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P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 98-1173

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. e du/thir dc ir c uit_1999/139Filed 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 Defende r Suite 800 -- Lafayette Building
437 Chestnut Street Philadelphia, Pennsylvania 19106-2414

Counsel for AppellantUNITED STATES DEPARTMENT OF JUSTICE

UNITED STATES ATTORNEY

EASTERN DISTRICT OF PENNSYLVANIA Michael R. Stiles, United States Attorney Ewald Zittlau, Assistant United States Attor ney 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 pl eaded guilty to armed robbery and related offenses, and a s a part of his sentence, the District Court ordered him to pay restitution in the amount of $4,028. Coates now cha llenges
the restitution order. Because the District Court e rred by imposing restitution without specifying a payment s chedule or considering the factors set forth in 18 U.S.C. S 3664(f)(2),
we vacate the restitution order and remand for rese ntencing in accordance with this opinion.

I.

In June and July of 1996, Coates and a co-conspirat or, Haywood White, committed three bank robberies in wh ich they obtained a total of $8,056. Coates pleaded gui lty to two counts of conspiracy to commit armed bank robbe ry and one count of conspiracy to commit bank robbery, in violation of 18 U.S.C. S 371; two counts of armed b ank 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 violatio n of 18 U.S.C. S 924(c). The District Court sentenced Coate s to a term of 291 months of imprisonment,1 to be followed by five

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1. Specifically, Coates received 60 months of impri sonment on the three conspiracy counts; 87 months of imprisonment on the three robbery

2years of supervised release, and imposed an $800 sp ecial

assessment. The Court also ordered Coates to pay restitution in the amount of $4,028, without anyfin dings 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 w ith a copy of the motion, and he filed a pro se brief in support of his appeal, raising two issues: (1) that the Distri ct Court erred in enhancing his sentence on the second weapo ns 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 sam e indictment as the first weapons conviction; and (2) that the District Court committed plain error by failing to make specific factual findings concerning Coates'sfinanc ial 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 Acco rdingly, we denied counsel's motion to withdraw and requeste d additional briefing on "[w]hether the District Cour t erred in failing to specify in the restitution order `the ma nner in which, and the schedule according to which, the res titution is to be made,' pursuant to the Mandatory Victims

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counts, to be served consecutively to the sentence imposed on the conspiracy counts; 60 months on the first weapons c ount, 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 argume nt 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 c onviction even though it arose from the same indictment as hisfirs t weapons conviction. Both the Supreme Court and our court al ready 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. de nied, 118 S. Ct. 221 (1997).

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

reviewing the parties' briefs, we conclude that the District
Court erred.

II.

Coates contends that the District Court erred by or dering him to pay restitution without specifying in the re stitution order the manner and schedule of payments to be mad e and without considering his financial resources, pr ojected earnings, and financial obligations. Because Coates did not object to the restitution order at the sentencing h earing, we review this issue for plain error. See Fed. R. Crim . P. 52(b) ("Plain errors or defects affecting substantial rig hts may be noticed although they were not brought to the atten tion 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 aft er April 24, 1996. See 18 U.S.C. S 3664 (statutory notes). C oates pleaded guilty on October 11, 1996, for criminal ac tivity that took place during the summer of 1996. Therefor e, application of the MVRA to Coates is appropriate he re. Cf. United States v. Edwards, 162 F.3d 87 (3d Cir. 1998 ) (imposing restitution on defendant for criminal con duct occurring prior to MVRA's enactment violates Ex Pos t Facto Clause).

The MVRA makes restitution mandatory for certain crimes, see 18 U.S.C. S 3663(A)(1), and requires di strict courts to order the payment of restitution in the f ull
amount of the victim's losses "without consideratio n of the
economic circumstances of the defendant." See 18 U. S.C.

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3. The MVRA substantially amended the provisions fo r 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 discreti onary authority to award restitution. In ordering restitution, however , courts were required to consider, among other factors, the defendant'sfi nancial ability to pay restitution in establishing the amount of restituti on to be ordered. 18 U.S.C. S 3664(a) (West 1985).

