[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 14049 Non

- Argument Calendar

________________________ D.C. Docket No. 1:95

- cr - 00114

- FAM

- 3

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus ANTONIO ROSELLO, a.k.a. Antonio Rosello Herrero, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( June 4, 2018 ) Before WILLIAM PRYOR , MARTIN and JILL PRYOR , Circuit Judges. PER CURIAM:

Case: 17-14049 Date Filed: 06/04/2018 Page: 1 of 72 Antonio Rosello , a federal prisoner, appeals the denial of his motion to terminate restitution ordered as part of his criminal judgment. The district court rule d that the Victim and Witness Protection Act , as amended by “the Mandatory Victim Restitution Act[ , 18 U.S.C. § 3613(b) (1996), ] extends [Rosello’s ] liability to pay [his] restitution judgment for 20 years after [his] release from imprisonment” and that his “restitution judgment has not expired because [he] remains incarcerated.” Rosello argues that applying amended section 3613(b) to crim es he commi tted in 1994 violates the Ex Post Facto Clause of Article I, Section 9 , clause 3 of the United States Constitution. Because the application of amended section 3613(b) does not “ increas [e] the measure of punishment . . . [for Rosello’s] crimes , ” California Dep't of Corr. v. Morales , 514 U.S. 499, 50 9 (1995) , w e affirm the denial of hi s motion to terminate restitution

. In June 1996, a jury found that Rosello committed six crimes related to his robberies of a rmored cars between July 1992 and November 1994. In August 1996,
t he district court sentenced Rosello to 45 years of imprisonment and ordered him to pay $1,218,000 in restitution. We affirmed Rosello’s convictions and sentence. United States v. Rosello , 250 F.3d 746 (11 th Cir. 2001) ( unpublished table deci sion ).
We “ review ex post facto challenges de novo

. ” United States v. Muench , 153 F.3d 1298, 1300 (11th Cir. 1998)

.

Case: 17-14049 Date Filed: 06/04/2018 Page: 2 of 73 Effective April 24, 1996, Congress extended the period in which criminal defendants remain liable to pay restitution. Before the amendment, the Victim Protection Act provided that an order of restitution became unenforceable “twenty years after the entry of the judgment” or when the defendant died. 18 U.S.C. § 36 1 3( b ) (1994). Before Rosello’s trial, Congress passed the Mandatory Restitution Act, which amended the Victim Protection Act to provide that “liability to pay restitution shall terminate on the date that is the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the person ordered to pay restitution .” Id. § 3613(b) (1996). Congress made the amendment “effective for sentencing proceedings in cases in which the defendant is convicted on or after [April 24, 1996].” Victim Restitution Act of 1995, Pub.L. No. 104

– 132, § 2 11, 110 Stat. 1214. Article I, Section 9 , clause 3 of the United States Constitution states, “No .

. . ex post facto law shall be passed .” The Ex Post Facto Clause pro hibit s Congress from enact ing a law that “ appl [ies] to events occurring before its enactment

. . . [ and ] disadvantage [s] the offender affected by it [.]” Lynce v. Mathis , 519 U.S. 433, 441 (1997) (internal quotation marks and citations omitted). An “ ex post facto inquiry . . . [focuses] not on whether a leg islative change produces some ambiguous sort of ‘ disadvantage, ’

. . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is

Case: 17-14049 Date Filed: 06/04/2018 Page: 3 of 74 punishable .” Morales , 514 U.S. at 506 n.3

. T he Clause does not “ forbid[] any legislative change that has any conceivable risk of affecting a prisoner ’ s punishment.” Id. at 508. Instead, the C lause prohibits only those retroactively applied laws that “produce [] a sufficient risk of increasing the measure of punishment a ttached to the covered crimes , ” i d. at 509 , or affects “ the quantum of punishment ” imposed, Dobbert v. Fla. , 432 U.S. 282, 294 (1977)

. That prohibition “operates not to protect an individual’s right to less punishment, but rather as a means of assuring that an individual will receive fair warning of criminal statutes and the punishment s they carry.” Hock v. Singletary , 41 F.3d 1470, 147 2 (11th Cir. 1995) (citing Dobbert , 432 U.S. at 298, and Weaver v. Graham , 450 U.S. 24, 28

