In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2663

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JACK A. DAY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 04 CR 13—John C. Shabaz, Judge.

____________

ARGUED FEBRUARY 17, 2005—DECIDED AUGUST 12, 2005

____________

Before POSNER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge. Jack Day pleaded guilty to one

count of making false statements with respect to the actual

mileage of a motor vehicle in violation of 49 U.S.C.

§§ 32705(a)(2) and 32709(b). Mr. Day was sentenced to 25

months’ imprisonment and ordered to pay restitution in the

amount of $39,875. In this appeal, Mr. Day challenges his

sentence as well as the amount of restitution. For the

reasons set forth in the following opinion, we reverse the

judgment of the district court with respect to the order of

restitution. We further order a limited remand consistent
2 No. 04-2663

with this court’s decision in United States v. Paladino, 401

F.3d 471 (7th Cir. 2005), petition for cert. filed, No. 04-10402

(May 26, 2005). In all other respects, we affirm the judgment

of the district court.

I

BACKGROUND

From June 2000 through March 2002, Mr. Day was involved in a scheme to profit from the resale of used vehicles

by altering the odometers of the vehicles and misrepresenting the mileage at the time of sale. On January 13, 2004,

Mr. Day was charged with three counts of knowingly and

willfully resetting and altering vehicle odometers, in violation of 49 U.S.C. §§ 32703(2) and 32709, as well as four

counts of knowingly and willfully making false statements

relating to the actual mileage of a motor vehicle, in violation

of 49 U.S.C. §§ 32705(a)(2) and 32709(b). Mr. Day initially

entered a plea of not guilty on all the charges. However, he

later pleaded guilty, pursuant to an agreement, to Count 5

of the indictment, one of the counts of making false statements with respect to the mileage of a vehicle. According to

the plea agreement, Mr. Day agreed

to pay restitution for all losses relating to the offense of

conviction and all losses covered by the same course of

conduct or common scheme or plan as the offense of

conviction. The exact restitution figure will be agreed

upon by the parties prior to sentencing or, if the parties

are unable to agree upon a specific figure, restitution

will be determined by the Court at sentencing.

R.10 at 2.

At the plea hearing, Mr. Day admitted only those facts

related to Count 5 of the indictment. Specifically, Mr. Day
No. 04-2663 3

affirmed that, on September 28, 2001, he knowingly and

willfully had given false information relating to the mileage

of a 1993 Ford truck: Mr. Day represented that the mileage

was 59,645 when, in actuality, the mileage was 159,591.

During the plea hearing, no other vehicles or other aspects

of the criminal scheme were discussed or were admitted by

Mr. Day. The district court accepted the plea agreement.

The United States Probation Office (“Probation Office”)

then prepared a Presentence Report (“PSR”) for Mr. Day.

The starting point for Mr. Day’s sentence calculation was

United States Sentencing Guidelines (“U.S.S.G.”) § 2N3.1(a)

(2000), which provides for a base offense level of six.

However, § 2N3.1(b) includes a cross-reference to § 2F1.1

(Fraud and Deceit) if the offense involved more than one

vehicle. Relying on other charged and uncharged conduct

attributed to Mr. Day, the Probation Office determined that

Mr. Day’s offense included more than one vehicle and therefore employed § 2F1.1 in the calculation.

Like § 2N3.1, the base offense level for § 2F1.1 is six.

However, § 2F1.1 also contains a chart that increases the

offense level according to the total amount of loss. To determine the amount of loss, the Probation Office considered the

losses associated with the sale of all of the vehicles involved

in the roll-back scheme. The Probation Office estimated that

the loss associated with the sale of these vehicles was more

than $20,000 but less than $40,000, which corresponded to a

four-level increase and resulted in an offense level of ten.

The PSR then recommended adding two levels pursuant to

§ 2F1.1(b)(2)(B) because the offense involved more than one

victim. Finally, the PSR recommended a two-level downward departure for Mr. Day’s acceptance of responsibility,

which returned Mr. Day’s offense level to ten. This offense

level, in conjunction with Mr. Day’s criminal history level,
4 No. 04-2663

1 An offense level of six would have corresponded to a guideline

range of 9 to 15 months.

corresponded to a guideline range of 21 to 27 months.1 The

PSR also recommended that Mr. Day be ordered to pay

restitution in the amount of $39,875.

Mr. Day did not contest the guideline calculation; however, he did submit a written objection to the restitution

recommendation. Mr. Day claimed that the amount of restitution was excessive based on the amount of loss sustained

by each victim as well as on his financial resources, financial

needs and earning ability. Mr. Day filed objections to this

amount on the ground that he had no present or future

financial resources that would allow him to pay such a sum.

Mr. Day stated, as part of his objections, that he wished to

pay full restitution if he were to become able to do so. However, his current economic circumstances did not allow for

the payment of any amount of restitution, nor did he

anticipate being able to pay the full amount of restitution in

the foreseeable future. Consequently, he requested that the

court order only nominal periodic payments towards his

restitution pursuant to 18 U.S.C. § 3664(f)(3)(B).

In the Addendum to the PSR, the Probation Office

acknowledged that it would be difficult for Mr. Day to pay

restitution; it nevertheless recommended that the court

order the full amount of restitution. The Government, as

well, acknowledged the difficulty Mr. Day would have in

paying the recommended restitution amount; at sentencing

the assistant United States attorney stated:

Although it probably isn’t likely that the defendant will

ever be able to repay, assuming the defendant is not incarcerated for the rest of his life . . . you never know

what can happen with someone’s financial circum-
No. 04-2663 5

stances . . . . He could win the lottery. He could come

into money in some other way and we just want to have

the order in place.

