United States Court of Appeals

For the First Circuit

Nos. 04-2076

04-2579

UNITED STATES OF AMERICA,

Appellee,

v.

BRUCE ZISKIND; BRUCE TURNER,

Defendants, Appellants

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

James M. Fox for appellant Bruce Ziskind.

Robert L. Sheketoff for appellant Bruce Turner.

John A. Capin, Assistant United States Attorney, and Michael

J. Sullivan, United States Attorney, for appellee.

December 22, 2006
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LYNCH, Circuit Judge. Bruce Ziskind and Bruce Turner

pled guilty in federal district court to theft from an interstate

shipment and conspiracy to steal from an interstate shipment. The

district court sentenced Ziskind to twenty-four months'

imprisonment and twelve months of supervised release. Turner was

sentenced to eighteen months' imprisonment and thirty-six months of

supervised release. Both were required to pay restitution.

Ziskind and Turner appeal their sentences. They argue

that because no loss amount was charged in the indictment, United

States v. Booker, 543 U.S. 220 (2005), barred the district court

from ordering restitution in any amount. Ziskind further argues

that the government lacks standing to enforce the restitution order

because the victim waived restitution. Finally, Turner argues that

the district court sentenced him to terms of imprisonment and

supervised release above the statutory maxima.

As the government concedes, the district court erred in

imposing a thirty-six-month term of supervised release on Turner,

and we thus vacate this term of supervised release and remand to

the district court to impose a term of supervised release of no

more than one year. Otherwise, we reject the arguments made by

Ziskind and Turner and affirm their sentences.

I.

On December 29, 2002, Ziskind and Turner, along with

others, participated in the theft of a shipment of Gillette Company
The indictment also charged Ziskind and Turner with 1

possession of goods stolen from an interstate shipment in violation

of 18 U.S.C. § 659 (Count Two). That count was dismissed as a

lesser included offense to Count One.

In addition, the indictment charged Russell Jones with

Counts One through Three and Brendan Bottino with Count Two. Both

pled guilty. Jones was sentenced to twelve months' probation and

ordered to pay $5000 in restitution, and Bottino was sentenced to

twelve months' imprisonment. Neither has appealed his sentence.

At the sentencing hearing, the court ordered Turner to 2

serve a five-year term of supervised release. The court did not at

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merchandise consisting primarily of Mach3 razors. A portion of ®

the stolen shipment was recovered. On March 26, 2003, a grand jury

in the District of Massachusetts returned an indictment charging

Ziskind and Turner with theft from an interstate shipment in

violation of 18 U.S.C. §§ 2 and 659 (Count One), and conspiracy to

steal from an interstate shipment in violation of 18 U.S.C. § 371

(Count Three). The indictment did not allege a loss amount. 1

Ziskind and Turner pled guilty to both charges on March

23, 2004. At an evidentiary hearing on July 30, 2004, the district

court found the value of the stolen shipment to be $254,000.

The same day, the court sentenced Ziskind to twenty-four

months' imprisonment, twelve months of supervised release, and to

pay $145,142 in restitution. Twelve months of Ziskind's term of

imprisonment was to run concurrently with an undischarged term of

imprisonment he was then serving. On November 1, 2004, the court

sentenced Turner to eighteen months' imprisonment, thirty-six

months of supervised release, and, jointly and severally with 2
that time specify whether the five-year sentence was attributable

to an unrelated felon-in-possession charge, on which Turner was

also sentenced that day, the theft charges, or both. However, the

judgment in this case specifies a thirty-six-month period of

supervised release, and the judgment in the firearms case indicates

a sixty-month term of supervised release.

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Ziskind, to pay $145,142 in restitution. Turner's term of

imprisonment was to run concurrently with a 235-month sentence that

he received the same day on an unrelated felon-in-possession

charge.

II.

We review sentencing issues involving questions of law de

novo. United States v. McCarthy, 77 F.3d 522, 535 (1st Cir. 1996).

Normally, "decisions to impose concurrent or consecutive sentences

are committed to the judgment of the sentencing court, and such

decisions are reviewed only for an abuse of discretion." Id. at

536. However, unpreserved claims are reviewed for plain error.

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 35-36 (1st Cir. 2006).

To prevail on a claim reviewed for plain error, a defendant must

demonstrate that: 

"(1) an error was committed; (2) the error was

'plain' (i.e.[,] obvious and clear under

current law); (3) the error was prejudicial

(i.e.[,] affected substantial rights); and (4)

review is needed to prevent a miscarriage of

justice," meaning that "the error 'seriously

impaired the fairness, integrity, or public

reputation of judicial proceedings.'"

Id. at 36 (alterations in original) (quoting Rivera Castillo v.

Autokirey, Inc., 379 F.3d 4, 10 (1st Cir. 2004) (quoting Smith v.
Ziskind also relies on Blakely v. Washington, 542 U.S. 3

296, 303 (2004), and Ring v. Arizona, 536 U.S. 584, 602 (2002).

