure in two ways. First, the Lemke
petitioner's notice of appeal would now be timely under
Rule 4(b)(2). Petitioner in this case cannot take advantage
of that Rule. Second, Rule 3(a)(2) now provides the
consequences for litigant errors associated with filing a
notice of appeal. The court of appeals may, in its
discretion, overlook defects in a notice of appeal
other than the failure to timely file a notice. It
may not overlook the failure to file a notice of appeal at
all. Pp. 8-9.
618 Fed.Appx. 579, affirmed.
THOMAS, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and Kennedy, Breyer, Alito, and Kagan, JJ.,
joined. Ginsburg, J., filed a dissenting opinion, in which
SOTOMAYOR, J., joined. GOR-SUCH, J., took no part in the
consideration or decision of the case.
courts are required to impose restitution as part of the
sentence for specified crimes. But the amount to be imposed
is not always known at the time of sentencing. When that is
the case, the court may enter an initial judgment imposing
certain aspects of a defendant's sentence, such as a term
of imprisonment, while deferring a determination of the
amount of restitution until entry of a later, amended
decide whether a single notice of appeal, filed between the
initial judgment and the amended judgment, is sufficient to
invoke appellate review of the later-determined restitution
amount. We hold that it is not, at least where, as here, the
Government objects to the defendant's failure to file a
notice of appeal following the amended judgment.
federal agents found more than 300 files containing child
pornography on his computer, petitioner Marcelo Manrique
pleaded guilty to possessing a visual depiction of a minor
engaging in sexually explicit conduct, in viola- tion of 18
U.S.C. §§2252(a)(4)(B) and (b)(2). Under the
Mandatory Victims Restitution Act of 1996 (MVRA), the
District Court was required to order petitioner to "make
restitution to the victim of the offense."
§3663A(a)(1); see §§2259(a), (b)(2) ("An
order of restitution under this section shall be issued and
enforced in accordance with [§]3664 in the same manner
as an order under [§]3663A").
24, 2014, the District Court entered an initial judgment
sentencing petitioner to 72 months of imprisonment and a life
term of supervised release. At the sentencing hearing, the
court acknowledged that restitution was mandatory. But,
consistent with the MVRA, the court postponed determining the
victims' damages, which had not yet been ascertained.
See, e.g., §3664(d)(5); Dolan v. United
States,560 U.S. 605, 607-608 (2010). Accordingly, the
judgment expressly deferred "determination of
restitution" and noted that an "Amended Judgment .
. . w[ould] be entered after such determination." App.
39. On July ...