United States Court of Appeals

Fifth Circuit



## FILED

November 29, 2005

Charles R. Fulbruge III

Clerk REVISED DECEMBER 15, 2005

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-30944

consolidated w/ 05-30012

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAULETTE MARIE LOVE,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Louisiana

Before REAVLEY, HIGGINBOTHAM, and GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendant Laulette Love challenges the lower court’s

imposition as a condition of supervised r elease that she pay

restitution previously ordered by a North Carolina federal district

court. We conclude that the imposition of the condition was proper

and affirm.

I

In 2001, defendant Laulette Love pleaded guilty in Louisiana

district court to one count of attempted and two counts of

completed credit card fraud. As part of her plea agreement, she1 18 U.S.C. §§ 3663.

2 18 U.S.C. §§ 3663A.

3 Love’s supervised release term for that conviction had expired without

revocation even though she had not paid that restitution.

2 agreed to pay restitution in accordance with the Victim and Witness

Protection Act (VWPA) 1 and the Mandatory Victims Restitution Act

(MVRA), 2 statutes respectively allowing and mandating restitution

to victims of specified crimes. The court sentenced her to sixteen

months of imprisonment to be followed by three years of supervised

release. It also ordered her to pay $11,000 in restitution to City

Financial Bank, one of the victims.

After Love completed her prison term and about one year of

s upervised release, the Government moved to revoke her releas e

after she tested positive for drug use, absconded from supervised

released, was convicted of forgery in Washington state, and had not

kept up with her monthly restitution payments. The judge revoked

her release and sentenced her to eighteen months of imp risonment

foll owed by eighteen months of supervised release. The judge

imposed as a condition of this release not only that Love pay the

remaining restitution pr eviously ordered in this case, but also

that she should pay about $50,000 in unpaid restitution ordered by

a North Carolina federal district court followi ng a credit card

fraud conviction in 1993. 3 After detailing Love’s lengthy criminal

history and multiple convictions for fraud, the court stated that

the only reason it was reimposing a term of supervised release was4 18 U.S.C. § 3583(d) gives judges discretion to impose as a condition of

supervised release “any condition set forth as a discretionary condition on

probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and

any other condition it considers to be appropriate.” See also United States v.

Del Barrio

,

___ F.3d

___ (5th Cir. 2005) (discussing the con ditions on

probation).

3 to require Love to pay some of the restitution owed. Love appealed

this judgment.

She also filed a motion to correct sentence under F ED

. R. C RIM

.

P. 35, arguing that restitu tion for losses beyond the scope of

conviction could not be imposed as a condit ion of supervised

release un der § 3563(b)(2), as applied through § 3583(d), the

statute governing conditions of supervised release. 4 The district

court denied the motion, holding that it had not ordered

restitution under that part of § 3583(d) allowing it to impose

restitution under § 3563(b)(2), but instead had exercised its power

under the last part of § 3583(d), the catch-all provision allowing

it to impose conditions “it considers to be appropriate,” to order

Love to comply with a previously existing order. Love also

appealed this decision, and, purs uant to her motion, the appeals

were consolidated because they involve essentially the same issue.

II.

The single, narrow issue in this case is whether a court can

impose, a s a condition of supervised release, that the defendant

pay the unpaid restitution ordered as part of a sentence by another5 It is irrelevant that the district court imposed this condition on

supervised release after revoking a previous term of supervised release. A court

after revocation can impose conditions that it did not impose initially, as long

as it had the statutory authority to impose them initially. Johnson v. United

States , 529 U.S. 694, 713 (2000); 18 U.S.C. § 3583(h).

6 United States v. Ibarra , 965 F.2d 1354, 1357 (5th Cir. 1992).

7 United States v. Bok , 156 F.3d 157, 166 (2d Cir. 1998).

8 495 U.S. 411, 415 (1990).

9 172 F.3d 341, 343 (5th Cir. 1999).

4 federal court in another federal case. 5 Such a question of law is

reviewed de novo

. 6

A federal court cannot order restitution “except when

authorized by statute.” 7 There are two sources of statutory

authority. First, 18 U.S.C. § 3556 provides that a district court

may or shall order restitution as part of a sentence “in accordance

with” the VWPA and the MVRA. In H ughey v. U nited States

, 8 the

Supreme Court held that restitution under the VWPA is limited to

loss to victims of the offenses of conviction; in United States v.

Mancillas

, this court expanded that limitation to the MVRA,

allowing restitution for losses from the same scheme, conspiracy,

or pattern, in accordance with the statutory language. 9 Because

there was no evidence that Love’s North Carolina offenses were part

o f the same scheme, conspiracy, or pattern as her underlying

offenses here, the district court could not

- and did not

- rely on

§ 3556 for the latter, contested order of restitution.