– 30 (1981) )

. The continued enforcement of Rosello’s judgment of restitution under amended section 3613(b) d oes not violate the Ex Post Facto Clause. Amended section 3613(b) does not retroactive ly increase Rosello’s sentence

. The a mended statute merely extend s the span of time in which Rosello’s victims c an collect restitution from him

. And the application of a mended se ction 3613(b) did not “compromise . . . [Rosello’s] right to receive fair notice of the punishment his offense carrie s . ” Id. at 1473. The extension of the collection period ha s no effect on the amount of restitution that Rosello owe s . “His punishment remai ns what it was

Case: 17-14049 Date Filed: 06/04/2018 Page: 4 of 75 when he committed the offense, at which time he had received fair notice of the crime and the punishment it carries.” Id. The prolongment of the period to collect restitution is like the extension of the statute of limitation to prosecute a criminal charge, which we long have held does not infringe the Ex Post Facto Clause, see United States v. De La Mata , 266 F.3d 1275, 1286 (11 th Cir. 2001); United States v. Grimes , 142 F.3d 1342, 1351 (11 th Cir. 1998). Even if a “ change in the law obviou sly ha [s] a detrimental impact upon the defendant,

. . . the law [is] not ex post facto . . . [unless the law] ma [kes] criminal a theretofore innocent act,

. . . aggravate [s] a crime previously committed,

. . . provide [s] greater punishment, []o r change [s] the proof necessary to convict .” Dobbert , 432 U.S. at 293 . None of these concerns are implicated in an extension of the statute of limitation. De La Mata , 266 F.3d at 1286. Extending the period in which a defendant remains obligated to pay restitution lik ewise does not alter the definition of his criminal conduct or increase his punishment. Rosello argues that United States v. Seigel , 153 F.3d 1256 (11 th Cir. 1996) , bars the district court from applying amended section 3613(b) to him , but Rosello interpret s Seigel too broadly. No doubt, Seigel “ h [ e ]ld t hat the M [andatory]
V [ictims] R [estitution] A [ct] cannot be applied to a person whose criminal conduct occurred prior to April 24, 1996.” Id. at 1260. But “ j udicial decisions cannot make law beyond t he facts of the cases in which those decisions are announced.” Pretka

Case: 17-14049 Date Filed: 06/04/2018 Page: 5 of 76 v. Kolter City Plaza II, Inc. , 608 F.3d 744, 762 (11th Cir. 2010)

. Seigel addressed whether the Ex Post Facto Clause prohibited the retroactive application of amendments to the Victim Protection Act t hat made restitution in the full amount of each victim’s losses mandatory , 18 U.S.C. § 3664(f)(1)(A) (199 6 ), and eliminated the discretion previously given to the district court to determin e whether and how much restitution to aw ard , see id. § 3664(a) (1985) . 153 F.3d at 1258

– 60. The Court in Seigel concluded that the amended provision constituted an ex post facto law b ecause amended section 3664 had the potential to increase the amount of restitution owed. Id. at 1260 (discussing United States v. Baggett , 153 F.3d 1319, 1322 (9 th Cir. 1997))

. Unlike amended section 3664 , amended section 3613(b) creates no “ risk of increasing the measure of punishment ,” Morales , 514 U.S. at 50 9, that would violate the Ex Post Facto Clau se. See United States v. Blackwell , 852 F.3d 1164, 1166 (9 th Cir. 2017) (rejecting an Ex Post Facto challenge to amended section 3613(b)). The district court did not err by denying Rosello’s motion to terminate.

“ [ T ] he ex post facto clause does not extend to every change which may work to a defendant’s disadvantage . . . .” Dufresne v. Baer , 744 F.2d 1543, 1549 (11 th Cir. 1984). Because an extension of the period to collect restitution does not “ increase [] the penalty by which a crime is punishable ,” Morales , 514 U.S. at 506 , the

Case: 17-14049 Date Filed: 06/04/2018 Page: 6 of 77 retroactive application of amended section 3613(b) to Rosello does not violate the constitutional prohibition against ex post facto laws

. We AFFIRM the denial of Rosello’s motion to terminate restitution. Case: 17-14049 Date Filed: 06/04/2018 Page: 7 of 7