United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1817MN

_____________ United States of America, *
* Appellee, * Appeal from the United States

* District Court for the District
v. * of Minnesota.
* Ricky Curtis Williams, *
* Appellant. *

_____________ Submitted: October 23, 1997

Filed: November 5, 1997

_____________ Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

_____________ FAGG, Circuit Judge.

Rick y Curtis Williams trafficked in cloned cellular telephones. A cloned cel l pho ne is one that has been programmed with the electronic serial number and mobile identi ficationnumber of a legitimate cellular-service subscriber. Because billing i s keyed to these numbers, all calls made from the cloned telephone are charged to th e legitimate customer, who naturally refuses to pay. The cellular telephone companies end up absorbing the loss.
Williams pleaded guil ty to one count of aiding and abetting fraud in connection with access devices in violation of 18 U.S.C. § 1029(a)(5 ) (1994) and 18 U.S.C. § 2(a)-2-

(1 994). Williams committed the offense to which he pleaded guilty on May 30, 1996, but Wil liams admitted he began selling cloned cell phones in 1994. According to th e d i strict court’s loss calculation, Williams’s illegal trade cost several cellular telephone comp anies a total of $211,786.73, a sum that added eight levels to Williams’s bas e offen se level. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2F1.1(b)(1)(I ) (1995). The district court ordered restitution in this amount under the Mandatory Victims Re stitution Act of 1996 (MVRA or the Act), which applies in sentencin g proceedings when the def

endant has been convicted on or after the Act’s effective date of April 24, 1996. See 18 U.S.C.A. § 3663A(a)(1) (West Supp. 1997). Althoug h Williams’s plea agreement stated “[t]here . . . is no agreement as to restitution, ” Willia ms construes this to mean “there [was] ‘no agreement’ as to the amount o f restitution.” The plea agreement also said the district court “will have the power to order [Williams] to pay full restitution to any victims of his offense conduct from January 1, 1994 to May 30, 1996,” and Williams acknowledg es that “under the plea agreement the [district] [c]ourt had authority to order full restitut ion.” Thus, we conclude Williams did agree in his plea agreement to pay restitution to cellular companies beyond what wa s mandated solely for his offense of conviction. Williams appeals his sent ence. We affirm.
Williams first challenges the district court’s lo ss calculation. We review for clear

error. See United Sta

tes v. Manzer , 69 F.3d 222, 228 (8th Cir. 1995). Unsurprisingly, Williams kept no records documenting his illegal phone sales, so the district court computed the financial losses Williams im posed on the cellular companies indirectly, as follows. First, the affected companies identified all the clon ed telephones on which calls to Williams were placed between January and June 1996. The district court the n calculated th e total loss by adding up the charges for all calls made from thes e tel ephones during the same six-month period. Williams points out this calculatio n method takes for granted that Williams sold the c loned telephones on which calls to him

were pl aced. Williams questions this assumption, contending he could have receive d calls in connection with his legitimate cellular telephone business from cloned-3-

phones he did not sel l. Although the district court could not eliminate this possibility, “[t] he court need only make a reasonable estimate of the loss, given the availabl e information.” U.S.S.G. § 2F1.1, comment. (n.8). “[T]he loss need not be determined with prec ision.” Id. ; see also Manzer , 69 F.3d at 228. We are satisfied the distric t court’s calculation represents a reaso nable estimate of the companies’ losses. For one th ing, only calls placed during the first six months of 1996 were taken into account , despite the fact Williams had been selling cloned telephones since 1994. Further, the distr ict court’s calculation method could not capture losses from purchasers wh o boug ht cloned phones from Williams but did not happen to call him between January and June 1996. Besides, Williams admitted he had been frequently called by persons to whom he had sold cloned telephones. We find no clear error.