Ziskind and Turner argue that they preserved the Booker 4

argument because both objected under Blakely to the court's

determining the loss amount on which the restitution orders were

based. See United States v. Antonakopoulos, 399 F.3d 68, 76 (1st

Cir. 2005) ("The argument that a Booker error occurred is preserved

if the defendant below argued Apprendi or Blakely error . . . .").

Ziskind's position has additional complications: because his plea

agreement provided that the U.S. Attorney would recommend to the

sentencing judge a sentence that included "restitution in an amount

to be determined at sentencing," the district court believed that

any Blakely objection was waived. Ziskind argued to the district

court that the objection was not waived. 

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Kmart Corp., 177 F.3d 19, 26 (1st Cir. 1999))); see also United

States v. Olano, 507 U.S. 725, 732 (1993).

A. Restitution

Ziskind and Turner argue that the Mandatory Victims

Restitution Act (MVRA), 18 U.S.C. §§ 3663A, 3664, which mandates

imposition of restitution orders in their cases, is

unconstitutional as applied to them because no loss amount was

charged in the indictment or found by a jury beyond a reasonable

doubt. They argue that Booker prohibits the post-conviction

judicial factfinding underlying their restitution orders.3

We bypass the question of whether Ziskind and Turner

preserved their Booker arguments and assume for the sake of

argument that they did.4

The argument that Booker applies to judicial

determination of the amount of restitution is without merit.

"Booker and its antecedents do not bar judges from finding the
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facts necessary to impose a restitution order. . . . Postconviction judicial fact-finding to determine [loss] amount 'by no

means impos[es] a punishment beyond that authorized by jury-found

or admitted facts' or 'beyond the "statutory maximum"' . . . ."

United States v. Milkiewicz, --- F.3d ---, No. 06-1192, slip op. at

30-31 (1st Cir. Dec. 6, 2006) (second alteration in original)

(quoting United States v. Leahy, 438 F.3d 328, 336-37 (3d Cir.

2006) (en banc)).

Judicial determination of the loss amount underlying the

restitution orders was constitutionally permissible.

B. Government Standing To Enforce Ziskind's Restitution

Order

Ziskind argues that Gillette, the victim, waived

restitution and did not assign its interest in any restitution to

the Crime Victims Fund of the United States Treasury, and that the

government therefore has no legally cognizable interest in the

restitution award. He argues that the government's standing with

respect to restitution was conferred by the MVRA "as a

convenience," so that the government could "litigate on behalf of

the victims in lieu of their own participation." As a result, he

argues, the government does not have standing to litigate or

enforce the July 30, 2004 restitution order, and the order must be

vacated. Ziskind did not make these arguments to the district

court, so we review only for plain error.
Nor do we necessarily accept Ziskind's assumption that 5

government standing in a civil case, see, e.g., 15 U.S.C. § 78u(5),

derives from the victim's standing. See U.S. Dep't of Hous. &

Urban Dev. v. Cost Control Mktg. & Sales Mgmt. of Va., Inc., 64

F.3d 925, 928 (4th Cir. 1995) (suggesting that in a civil action,

the government can have a penal interest in enforcing the repayment

of a debt to a third party).

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There was no error here, much less plain error. First,

the record does not establish that the victim, Gillette, in fact

waived restitution. Gillette stated in the course of its motion to

quash a subpoena seeking a valuation of the stolen merchandise that

it was willing to give up any claim of restitution in an effort to

avoid involvement in the case. That device did not work. Gillette

became involved, and thereafter, Gillette agreed to the ordering of

restitution.

More importantly, the prosecution's standing to seek

restitution under the MVRA does not depend on a victim's actions.

This is because, contrary to Ziskind's assertion, restitution

ordered as part of a criminal sentence is a criminal penalty, not

a civil remedy. United States v. Savoie, 985 F.2d 612, 619 (1st 5

Cir. 1993); see also Kelly v. Robinson, 479 U.S. 36, 52 (1986)

("Although restitution does resemble a judgment 'for the benefit

of' the victim, the context in which it is imposed undermines that

conclusion. The victim has no control over . . . the decision to

award restitution."); United States v. Rostoff, 164 F.3d 63, 71

(1st Cir. 1999) ("The nature of restitution is penal and not
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compensatory."). In Savoie, we held that restitution imposed as

part of a criminal sentence "is not a civil affair; it is a

criminal penalty meant to have deterrent and rehabilitative

effects. Private parties cannot simply agree to waive the

application of a criminal statute." 985 F.2d at 619 (citation

omitted); cf. United States v. Parsons, 141 F.3d 386, 393 (1st Cir.

1998) ("[A] release by the victim does not preclude or cap

restitution of losses as part of criminal sentencing in a case

where there is no double recovery."). 

To the extent Ziskind argues that the MVRA itself does

not authorize restitution in this case, that argument fails. 