Instead, the court relied on the other statutory authority for

restitution, 18 U.S.C. § 3583, the statute dealing with imposition10 These requirement are essentially restated in U.S.S.G. § 5D1.3(b).

11 The text of § 3563(b)(2) limits restitution to victims of “ the offense ,”

a phrase alm ost identical the VWPA phrase construed by the Court in H ughey

. Furthermore, authorities discussing the nature of the inapplicable “limitation”

mentioned in § 3563(b)(2) focus on the type of crime, not the Hughey limitation.

5 of supervised release. Under § 3583(d), the court is required to

impose certain conditions of supervised release, such as the

condition that the defendant not commit another crime during the

term of release. In addition, that section provides that

The court may order, as a further condition of supervised

release, to the extent that such condition-

(1) is reasonably related to the factors set forth in

section 3553(a)(1), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivati on of liberty than is

reasonably necessary for the purposes set forth in

section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements

issued by the Sentencing Commission pursuant to

28 U.S. C. 994(a);

any condition set forth as a discretionary condition of

probation in section 3563(b)(1) through (b)(10) and (b)(12)

through (b)(20), and any other condition it con siders to be

appropriate. 10

One of the discretionary condi tions of probation, section

3563(b)(2), authorizes an order of “restitution to a victim of the

offense under section 3556 (but not subject to the limitation of

[the VWPA] or [the MVPA]).” Love argues that the inapplicable

“limitation” to which § 3563(b)(2) refers is the limitation in the

VWPA and the MVPA that those sections apply only to certain crimes,

not the Hughey

limitation that restitution must be to victims for

losses resulting from the offenses of conviction. Although this

argum ent seems correct, 1 1 we need not rule on it because theSee U.S.S.G. § 5E1.1(a)(2) (restitution may be ordered even “if the offense is

not an offense for which restitution is authorized...but otherwise meets the

criteria for an order of restitution under that section”); U nited States v.

Dahlstrom

, 180 F.3d 677, 686 (5th Cir. 1999) (noting that even if restitution is

not permitted for the u nderlying crime under the VWPA, “a district court may

order restitution within the context of supervised release”); United States v.

Bok

, 156 F.3d 157, 166-67 (2d Cir. 1998). Finally, numerous circuit courts have

expressly held that the Hughey limitation applies to § 3563(b)(2). S ee Gall v.

United States , 21 F.3d 107, 109-110 (6th Cir. 1994); United States v. Romines

, 204 F.3d 1067, 1068-69 (11th Cir. 2000); United States v. Rosser , No. 91-5856,

1992 WL 113384, at *1 (4th Cir. May 29, 1992) (unpub.) (the Government conceded

the issue).

12 The Government does not argue, and there is no reason to think, that any

of the probation conditions other than § 3563(b)(2) could apply.

13 142 F.3d 160, 169-70 (3d Cir. 1998).

14 The other two are Bok

, 156 F.3d at 166, and Dahlstrom

, 180 F.3d at 686.

As we described, see supra note 11, these cases held that the “enumerated crime

limitation” of the VWPA and the MVRA does not apply to § 3563(b)(2), not that the

Hug hey limitation does not apply to § 3563(b)(2). They do not address the

6 district court explicitly did not rule on it. Rather, it

ostensibly used its discretion under the last part of § 3583(d),

the catch-all provision allowing it to impose “any other condition

it considers to be appropriate.”

Love contends, in a sort of ejusdem generis argument, that the

court cannot order under the catch-all provision what it could not

order under the specific provision. 12 She finds support for this

contention in United States v. Cottman

, in which the Third Circuit

foreclosed reliance on t he catch-all provision to support a

resti tution order not permitted by § 3563(b)(2): “[T]he order of

restitution must follow the provisions of § 3563....otherwise, the

‘catch-all’ exception prong of § 3583(d) would swallow the rule.” 13

The Government cites three cases which it argues disagree with

Cottman

. Only one is arguably on point, 1 4 United States v. Daddato

,holding of Cottman

.