Tr.II at 8. The Government therefore urged the district court

to order the restitution amount recommended in the PSR.

At sentencing, the district court recounted Mr. Day’s

criminal activities:

The Court notes that from on or about June 2000 to

March 2002 the defendant was involved in a scheme to

profit from the resale of used vehicles by tampering or

rolling back the odometers and/or misrepresenting the

actual mileage at the time of sale, submitting multiple

false applications to the Wisconsin Department of

Transportation. The results of the investigation have

revealed that he was responsible for rolling back and

misrepresenting approximately 1,430,000 miles of use

on 19 vehicles.

Id. at 9. It then adopted that sentencing calculation set forth

in the PSR and imposed a sentence of 25 months. The

district court similarly accepted the PSR’s restitution recommendation and ordered Mr. Day to pay restitution in the

amount of $39,875, due and payable immediately. In

sentencing Mr. Day, the district court ordered Mr. Day “to

pay restitution in the amount of $39,875 which is due and

payable immediately to the Clerk of Court for the Western

District of Wisconsin to be disbursed to the victims in the

amended Appendix A which is attached to your Judgment

of Conviction.” Id. at 11. The district court, however, refused

to impose a fine: “The defendant has neither the means nor

the earning capacity to pay a fine without impairing his

ability to pay the mandatory restitution and support himself

upon release.” Id.
6 No. 04-2663

Mr. Day timely appealed his sentence and the restitution

order.

II

DISCUSSION

A. Application of Booker

Mr. Day first argues that the district court’s imposition of

a sentence that was based upon facts that neither were

admitted nor found by a jury runs afoul of the Supreme

Court’s decision in United States v. Booker, 125 S. Ct. 738

(2005). However, Mr. Day did not argue to the district court

that the imposition of the sentence would violate his Sixth

Amendment rights. Consequently, our review is for plain

error. See Booker, 125 S. Ct. at 769; Paladino, 401 F.3d at 481.

We may review an error not raised below under the following circumstances: There must be (1) “error,” that is (2)

“plain,” and that (3) “affect[s] substantial rights.”

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

quotation marks and citations omitted). If these three conditions are met, the court may exercise its discretion to

notice a forfeited error, but only if it (4) “seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id. at 732 (internal quotation marks and citations

omitted).

Mr. Day admitted to rolling back the odometer on one

Ford truck and to misrepresenting the actual mileage on the

truck when it was resold. The district court concluded,

however, based on facts which Mr. Day did not admit, that

more than one vehicle was involved, that the loss was in the

range of $20,000 to $40,000, and that more than one victim

was harmed. These findings resulted in a six-level increase

in offense level and a correspondingly higher guideline

range for Mr. Day.
No. 04-2663 7

The Government concedes that, “[i]n light of Booker, the

imposition of a mandatory Guideline sentence in this case

is error that was plain in the sense that it is now clear or

obvious.” Appellee’s Supp. Br. at 4. However, the

Government maintains that Mr. Day cannot establish the

third prong of the plain error test because “he cannot

establish that he would have received a different sentence

had the Guidelines been advisory, rather than mandatory.”

Id. at 5. The Government points to the fact that the district

court, in sentencing Mr. Day, commented that “ ‘this is a

much more serious activity than either counsel appear to

understand.’ ” Id. (quoting Tr.II at 9); see also Tr.II at 10.

Furthermore, the Government argues, the district court

sentenced Mr. Day near the top of the applicable guideline

range, which suggests it was not inclined to give Mr. Day

the benefit of the doubt.

It is true that the district court gave no indication that, if

unfettered by the Guidelines, it would have imposed a

lighter sentence; indeed, as noted above, there is some evidence to the contrary. However, the district court’s actions

here do not remove all doubt as to “what the district judge

would have done with additional discretion”; for instance,

the district court did not indicate on the record “that, if it

had more leeway, it would have imposed a higher sentence.” United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005).

Nor were there other circumstances present, such as a minimum term of imprisonment mandated by statute, that

prevented the district court from imposing a lighter sentence. See id. at 866 (referring to one of the defendants in

Paladino who received a sentence at the statutory minimum

and stating that “[n]othing in Booker gives a judge any

discretion to disregard a mandatory minimum, so there was

no need to speculate about prejudice”). Because we cannot

be certain of the approach the district court would have
8 No. 04-2663

2 We have made clear in prior cases that restitution is a civil remedy to which “the sixth amendment does not apply.” United States

v. George, 403 F.3d 470, 473 (7th Cir. 2005). Similarly, Apprendi v.

New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 125 S.

Ct. 738 (2005), have no application to restitution orders. See

George, 403 F.3d at 473. We have held that Booker does impact a

district court’s imposition of restitution as a condition of supervised release, pursuant to U.S.S.G. § 5E1.1. See United States v.

Pree, 408 F.3d 855, 857-58 (7th Cir. 2005). In the present case, the

district court did condition Mr. Day’s supervised release on the

payment of restitution, see R.12 at 3; however, because of our

disposition of the restitution issue, it is unnecessary to remand in

accordance with United States v. Paladino, 401 F.3d 471 (7th Cir.

