UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
argued: October 29, 1986.
UNITED STATES OF AMERICA
HAWTHORNE, SYLVANE, APPELLANT
On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Crim. No. 85-00433-01.
Before: ADAMS, HIGGINBOTHAM, Circuit Judges, and VAN DUSEN, Senior Circuit Judge.
Opinion OF THE COURT
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Appellant Sylvane Hawthorne appeals from the order of the district court denying appellant's motion for correction of sentence requesting a reduction of the amount of restitution imposed as a condition of her probationary sentence. We must decide whether the district court erred in imposing an order of restitution in the amount of $28,280.00, where the dollar amount charged in the counts upon which appellant's plea of guilty was tendered was $231.00.
On October 30, 1985, the grand jury returned a 69-count indictment against defendant/appellant Sylvane Hawthorne and two co-defendants. Specifically, Hawthorne was charged with one count of conspiracy, in violation of 18 U.S.C. § 371 (1982); thirty counts of making false statements, in violation of 18 U.S.C. § 1001 (1982); nine counts of mail fraud, in violation of 18 U.S.C. § 1341 (1982); one count of false representation of a Social Security number, in violation of 42 U.S.C. § 408(g)(2) (1982); and twenty-three counts of unauthorized possession of food coupon authorizations, in violation of 7 U.S.C. § 2024(b) (1982).
On December 30, 1985, pursuant to a plea bargain agreement, Hawthorne entered a plea of guilty to one count of mail fraud (Count 26), one count of false representation of a Social Security account number (Count 33), and one count of unauthorized possession of food coupon authorizations (Count 40). The pleas were entered pursuant to Federal Rule of Criminal Procedure 11(e)(1)(a), with the government agreeing to move the district court to dismiss the remaining counts of the indictment.
Subsequently, Hawthorne was sentenced to two years incarceration and a fine of $10,000 on Count 40. On Count 26, Hawthorne received a suspended sentence. On Count 33, the focus of this appeal, the district court, in apparent reliance on the Government's Sentencing Memorandum,*fn1 see App. at 12-17, sentenced Hawthorne to four years incarceration, the execution of which was suspended, and a probationary period of five years conditioned upon restitution in the amount of $28,280.00 payable over the period of probation. Hawthorne challenges that portion of the district court's sentence that orders payment of $28,280.00, arguing that, absent a plea agreement, restitution may be ordered only for the amount directly attributable to the counts to which she pleaded guilty, viz. $131.00 underlying Count 26 and $100.00 underlying Count 40, or a total of $231.00. The government contends that the district court "properly imposed a condition of full restitution upon Hawthorne because each count to which she pleaded guilty was a small, but essential, step in a unitary scheme." Brief of Appellee at 10.
Pursuant to 18 U.S.C. § 3651 (1982) a district court is authorized to order restitution as a condition of probation.*fn2 That section provides: "While on probation and among conditions thereof, the defendant . . . may be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had." Id. This section has been consistently interpreted in this Circuit to limit the district court's authority to impose restitution to actual damages or loss caused by the offense to which defendant pleads or is convicted. See United States v. Buechler, 557 F.2d 1002, 1007 (3d Cir. 1977); United States v. Stoehr, 196 F.2d 276, 283 (3d Cir. 1952); United States v. Follette, 32 F. Supp. 953, 955 (E.D. Pa. 1940); see also United States v. Kutner, 631 F. Supp. 126 (E.D. Pa. 1986) (reviewing the case law construing section 3651).
The government maintains, however, that this Court's recent decisions in United States v. Martin, 788 F.2d 184 (3d Cir. 1986) and United States v. Woods, 775 F.2d 82 (3d Cir. 1985), support the proposition that where the count to which the defendant has entered a guilty plea charges one component of a "unitary scheme," the defendant may be required to make full restitution for all of the losses caused by the scheme.*fn3 The crime charged in Count 33, as characterized by the government, "is the use of a false social security number with the intent to deceive, for the purpose of obtaining payments to which the defendant was not entitled, from 1975 to 1984." Letter Brief of the United States at 2 (Nov. 5, 1986). The government contends that this crime constitutes a unitary scheme and, therefore, that the district court was authorized under § 3651 to order restitution in an amount representing the entire loss suffered as a result of the scheme. The government's argument misses the point of Hawthorne's appeal.