15 996 F.2d 903, 904 (7th Cir. 1993). In Daddato , the court ordered the

defendant pay $3,650 in “buy money” back to the Government as a condition of

supervised release. The court upheld the order under the catch-all provision of

§ 3583(d) while noting that the Government was ob viously not a “victim” of a

convicted crime (meaning that restitution could not have been ordered pursuant

to § 3563(b)(2) if the Hughe y limitation applied). But the court focused on the

nature of repaid “buy money” as money going to the Government to pay the cost of

investigation, holding that repaid buy money was not normal restitution as

envisaged by the statute which led to the Hughey limitation. It even considered

repayment of buy money a kind of “community service.” In other words, the court

did not consider the district court to be ordering something under the catch-all

provision that was expressly excluded under the specific provision. Furthermore,

in holding that the statute which led to Hughey did not “occupy the field” of

criminal restitution in general, the court focused on the fact that the statute

dealt with compensating victims

- implicitly holding that it did occupy the field

of criminal restitution to victims, as is the case here. In short, the court in

Daddato simply held that a district court could order the repayment of buy money

as a condition of supervised release under the catch-all provision

- not that a

court could order restitution to a victim as a condition of supervised release

under the catch-all provision when it could not do so under the specific

provision dealing with restitution.

7 an d that case may not disagree with C ottman after all. 15 In any

event, again, we need not address this issue because the district

court held that, even if Cottman were the rule in this circuit, the

court here did not make a separate order of restitution, it merely

ordered that Love pay previously ordered restitutio n - a general

condition on supervised release proper under the catch-all

provision and not addressed by the specific provision. Whether

that characterization of the order is correct is the heart of this

case.

To explai n its characterization, the district court cited

United States v. Howard

, in which the district court ordered

restitution as part of a senten ce for bank fraud and later, upon

revocatio n of supervised released, ordered payment of the unpaid16 220 F.3d 645, 647 (5th Cir. 2000).

17 No. 03-11217, 2005 WL 768757 (5th Cir. Apr. 6, 2005). The question in

Miller was how to construe the language in United States v. Stout

, 32 F.3d 901,

904 (5th Cir. 1994), that “[s]entencing courts are permitted to impose

restitution as a condition of supervised release to the extent agreed to by the

government and the defendant in a plea agreement.” Miller argued that a court

could not order restitution as a condition of supervised release in the absence

of a plea agreement. The Government took the more narrow position that agreement

to re stitution as a condition of supervised release in a plea agreement was

required o nly where restitution was foreclosed by statute because it was for

conduct beyond the counts of conviction. The court avoided the issue by deciding

that, even if the defendant’s consent in a plea agreement was required, Miller

had so consented.

8 restitution previously ordered. In rejecting an ex post facto

challenge by the defendant, this court held that the “district

court did not impose a second restitution order, but merely

recognized the prior imposition of restitution which had not been

paid when the supervised release was revoked.” 16 Love argues that

her case is different from Howard’s in a critical respect: in

Howard

, the same district court which convicted him ordered him to

pay restitution previously ordered in the same case for the same

offense. Here, by contrast, the court ordered Love to pay

restitution ordered in different jurisdiction in a different case

for a different offense. She argues that her case, unlike

Howard’s, implicates the concern addressed in Cottman : use of the

catch-all provision to circumvent the Hughey restriction of

restitution to victims of the underlying offense. She also argues

that the Government in United States v. Miller conceded the

position she advances here. 17

Moreover, Love argues, affirming the district court here would18 She point s out that the probation officer and prosecutor in her North

Carolina case allowed her supervised release to expire without attempting to

revoke it. Arguing that one of the purposes of the Double Jeopardy Clause is to

provide repose to the defendant, see United States v. Rodriguez , 612 F.2d 906,

921 (5th Cir. 1980), she contends that the lower court’s order here effectively

revives an expired possibility of incarceration. B ut see infra not e 20

(discussing whether her obligation to pay had expired and whether she could be

incarcerated by the North Carolina court for contempt for failure to pay).

19 See 18 U.S.C. § 3583(d) (stating that a mandatory condition of

supervised release is that the defendant not commit another crime); U.S.S.G. §

5D1.3(a)(1) (same).

9 be constitutionally troubling. Both Article III, Section 2 and the

Vicinage Clause of the Sixth Amendment mean that she could not have

b een prosecuted in the Louisiana district court for her No rth

Carolina crimes, meaning that the lower court here could not have

issued the original restitution order. She argues that allowing a

district court to enforce a criminal order it could not issue is

improper. Furthermore, she contends that ordering her to pay

restitution in the North Carolina case effects double jeopardy. 18

We agree with the district court that its order was not a new

order o f restitution, and thus proper under § 3583(d). It is

critical to remember that our task here is to interpret a statute

-

does the catch-all provision in § 3583(d) authorize the order at

issue, or does it not? Love makes a good e jusdem generis argument,

but the strong co untervailing evidence of statutory intent,

combined with the broad text of the catch-all provision, outweigh

that instructive canon. It is clear that Congress thinks people on

supervised release must not commit other crimes, 19 and it would be

contempt for Love not to pay the restitution ordered by the North20 Love argues that her obligation to pay the North Carolina restitution

expired when her North Carolina supervised release expired, meaning there could

be no contempt. This appears incorrect. See United States v. Berardini , 112

F.3d 606, 611 (2d Cir. 1997); United States v. Rostoff

, 164 F.3d 63, 65 (1st Cir.

