United States Court of Appeals For the First Circuit

No. 08-2015

UNITED STATES OF AMERICA,

Appellee,

v.

EDGARDO SALAS-FERNÁNDEZ, a/k/a "Baby,"

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Lipez, Selya and Howard, Circuit Judges.

Irma R. Valldejuli on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, on brief for appellee.

September 10, 2010 SELYA, Circuit Judge. As framed by the parties, this

appeal poses two questions. The first concerns the preclusive

effect, if any, of a waiver-of-appeal provision with respect to an

order for restitution. The second concerns the appropriateness of

the order itself. We bypass the first question and uphold the

order on the merits.

The background events are easily recounted. On March 20,

2008, defendant-appellant Edgardo Salas-Fernández pleaded guilty to

counts charging him with violations of

(a) and

924(c)(1)(A)(ii), respectively. His plea entailed an admission

that he had taken part in the armed robbery of a Loomis-Fargo bank

truck, using a firearm and threats of violence.

The defendant tendered his guilty plea pursuant to a plea

agreement that contained a waiver-of-appeal provision. That

provision read:

The defendant hereby agrees that if this Honorable Court accepts this agreement and sentences him according to its terms and conditions, defendant waives and surrenders his right to appeal the judgment and sentence in this case.

The plea agreement also included a section labeled "Fines and

Restitution," but that section did not specify any restitutionary

amount. Indeed, apart from that title, no mention of restitution

appeared anywhere in the entire document.

Benedict Spinoza famously said, more than three centuries

ago, that "[n]ature abhors a vacuum." It is therefore unsurprising

-2- that the presentence investigation report (PSI Report) did address

the possibility of restitution. Pertinently, it recommended that

the district court order the defendant to pay, "jointly and

severally" with five accomplices, the sum of $944,225,1 which sum

represented the unrecovered proceeds of the robbery. Neither the

defendant's sentencing memorandum nor his objections to the PSI

Report addressed this recommendation.

On June 27, 2008, the district court sentenced the

defendant to consecutive prison terms of forty-one and sixty-seven

months on the two counts of conviction. Even though neither side

had breathed a word about restitution, the court ordered the

defendant to pay $157,370.83 in restitution to Loomis-Fargo

"forthwith." The defendant did not object to this embellishment.

This timely appeal followed. In it, the defendant

contests only the order for restitution.

As a threshold matter, the government urges that the

waiver-of-appeal provision bars this appeal. Although there is a

clear majority view, the circuits are divided as to whether a

waiver-of-appeal provision contained in a plea agreement, which does

not specifically refer to restitution, precludes a subsequent appeal

of a restitutionary order. Compare United States v. Oladimeji, 463

1 The PSI Report correctly states that the total amount stolen during the robbery was $944,225. However, in a later section of the PSI Report, it sets the total restitution amount at $932,225, mistakenly giving a credit to the perpetrators of $12,000.

-3- F.3d 152, 157 (2d Cir. 2006) (allowing such an appeal), United

States v. Behrman,

(7th Cir. 2000) (same),

United States v. Cupit,

(8th Cir. 1999) (same),

and United States v. Phillips,

(9th Cir. 1999)

(same), with United States v. Perez,

(3d Cir.

2007) (barring such an appeal), and United States v. Cohen,

(4th Cir. 2006) (same). The waiver-of-appeal provision

here is silent on the possibility of restitution,2 and this court

has not opined on whether such a waiver precludes an appeal of an

order for restitution.

We see no need to plunge into these murky waters today.

Courts should not rush to decide unsettled issues, especially where

a division of authority exists. Because this appeal is easily

resolved on the merits, we have the luxury of being able to bypass

the preclusion issue today. Thus, we assume without deciding that

the waiver-of-appeal provision does not pretermit the prosecution

of this appeal.

This is the first time that the defendant has voiced an

objection to the order for restitution. When a party has failed to

interpose a timely objection in the sentencing court, we review his

ensuing claim of error only for plain error. United States v.

2 The defendant waived the right to appeal his sentence, but the waiver provision did not specifically mention orders for restitution (although restitution is a part of the sentence, see 18 U.S.C. § 3663A(a)(1)).

-4- Dávila-González,

(1st Cir. 2010); United States v.

Duarte,

(1st Cir. 2001). To succeed under this

rubric, four separate showings are required: "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected the defendant's substantial rights, but also (4) seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings." Duarte,

.

The defendant's claim that the district court erred in

ordering restitution has three dimensions. He contends that the

court did not adequately explain its rationale, did not apportion

the restitutionary amount based on relative culpability, and

overreached in directing payment "forthwith." We approach these

remonstrances mindful of the terms of the relevant statute, namely,

the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A.

The MVRA requires a district court to order a defendant

to make restitution to victims of certain enumerated crimes of

violence. The offenses of conviction in this case fall squarely

within the maw of the statute. See id. § 3663A(c)(1)(A).

Generically, then, restitution is available; and any ensuing order

for restitution should be tailored to require return of the

purloined property or its equivalent. Id. § 3663A(b).

The first defect perceived by the defendant — the absence

of a detailed explication of the court's reasoning — is not a defect

at all.