2005), petition for cert. filed, No. 04-10402 (May 26, 2005), for the

district court to determine whether it “would have imposed the

condition of restitution upon [Mr. Day’s] supervised release had

it understood the guidelines to be advisory, rather than mandatory.” Pree, 408 F.3d at 876. As part of the remand on restitution,

however, the district court should treat U.S.S.G. § 5E1.1 (requiring a court to condition supervised release on payment of

restitution) as advisory, not mandatory.

taken if not constrained by the Guidelines, “it is important

to ask the district judge’s opinion.” Id. at 867. Therefore, in

accordance with our recent decision in Paladino, 401 F.3d at

483, we retain jurisdiction and direct a limited remand to

permit the sentencing court to determine whether it would

have imposed the same sentence had it known that the

Guidelines were merely advisory.

B. Restitution Amount

Mr. Day also challenges the district court’s restitution

order.2

 The authority for restitution for the crime to which

Mr. Day pleaded guilty is found at 18 U.S.C. § 3663, which
No. 04-2663 9

3 18 U.S.C. § 3663(a)(3) (1995) provided that “[t]he court may also

order restitution in any criminal case to the extent agreed to by

the parties in a plea agreement.”

originally was enacted through the Victims and Witnesses

Protection Act (“VWPA”). However, § 3663’s scope and

enforcement mechanism were altered significantly with the

adoption of the Mandatory Victim Restitution Act

(“MVRA”) in 1996. Because both of these laws impact

Mr. Day’s restitution order, we briefly outline the operative

provisions of each below.

1. Statutory Language

The VWPA was enacted in 1982 for the purpose of

granting federal courts the authority to order restitution in

criminal cases, apart from probation. Section 3663(a)(1)

allowed, but did not mandate, restitution for most crimes:

“The court, when sentencing a defendant convicted of an

offense under this title . . . may order . . . that the defendant

make restitution to any victim of such offense.” 18 U.S.C.

§ 3663(a)(1) (1995) (emphasis added).3

 Although restitution

was discretionary, 18 U.S.C. § 3664(a) mandated that the

court consider certain factors in arriving at the restitution

amount:

The court, in determining whether to order restitution

under section 3663 of this title and the amount of such

restitution, shall consider the amount of loss sustained

by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems

appropriate.

18 U.S.C. § 3664(a) (1995) (emphasis added).
10 No. 04-2663

4 The amended version of § 3663(a)(1)(A) provides as follows:

The court, when sentencing a defendant convicted of an

offense under this title, section 401, 408(a), 409, 416, 420, or

422(a) of the Controlled Substances Act (21 U.S.C. 841, 848(a),

849, 856, 861, 863) (but in no case shall a participant in an

offense under such sections be considered a victim of such

offense under this section), or section 46312, 46502, or 46504

of title 49, other than an offense described in section

3663A(c), may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law,

that the defendant make restitution to any victim of such

offense, or if the victim is deceased, to the victim’s estate. The

court may also order, if agreed to by the parties in a plea

agreement, restitution to persons other than the victim of the

offense.

18 U.S.C. § 3663(a)(1)(A).

The amended § 3663 retained, in its entirety, the language of

§ 3663(a)(3) (“The court also may order restitution in any criminal

case to the extent agreed to by the parties in a plea agreement.”).

The application of § 3663(a)(3) to the present case is discussed

infra at note 7.

In 1996, Congress enacted the MVRA which amended

§§ 3663 and 3664 of the VWPA and also added § 3663A.

With respect to the amendments to § 3663, Congress retained most of the language of the former § 3663(a), but

removed from § 3663’s scope a wide range of crimes now

covered by § 3663A.4

 The amended § 3663 also contains a

modified version of the former § 3664(a); thus § 3663(a)(1)(B)

now contains the considerations that previously had been

set forth in § 3664:

(B)(i) The court, in determining whether to order restitution

under this section, shall consider—

(I) the amount of the loss sustained by each victim

as a result of the offense; and
No. 04-2663 11

(II) the financial resources of the defendant, the

financial needs and earning ability of the defendant

and the defendant’s dependents, and such other

factors as the court deems appropriate.

18 U.S.C. § 3663(a)(1)(B)(I) (2005) (emphasis added). Section

3663 no longer contains its own procedure for enforcement

of the restitution awards; instead, 18 U.S.C. § 3663(d)

provides that “[a]n order of restitution made pursuant to

this section shall be issued and enforced in accordance with

section 3664.”

The MVRA also created a wholly new section, § 3663A,

which requires district courts to order restitution with respect to a wide range of crimes:

Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in

subsection (c), the court shall order, in addition to, or in

the case of a misdemeanor, in addition to or in lieu of,

any other penalty authorized by law, that the defendant

make restitution to the victim of the offense or, if the

victim is deceased, to the victim’s estate.

18 U.S.C. § 3663A(a)(1) (emphasis added). For its part,

§ 3663A(c) provides:

(c)(1) This section shall apply in all sentencing proceedings for convictions of, or plea agreements relating to

charges for, any offense—

(A) that is—

(i) a crime of violence, as defined in section 16;

(ii) an offense against property under this title, or

under section 416(a) of the Controlled

Substances Act (21 U.S.C. 856(a)), including any

offense committed by fraud or deceit; or
12 No. 04-2663

5 Although Mr. Day’s crime certainly is “an offense against property,” it is not “an offense against property under this title”—

Title 18; his crime arises under Title 49. Consequently, as recognized by both parties, see Appellant’s Br. at 18 n.1; Appellee’s

Br. at 24 n.4, Mr. Day’s crime does not fall within the mandatory

provision of § 3663A, but instead the discretionary language of

§ 3663.

