Opinion
98 CR 1325 (SAS).
May 26, 2009
Defendant (Pro Se): Antonio Guastella, # 14537-116, FCI Lompoc, Lompoc, CA.
For the Government: Lee Renzin, Assistant United States Attorney, New York, NY.
MEMORANDUM OPINION AND ORDER
Defendant Antonio Guastella, proceeding pro se, brings a Motion for Modification of Imposed Restitution, dated August 8, 2006 (the "Restitution Motion"), asking this Court to "discharge him from any restitution whatsoever." Guastella submitted the Restitution Motion approximately five months after he filed a motion pursuant to Title 28, United States Code, section 2255, to vacate, set aside or correct his sentence. At this Court's direction, the Government responded to the Restitution Motion with a letter-brief, dated April 9, 2008, from Assistant United States Attorney Lee Renzin ("Renzin Letter-brief"). For the following reasons, the Restitution Motion is denied.
Restitution Motion at 5.
On May 8, 2009, Guastella's section 2255 motion was denied in its entirety. See Guastella v. United States, Nos. 06 Civ. 2924, 98 CR 1325, 2009 WL 1286382, at *16 (S.D.N.Y. May 8, 2009).
I. BACKGROUND
On January 29, 2002, this Court sentenced Guastella to a term of two hundred months imprisonment, to be followed by a five-year term of supervised release. Guastella was also ordered to pay restitution in the amount of $16,762,000. During the sentencing proceedings, this Court made restitution a special condition of supervised release, payable at the rate of fifteen percent of defendant's gross monthly earnings. On April 29, 2002, this Court issued a Restitution Order in which restitution was found to be mandatory because of the conspiracy and wire fraud convictions. The Restitution Order includes a schedule that lists victims and their respective loss amounts, all of which total to $16,762,124.70. Finally, this Court appointed a Special Master to administer the restitution funds.
On May 15, 2009, Guastella received the remand he requested pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). On remand, this Court reduced Guastella's sentence from 200 months to 160 months in custody. Guastella's counsel did not raise the issue of restitution at the Crosby remand.
See 1/29/02 Sentencing Transcript at 48.
See 18 U.S.C. § 3663A. The 4/29/02 Restitution Order is attached as Ex. 1 to the Renzin Letter-brief.
The annexed schedule of specific, individual victims plainly contradicts Guastalla's characterization of the imposed restitution as "`Non-Victims' restitution." Restitution Motion at 3.
On October 16, 2001, pursuant to Title 18, United States Code, section 3664(d)(6), this Court appointed Anthony Valenti as a Special Master to identify victims, determine the amount of each victim's loss, determine the appropriate allocation of limited funds among victims, and recommend proposed Orders of Restitution. The 10/16/01 Order is attached as Ex. 2 to the Renzin Letter-brief.
In addition to restitution, Guastella forfeited millions of dollars in property and currency to the Government, including funds located in domestic and overseas bank accounts. The Government ultimately transferred the forfeited funds, and the proceeds of the forfeited property, to the Special Master so they could be made available to the victims of the fraud. As a result of these transfers, as well as restitution payments made by Guastella and certain co-defendants, the outstanding restitution obligation as of March 31, 2008 is $1,550,489.77.
II. DISCUSSION
Guastella raises several challenges to the Restitution Order. Read liberally, he asserts the following claims: (1) this Court erred by not taking into account Guastella's financial resources when setting the amount of restitution; (2) the restitution amount is excessive because substantial sums of money were forfeited to the Government; and (3) the Restitution Order violates Guastella's Sixth Amendment right to have the jury determine the amount of restitution, in violation of United States v. Booker.
543 U.S. 200 (2005). Aside from this argument, Guastella does not expressly challenge the constitutionality of the Mandatory Victim Restitution Act ("MVRA"). He does, however, include a citation to United States v. Kemp, 938 F. Supp. 1554 (N.D. Ala. 1996), which found the MVRA unconstitutional as applied to the defendant therein. Kemp is plainly an anomaly, see, e.g., United States v. Dean, 949 F. Supp. 782, 784 (D. Or. 1996) ("While Judge Acker [in Kemp] raises several valid, sincerely held, concerns about the practicality and effectiveness of the Act, he provides little in the way of legal, constitutional analysis."). Guastella cites no binding authority, and this Court is aware of none, suggesting that the application of the MVRA in this case raises constitutional concerns. Cf. United States v. Dubose, 146 F.3d 1141, 1146-48 (9th Cir. 1998) (rejecting challenges that the MVRA violates the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment, the Seventh Amendment right to jury trial, and equal protection under the Due Process Clause of the Fifth Amendment).
Preliminarily, Guastella does not assert any jurisdictional basis for this Court to reconsider the Restitution Order. Nothing in Title 18, United States Code, section 3664, provides a defendant with an opportunity to challenge an order of restitution more than four years after it was imposed. Nor can a defendant challenge restitution in a motion filed pursuant to Title 28, United States Code, section 2255. Furthermore, neither Title 18, United States Code, Section 3583(e)(2) (modification of conditions of supervised release), nor Federal Rule of Criminal Procedure 36 (correction of clerical errors in judgment), provide this Court with jurisdiction to reconsider an order of restitution. Admittedly, the law in the Second Circuit is unclear as to whether a writ of error coram nobis may be available to challenge an order of restitution. But Guastella identifies no error here, let alone an error of "the most fundamental character," such that coram nobis relief is appropriate. Nonetheless, in the interest of justice, I will address the merits of Guastella's arguments.