-5- Restitution serves as a mechanism for making a victim

whole by restoring the monetary equivalent of losses suffered in

consequence of the defendant's criminal activity. See United States

v. Innarelli,

(1st Cir. 2008). Determination of

that monetary equivalent and ordering its payment are all that the

MVRA, by its terms, requires. See

(f)(1)(A); see

also Innarelli,

. In calculating the amount, a

sentencing court is not held to a standard of absolute precision.

Innarelli,

; United States v. Burdi,

(1st Cir. 2005). A "modicum of reliable evidence" will suffice.

United States v. Vaknin,

(1st Cir. 1997).

To be sure, the restitutionary amount must have a

rational basis in the record.

But that does not mean that the

court must recite book and verse in making an award.

In the case at hand, simple arithmetic strips away any

mystery about the origins of the amount. There were six known

participants in the robbery of the bank truck, and the PSI Report

put the amount of the total loss at $944,225. The court ordered the

defendant to pay restitution of $157,370.83. The inference is

inescapable that the court established the restitutionary amount at

one-sixth of the total loss.

This brings us to the defendant's importunings about

misapportionment. That claim rests on the premise that the

sentencing court, for the purpose of restitution, should have

-6- divvied up the loss to reflect the relative culpability of the six

participants in the heist. The defendant says that he played a bit

part and, therefore, should bear a lesser share of the

restitutionary burden.

The premise on which this argument rests is patently

incorrect. A sentencing court is not required to consider an

individual's role in the offense when awarding restitution. See

United States v. Scott,

(1st Cir. 2001); see also

Tilcon Capaldi, Inc. v. Feldman,

(1st Cir. 2001).

The court's objective should be to make the victim whole. See

Scott,

; see also

(f)(1)(A) ("In each

order of restitution, the court shall order restitution to each

victim in the full amount of each victim's losses as determined by

the court . . . ."). Where, as here, more than one offender has

contributed to the victim's loss, "the court may make each defendant

liable for payment of the full amount of restitution."

(h).

Of course, a sentencing court has some discretion as to

how restitution should be apportioned among multiple defendants.

Scott,

. The court may consider, among other things,

the relative culpability of those responsible for the loss.

(h). In the last analysis, however, the court is not

required to use any particular formula for apportionment or, indeed,

to apportion the loss at all.

-7- That ends this aspect of the matter. The method that the

court chose to employ here — dividing the loss equally among the

responsible parties — was well within its discretion. Consequently,

the defendant's misapportionment claim fails.

The defendant's final assignment of error posits that the

district court overreached in ordering payment of restitution

"forthwith." In this regard, he alleges that the court did not

adequately consider his financial circumstances and prospects.

The MVRA requires a court, in setting out a payment

schedule, to consider a defendant's financial circumstances and

prospects.

§ 3664(f)(2). But "consideration," in this context,

does not require any elaborate formality. See United States v.

Theodore,

(1st Cir. 2003); Vaknin,

.

In making a restitutionary order, the court need not make explicit

findings or even indicate what it has considered; it suffices if the

record contains relevant information about, say, the defendant's

income and assets. See Theodore,

; Vaknin,

. In all events, the court enjoys broad discretion in

setting a payment schedule. See United States v. Overholt,

(10th Cir. 2002).

In the instant case, the PSI Report included a detailed

account of the defendant's economic situation. In making this

appraisal, the probation officer used, among other things, a

financial statement submitted by the defendant and an Equifax credit

-8- report. The probation officer concluded that the defendant had

$7,000 in equity in his residence, owned three automobiles with an

estimated aggregate value of $42,000, and had few liabilities. His

sole prospect for income during incarceration seemed to be the

monthly lease payments ($600) for rental of his residence.

We agree with the defendant that these figures do not

show ready access to the amount of restitution that he was ordered

to pay "forthwith." But there is no reason to believe that the

court shirked its duty to consider the defendant's financial

circumstances and prospects. Moreover, "[a] defendant's

impoverishment today is no assurance of future poverty, and hence,

present impecuniousness is not a bar to the imposition of

restitution." Vaknin,

(citing United States v.

Brandon,

, 461 (1st Cir. 1994)).

It is permissible for a sentencing court, in fashioning

a restitutionary order, to take into account a defendant's future

earning capacity. United States v. Lombardi,

(1st

Cir. 1993); United States v. Savoie,

(1st Cir.

1993). This tenet applies with particular force where, as in this

case, the proceeds of the criminal activity have been secreted by

(and presumably divided among) the malefactors, and no accounting

has been made of the defendant's share. See United States v. Olson,

(10th Cir. 1997) (holding that, for purposes of

ordering restitution, "when a defendant has secreted proceeds from

-9- an illegal activity, the illegal proceeds are presumed assets of the

defendant unless the defendant proves otherwise"); United States v.

Voigt,

(3d Cir. 1996) (similar).

The short of it is that we find no abuse of discretion,

let alone any plain error, in the district court's order to pay

restitution forthwith.

We need go no further. For the reasons elucidated above,

we uphold the challenged order.

Affirmed.

-10-