(iii) an offense described in section 1365 (relating to tampering with consumer products); and

(B) in which an identifiable victim or victims has

suffered a physical injury or pecuniary loss.

18 U.S.C. § 3663A(c)(1) (emphasis added).5

In addition to mandating restitution for many crimes, the

MVRA also substantially amended § 3664, which now sets

forth the “[p]rocedure for issuance and enforcement” of

restitution orders pursuant to both § 3663 and § 3663A. The

pertinent provision of 18 U.S.C. § 3664 for this case is

§ 3664(f). Subsection (1) states that “[i]n each order of

restitution, the court shall 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.” 18 U.S.C. § 3664(f)(1)(A) (emphasis added). A court, however, may weigh such considerations when setting a schedule for payment of the restitution amount; § 3664(f)(2) provides:

(2) Upon determination of the amount of restitution

owed to each victim, the court shall, pursuant to section

3572, specify in the restitution order the manner in

which, and the schedule according to which, the restitution is to be paid, in consideration of—
No. 04-2663 13

(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 any obligations to dependents.

18 U.S.C. § 3664(f)(2).

2. Reconciling the Statutory Language

The amendments to § 3664 set forth above, read in

conjunction with the language of § 3663, appear to create

some tension with respect to the criteria employed by

district courts in deciding whether to order restitution and

those employed by a district court in deciding the amount

of the restitution order. Specifically, restitution pursuant to

§ 3663 is discretionary; and, in determining whether to

exercise this discretion, the district court is required to

consider the financial resources of the defendant. However,

§ 3663(d) also requires that any restitution order be issued

and enforced in accordance with § 3664. Section 3664, in

contrast to § 3663, forbids a district court from considering

the economic circumstances of a defendant in fashioning a

restitution award; rather, the district court must order restitution in the “full amount” of the victim’s losses. 18 U.S.C.

§ 3664(f)(1)(A). Under § 3664, a district court may consider

the defendant’s financial circumstances only in determining

the method of payment and in setting the payment schedule.
14 No. 04-2663

6 This, no doubt, results in large part from the fact that so many

crimes now are covered by the mandatory restitution provisions

of § 3663A.

a.

Little has been said in case law about the interaction between these sections.6

 In dicta, a district court for the

Southern District of New York recognized this “tension”

and offered a possible resolution of the provisions:

There appears to be some tension between the discretionary language in Section 3663 and the mandatory

language in Section 3664 of Title 18, United States Code.

Restitution awards under the MVRA are implemented

and enforced according to the provisions of Section 3664.

18 U.S.C. §§ 3663(d) and 3663A(d). Section 3664 provides:

In each order of restitution, the court shall 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) (emphasis supplied). The tension

between Sections 3663 and 3664 may be resolved in the

following way. Once the court has determined that restitution should be awarded under either Section 3663 or

Section 3663A, the court is required to award restitution

for the full amount of the victim’s losses. In other

words, the court’s first determination is whether there is

to be an award of restitution. In making this discretionary determination under Section 3663, the court must

consider the defendant’s financial circumstances. Id.

§ 3663(a)(1)(B)(i)(II). Once the decision to award restitu-
No. 04-2663 15

tion has been made, however, restitution in the full

amount of the victim’s loss is required. The court

should, of course, take the defendant’s financial circumstances into account in setting the payment schedule. Id.

§ 3664(f)(2)(A)-(C).

United States v. Cummings, 189 F. Supp. 2d 67, 72 (S.D.N.Y.

2002). This approach was applied by the same district court

in Ferrarini v. United States, 2002 WL 1144377, at *6 (S.D.N.Y.

May 30, 2002).

No court of appeals has addressed directly the interaction

between § 3663 and § 3664 after passage of the MVRA.

However, some courts of appeals have discussed the

MVRA’s amendments to § 3664 and the meaning of those

amendments. These discussions largely have arisen in the

context of cases in which the key issue is the retroactive

application of the MVRA to individuals who stand convicted of crimes that fall within § 3663A’s coverage and any

ex post facto implications arising therefrom. Consequently,

these cases do not discuss the interaction of the permissive

restitution language of § 3663 with the mandate of full restitution contained in § 3664. Nevertheless, these cases are

helpful in understanding the amended § 3664. For instance,

in United States v. Alalade, 204 F.3d 536 (4th Cir. 2000), the

Fourth Circuit stated that,

with passage of the MVRA, Congress completely deleted the language of the VWPA affording the district

court discretion . . . to consider any factor it deemed

appropriate in determining the amount of restitution to

be ordered, and replaced it with language requiring the

district court to order restitution in the full amount of

loss to each victim as determined by the district court.

Id. at 540 (citations omitted). Additionally, that court noted

that “in contrast to the VWPA, the MVRA does not contain

any language requiring the district court, in determining the
16 No. 04-2663

total amount of restitution to be ordered, to consider the

financial resources of the defendant.” Id.; see also

United States v. Karam, 201 F.3d 320, 329 (4th Cir. 2000) (stating that “[t]he [MVRA] substantially amended the 1992

VWPA by requiring district courts to impose ‘full’ restitution without considering the defendant’s economic

circumstances” and observing that this process is a reverse

of that followed under the VWPA in which “the court must

first consider the defendant’s financial circumstances before

setting the amount of restitution to be paid”). These observations have been made by other courts of appeals as well.

