1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-21-1999

USA v. Coates

Precedential or Non-Precedential:

Docket 98-1173

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Coates" (1999). 1999 Decisions. Paper 139.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/139
Filed May 21, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-1173 

UNITED STATES OF AMERICA 

v. 

GERALD A. COATES 

Gerald Coates, 

Appellant 

 2370 <HRULE X=001270 L=000720 W=000005> 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(96-cr-00388-2) 

(District Judge: Honorable Ronald L. Buckwalter) 

Submitted Under Third Circuit LAR 34.1(a) 

January 12, 1999 

Before: NYGAARD, ALITO, and LEWIS, Circuit Judges. 

(Opinion Filed: May 21, 1999) 

 FEDERAL COURT DIVISION 

 DEFENDER ASSOCIATION OF PHILADELPHIA 

 Ellen T. Greenlee, Defender 

 Maureen Kearney Rowley, Chief Federal 

 Defender 

 David L. McColgin, Assistant Federal Defender 

 Suite 800 -- Lafayette Building 

 437 Chestnut Street 

 Philadelphia, Pennsylvania 19106-2414 

 Counsel for Appellant 
 UNITED STATES DEPARTMENT OF JUSTICE 

 UNITED STATES ATTORNEY 

 EASTERN DISTRICT OF PENNSYLVANIA 

 Michael R. Stiles, United States Attorney 

 Ewald Zittlau, Assistant United States Attorney 

 615 Chestnut Street 

 Suite 1250 

 Philadelphia, Pennsylvania 19106-4476 

 Counsel for Appellee 

OPINION OF THE COURT 

ALITO, Circuit Judge: 

This is an appeal by Gerald Coates ("Coates") from a 

judgment and sentence in a criminal case. Coates pleaded 

guilty to armed robbery and related offenses, and as a part 

of his sentence, the District Court ordered him to pay 

restitution in the amount of $4,028. Coates now challenges 

the restitution order. Because the District Court erred by 

imposing restitution without specifying a payment schedule 

or considering the factors set forth in 18 U.S.C. S 3664(f)(2), 

we vacate the restitution order and remand for resentencing 

in accordance with this opinion. 

I. 

In June and July of 1996, Coates and a co-conspirator, 

Haywood White, committed three bank robberies in which 

they obtained a total of $8,056. Coates pleaded guilty to 

two counts of conspiracy to commit armed bank robbery 

and one count of conspiracy to commit bank robbery, in 

violation of 18 U.S.C. S 371; two counts of armed bank 

robbery and one count of bank robbery, in violation of 18 

U.S.C. S 2113(d); and two counts of use of afirearm during 

and in relation to a crime of violence, in violation of 18 

U.S.C. S 924(c). The District Court sentenced Coates to a 

term of 291 months of imprisonment,1 to be followed by five 

_________________________________________________________________ 

1. Specifically, Coates received 60 months of imprisonment on the three 

conspiracy counts; 87 months of imprisonment on the three robbery 

 2 
years of supervised release, and imposed an $800 special 

assessment. The Court also ordered Coates to pay 

restitution in the amount of $4,028, without anyfindings or 

further explanation of the award. Coates then took this 

appeal. 

Counsel for Coates filed a motion to withdraw and 

submitted a brief in support of his motion pursuant to 

Anders v. California, 386 U.S. 738 (1967). Counsel's Anders 

brief advised that there is no non-frivolous issue that can 

be raised on Coates's behalf. Coates was provided with a 

copy of the motion, and he filed a pro se brief in support of 

his appeal, raising two issues: (1) that the District Court 

erred in enhancing his sentence on the second weapons 

conviction because Congress did not intend 18 U.S.C. 

S 924(c)(1) to permit enhancement where a second or

subsequent weapons conviction is charged in the same 

indictment as the first weapons conviction; and (2) that the 

District Court committed plain error by failing to make 

specific factual findings concerning Coates'sfinancial 

ability to pay $4,028 in restitution and by failing to order 

an appropriate payment schedule. 

After examining the record, we found that Coates's 

second argument raised a non-frivolous issue.2 Accordingly, 

we denied counsel's motion to withdraw and requested 

additional briefing on "[w]hether the District Court erred in 

failing to specify in the restitution order `the manner in 

which, and the schedule according to which, the restitution 

is to be made,' pursuant to the Mandatory Victims 

_________________________________________________________________ 

counts, to be served consecutively to the sentence imposed on the 

conspiracy counts; 60 months on the first weapons count, to be served 

consecutively to the conspiracy and robbery counts; and an enhanced 

sentence of 84 months on the second weapons count, to be served 

consecutively to all other sentences. 

