Theft from an interstate shipment

United States 1st Circuit Court of Appeals Reports

U.S. v. ZISKIND, 04-2076 (1st Cir. 12-22-2006) UNITED
STATES OF AMERICA, Appellee, v. BRUCE ZISKIND; BRUCE
TURNER, Defendants, Appellants. Nos. 04-2076, 04-2579.
United States Court of Appeals, First Circuit. December 22,
2006.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S.
District Judge].

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge,
and LIPEZ, Circuit Judge.

James M. Fox for appellant Bruce Ziskind.

Robert L. Sheketoff for appellant Bruce Turner.

John A. Capin, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, for appellee.

LYNCH, Circuit Judge.

Bruce Ziskind and Bruce Turner pled guilty in federal
district court to theft from an interstate shipment and
conspiracy to steal from an interstate shipment. The
district court sentenced Ziskind to twenty-four months’
imprisonment and twelve months of supervised release. Turner
was sentenced to eighteen months’ imprisonment and
thirty-six months of supervised release. Both were required
to pay restitution.

Ziskind and Turner appeal their sentences. They argue that
because no loss amount was charged in the indictment,
United States v. Booker, 543 U.S. 220 (2005), barred the
district court from ordering restitution in any amount.
Ziskind further argues that the government lacks standing
to enforce the restitution order because the victim waived
restitution. Finally, Turner argues that the district court
sentenced him to terms of imprisonment and supervised
release above the statutory maxima.

As the government concedes, the district court erred in
imposing a thirty-six-month term of supervised release on
Turner, and we thus vacate this term of supervised release
and remand to the district court to impose a term of
supervised release of no more than one year. Otherwise, we
reject the arguments made by Ziskind and Turner and affirm
their sentences.

I.

On December 29, 2002, Ziskind and Turner, along with
others, participated in the theft of a shipment of Gillette
Company merchandise consisting primarily of Mach3° razors.
A portion of the stolen shipment was recovered. On March
26, 2003, a grand jury in the District of Massachusetts
returned an indictment charging Ziskind and Turner with
theft from an interstate shipment in violation of 18 U.S.C.
§§ 2 and 659 (Count One), and conspiracy to
steal from an interstate shipment in violation of 18 U.S.C.
§ 371 (Count Three).[fn1] The indictment did not
allege a loss amount.

Ziskind and Turner pled guilty to both charges on March 23,
2004. At an evidentiary hearing on July 30, 2004, the
district court found the value of the stolen shipment to be
$254,000.

The same day, the court sentenced Ziskind to twenty-four
months’ imprisonment, twelve months of supervised release,
and to pay $145,142 in restitution. Twelve months of
Ziskind’s term of imprisonment was to run concurrently with
an undischarged term of imprisonment he was then serving.
On November 1, 2004, the court sentenced Turner to eighteen
months’ imprisonment, thirty-six months of supervised
release,[fn2] and, jointly and severally with Ziskind, to
pay $145,142 in restitution. Turner’s term of imprisonment
was to run concurrently with a 235-month sentence that he
received the same day on an unrelated felon-in-possession
charge.

II.

We review sentencing issues involving questions of law de
novo. United States v. McCarthy, 77 F.3d 522, 535 (1st Cir.
1996). Normally, “decisions to impose concurrent or
consecutive sentences are committed to the judgment of the
sentencing court, and such decisions are reviewed only for
an abuse of discretion.” Id. at 536. However, unpreserved
claims are reviewed for plain error. Diaz-Fonseca v. Puerto
Rico, 451 F.3d 13, 35-36 (1st Cir. 2006). To prevail on a
claim reviewed for plain error, a defendant must
demonstrate that:

“(1) an error was committed; (2) the error was `plain’
(i.e.[,] obvious and clear under current law); (3) the
error was prejudicial (i.e.[,] affected substantial
rights); and (4) review is needed to prevent a miscarriage
of justice,” meaning that “the error `seriously impaired
the fairness, integrity, or public reputation of
judicial proceedings.'”

Id. at 36 (alterations in original) (quoting Rivera
Castillo v. Autokirey, Inc., 379 F.3d 4, 10 (1st Cir. 2004)
(quoting Smith v. Kmart Corp., 177 F.3d 19, 26 (1st Cir.
1999))); see also United States v. Olano, 507 U.S. 725, 732
(1993).

A. Restitution

Ziskind and Turner argue that the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. §§ 3663A,
3664, which mandates imposition of restitution orders in
their cases, is unconstitutional as applied to them because
no loss amount was charged in the indictment or found by a
jury beyond a reasonable doubt. They argue that Booker
prohibits the post-conviction judicial factfinding
underlying their restitution orders.[fn3]

We bypass the question of whether Ziskind and Turner
preserved their Booker arguments and assume for the sake of
argument that they did.[fn4]

The argument that Booker applies to judicial determination
of the amount of restitution is without merit. “Booker and
its antecedents do not bar judges from finding the facts
necessary to impose a restitution order. . . .
Post-conviction judicial fact-finding to determine [loss]
amount `by no means impos[es] a punishment beyond that
authorized by jury-found or admitted facts’ or `beyond the
“statutory maximum”‘. . . .” United States v. Milkiewicz,
—F.3d —, No. 06-1192, slip op. at 30-31
(1st Cir. Dec. 6, 2006) (second alteration in original)
(quoting United States v. Leahy, 438 F.3d 328, 336-37 (3d
Cir. 2006) (en banc)).