See, e.g., United States v. Richards, 204 F.3d 177, 212 (5th Cir.

2000) (“The MVRA amended the [VWPA]. 18 U.S.C.

§§ 3663-3664. Before the amendments to the VWPA, the

statute required a court to consider a defendant’s ability to

pay in setting the amount of a restitution order. As

amended, the statute provides that ‘the court shall 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.’ 18 U.S.C.

§ 3664(f)(A).”), overruling on other grounds recognized by

United States v. Longoria, 298 F.3d 367 (5th Cir. 2002).

In other contexts, as well, courts have commented upon

the differences between the VWPA and the MVRA. In

deciding a VWPA case prior to the passage of the MVRA,

the Eleventh Circuit stated that “[t]he VWPA provisions for

restitution were substantially amended by the [MVRA]

which became effective April 24, 1996. Prior to the 1996

amendment, awarding restitution was discretionary and the

court was required to consider . . . the financial resources of

the defendant”; however, “[t]he amended provisions for

restitution mandate that the district court order restitution

in the full amount of the victim’s loss without considering

the defendant’s financial resources.” United States v. Thayer,
No. 04-2663 17

204 F.3d 1352, 1357 & n.7 (11th Cir. 2000) (internal quotation

marks and citations omitted).

Finally, in applying the amendments to § 3664 to individuals convicted of crimes that fall within § 3663A, our own

court has observed that § 3664 mandates “full” restitution

without regard to a defendant’s financial resources. We

noted, for instance, in one case that “the MVRA forced the

court to impose the full amount of restitution on [the

defendant] without any reprieve for his inability to pay.”

United States v. Newman, 144 F.3d 531, 536 n.5 (7th Cir. 1998).

Furthermore, in United States v. Szarwark, 168 F.3d 993 (7th

Cir. 1999), we stated that, under the MVRA, “district courts

no longer are permitted to consider a defendant’s financial

circumstances when determining the amount of restitution

to be paid.” Id. at 997.

With respect to case law from the courts of appeals, therefore, there does not appear to be an explanation of how to

read § 3663 in tandem with § 3664. However, the courts of

appeals have spoken with one voice with respect to the

inability of a district court, after the MVRA amendments to

§ 3664, to consider the financial resources of the defendant

in entering a restitution order: A district court must order

full restitution in an amount equal to the victim’s loss

without reference to the defendant’s financial circumstances.

Like much of the case law, the legislative history does not

speak directly to the relationship between the permissive

restitution language of § 3663 and the mandate of full

restitution in the amended § 3664. However, the legislative

history does offer some guidance on Congress’ reading of

the statutory language. First, there is no question that

Congress intended that orders of restitution pursuant to

§ 3663 remain discretionary. See S. Rep. 104-179, at 19 (1996),

reprinted in 1996 U.S.C.C.A.N. 924 (“Moreover, as noted,

except to the extent that this act would make restitution
18 No. 04-2663

mandatory under certain circumstances, the committee

intends no change in the range of statutes covered by

permissive restitution under 18 U.S.C. 3663.” (emphasis

added)). It is equally clear that Congress intended the

amendments to § 3664 to apply to restitution orders under

both § 3663 and § 3663A and that this uniformity applied to

“both the amount of restitution owed to each victim and the

terms of repayment.” Id. at 20 (“The procedures contained

in this section are intended to provide a streamlined process

for the determination of both the amount of restitution

owed to each victim and the terms of repayment based on

a reasonable interpretation of the defendant’s economic

circumstances.”). Thus, the mandate of “full” restitution

applies with equal force to restitution orders pursuant to

§ 3663 and to § 3663A.

b.

Although none of the sources discussed above—the statutory language, the case law or the legislative history—gives

explicit direction with respect to the way courts should read

the permissive language of § 3663 in conjunction with the

mandate of § 3664, we believe that the interpretation of these

sections suggested by the district court for the Southern

District of New York is both true to the entire statutory

language and consistent with the case-law readings of § 3664

and with the statements made by Congress in enacting the

MVRA. According to this interpretation, the permissive

language of § 3663 is read narrowly: For offenses covered by

§ 3663, the district court has the discretion to order (“may

order”) restitution; in determining “whether” to exercise that

discretion, the district court “shall” be guided by the considerations set forth in § 3663(a)(1)(B). However, once the

district court determines that restitution ought to be made,

§ 3664 comes into play and, for its part, mandates that the
No. 04-2663 19

court order “full” restitution, “without consideration of the

economic circumstances of the defendant.”

This reading of § 3663 and § 3664 has several advantages.

First, it is true to the basic principles of statutory interpretation that, in interpreting a statute, we look primarily to the

language of the statute, see, e.g., Greenfield Mills, Inc. v.

Macklin, 361 F.3d 934, 954 (7th Cir. 2004), and, in doing so,

attempt to give effect to every word or provision, see, e.g.,

Hoffman v. Caterpillar, Inc., 256 F.3d 568, 575 (7th Cir. 2001).