2. We agree with counsel that Coates's first argument is frivolous. Coates 

contends that the District Court misapplied 18 U.S.C. S 924(c)(1) by 

enhancing Coates's sentence on the second weapons conviction even 

though it arose from the same indictment as hisfirst weapons 

conviction. Both the Supreme Court and our court already have rejected 

this argument. See Deal v. United States, 508 U.S. 129 (1993); United 

States v. Casiano, 113 F.3d 420 (3d Cir.), cert. denied, 118 S. Ct. 221 

(1997). 

 3 
Restitution Act of 1996, 18 U.S.C. S 3664(f)(2)." After 

reviewing the parties' briefs, we conclude that the District 

Court erred. 

II. 

Coates contends that the District Court erred by ordering 

him to pay restitution without specifying in the restitution 

order the manner and schedule of payments to be made 

and without considering his financial resources, projected 

earnings, and financial obligations. Because Coates did not 

object to the restitution order at the sentencing hearing, we 

review this issue for plain error. See Fed. R. Crim. P. 52(b) 

("Plain errors or defects affecting substantial rights may be 

noticed although they were not brought to the attention of 

the court."); United States v. Olano, 507 U.S. 725 (1993). 

Congress enacted the Mandatory Victims Restitution Act 

("MVRA") in 1996. See Pub. L. No. 104-132, Title II, SS 201- 

211, 110 Stat. 1214; 18 U.S.C. SS 3663A-3664 (West Supp. 

1996).3 The MVRA applies to sentencing proceedings in 

cases in which the defendant is convicted on or after April 

24, 1996. See 18 U.S.C. S 3664 (statutory notes). Coates 

pleaded guilty on October 11, 1996, for criminal activity 

that took place during the summer of 1996. Therefore, 

application of the MVRA to Coates is appropriate here. Cf. 

United States v. Edwards, 162 F.3d 87 (3d Cir. 1998) 

(imposing restitution on defendant for criminal conduct 

occurring prior to MVRA's enactment violates Ex Post Facto 

Clause). 

The MVRA makes restitution mandatory for certain 

crimes, see 18 U.S.C. S 3663(A)(1), and requires district 

courts to order the payment of restitution in the full 

amount of the victim's losses "without consideration of the 

economic circumstances of the defendant." See 18 U.S.C. 

_________________________________________________________________ 

3. The MVRA substantially amended the provisions for restitution set out 

in the Victim and Witness Protection Act, 18 U.S.C. S 3663 et seq. (West 

1985). Under the VWPA, district courts had discretionary authority to 

award restitution. In ordering restitution, however, courts were required 

to consider, among other factors, the defendant'sfinancial ability to pay 

restitution in establishing the amount of restitution to be ordered. 18 

U.S.C. S 3664(a) (West 1985). 

 4 
S 3664(f)(1)(A); see also United States v. Jacobs, 167 F.3d 

792, 796 (3d Cir. 1999) (stating that MVRA's "clear and 

unambiguous mandatory language" requires defendants to 

pay full restitution to their victims). After ordering full 

restitution, the district court "shall specify in the restitution 

order the manner in which, and the schedule according to 

which, the restitution is to be paid." See 18 U.S.C. 

S 3664(f)(2); see also United States v. Crandon, No. 98-5161, 

1999 WL 147606, at *3 n.3 (3d Cir. Mar. 18, 1999) ("[A]fter 

ordering full restitution, the district court must set a 

payment schedule."). In so doing, the district court is 

required to consider the financial resources, projected 

earnings, and financial obligations of the defendant. See 18 

U.S.C. S 3664(f)(2)(A)-(C). The court may order the

defendant to make a single lump-sum payment, reasonable 

periodic payments, or, if the defendant is indigent, nominal 

periodic payments. See 18 U.S.C. S 3664(f)(3)(A), (B). 

The District Court in this case complied with the MVRA 

by ordering Coates to pay the full amount of his share of 

the victim's losses, $4,028. After doing so, however, the 

District Court failed to satisfy the remaining statutory 

requirements. It did not specify in the restitution order the 

"manner in which, and schedule according to which," the 

restitution is to be made. Nor did it state on the record that 

it had considered Coates's financial situation in 

determining his ability to make a single lump-sum payment 

of $4,028. Since the MVRA mandates that district courts 

schedule restitution payments after taking into account the 

defendant's financial resources, the District Court's failure 

to do so here constitutes plain error. See United States v. 

Turcks, 41 F.3d 893, 901-02 (3d Cir. 1994) (stating that the 

court's failure to make factual findings under the VWPA 

constitutes plain error), cert. denied, 514 U.S. 1074 (1995). 

We are unpersuaded by the government's arguments to

the contrary. The government maintains that the District 

Court complied with the statutory requirements because 

under section 3572, and in view of the District Court's 

silence, full payment was due immediately. Section 3572 

provides, in pertinent part: 

 A person sentenced to pay a fine or other monetary 

 penalty, including restitution, shall make such 

 5 
 payment immediately, unless, in the interest of justice, 

 the court provides for payment on a date certain or in 

 installments. . . . 