United States v. Reifler, 446 F.3d 65 (2d Cir. 2006), on

which Ziskind relies, is inapposite. The court in Reifler vacated

orders that awarded restitution to people who did not qualify as

victims under the MVRA. Id. at 125-27, 132; cf. United States v.

Paradis, 219 F.3d 22, 25 (1st Cir. 2000) (vacating order awarding

restitution to bankruptcy trustee, who was not a victim of the

offense). There is no question in this case that Gillette was

injured by the defendants' conduct and is a victim within the

meaning of the MVRA.

Nor is United States v. Pawlinski, 374 F.3d 536 (7th Cir.

2004), on which Ziskind also relies, applicable. In Pawlinski, the

court held that unclaimed restitution could not be transferred to
The court did not explicitly state how much of the 6

sentence was attributable to the theft conviction and how much to

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the Crime Victims Fund because the Crime Victims Fund was not a

victim or victim representative. Id. at 539-40. This case raises

no such issue because Gillette accepted the district court's

decision to impose restitution, and the order of restitution states

that it will be paid to Gillette.

The restitution order was proper. 

C. Turner's Term of Imprisonment

Turner argues that the district court erred in sentencing

him to a total of eighteen months' imprisonment through consecutive

sentences. Eighteen months, he argues, is above the authorized

statutory maximum. He argues, and the government concedes, that

because the government did not allege a loss amount in the

indictment, it charged only misdemeanors. See United States v.

Scanzello, 832 F.2d 18, 22-23 (3d Cir. 1987). Under 18 U.S.C.

§ 371, if the object of the conspiracy is a misdemeanor, "the

punishment for such conspiracy shall not exceed the maximum

punishment for such misdemeanor." Thus, because the maximum term

of imprisonment under Count One was one year, the maximum term

under Count Three also was one year. Turner argues that the

imposition of consecutive sentences on Counts One and Three

impermissibly increased the term of imprisonment on Count Three

beyond one year. We disagree. 6
the conspiracy conviction, but it did note that each carried a

maximum penalty of one year.

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As an initial matter, Turner may well be barred from

raising such a claim because his counsel urged the district court

to impose a twenty-four-month sentence. Cf. United States v.

Angiulo, 897 F.2d 1169, 1216 (1st Cir. 1990) ("[W]e do not think

that defendants can properly challenge on appeal a proposal they

themselves offered to the trial court."). 

Even giving Turner the benefit of review, however, there

was neither error nor plain error. "By statute, Congress empowered

district courts to utilize either concurrent or consecutive

sentences." United States v. Quinones, 26 F.3d 213, 216 (1st Cir.

1994); see also 18 U.S.C. § 3584(a) (providing that "[i]f multiple

terms of imprisonment are imposed on a defendant at the same time

. . . the terms may run concurrently or consecutively"). In

determining whether to impose consecutive or concurrent sentences,

courts are required to consider specific factors enumerated in 18

U.S.C. § 3553(a). 18 U.S.C. § 3584(b). These factors include "the

nature and circumstances of the offense[,] the history and

characteristics of the defendant[,] the need for [a consecutive]

sentence[,] . . . [and] the kinds of sentences available." Id.

§ 3553(a). In imposing Turner's sentence the court commented on

Turner's "terrible criminal record" and considered the range set
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forth in the Sentencing Guidelines. It complied with the

sentencing protocol.

Further, Turner was not prejudiced: his eighteen-month

sentence runs concurrently with a 235-month sentence. See United

States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004) ("[R]elief

for error is tied in some way to prejudicial effect . . . [and

requires a] showing of 'a reasonable probability that, but for [the

error claimed], the result of the proceeding would have been

different.'" (third alteration in original) (quoting United States

v. Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.))). 

D. Turner's Term of Supervised Release

Turner also argues that the district court erred in

sentencing him to thirty-six months of supervised release. He

argues that because the maximum term of supervised release for

Count One was one year, the maximum term under Count Three also was

one year, and that his term of supervised release thus was

unauthorized.

The government concedes that the thirty-six-month

supervised release term was error. 18 U.S.C. § 3583(b) provides

that the maximum period of supervised release for a misdemeanor is

one year. This maximum applies to both the substantive crime and

the conspiracy. 18 U.S.C. § 371. Under 18 U.S.C. § 3624(e), a

term of supervised release "runs concurrently with any [other] term

. . . [of] supervised release . . . for another offense to which
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the person is subject or becomes subject during the term of

supervised release." See also United States v. Hernandez-Guevara,

162 F.3d 863, 877 (5th Cir. 1998) ("Even when federal law requires

consecutive terms of imprisonment, the supervised release term 'is

to run concurrently with any other term of supervised release

imposed.'" (quoting U.S. Sentencing Guidelines Manual § 5G1.2

commentary (1997))).

We thus vacate Turner's term of supervised release and

remand for the imposition of a new term of supervised release not

to exceed one year. Otherwise, the judgments entered by the

district court are affirmed.