See Kaminski v. United States, 339 F.3d 84, 87 (2d Cir. 2003); Agyeman v. United States, No. 06 Civ. 3683, 2007 WL 2410381, at *1 (S.D.N.Y. Aug. 23, 2007).
See Guirand v. United States, No. 01 CR 156, 2004 WL 1878690, at *1-2 (S.D.N.Y. Aug. 23, 2004).
See Chacko v. United States, Nos. 04 Civ. 2258, 96 CR 519, 2005 WL 1388713, at *4 (S.D.N.Y. June 8, 2005).
See Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996) ("Coram nobis is not a substitute for appeal, and relief under the writ is strictly limited to those cases in which errors . . . of the most fundamental character have rendered the proceeding itself irregular and invalid.") (quotation marks and citations omitted).
Guastella first argues that this Court erroneously failed to take his financial circumstances into account when setting the amount of restitution. The law is clear that where restitution is mandatory, restitution must be ordered "to each victim in the full amount of each victim's losses . . . without consideration of the economic circumstances of the defendant." "When restitution is mandatory, the amount of restitution can only be challenged on the ground that it does not reflect the losses to victims." Moreover, Guastella did not submit a financial affidavit in connection with the Presentence Report ("PSR"). Accordingly, Guastella cannot be heard, years later, to fault the Court for not considering information that he failed to provide.
18 U.S.C. § 3664(f)(1)(A). See also United States v. Harris, 302 F.3d 72, 75 (2d Cir. 2002) (MVRA requires imposition of restitution without consideration of the defendant's economic circumstances); United States v. McIntosh, 198 F.3d 995, 1003 (7th Cir. 2000) (under MVRA, court may not consider defendant's financial status when calculating the amount of restitution); United States v. Myers, 198 F.3d 160, 168 (5th Cir. 1999) (MVRA required full restitution "without regard" to defendant's "economic circumstances and ability to pay").
Harris, 302 F.3d at 75.
Courts are required to take into account a defendant's resources in determining the schedule under which restitution payments shall be made. See 18 U.S.C. § 3664(f)(2). In the instant motion, Guastella does not challenge the payment schedule set by this Court, nor did he at the time of sentencing. In any event, a court is not required to state on the record that it considered the section 3664(f)(2) factors in setting a payment schedule. See United States v. Walker, 353 F.3d 130, 134-35 (2d Cir. 2003). Moreover, this Court set a payment schedule that comports with the general practice in this Circuit. See Guirand, 2004 WL 1878690, at *2 ("[T]he payment schedule is set at a percentage of Petitioner's monthly income, and thus, inherently considers and adjusts for Petitioner's financial situation.").
Guastella's second argument — that the amount of restitution is excessive given the amount of funds the Government obtained through forfeiture — fails for two reasons. As a matter of law, the fact that the Government obtained forfeited funds does not give a court discretion to order restitution in an amount less than the victims' losses. In any event, the Government exercised its discretion and chose to make the forfeited funds available for restitution. As a result, Guastella's outstanding restitution obligations were greatly reduced. Guastella has already received the very benefit he now complains he was denied, namely, that the forfeited funds be applied toward his restitution obligations.
See, e.g., United States v. Bright, 353 F.3d 1114, 1122 (9th Cir. 2004) ("[A]lthough the MVRA does not mention the relationship between restitution and forfeited funds specifically, it does address the relationship between restitution and other sources of funds in general: `In no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution.'") (quoting 18 U.S.C. § 3664(f)(1)(B)); United States v. Alalade, 204 F.3d 536, 540 (4th Cir. 2000) ("We fully agree with the government that the plain language of the MVRA did not grant the district court discretion to reduce the amount of restitution required to be ordered by an amount equal to the value of the property seized from Alalade and retained by the government in administrative forfeiture.").
Guastella's third argument — that the Restitution Order violated Booker because the amount of restitution was not determined by a jury beyond a reasonable doubt — is squarely foreclosed by Second Circuit case law. In United States v. Reifler, the Court of Appeals held that " Booker's analysis of the nature of the Sixth Amendment flaw in the Sentencing Reform Act, and of what is required to cure that flaw, indicates that there is no constitutional requirement that the facts needed for the district court's fashioning of a restitution order be found by a jury or found beyond a reasonable doubt." Thus, under Booker, a defendant does not have the right to have a jury determine the amount of restitution to be imposed by the sentencing court.
Guastella makes a passing reference to the fact that the jury did not make a finding regarding forfeiture. See Restitution Motion at 2 ("The jury, at trial, not only never heard a forfeiture aspect as required but never found defendant guilty of any dollar amount."). But Guastella signed a stipulated Order of Forfeiture immediately after trial. In any event, a defendant does not have a constitutional right to have a jury determine the amount of forfeiture. See Libretti v. United States, 516 U.S. 29, 49 (1995) ("[O]ur analysis of the nature of criminal forfeiture as an aspect of sentencing compels the conclusion that the right to a jury verdict on forfeitability does not fall within the Sixth Amendment's constitutional protection."); Fed.R.Crim.P. 32.2(b)(4) (party must request that jury "determine whether the government has established the requisite nexus between the property and the offense committed"). Moreover, Booker, which addresses determinate sentencing regimes, does not apply to criminal forfeiture proceedings. See United States v. Fruchter, 411 F.3d 377, 383 (2d Cir. 2005).
446 F.3d 65, 116 (2d Cir. 2006). Accord United States v. Dupes, 513 F.3d 338, 345-46 (2d Cir. 2008).
III. CONCLUSION
For the foregoing reasons, the Restitution Motion is hereby denied. The Clerk of the Court is directed to close this motion (Document #219).
SO ORDERED.