FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 25, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11961

Non-Argument Calendar

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D. C. Docket No. 05-60016-CR-RWG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES W. LONG,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(March 25, 2010)

Before BIRCH, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

James W. Long (“Long”) appeals the district court’s order instructing the
district court clerk to provide to the court financial office a list of victims to

facilitate execution of the court’s prior criminal restitution order. Long makes two

arguments on appeal. First, Long argues that the order was beyond the 90-day time

limit allowed for entering or amending restitution orders, and that the government

waived its right to contest the restitution order by failing to appeal the original

district court order. Second, Long argues that the amended restitution order is

invalid in that it fails to identify victims or amounts to be paid to them so as to

afford the defendant due process. After reviewing the record we find no error and

AFFIRM the district court order.

I. BACKGROUND

For a full discussion of facts related to Long’s conviction see United States

v. Long, 300 Fed. Appx. 804 (11th Cir. 2008) (per curiam). In that unpublished

opinion, we affirmed Long’s conviction and sentence for conspiracy to commit

wire and mail fraud and substantive wire fraud stemming from his operation of a

payday loan company.

The facts related to Long’s criminal restitution order are as follows. In

March 2006, after Long’s conviction, the district court entered a preliminary order

of forfeiture requiring “all [of Long’s] right, title and interest” in certain

enumerated funds to be forfeited to the government under 18 U.S.C.

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§ 982(a)(2)(b)(1) and 21 U.S.C. § 853. R1-105 at 3. The order stated inter alia:

It is further ORDERED that upon adjudication of all third-party

interests, this Court will enter a Final Order of Forfeiture . . . in which

all interests will be addressed. If no claims are filed within 30 days of

the final publication or receipt of actual notice . . . then, pursuant to

[21 U.S.C. § 853(n)(7)], this Order shall be deemed a final order of

forfeiture.

Id. at 4 (emphasis added). In May 2006, the court sentenced Long to a total of 72

months of imprisonment and ordered him to pay $2,119,946 in restitution. R1-113

at 2, 5. At the sentencing hearing, the court acknowledged that the government

had identified the number of victims and the loss amounts, and the probation office

had a list of the victims and their addresses. R5 at 27-30. Long appealed his

convictions and sentences, R1-115, and we affirmed the district court’s judgment.

Long, 300 Fed. Appx. at 820.

While Long’s appeal was pending, the government moved the district court

to “amend” its restitution order by specifying the victims and the amount of

forfeited funds to which each victim was entitled. R2-167 at 1-3. The government

stated that it had seized all of the funds outlined in the preliminary order of

forfeiture. Id. at 2. Because it had not obtained a final order of forfeiture in the

criminal case, the government obtained a judgment of civil forfeiture against all the

bank accounts enumerated in the preliminary order of forfeiture, and it attached a

copy of that civil forfeiture order to its motion. Id. at 2-3, Exhibit 1. In the civil

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forfeiture order, the district court noted that the government had published a Public

Notice of Action, but no party had filed a claim for Long’s accounts. Id. at Exhibit

1, p. 2. The government also attached a list of all the victims and the verified loss

amounts. Id. at Exhibit 2.

Long responded in opposition to the government’s motion and argued that

the motion was untimely because it was filed after the 90-day time limit under 18

U.S.C. § 3664(d)(5). R2-168 at 1. Long argued that the government had waived

its right to complain about the fact that the criminal judgment neglected to list the

names and loss amounts of the victims by waiting until after we had affirmed the

district court’s conviction and sentences. Id. at 2. In March 2009, after our

mandate issued affirming Long’s criminal convictions and sentences, the district

court granted the government’s motion in part and denied it in part. R2-170 at 1.

Specifically, the court stated that the amount of restitution remained the same, but

it declined to disclose the amount of verified losses and the names of the victims in

the order. Id. The court did, however, order “that the Clerk [ ] provide the [court]

Financial Department with the list of victims and their verified losses in

accordance with their claim [ ] to satisfy the restitution obligations imposed” on

Long. Id.

Long now argues that the district court’s March 2009 order was invalid for

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two reasons. First, Long contends that the order was untimely under the “90-day

time limit on restitution orders” under 18 U.S.C. § 3664(d)(5). He cites United

States v. Maung, 267 F.3d 1113 (11th Cir. 2001), for the proposition that there is

no prejudice requirement under 18 U.S.C. § 3664, and the 90-day time limit is

clear. Further, Long maintains that even if 18 U.S.C. § 3664 does not bar entry of

the order, the government was barred from seeking an amended restitution order

under the mandate rule and the law of the case doctrine. Long submits that the

government failed to address the validity of the restitution order in Long’s direct

appeal, and the district court amended the restitution order only after issuance of

the mandate. He asserts that the government is barred under the law of the case

doctrine from revisiting an issue that could have been raised and decided on

appeal. Second, Long argues that the amended restitution order is defective and

violates his due process rights because it does not identify specific victims and

their respective loss amounts.