4S 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 order ing full restitution, the district court "shall specify in t he restitution order the manner in which, and the schedule accordi ng 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 cour t is required to consider the financial resources, proje cted earnings, and financial obligations of the defendan t. See 18 U.S.C. S 3664(f)(2)(A)-(C). The court may order the defendant to make a single lump-sum payment, reason able 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 M VRA by ordering Coates to pay the full amount of his sh are of the victim's losses, $4,028. After doing so, howeve r, the District Court failed to satisfy the remaining stat utory 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 p ayment of $4,028. Since the MVRA mandates that district co urts schedule restitution payments after taking into acc ount the defendant's financial resources, the District Court 's failure to do so here constitutes plain error. See United S tates 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. 10 74 (1995).

We are unpersuaded by the government's arguments to the contrary. The government maintains that the Dis trict Court complied with the statutory requirements beca use under section 3572, and in view of the District Cou rt's silence, full payment was due immediately. Section 3572 provides, in pertinent part:

A person sentenced to pay a fine or other mo netary penalty, including restitution, shall make s uch

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

the court provides for payment on a date cer tain 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. Contrar y to the government's suggestion, however, this provisio n in no way eliminates the district court's obligation unde r section
3664 -- "Procedure for issuance and enforcement of order
of restitution" -- to consider the defendant'sfinan cial situation and schedule restitution payments accordi ngly. We therefore reject the government's claim that sec tion 3572 permitted the District Court to satisfy its du ties under section 3664 through its silence.

The government next maintains that the District Cou rt complied with the MVRA by making payments due durin g 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 tha t provides:

Unless the court has expressly ordered other wise in the special instructions above, if this judgment imposes a period of imprisonment[,] payment of crimina l monetary penalties shall be due during the p eriod of imprisonment. All criminal monetary penalty payments, except those payments made through the Bureau of Prisons' Inmate Financial Responsi bility Program, are to be made as directed by the c ourt, the probation officer, or the United States atto rney.

Supplemental Appendix at 7a. Like section 3572, thi s paragraph does not establish a payment schedule, no r does
it indicate that the District Court considered Coat es's
financial circumstances. It is therefore insufficie nt to satisfy section 3664(f)(2).

As an alternative argument, the government contends that the District Court's failure to comply with th e statutory requirements is not fatal because, through its sile nce, the Court delegated responsibility to establish a payme nt schedule to the probation office. See 28 C.F.R. S 5 45.10 (permitting Bureau of Prisons to determine payment

6schedules). In making this contention, the governme nt cites

Montano-Figueroa v. Crabtree, 162 F.3d 548 (9th Cir . 1998),
in which the Ninth Circuit held that the district c ourt may delegate its statutory responsibilities to a probat ion 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 o f 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 th at, under the VWPA, the duty to establish payment sched ules is non-delegable), cert. denied, 116 S. Ct. 1286 (1 996); see also United States v. Mohammad, 53 F.3d 1426, 1438- 39 (7th Cir. 1995); United States v. Porter, 41 F.3d 6 8, 71 (2d Cir. 1994); United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995); United States v. Albro, 32 F.3d 173, 17 4 n.1 (5th Cir. 1994) (per curiam). A court abdicates its judi cial responsibility when it permits a probation officer to determine the manner and schedule of restitution payments. Although we recognize that federal regula tions permit the Bureau of Prisons to make payment schedu les 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 sh all . . . specify . . . the manner . . . and the schedule . . . [of] restitution"), contradicts, and thus overrides, the regulations.

That Graham was decided under the Victim and Witnes s Protection Act, the former statute setting out the requirements for court-ordered restitution, does no t make its conclusion inapplicable here. Unlike the MVRA, the VWPA provides the district courts with discretionar y authority to schedule restitution payments. See 18 U.S.C. S 3663(f)(1) (West 1995) ("The court may require th at [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 sched ule

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

that "the court shall . . . specify . . . the manne r . . . and the schedule . . . [of] restitution"), can be any d ifferent.

We conclude that the District Court's failure to sa tisfy the MVRA's mandatory requirements under section 3664(f) (2), and its implicit delegation of its responsibilities to the probation office, constitute plain error. According ly, we
vacate the restitution order and remand to the Dist rict 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

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