Judicial determination of the loss amount underlying the
restitution orders was constitutionally permissible.

B. Government Standing To Enforce Ziskind’s Restitution
Order

Ziskind argues that Gillette, the victim, waived
restitution and did not assign its interest in any
restitution to the Crime Victims Fund of the United States
Treasury, and that the government therefore has no legally
cognizable interest in the restitution award. He argues that
the government’s standing with respect to restitution was
conferred by the MVRA “as a convenience,” so that the
government could “litigate on behalf of the victims in lieu
of their own participation.” As a result, he argues, the
government does not have standing to litigate or enforce
the July 30, 2004 restitution order, and the order must be
vacated. Ziskind did not make these arguments to the
district court, so we review only for plain error.

There was no error here, much less plain error. First, the
record does not establish that the victim, Gillette, in
fact waived restitution. Gillette stated in the course of
its motion to quash a subpoena seeking a valuation of the
stolen merchandise that it was willing to give up any claim
of restitution in an effort to avoid involvement in the
case. That device did not work. Gillette became involved,
and thereafter, Gillette agreed to the ordering of
restitution.

More importantly, the prosecution’s standing to seek
restitution under the MVRA does not depend on a victim’s
actions. This is because, contrary to Ziskind’s assertion,
restitution ordered as part of a criminal sentence is a
criminal penalty, not a civil remedy.[fn5] United States v.
Savoie, 985 F.2d 612, 619 (1st Cir. 1993); see also Kelly
v. Robinson, 479 U.S. 36, 52 (1986) (“Although restitution
does resemble a judgment `for the benefit of’ the victim,
the context in which it is imposed undermines that
conclusion. The victim has no control over . . . the
decision to award restitution.”); United States v. Rostoff,
164 F.3d 63, 71 (1st Cir. 1999) (“The nature of restitution
is penal and not compensatory.”). In Savoie, we held that
restitution imposed as part of a criminal sentence “is not a
civil affair; it is a criminal penalty meant to have
deterrent and rehabilitative effects. Private parties
cannot simply agree to waive the application of a criminal
statute.” 985 F.2d at 619 (citation omitted); cf. United
States v. Parsons, 141 F.3d 386, 393 (1st Cir. 1998) (“[A]
release by the victim does not preclude or cap restitution
of losses as part of criminal sentencing in a case where
there is no double recovery.”).

To the extent Ziskind argues that the MVRA itself does not
authorize restitution in this case, that argument fails.

United States v. Reifler, 446 F.3d 65 (2d Cir. 2006), on
which Ziskind relies, is inapposite. The court in Reifler
vacated orders that awarded restitution to people who did
not qualify as victims under the MVRA. Id. at 125-27, 132;
cf. United States v. Paradis, 219 F.3d 22, 25 (1st Cir.
2000) (vacating order awarding restitution to bankruptcy
trustee, who was not a victim of the offense). There is no
question in this case that Gillette was injured by the
defendants’ conduct and is a victim within the meaning of
the MVRA.

Nor is United States v. Pawlinski, 374 F.3d 536 (7th Cir.
2004), on which Ziskind also relies, applicable. In
Pawlinski, the court held that unclaimed restitution could
not be transferred to the Crime Victims Fund because the
Crime Victims Fund was not a victim or victim
representative. Id. at 539-40. This case raises no such
issue because Gillette accepted the district court’s
decision to impose restitution, and the order of
restitution states that it will be paid to Gillette.

The restitution order was proper.

C. Turner’s Term of Imprisonment

Turner argues that the district court erred in sentencing
him to a total of eighteen months’ imprisonment through
consecutive sentences. Eighteen months, he argues, is above
the authorized statutory maximum. He argues, and the
government concedes, that because the government did not
allege a loss amount in the indictment, it charged only
misdemeanors. See United States v. Scanzello, 832 F.2d 18,
22-23 (3d Cir. 1987). Under 18 U.S.C. § 371, if the
object of the conspiracy is a misdemeanor, “the punishment
for such conspiracy shall not exceed the maximum punishment
for such misdemeanor.” Thus, because the maximum term of
imprisonment under Count One was one year, the maximum term
under Count Three also was one year. Turner argues that the
imposition of consecutive sentences on Counts One and Three
impermissibly increased the term of imprisonment on Count
Three beyond one year.[fn6] We disagree.

As an initial matter, Turner may well be barred from
raising such a claim because his counsel urged the district
court to impose a twenty-four-month sentence. Cf. United
States v. Angiulo, 897 F.2d 1169, 1216 (1st Cir. 1990)
(“[W]e do not think that defendants can properly challenge
on appeal a proposal they themselves offered to the trial
court.”).