Appellant contends "that pursuant to 18 U.S.C. Section 3651 and this Court's decision in U.S. V. Buechler, 557 F.2d 1002 (3d Cir. 1977), absent a plea agreement which specifies restitution in an amount greater than the conviction as a condition of probation, or the defendant agreeing to such excess restitution, an order of restitution greater than the conviction is improper." Brief of Appellant at 4.*fn4 Thus, Hawthorne does not challenge the inference from Woods and Martin that restitution may properly be imposed in an amount greater than the losses charged in the indictment counts to which a plea is entered if the offense charged constitutes part of a unitary scheme.*fn5 Rather, Hawthorne maintains that those cases
did not broaden the authority of the Court to impose restitution as a condition of probation but merely reaffirmed the principle that a court has the authority to order restitution as a condition of probation in an amount exceeding the amount of loss attributable to the particular count for which conviction was had where a defendant agrees to make restitution as part of the plea agreement.
Brief of Appellant at 12 (emphasis in original). Although appellant perhaps overstates the limitation on the district court's power to impose restitution as a condition of probation,*fn5 her position is not without merit.
In United States v. Buechler, supra, we reserved the question "whether restitution in an amount exceeding that involved in the count to which a guilty plea is entered may be imposed as a condition of probation, where the defendant explicitly agrees to it as one of the terms of a plea bargain in a multiple count indictment." 557 F.2d at 1008 n.10.*fn6 Since Buechler, several courts have resolved this question in the affirmative. See Phillips v. United States, 679 F.2d 192, 194 (9th Cir. 1982) ("when defendant consents pursuant to a plea agreement to pay . . . [restitution] . . . the Court is bound by law to carry out that specific agreement"); United States v. McLaughlin, 512 F. Supp. 907, 908 (D.Md. 1981) (court authorized to order full restitution because, inter alia, "defendant consents, freely and voluntarily to make full restitution and that it be a condition of probation"). Appellant now urges us to consider the converse of this query and to hold that absent such agreement restitution may not be imposed in an amount exceeding that charged in the counts to which a defendant pleads guilty. Although appellant's position is not without support, see United States v. Whitney, 785 F.2d 824 (9th Cir. 1986); United States v. Orr, 691 F.2d 431 (9th Cir. 1982), on this record, we are not prepared to go so far.
Our decisions in Woods and Martin indicate our approval of the broader conception of the term "offense" in § 3651 that has been accepted in other circuits. See, e.g., United States v. Davies, 683 F.2d 1052, 1055 (7th Cir. 1982) (offense involved "a continuing scheme to defraud"); Phillips v. United States, 679 F.2d 192, 194 (9th Cir. 1982) (in mail fraud cases, offense includes fraudulent scheme alleged as element of offense); United States v. Tiler, 602 F.2d 30, 34 (2d Cir. 1979) (conspiracy to defraud covers actual damages incurred as result of scheme). Under this broader conception, the district court may properly order restitution in an amount exceeding that charged in the particular count(s) to which defendant pleaded guilty. Here, appellant essentially asks us to condition the exercise of that authority on the defendant's explicit agreement thereto. We decline to do so. At a minimum, however, a defendant is entitled to some notice, from the prosecution or the district court, that restitution may be imposed as a result of his or her plea.*fn7
In the instant case, the failure of the district court and the government to inform Hawthorne of the possibility of restitution cannot be considered to have been without significance. The plea agreement indicates that, although the government specifically maintained that it would recommend that Hawthorne be sentenced to a period of incarceration,*fn8 restitution in any amount was never raised as a possibility either as part of the sentence or as a condition of probation. In United States v. Runck, 601 F.2d 968 (8th Cir. 1979), the Eighth Circuit considered the question whether the condition of restitution imposed sua sponte by the district judge subsequent to a guilty plea substantially altered the plea agreement and exceeded the role of the judge. Noting that "a plea bargain severely limits the discretion of a sentencing judge," id. at 970, the court held:
While the condition of restitution of a small amount might be acceptable because it would not necessarily materially alter the expectations of the parties to the bargain, restitution of a large amount should have been part of the plea bargain or the possibility of its inclusion as a condition of probation made known and agreed to by the bargainers.
Id. See also United States v. Garcia, 698 F.2d 31, 36 (1st Cir. 1983) ("Particularly where the amount involved is as large as it is here, restitution is a material condition unlikely to be left to implication. Implying such a condition [subsequent to the negotiated plea] would work a material change in the plea bargain.") Runck clearly requires some notice to the defendant of the possible imposition of restitution. We find this reasoning equally applicable here, although we conclude that this Court's opinions in Woods and Martin do not mandate both notice to and agreement from the defendant. Consequently, while we join the Runck court in requiring notice, we do not believe that our cases impose a prior agreement requirement on prosecutors or the district courts.