There is no question that this reading gives full effect to the

language employed by Congress. When Congress amended

§ 3663 to include the considerations previously located in

§ 3664(a), Congress did not use exactly the same wording as

it had in the former § 3664(a). Under the old version of

§ 3664, courts were to consider the financial circumstances

of the defendant both “in determining whether to order restitution” and also in determining the “amount of such

restitution.” 18 U.S.C. § 3664(a) (1995) (emphasis added).

However, the new § 3663(a)(1)(B) requires courts to consider

these factors only in determining whether to order restitution; all reference to the amount of restitution has been

omitted.

Furthermore, this reading is consistent with Congress’

stated intentions in adopting the MVRA and with the courts

of appeals’ interpretations of the MVRA in other contexts.

As explained above, the legislative history makes clear that

Congress intended that § 3663 continue as a permissive

provision, but that all restitution orders (whether ordered

under § 3663 or § 3663A) be issued and enforced in a uniform manner. This interpretation also is consonant with the

many case-law interpretations of § 3664, which read this

section to guarantee full restitution to all victims.
20 No. 04-2663

7 As noted above, Mr. Day pleaded guilty to a violation of 49

U.S.C. §§ 32705(a)(2) and 32709(b). This crime falls outside the

mandatory coverage of § 3663A. See supra note 5. It also is not

encompassed by § 3663(a)(1), but falls within the coverage of

§ 3663(a)(3) (allowing a district court to order restitution according to a plea agreement).

3. Application to Mr. Day

The application of § 3663 and § 3664 to Mr. Day is made

somewhat difficult because both parties have failed to

address the interaction between § 36637

 and § 3664 or to

consider critically the continued applicability of pre-MVRA

case law to the present action. Nevertheless, we review

briefly the arguments of both sides and address those arguments that still survive under the present statutory scheme

as we have just outlined it.

Much of Mr. Day’s argument is focused on the alleged

failure of the district court to consider his lack of financial

resources in ordering him to pay such a large sum in

restitution. Mr. Day relies on the standards set forth in our

pre-MVRA case law interpreting § 3663 and § 3664, see, e.g.,

United States v. Studley, 892 F.2d 518, 532 (7th Cir. 1989), in

support of his claim that the district court abused its

discretion. For its part, the Government argues that, based

on those same standards, the district court’s award should

be upheld against Mr. Day’s challenge.

These submissions are not directed to the issues we must

address. As we have discussed above, the MVRA removed

any discretion that the district court had under prior law to

fix the amount of the restitution award based upon the

defendant’s economic circumstances. Once the district court

exercises its discretion to order restitution under § 3663, it

must award restitution in the “full amount” of the victim’s
No. 04-2663 21

8 Mr. Day also makes no argument that restitution should have

been limited to the loss incurred by the victim of Count 5 of the

indictment—the crime to which Mr. Day pleaded guilty. Again,

Mr. Day would encounter some difficulty in making a convincing

attack on his restitution award on this basis because Mr. Day’s

plea agreement explicitly provides that he will pay for “all losses

covered by the same course of conduct or common scheme or

plan as the offense of conviction.” R.10 at 2.

losses. In any event, Mr. Day does not maintain that the

district court abused its discretion in ordering restitution.

Indeed, such a position would be a difficult one for him to

sustain in light of the fact that he agreed to pay full restitution as part of his plea agreement. Furthermore, at this

juncture, Mr. Day does not contest that $ 39,875 is an

accurate assessment of the victims’ losses.8

 Consequently,

under the reading of § 3663 and § 3664 outlined above, we

cannot say that the district court abused its discretion in

ordering Mr. Day to pay restitution in the amount of

$ 39,875.

Mr. Day nevertheless contends that the amount of his

restitution is inconsistent with this court’s prior statements

regarding the rehabilitative purpose of restitution. Specifically, Mr. Day points to pre-MVRA case law that emphasizes that the defendant’s ability to make restitution is

crucial to fulfilling the rehabilitative aspects of restitution.

In interpreting the earlier statutory scheme, we had explained that “at the time the court orders restitution it is

most paramount that the defendant, in the all-important

rehabilitative process, have at least a hope of fulfilling and

complying with each and every order of the court.”

United States v. Mahoney, 859 F.2d 47, 52 (7th Cir. 1988).

Under pre-MVRA case law, a restitution order that seemed

impossible to satisfy—that was, in essence, “a sham”—was
22 No. 04-2663

grounds for reversal. See id.; United States v. Jaroszenko, 92

F.3d 486, 492 (7th Cir. 1996).

However, in enacting the MVRA, Congress rejected two

principles underlying those cases: that the rehabilitative

aspects of restitution should take precedence over other considerations and that the rehabilitative aspects of restitution

necessarily were linked to the defendant’s ability to pay the

restitution award. In discussing the amendments to § 3664,

the legislative history evidences a new focus:

The committee recognizes that a significant number of

defendants required to pay restitution under this act

will be indigent at the time of sentencing. Moreover,

many of these defendants may also be sentenced to prison terms as well, making it unlikely that they will be

able to make significant payments on a restitution

payment schedule. At the same time, these factors do

not obviate the victim’s right to restitution or the need

that defendants be ordered to pay restitution.

For these reasons, the committee has included in its

amendment provisions permitting the court to order full

restitution under a schedule of nominal payments in

those instances where the defendant cannot pay restitution. The committee recognizes that restitution is an

integral part of the criminal sentence that must be

complied with. For this reason, the defendant is also

required to report material changes in his or her economic circumstances that might affect the ability to pay

restitution, and the court is authorized to amend the

payment requirements accordingly.