II. DISCUSSION

A. Timeliness of the Restitution Order

“We review the validity of a restitution order for abuse of discretion.”

United States v. Alas, 196 F.3d 1250, 1251 (11th Cir. 1999) (per curiam). “The

interpretation of a statute is a question of law subject to de novo review.” United

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States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).

Title 18 U.S.C. § 3664(d)(5) provides:

If the victim’s losses are not ascertainable by the date that is 10 days

prior to sentencing, the attorney for the Government or the probation

officer shall so inform the court, and the court shall set a date for the

final determination of the victim’s losses, not to exceed 90 days after

sentencing. If the victim subsequently discovers further losses, the

victim shall have 60 days after discovery of those losses in which to

petition the court for an amended restitution order. Such order may be

granted only upon a showing of good cause for the failure to include

such losses in the initial claim for restitutionary relief.

18 U.S.C. § 3664(d)(5)(2000).

In Maung, we interpreted 18 U.S.C. § 3664(d)(5) and held that a district

court ordinarily may not “impose a sentence and then delay determination of the

amount of losses more than 90 days from sentencing.” Maung, 267 F.3d at 1121.

In United States v. Kapelushnik, 306 F.3d 1090 (11th Cir. 2002), the district court

ordered the defendants to pay restitution at sentencing but postponed ruling on the

amount of restitution owed until a later hearing. Kapelushnik, 306 F.3d at 1093.

After sentencing, but before the district court had decided on the restitution

amount, the government appealed the sentences, and we held that when “the

district court fails to make such a determination within the 90-day limitations

period, the judgment of conviction becomes final and contains no enforceable

restitution provision.” Id. at 1093-94.

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Here, the district court’s March 2009 order was not untimely under 18

U.S.C. § 3664(d)(5) because that provision does not apply. Section 3664(d)(5)

pertains to situations where the amount of restitution is uncertain or not

ascertainable at the time of sentencing, and the 90-day period refers to the time

limit after sentencing for determining the amount of restitution. 18 U.S.C.

§ 3664(d)(5). In Long’s case, the district court determined the amount of

restitution at sentencing and set forth that amount in the final judgment. The court

did not amend the amount of the restitution judgment in its March 2009 order;

instead, it merely directed the clerk to execute that order.

Finally, the district court’s order did not violate the law of the case doctrine

or the mandate rule. We have explained the law of the case doctrine as:

Under the law of the case doctrine, both the district court and the court

of appeals are bound by findings of fact and conclusions of law made

by the court of appeals in a prior appeal of the same case unless (1) a

subsequent trial produces substantially different evidence, (2)

controlling authority has since made a contrary decision of law

applicable to that issue, or (3) the prior decision was clearly erroneous

and would work manifest injustice.

United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (per curiam). And we

have explained the mandate rule as:

The mandate rule is simply an application of the law of the case

doctrine to a specific set of facts. Accordingly, when acting under an

appellate court’s mandate, a district court cannot vary it, or examine it

for any other purpose than execution; or give any other or further

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relief; or review it, even for apparent error, upon a matter decided on

appeal; or intermeddle with it, further than to settle so much as has

been remanded.

United States v. Amedeo, 487 F.3d 823, 830 (11th Cir. 2007) (quotation marks and

citation omitted). In this case, there was no violation of the law of the case

doctrine or the mandate rule because the district court never varied from our

mandate.

B. Whether the Amended Restitution Order Was Defective

“Constitutional objections not raised before the district court are reviewed

only for plain error.” United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir.

2005) (per curiam). To prove plain error, a defendant must show: (1) error, (2)

that is plain, and (3) that affects substantial rights. United States v. Turner, 474

F.3d 1265, 1276 (11th Cir. 2007). If all three conditions are met, we may exercise

our discretion to correct the error if it “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id.

Long argues that even if the court’s amended order was timely and not

barred by the law of the case doctrine or the mandate rule, the order is still invalid

because it fails to identify victims or amounts to be paid to them so as to afford

him due process. He submits that the court’s vague instruction to the clerk to

provide undisclosed information regarding victims and losses is invalid in that it

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fails to identify such claimants.

In this case, Long did not raise any due process challenge before the district

court in his response to the government’s motion to provide the names of the

victims for the restitution order. We therefore apply plain error review to Long’s

due process claim. Given that Long does not articulate how the court’s March

2009 order affected his substantial rights or amounted to an error that “seriously

affects the fairness, integrity, or public reputation of judicial proceedings,” he has

not demonstrated plain error.

III. CONCLUSION

Long appeals the district court’s order instructing the court Clerk to provide

to the court Financial Office information to facilitate execution of the court’s prior

restitution order. As we have explained, the district court’s amended restitution

order did not change the amount of restitution, did not violate our mandate, and did

not violate Long’s due process rights. Accordingly, we AFFIRM the district court

order.

AFFIRMED.

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