Ne xt, Williams contends applying the MVRA to order restitution in his cas e violates the Ex Post Facto Clause. Becaus e Williams raises this issue for the first time on appeal, we may vacate the restitution order only if the district court committed plain

error. SeeFed. R. Crim. P. 52(b); United States v. Olano , 507 U.S. 725, 732 (1993). “To fall within the ex post facto prohibition, a law must be retrospective--that is ‘i t mustapp ly to events occurring before its enactment’--and it ‘must disadvantage th e offender affected by it’ by altering the definition of criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis , 117 S. Ct. 891, 896 (1997) (quotin g Weaver v. Graham , 450 U.S. 24, 29 (1981)). Williams argues the MVR A retrospectively increased his punishment for illegal phone sales Williams made before the Act’s effective date of April 24, 1996.

The chan ges wrought by the MVRA do work to Williams’s disadvantage

. Before the MVRA became effec tive, the Victim and Witness Protection Act (VWPA)

au thorizedbut did not compel district courts to order restitution, see 18 U.S.C. § 3663(a)(1) (1994), and required courts to consider the defendant’s financial resources in decidi ng whether to order restitution, see id. § 3664(a). By contrast, the MVR A makes restitution mandatory f or certain crimes, see 18 U.S.C.A. § 3663A(a)(1) (West-4-

Supp. 1997 ), including an offense (like Williams’s) committed by fraud, see id. § 3663A(c)(1)(A)(ii), and the Act mandates that restitution shall be ordered “withou t

co nsideration of the economic circumstances of the defendant,” id. § 3664(f)(1)(A)

. The question remains, though, whether thes e changes increase Williams’s punishment.

Inrejecting an Ex Post Facto Clause challenge to an order of restitution under the Chil d Support Recovery Act of 1992 (CSRA), we recently said “restitution is not ‘punish ment’ within the meaning of the ex post facto clause.” United States v

. Crawford , 115 F.3d 1397, 1403 (8th Cir. 1997), cert. denied , 66 U.S.L.W. 3297 (U.S. Oct. 20, 1997) (No. 97-497). With regard to restitution under the MVRA, however, we believe the wording of the Act compels an opposite conclusion because the MVRA provides tha t the district court shall order restitution “in addition to . . . any othe r penalty authorized by law. . . .” 18 U.S.C.A. § 3663A(a)(1). Th e plain meaning is that restit utionunder the MVRA is a penalty. The CSRA, on the other hand, state s violators “shall be punished as provided in subsecti on (b),” 18 U.S.C. § 228(a) (1994), andthen separately provides for restitution in section 228(c). We conclude an order of restit ution under the MVRA is punishment for Ex Post Facto Clause purposes

. Accord United States v. Baggett , Nos. 96-50492/50494/50495/50515, 1997 W L 594626, at *2-3 (9th Cir. Sept. 29, 1997); United S tates v. Thompson , 113 F.3d 13, 15 n.1 (2d Cir. 1997). Nevertheless, the restitution order in this case does not violate the Ex Post Facto Clause because the MVRA does not apply retrospectively here. We recognize th e MVR Arequired the district court to order Williams to pay full restitution for losse s arising from il legal sales Williams made before the MVRA became effective. See 18 U.S.C.A. § 3663A(a)(3) (West Supp. 1997) (“The court shall . . . order, if agreed to by the parti es in a plea agreement, restitution to persons other than the victim of th e offense.”); id. § 3664(f)(1)(A) (mandating restitution for full amou nt of losses). But the date of the offense to which Williams pleaded guilty was May 30, 1996, more than a month after the MVRA took effect. When Williams trafficked in cloned phones on that-5-