S. Rep. 104-179, at 21. Thus, Congress, in adopting the

MVRA, believed that the law should be concerned first with

the victim’s right to full restitution and the defendant’s

concomitant recognition of the duty to pay full restitution,
No. 04-2663 23

9 Section 3664(f)(3)(B) does allow the court to “direct the

defendant to make nominal periodic payments if the court finds

from facts on the record that the economic circumstances of the

defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount

of a restitution order in the foreseeable future under any reasonable schedule of payments.” 18 U.S.C. § 3664(f)(3)(B).

albeit a largely symbolic one. This belief is given effect

through § 3664(f), which first requires the court to 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.” 18

U.S.C. § 3664(f)(1)(A).9

 Therefore, the fact that a defendant

may never be able to satisfy a restitution award is no longer

grounds for reversing that award.

C. Schedule of Restitution Payments

Mr. Day also maintains that the district court abused its

discretion when it made his ordered restitution due and

payable immediately. Specifically, Mr. Day claims that the

district court failed to take into account his financial situation in ordering the manner of payments as required by

§ 3664(f)(2). See Reply Br. at 14.

Although § 3664(f) requires payment of restitution in

“full” “without consideration” of the defendant’s financial

circumstances, the district court is required to consider the

financial resources of the defendant with respect to the

method and schedule of payments:

(2) Upon determination of the amount of restitution

owed to each victim, the court shall, pursuant to section

3572, specify in the restitution order the manner in
24 No. 04-2663

which, and the schedule according to which, the restitution is to be paid, in consideration 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 any obligations to dependents.

18 U.S.C. § 3664(f)(2).

Mr. Day maintains that the record is devoid of any evidence that he will be able to pay the ordered restitution at

any point, much less that he is able to pay the entire $ 39,875

immediately. Consequently, he maintains, the district court

could not have considered his financial resources with

respect to the schedule of restitution payments as required

by § 3664(f)(2).

Whether Mr. Day’s argument is meritorious is dependent,

in large part, on the meaning of “due and payable immediately.” Our case law establishes that this phrase ought not

to be read literally. We have stated:

Our cases have held that “immediate payment” does

not mean “immediate payment in full;” rather it means

“payment to the extent that the defendant can make it

in good faith, beginning immediately.” As we have

previously noted, “if the defendant is not paying what

he can the probation officer will ask the judge to revoke

or alter the terms of release. Then the judge may make

the order more specific [by prescribing a payment

schedule] or, if the defendant has not paid what he

could in good faith, may send him back to prison.” We
No. 04-2663 25

see nothing in the district court’s order that would have

violated this procedure.

Jaroszenko, 92 F.3d at 492 (quoting United States v. Ahmad, 2

F.3d 245, 249 (7th Cir. 1993)).

Mr. Day acknowledges our holding in Jaroszenko, but

urges us to revisit Jaroszenko’s interpretation of “immediate

payment” in light of the MVRA’s amendments to § 3664. He

maintains that ordering “payment to the extent that the

defendant can make it in good faith, beginning immediately” delegates too much authority to the Probation

Office—authority that explicitly is conferred by the statute

to the sentencing court.

In making this argument, Mr. Day fails to mention our

decision in United States v. McIntosh, 198 F.3d 995 (7th Cir.

2000), which, at first glance, appears to dispose of Mr. Day’s

argument. In McIntosh, the district court had waived a fine;

it nevertheless ordered that $38,764.50 in restitution be paid

immediately. The defendant argued that the district court

should not have made the payment due immediately given

its decision to waive a fine (thus acknowledging his apparent lack of resources). We found “no merit” in this challenge. Id. at 1004. We explained:

“ ‘[I]mmediate payment’ does not mean ‘immediate

payment in full;’ rather it means ‘payment to the extent

that the defendant can make it in good faith, beginning

immediately.’ ” United States v. Jaroszenko, 92 F.3d 486,

492 (7th Cir. 1996). The district court ordered that the

restitution be paid immediately and that McIntosh

should “notify the probation officer of any material

changes and economic circumstances [that] might affect

his ability to pay restitution.” Thus, the district court

has given McIntosh the opportunity to explain his

financial circumstances to the probation officer if prob-
26 No. 04-2663

lems arise. The probation officer can then ask the

district court to amend the order of restitution accordingly or make the order more specific. We have approved similar approaches in the past, see id.; see also

United States v. Ahmad, 2 F.3d 245, 249 (7th Cir. 1993),

and McIntosh presents us with no reason that we

should consider it error now.

Id. Thus, in at least one case applying the MVRA, we have

approved the continued use of our pre-MVRA interpretation of “immediate” payment.

However, a closer look at the facts of McIntosh convinces

us that it does not purport to lay down a general approach

to restitution under the MVRA and thus ignore the significant changes that Congress clearly implemented through

that statute. In McIntosh, the defendant had engaged in a

series of fraudulent transactions which had provided him

with a large amount of cash at his disposal. When he was

apprehended by federal authorities, the defendant was driving a late model BMW automobile that he had purchased

with the proceeds of the fraud and also was in possession of

$1,558.54 in cash. On appeal, one of McIntosh’s challenges

to the restitution order was that “the district court refused

to provide him with credit for the property (the BMW and

$ 1558.54 in cash) that the U.S. Marshals seized when they

arrested him.” Id. at 1003. The Government objected to the

claimed credit “by pointing out that McIntosh had not

signed over the property nor had it been forfeited.” Id. The

district court’s resolution of the issue—a resolution which

we later approved—was to state: “ ‘[I]f he does, he’ll be

entitled to credit for it.’ ” Id. Thus, it appears that the parties

and the court anticipated that the seized property (or

proceeds therefrom) would be available for the payment of

at least a sizeable portion of the ordered restitution.

