Circuit Vacates Restitution Order

United States v. Lochard, No. 12-5115-cr (2d Cir. Feb. 19, 2014) (Chin, Carney, and Droney) (summary order), available here

Convicted of access device fraud, the defendant was sentenced to 36 months of imprisonment and ordered to pay about $108,000 in restitution. The judgment did not set forth a payment plan or provide for the waiver of interest. A month after he was sentenced, the incarcerated defendant received a letter from the government advising him that the full amount of restitution was due immediately and that interest would accrue on any unpaid balance.

The defendant wrote to the district court seeking a payment schedule and modification of the judgment, but the court denied the requests. He then appealed.

Three issues were presented on appeal: (1) whether the appeal was time-barred; (2) whether the district court had jurisdiction to consider the defendant’s motion to modify; and (3) whether the district court abused its discretion in denying the motion. The Court resolved all three issues in the defendant’s favor:

First, the appeal was timely because the defendant timely filed a notice of appeal from the district court’s order denying his motion to modify the judgment. Second, the district court had jurisdiction to consider the defendant’s motion to modify because modification of the terms of payment of restitution is authorized by statute, and does not constitute a modification of the sentence itself.

Finally, the Circuit held that a remand for further proceedings was required because the Court could not discern the basis for the district court’s decision denying modification of the payment schedule. The court simply checked a box saying that modification was “denied.” The Circuit further noted that, under the Mandatory Victim Restitution Act, modification is expressly permitted if a defendant demonstrates a material change in his economic circumstances. The Court thus remanded, directing the district court to consider whether the defendant could demonstrate such a change and, if not, whether the court could impose a restitution schedule even absent such a showing.