Even giving Turner the benefit of review, however, there
was neither error nor plain error. “By statute, Congress
empowered district courts to utilize either concurrent or
consecutive sentences.” United States v. Quinones, 26 F.3d
213, 216 (1st Cir. 1994); see also 18 U.S.C. §
3584(a) (providing that “[i]f multiple terms of imprisonment
are imposed on a defendant at the same time . . . the terms
may run concurrently or consecutively”). In determining
whether to impose consecutive or concurrent sentences,
courts are required to consider specific factors enumerated
in 18 U.S.C. § 3553(a). 18 U.S.C. § 3584(b).
These factors include “the nature and circumstances of the
offense[,] the history and characteristics of the
defendant[,] the need for [a consecutive] sentence[,] . . .
[and] the kinds of sentences available.” Id. §
3553(a). In imposing Turner’s sentence the court commented
on Turner’s “terrible criminal record” and considered the
range set forth in the Sentencing Guidelines. It complied
with the sentencing protocol.

Further, Turner was not prejudiced: his eighteen-month
sentence runs concurrently with a 235-month sentence. See
United States v. Dominguez Benitez, 542 U.S. 74, 81-82
(2004) (“[R]elief for error is tied in some way to
prejudicial effect . . . [and requires a] showing of `a
reasonable probability that, but for [the error claimed],
the result of the proceeding would have been different.'”
(third alteration in original) (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun,
J.))).

D. Turner’s Term of Supervised Release

Turner also argues that the district court erred in
sentencing him to thirty-six months of supervised release.
He argues that because the maximum term of supervised
release for Count One was one year, the maximum term under
Count Three also was one year, and that his term of
supervised release thus was unauthorized.

The government concedes that the thirty-six-month
supervised release term was error. 18 U.S.C. §
3583(b) provides that the maximum period of supervised
release for a misdemeanor is one year. This maximum applies
to both the substantive crime and the conspiracy. 18 U.S.C.
§ 371. Under 18 U.S.C. § 3624(e), a term of
supervised release “runs concurrently with any [other] term
. . . [of] supervised release . . . for another offense to
which the person is subject or becomes subject during the
term of supervised release.” See also United States v.
Hernandez-Guevara, 162 F.3d 863, 877 (5th Cir. 1998) (“Even
when federal law requires consecutive terms of
imprisonment, the supervised release term `is to run
concurrently with any other term of supervised release
imposed.'” (quoting U.S. Sentencing Guidelines Manual
§ 5G1.2 commentary (1997))).

We thus vacate Turner’s term of supervised release and
remand for the imposition of a new term of supervised
release not to exceed one year. Otherwise, the judgments
entered by the district court are affirmed.

[fn1] The indictment also charged Ziskind and Turner with
possession of goods stolen from an interstate shipment in
violation of 18 U.S.C. § 659 (Count Two). That count
was dismissed as a lesser included offense to Count One.

In addition, the indictment charged Russell Jones with
Counts One through Three and Brendan Bottino with Count
Two. Both pled guilty. Jones was sentenced to twelve
months’ probation and ordered to pay $5000 in restitution,
and Bottino was sentenced to twelve months’ imprisonment.
Neither has appealed his sentence.

[fn2] At the sentencing hearing, the court ordered Turner to
serve a five-year term of supervised release. The court did
not at that time specify whether the five-year sentence was
attributable to an unrelated felon-in-possession charge, on
which Turner was also sentenced that day, the theft
charges, or both. However, the judgment in this case
specifies a thirty-six-month period of supervised release,
and the judgment in the firearms case indicates a
sixty-month term of supervised release.

[fn3] Ziskind also relies on Blakely v. Washington, 542 U.S.
296, 303 (2004), and Ring v. Arizona, 536 U.S. 584, 602
(2002).

[fn4] Ziskind and Turner argue that they preserved the
Booker argument because both objected under Blakely to the
court’s determining the loss amount on which the
restitution orders were based. See United States v.
Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005) (“The
argument that a Booker error occurred is preserved if the
defendant below argued Apprendi or Blakely error. . . .”).
Ziskind’s position has additional complications: because
his plea agreement provided that the U.S. Attorney would
recommend to the sentencing judge a sentence that included
“restitution in an amount to be determined at sentencing,”
the district court believed that any Blakely objection was
waived. Ziskind argued to the district court that the
objection was not waived.

[fn5] Nor do we necessarily accept Ziskind’s assumption that
government standing in a civil case, see, e.g., 15 U.S.C.
§ 78u(5), derives from the victim’s standing. See
U.S. Dep’t of Hous. & Urban Dev. v. Cost Control Mktg. &
Sales Mgmt. of Va., Inc., 64 F.3d 925, 928 (4th Cir. 1995)
(suggesting that in a civil action, the government can have
a penal interest in enforcing the repayment of a debt to a
third party).

[fn6] The court did not explicitly state how much of the
sentence was attributable to the theft conviction and how
much to the conspiracy conviction, but it did note that
each carried a maximum penalty of one year.