18 U.S.C. S 3572(d)(1). This section applies to all monetary 

penalties, including fines and restitution orders, and it 

creates a preference for immediate payment. Contrary to 

the government's suggestion, however, this provision in no 

way eliminates the district court's obligation under section 

3664 -- "Procedure for issuance and enforcement of order 

of restitution" -- to consider the defendant'sfinancial 

situation and schedule restitution payments accordingly. 

We therefore reject the government's claim that section 

3572 permitted the District Court to satisfy its duties under 

section 3664 through its silence. 

The government next maintains that the District Court 

complied with the MVRA by making payments due during 

the term of the defendant's imprisonment. In making this 

contention, the government points to a paragraph of

standard-form language in the restitution order that 

provides: 

 Unless the court has expressly ordered otherwise in the 

 special instructions above, if this judgment imposes a 

 period of imprisonment[,] payment of criminal 

 monetary penalties shall be due during the period of 

 imprisonment. All criminal monetary penalty 

 payments, except those payments made through the 

 Bureau of Prisons' Inmate Financial Responsibility 

 Program, are to be made as directed by the court, the 

 probation officer, or the United States attorney. 

Supplemental Appendix at 7a. Like section 3572, this 

paragraph does not establish a payment schedule, nor does 

it indicate that the District Court considered Coates's 

financial circumstances. It is therefore insufficient to satisfy 

section 3664(f)(2). 

As an alternative argument, the government contends

that the District Court's failure to comply with the statutory 

requirements is not fatal because, through its silence, the 

Court delegated responsibility to establish a payment 

schedule to the probation office. See 28 C.F.R. S 545.10 

(permitting Bureau of Prisons to determine payment 

 6 
schedules). In making this contention, the government cites 

Montano-Figueroa v. Crabtree, 162 F.3d 548 (9th Cir. 1998), 

in which the Ninth Circuit held that the district court may 

delegate its statutory responsibilities to a probation officer. 

The government's reliance on Montano-Figueroa is 

misplaced. 

Like most other federal appellate courts that have 

addressed the issue, we have held that the fixing of 

restitution payments is a judicial act that may not be 

delegated to a probation officer. See United States v. 

Graham, 72 F.3d 352, 357 (3d Cir. 1995) (holding that, 

under the VWPA, the duty to establish payment schedules 

is non-delegable), cert. denied, 116 S. Ct. 1286 (1996); see 

also United States v. Mohammad, 53 F.3d 1426, 1438-39 

(7th Cir. 1995); United States v. Porter, 41 F.3d 68, 71 (2d 

Cir. 1994); United States v. Johnson, 48 F.3d 806, 808 (4th 

Cir. 1995); United States v. Albro, 32 F.3d 173, 174 n.1 (5th 

Cir. 1994) (per curiam). A court abdicates its judicial 

responsibility when it permits a probation officer to 

determine the manner and schedule of restitution 

payments. Although we recognize that federal regulations 

permit the Bureau of Prisons to make payment schedules 

for all monetary penalties, see 28 C.F.R.S 545.10, the plain 

language of the MVRA, vesting sole authority in the district 

courts, see 18 U.S.C. S 3664(f)(2) ("[T]he court shall . . . 

specify . . . the manner . . . and the schedule . . . [of] 

restitution"), contradicts, and thus overrides, the

regulations. 

That Graham was decided under the Victim and Witness 

Protection Act, the former statute setting out the 

requirements for court-ordered restitution, does not make 

its conclusion inapplicable here. Unlike the MVRA, the 

VWPA provides the district courts with discretionary 

authority to schedule restitution payments. See 18 U.S.C. 

S 3663(f)(1) (West 1995) ("The court may require that [the] 

defendant make restitution . . . within a specified period or 

in specified installments.") (emphasis added). Even under 

this more lenient standard, Graham holds that the 

scheduling of restitution payments is non-delegable. We fail 

to see how the result under the MVRA, which imposes a 

mandatory obligation on the district court to schedule 

 7 
restitution payments, see 18 U.S.C. S 3664(f)(2) (stating 

that "the court shall . . . specify . . . the manner . . . and 

the schedule . . . [of] restitution"), can be any different. 

We conclude that the District Court's failure to satisfy the 

MVRA's mandatory requirements under section 3664(f)(2), 

and its implicit delegation of its responsibilities to the 

probation office, constitute plain error. Accordingly, we 

vacate the restitution order and remand to the District 

Court for resentencing in light of the factors set forth in the 

MVRA, 18 U.S.C. S 3664(f)(2). 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 8