The availability of such funds increases the possibility
No. 04-2663 27

10 It also appears that the defendant in United States v. McIntosh,

198 F.3d 995 (7th Cir. 2000), never suggested that the MVRA provided a basis for abandoning, or at least narrowing, our interpretation of “immediate” payment under pre-MVRA law. See id. at

1004 (“We have approved similar approaches in the past . . . and

McIntosh presents us with no reason that we should consider it

error now.”).

of “immediate” payment, or at least “immediate” partial

payment, of the restitution.

We believe that our employment of the pre-MVRA interpretation of “immediate” payment in McIntosh must be read

in light of these circumstances. Nothing in the language we

employed in McIntosh suggests either that the district court

does not have the duty to fix the payment schedule and/or

that this duty is delegable. However, under the circumstances in McIntosh, the defendant had at his disposal some

funds immediately available to be used for restitution; it

therefore was both logical, and consistent with the MVRA,

to make the defendant pay all of the funds remaining from

his fraudulent activities towards restitution and to use the

Probation Office to help ensure that the funds were used to

pay the restitution. Should the proceeds prove insufficient

to satisfy the entire restitution order immediately, the

defendant could inform the Probation Office, and “the probation officer c[ould] then ask the district court to amend

the order of restitution accordingly or make the order more

specific.” Id. at 1004. In sum, the presence of existing proceeds of the criminal scheme—some funds available to be

used towards “immediate” payment—were critical to our

approval of the district court’s order in McIntosh.

10

We believe that, given the statutory scheme set forth in the

MVRA, the most direct, and most efficient, way for a district

court to perform its statutory duty is to fix a payment

schedule and to set forth that schedule at the time of
28 No. 04-2663

11 Weinberger v. United States, 268 F.3d 346 (6th Cir. 2001), is not to

the contrary. Despite its miscitation to United States v. Coates, 178

F.3d 681 (3d Cir. 1999), the case deals with an application of the

VWPA, not the MVRA. See Weinberger, 268 F.3d at 356, 359-60.

sentencing, even if later events might require its amendment. Such an approach is most compatible with the

congressional decisions made in the MVRA. See supra at 18-

20. Furthermore, when § 3664(f)(2), which contemplates

nominal payments, is taken into consideration, Congress’

enactment of that section of the MVRA manifests a clear

congressional intent that the district court be involved in

setting a restitution payment schedule initially upon entry of

judgment and that the court also be the ultimate decisionmaker in alteration of those payments as time goes on.

Notably, the statute does not preclude use of the probation

officer, or any other officials such as employees of the

Bureau of Prisons, to inform the court of the changed

circumstances of the defendant and of the need to alter the

schedule. This approach is consistent with that of the other

courts of appeals. See, e.g., United States v. McGlothlin, 249

F.3d 783, 785 (8th Cir. 2001) (holding that the MVRA

“require[s] the district court to set a detailed payment

schedule at sentencing”); United States v. Coates, 178 F.3d

681, 683-85 (3d Cir. 1999) (same).11

Returning to Mr. Day’s situation, we believe that it is clear

that the approach taken in McIntosh will not suffice. Here,

Mr. Day does not have at his disposal any funds available

for immediate payment of the restitution award. Mr. Day

relies on Social Security to provide his basic needs, and

there is nothing in Mr. Day’s personal or family situation

that suggests that his financial situation will improve.

Indeed, in light of his current incarceration and current state

of his health, it is likely that his financial situation will only
No. 04-2663 29

12 We note that a district court’s determination that restitution

payments are not due and payable immediately in no way affects

the liability of the defendant to pay full restitution. The judicial

act of requiring full restitution is distinct from setting a payment

schedule.

decline. Ordering restitution “due and payable immediately” in Mr. Day’s case, therefore, not only ignores

Mr. Day’s financial circumstances, it also assigns responsibility to the Probation Office to formulate a payment

schedule from Mr. Day’s limited resources. We do not

believe that such an action is compatible with the language

of § 3664 which requires “the court” to “specify in the

restitution order the manner in which, and the schedule

according to which, the restitution is to be paid.” 18 U.S.C.

§ 3664(f)(2). Accordingly, the district court should revisit

this issue and, if the defendant’s circumstances are what

they appear to be, enter a more precise order accounting for

the defendant’s limited resources. Specifically, we invite the

district court’s attention to 18 U.S.C. § 3664(f)(3), which

allows the court to order nominal payments towards the

restitution amount if warranted by the defendant’s inability

to pay.12

Conclusion

For the foregoing reasons, we order a limited remand

consistent with our holding in Paladino, 401 F.3d 471. We

also reverse the judgment of the district court with respect

to restitution and remand for further proceedings consistent

with this opinion. In all other respects, the judgment of the

district court is affirmed.

AFFIRMED in part; REVERSED and REMANDED in part
30 No. 04-2663

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-12-05