In Woods we held that, where "the likelihood of a restitution order and its extent were fully explained . . . by the district court before accepting the plea," the defendant could not later vitiate his plea on the ground that restitution was inconsistent with the terms of the plea agreement. 775 F.2d at 83, 86-87. Similarly, considering the effect of the enactment of the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3579 (1982) on the district court's responsibility under Federal Rule of Criminal Procedure 11 (c)(1)*fn9 to ensure that the defendant understands the consequences of his or her plea, the Advisory Committee to the 1985 amendment of Rule 11(c)(1) observed:
Because this new legislation contemplates that the amount of the restitution to be ordered will be ascertained later in the sentencing process, this amendment to Rule 11(c)(1) merely requires that the defendant be told of the Court's power to order restitution. The exact amount or upper limit cannot and need not be stated at the time of the plea.
Fed. R. Crim. P. 11 advisory committee's note (1985 Amendment) (emphasis added). We think the possibility of a restitution order under § 3561 requires no less.*fn10 Indeed, in Woods, which involved a restitution order as a condition of probation, we noted that under the August 1, 1985 version of Rule 11(c), "the district judge is under an obligation to advise the defendant of the possibility of restitution along with the statutory penalties." 775 F.2d at 87.*fn11
In sum, then, where a plea is sought on a count(s) on which restitution in an amount exceeding that charged in the particular count(s) may properly be imposed, the government must in the course of negotiating the plea, inform the defendant of the possibility that restitution will be required, so as to afford the defendant a full opportunity to assess adequately all the consequences prior to entering a plea of guilty. In the absence of a provision for restitution in the plea agreement, the district court must, prior to accepting the plea, inform the defendant of the possibility of its imposition before a subsequent order of restitution in an amount exceeding that charged in the count(s) to which the defendant pleaded may be sustained. Because neither the government nor the district court in the instant case informed Hawthorne of the possibility of restitution prior to her plea agreement, the order for restitution exceeding the amount in the counts to which she pled guilty cannot stand.
Ordinarily, where a sentence imposed is inconsistent with the terms of a plea agreement, the proper remedy is to remand to the district court to "conform the sentence to the provisions of the plea bargain or allow withdrawal of the plea." United States v. American Bag & Paper Corp., 609 F.2d 1066, 1068 (3d Cir. 1979). See also Santobello v. New York, 404 U.S. 257, 262-63, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971) (same). In a last-ditch effort to obtain an order of full restitution against Hawthorne, the government urges us to remand this case for resentencing on Count 26, which charges Hawthorne with mail fraud.*fn12 This we cannot do. Indeed, a remand to the district court with permission to impose restitution on another count to which Hawthorne entered a plea of guilty would undermine the basis of this opinion. The omission of any reference to restitution in the plea agreement and the lack of any indication by the district court of its power to impose restitution prior to the acceptance of the plea preclude the imposition of restitution on any of the counts to which Hawthorne entered a plea in amounts exceeding those actually reflected in those counts, viz. $231.00.*fn13
We recognize, however, that the district court may have imposed a different sentence on Count 33 were restitution in the first instance unavailable as an option. Under the terms of the plea agreement, the district court could have sentenced Hawthorne to a maximum of five years imprisonment and a five thousand dollar ($5,000) fine on Count 33.*fn14 Instead, the court suspended execution of a five year term of imprisonment, conditioned probation on restitution, and imposed no fine. Hawthorne insists, however, that due to double jeopardy considerations "[t]his Court can only remand this matter to the District Court so that it can modify the sentence to impose restitution in accordance with the amounts stated in the counts to which a guilty plea was entered." Letter Brief of Appellant at 2 (Nov. 10, 1986) (emphasis added). Appellant misperceives the law.
In United States v. Busic, 639 F.2d 940 (3d Cir. 1981), this Court conducted an exhaustive review of the law of double jeopardy. As we noted in Busic, contrary to appellant's contention, it is well settled that "correction of an illegal sentence by resentencing does not implicate double jeopardy rights." Id. at 946-47 (citing United States v. Denson, 603 F.2d 1143, 1148 (5th Cir. 1979) (en banc)). Our disposition of this case simply does not implicate double jeopardy considerations. Moreover, the district court's authority on remand to "conform the sentence to the provisions of the plea bargain," American Bag & Paper Corp., supra, contemplates the authority to impose the maximum sentence, absent the excised illegality, that could have properly been imposed in the first instance. Thus, although the district court, if it elects to impose restitution, is limited to that amount charged in the counts to which Hawthorne entered a plea, the court may impose a fine of up to five thousand dollars ($5,000) and a term of imprisonment up to five years if such penalties are appropriate at the time of resentencing.*fn15 Accordingly, the decision of the district court will be reversed, and the case will be remanded to the district court for resentencing on Count 33 in accordance with this opinion.