date, he had fair warning his criminal conduct could trigger mandatory restitution under § 3663A( a)(3) to persons other than the victim of his May 30 offense, and “that is all the Ex Post Facto Clause requires,” United States v. Cooper , 63 F.3d 761, 762 (8th Cir. 1995) (per curiam), cert. denied , 116 S. Ct. 1548 (1996); see also Crawford , 115 F.3d at 1403.
Agai n for the first time on appeal, Williams contends the MVRA violates th e Eighth Amen dment because unlike the VWPA, the MVRA prevents the district court fr om recognizing poverty as a factor at sentencing. Contrary to Williams’s view, the MVRA requires the district court to schedule restitution payments taking into account the defendant’s resources, projected earnings, and financial obligations--factors courts consider ed under the VWPA in deciding whether to order restitution. Compare 1 8 U.S.C.A. § 3664(f)(2) (West Supp. 1997) with 18 U.S.C. 3664(a) (1994). The district court may also direct the defe ndant to make only nominal payments under appropriate circumstances. See18 U.S.C.A. § 3664(f)(3)(B) (West Supp. 1997). Finally, Williams claims t he MVRA violates the Eighth Amendment by permitting imprisonment fo r indigence. Bec ause Williams does not assert he has suffered or is about to suffer this punishment, hi s premature claim is not ripe for review. See Cheffer v. Reno , 55 F.3d 1517, 1523-24 (11th Cir. 1995).

We affirm Williams’s sentence.
MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring.

I concur in the judgment of the court, but write separately to expose to view a difficulty that the case raises in my mind.

The district court equated the loss to the relevant companies with the amoun t of gain to the users of the pirated cellular telephones. In the first place, we do no t know, and the government could not tell us at or al argument, how much of this amount-6-

might ultimately be collected from the unauthorized consumers of the telephone services. More fundament ally, however, I believe that the measure of loss employed in this case is completely inappropr

iate, because the gain to the perpetrators of a crime such as this one may not (indeed, almost al ways will not) equal the loss to the victims. The cellular telephone market is surely not perfe ct, and the price charged for cellular telephone calls ther efore will not equal the cost to telephone companies of providing those calls. I n other wo rds, while a company may charge a customer, say, one dollar for making a certain call, the marginal cost to that company of providing that call may be only on e cent. It makes no sense to m ake a defendant responsible for a dollar when the call cost only a penny to provide.
The telephone companies' loss actually has two components. The first, as we have hi nted, is the marginal cost to the companies of the pirated calls. The second is th e legitimate business los t from the users of the pirated telephones, some of whom would, it seems likely, have paid for some amount of cellular calls had Williams not made the clon ed telephones available to them. The loss attributable to this component of th e companies' total

losses will be their expected profit from these lost calls (here properly usin g the actual price of the calls, but subtracting the marginal cost of providing the m because th e companies would have had to incur that cost anyway if they had actuall y been providing the

calls). One cannot simply assume that all of these calls would have be en made, however, for the cloned-telephone users would certainly not have mad e thousands of dollars worth of calls if they had actually had to pay for them. The method that the district c ourt used, in contrast to the method outlined above, does not properly calculate loss; it instead co mpensates the telephone companies for the telephone users’ unlawful gain. This method would be appropriate (and even then the marginal co st of providing the calls would have to be subtracted) only if the relevan t cellul ar-telephone companies were operating at 100% capacity when the pirated call s were made, so that every pirate d call made prevented a legitimate (and therefore profitmaking) call from being made. Then the price-based calculation would be an-7-

appropri ate approximation of opportunity cost, assuming that the marginal cost wa s small. But because it

is highly unlikely, despite the government's creative response at oral argument, tha

t all the pirated calls were made to the exclusion of legitimate calls, this method of measuring the loss simply misses the mark.

Whi le it therefore seems to me that the district court committed plain error i n applying the measure of l oss that it did, the record does not reveal that Mr. Williams's substantial rights were affec ted, because it is not at all clear that he was prejudiced by the error. T he record does not include data sufficient to support a conclusion that the

error was pre

judicial, and this is a matter on which the defendant has the burden o f persuasion. See United States v. Olano , 507 U.S. 725, 734 (1993). Appellant , moreover, did not assert plain error on appeal, and in such circumstances I think that it would be the rarest case, in fact, one in which an injustice w as overtly manifest in the record, tha

t would call for a reversal of a judgment. Since, as I have said, this record contains no data from which one could conclude that Mr. Williams's sentence wa s grossly excessive (or , indeed, that it was excessive at all), I concur in the judgment of the court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.