1999); but see United States v. O’ Brien , 109 Fed. Appx. 49 (6th Cir. 2004);

United States v. Webb

, 30 F.3d 687, 691-92 (6th Cir. 1994) (Jones, J.

concurring). She also argues that the federal contempt statute, 18 U.S.C. § 401,

limits a court’s ability to punish cont e mpt to contempt of its own authority.

This misses the point. If the restitution order survived the expiration of her

supervised released, it would still be a violation of the law for Love not to pay

the previously ordered restitution, even if only the North Carolina court could

punish her for that offense. The lower court here, by ordering Love to comply

with the order of another court, was simply ordering her to obey the law.

Finally, we note again that the purpose here is to determine how to interpret §

3583(d)

- it would not change our conclusion i f Love’s failure to pay was not

contempt.

2 1 18 U.S.C. § 3563(b)(20); U.S.S.G. § 5D1.3(c)(4). Love argues that the

analogy to child support orders is self-defeating in that, because both the

Sentencing Guidelines and § 3563(b)(20) expressly authorize such a condition, it

highlights the lack of such express authorization for the condition here. But

if there were an express condition allowing for the order here, then no analogy

would be needed

- analogies have logical force precisely because they require an

inferential step.

22 Although the Government’s concession in Miller is not controlling, we

note that it is inapplicable here because we hold that the lower court did not

impose a new order of restitution.

10 Carolina district court. 20 Furthermore, Congress has stated that

parents on supervised release must obey previously existing child

support orders issued by any court - a condition almost identical

to the one he re. 21 While it is probable that the catch-all

provision would not allow a court to or der in the first instance

restitution for which Congress implicitly has denied authorization

by now allowing it under § 3563(b)(2), the catch-all provision does

allow a court to order compliance with a previously existing order,

a practice of which Congress has specifically indicated approval. 22

We are not persuaded by Love’s constitutional arguments. As

the Government points out, no one has successfully challenged the23 Love’s argument that, because child support o rders in states in the

Fifth Circuit are a civil matter, there is no A rticle III or Sixth Amendment

problem for the child support condition on supervised release, is unconvincing

because in some st ates the non-payment of child support orders is criminal.

Thus, one can imagine a state criminal order to pay child support followed by the

imposition in federal court of a condition of supervised release that the parent

fol low the criminal order. But Love’s argument that, because child support

orders are always state orders, there is no Double Jeopardy problem for the child

support condition on supervised release, is correct.

24 See United States v. Witte

, 515 U.S. 389, 40 0 (1995) ("In repeatedly

upholding such recidivism statutes [such as three-strikes laws], we have rejected

double jeopardy challenges because the enhanced punishment imposed for the later

offense is not to be viewed as either a new jeopardy or additional penalty for

the earlier crimes, but instead as a stiffened penalty for the latest crime[.]");

United States v. Conner

, 886 F.2d 984, 985 (8th Cir. 1989) (upholding the Armed

Career Criminal Act against a Double Jeopardy challenge), cert. denied

, 493 U.S.

1089 (1990); United States v. Presley , 52 F.3d 64, 68 (4th Cir. 1995) (same).

11 imposition of the child support condition on cons titutional

g rounds. 2 3 More importantly, we disagree with her contention,

critical to both of her arguments, that the court below was

punishing Love for her North Carolina crimes. The court was

setting a condition of supervised release for her present crimes,

which constitutes punishment for those crimes. All conditions of

supervised release restrict a defendant’s freedom, and a defendant

who has committed crimes in the past may have her freedom

restricted more than a first-time offender. Treating a defendant

with a record differently than a defendant without a record does

not necessarily mean that you are subjecting the former to double

jeopardy or somehow trying the defendant in an improper venue. 24

Having rejected Love’s ejusdem generis argument, we note that

a condition imposed under the catch-all pro vision must still

satisfy the factors in § 3583(d)(1)-(3) - that it is related to a12

punitive goal, is no greater than necessary, and is consistent with

a policy statement of the Sentencing Commission. Because Love does

not challenge on appeal the district court’s application of those

factors, we do not address the issue.

F or the foregoing reasons, the district court’s judgment is

AFFIRMED.