Becker, Chief Judge, Weis, Circuit Judge, and Dowd, District Judge.*fn*
The opinion of the court was delivered by: Becker, Chief Judge
On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Crim. No. 96-cr-0167-5)
Curtis Evans appeals from his conviction on various fraud-related charges. The primary question presented, which arises out of Evans' judgment of sentence, is whether the district court erred in conditioning his supervised release on reimbursement of the cost of court-appointed counsel. See 18 U.S.C. § 3583(d). We conclude that it did, and therefore vacate that portion of the judgment. We also remand for further sentencing proceedings because of the inadequacy of the district court's findings supporting its determination of the amount of loss from fraudulent conduct. See U.S.S.G. § 2F1.1(b)(1) (1997).*fn1
A federal grand jury returned a forty-six count indictment against Evans and eleven other individuals. Evans was convicted by a jury of nineteen counts of mail fraud in violation of 18 U.S.C. § 1341; two counts of use of a fictitious name to commit mail fraud in violation of 18 U.S.C. § 1342; three counts of wire fraud in violation of 18 U.S.C. § 1343; and one count of conspiracy in violation of 18 U.S.C. § 371. The fraud inhered in a scheme of staging automobile accidents and then submitting insurance claims for non-existent medical treatment. The scheme, which operated in New York, Pennsylvania, and New Jersey, was masterminded by Alexander Grichener, but Evans played an apparently significant role in its Pittsburgh, Pennsylvania operations, particularly those involving the Keystone Medical clinic. Evans was sentenced to forty-two (42) months imprisonment and three (3) years supervised release for each count, to run concurrently; a $1250 special assessment; and payment of $2500 in restitution. The supervised release was conditioned upon the reimbursement of the costs of Evans' court-appointed counsel, in a monthly amount of not less than ten percent of his gross monthly income.
During the trial it was revealed that Evans' financial affidavit, submitted as part of his application for court-appointed counsel, inaccurately represented Evans' and his wife's annual joint income as $48,000, when their actual joint income was $104,000. Evans testified that the court clerk filling out the affidavit had asked about joint take-home pay ($48,000), not gross pay ($104,000). At the sentencing hearing the court found that Evans had made "material misstatements" in his affidavit, and ordered Evans to repay the cost of his attorney as a condition of supervised release. Upon further questioning by Evans' counsel, the court explained that the condition was imposed because Evans "had enough income that he was not entitled to a Public Defender," and that the condition was not punishment for the misrepresentation.
The presentence investigation report stated that the amount of loss incurred by the insurance companies was $2,851,872.42, and thus exceeded $2.5 million for sentencing guideline purposes. A government agent testified at the sentencing hearing that he had calculated the amount of loss based on insurance company
reimbursement checks deposited to the bank accounts of the eleven medical clinics and supply companies involved in the scheme. On cross-examination, the agent indicated that he did not know whether every deposit was associated with a staged accident. The district court then found"from the preponderance of the evidence [at the sentencing hearing] and the trial . . . that the amount of loss as a result of the conspiracy for which defendant knowingly took part and was expected and foreseeable exceed[ed] 2.5 million dollars." Accordingly, Evans' base offense level of six was increased thirteen levels pursuant to U.S.S.G. § 2F1.1(b)(1).*fn2 Evans filed this timely appeal.*fn3
Evans contends that the conditioning of his supervised release on the reimbursement of counsel fees is violative of the supervised release statute, 18 U.S.C. § 3583. This contention was not raised in the district court, and thus we review it under the familiar plain error standard set forth infra in Part II.D. For the reasons that follow, we find that the district court committed plain error requiring the exercise of our discretion to vacate the judgment.
The supervised release statute is not open-textured. An order may be a condition of supervised release only to the extent that it:
(1) is reasonably related to the factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a).
18 U.S.C. § 3583(d). Section 3553(a), referenced in paragraphs (1) and (2) above, provides for consideration of:
(1) the nature and circumstances of the offense and the history and characteristics ...