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United States v. Paup

United States Court of Appeals, Tenth Circuit

August 9, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MICHELLE R. PAUP, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CR-00233-PAB-1)

         Submitted on the briefs:[*]

          Veronica S. Rossman, Assistant Federal Public Defender, Denver, Colorado on behalf of Appellant.

          Michael C. Johnson, Assistant United States Attorney, Denver, Colorado on behalf of Appellee.

          Before HARTZ, MURPHY, and CARSON, Circuit Judges.

          HARTZ, Circuit Judge.

         At a jury trial before a magistrate judge, Defendant Michelle R. Paup was convicted of theft of government property of a value less than $1, 000, see 18 U.S.C. § 641, and removal of theft-detection devices, see id. § 13 (incorporating state law). The charges arose from a shoplifting incident at the Army and Air Force Exchange Service store on Buckley Air Force Base in Aurora, Colorado (the Exchange). The magistrate judge sentenced Defendant to concurrent sentences on each count of 30-days' imprisonment and one year of supervised release. The judge also imposed a $1, 000 fine and ordered restitution equaling the full retail value of the stolen merchandise ($734.41). Defendant appealed to the United States District Court for the District of Colorado, challenging, as relevant to this appeal, the amount of the restitution award, the exclusion of her expert witness, and the application of a two-level enhancement of her offense level because of perjury. The district court upheld her conviction and sentence of imprisonment but vacated the restitution award and remanded to the magistrate judge for further proceedings. Defendant then appealed to this court.

         We first hold that we have jurisdiction because the district-court remand order did not disturb Defendant's conviction or sentence of imprisonment and all that remains to be determined on remand is the amount of restitution. We then affirm on the merits. The magistrate judge did not err in excluding Defendant's expert or in imposing the offense-level enhancement.

         I. DISCUSSION

         A. Jurisdiction

         Under 28 U.S.C. § 1291 the circuit courts have jurisdiction of appeals from "final decisions" of the federal district courts. "Final judgment in a criminal case means sentence. The sentence is the judgment." Berman v. United States, 302 U.S. 211, 212 (1937) (sentence was final judgment even though execution of sentence was suspended and defendant was placed on probation). "A sentence . . . imposed only after the whole process of the criminal trial and determination of guilt has been completed, sufficiently satisfies conventional requirements of finality for purposes of appeal. The litigation is complete as to the fundamental matter at issue-the right to convict the accused of the crime charged in the indictment." Corey v. United States, 375 U.S. 169, 174 (1963) (internal quotation marks omitted) (if defendant was committed to custody of attorney general (deemed to be for maximum possible prison sentence) under now-repealed 18 U.S.C. § 4208(b) to permit Bureau of Prisons to prepare report within three or six months for court to use in setting ultimate sentence, defendant could appeal after imposition of § 4208(b) sentence or after ultimate sentence).

         The district-court order challenged by Defendant upheld her conviction[1] and sentence of imprisonment but also remanded "for further proceedings." R., Vol. 1 at 480. Despite this seemingly broad language, the order makes clear that it only "vacate[d] the magistrate judge's restitution award." Id. at 479; cf. United State v. Shipp, 644 F.3d 1126, 1129 (10th Cir. 2011) (reading mandate "in light of [the] opinion that preceded the mandate"). The question before us is thus whether the district court's order is "final," and therefore appealable, even though the amount of restitution owed by Defendant is undetermined.

         The Supreme Court has said that "strong arguments favor the appealability of [an] initial judgment [imposing a sentence of imprisonment and supervised release] irrespective of the delay in determining the restitution amount." Dolan v. United States, 560 U.S. 605, 617 (2010). The Court noted 18 U.S.C. § 3582(b), which states that a judgment of conviction that includes "a sentence to imprisonment" is a "final judgment." See id. It also cited several circuit-court cases in which a defendant appealed a judgment imposing a sentence of imprisonment and then separately appealed a later order setting the amount of restitution, thus indicating that both orders were appealable judgments. See id. at 618. Restricting appellate review until after restitution is set, the Court explained, would frustrate a defendant's need to promptly challenge her conviction or sentence of imprisonment. See id. But the Court cautioned that it was "simply not[ing] the strength of the arguments" in favor of appealing a judgment deferring restitution "without deciding whether or when a party can, or must, appeal. We leave all such matters for another day." Id.

         The Court took up this issue again in Manrique v. United States, 137 S.Ct. 1266, 1270 (2017), where it addressed a notice of appeal filed after an initial judgment not setting the amount of restitution but before an amended judgment setting the amount. The Court held that the notice was not sufficient to invoke appellate review of the restitution amount. Although the defendant argued that only one appealable judgment is at issue in a case where restitution is deferred but later imposed, the Court disagreed, stating that "[o]ur analysis in Dolan makes clear that deferred restitution cases involve two appealable judgments, not one." Id. at 1273.

         In light of this precedent, other circuits have declared that a sentence of imprisonment is a final judgment even though restitution has not been resolved. See United States v. Tulsiram, 815 F.3d 114, 119 (2d Cir. 2016) ("[W]e have no difficulty in reaching our holding today: a judgment of conviction that imposes a sentence including incarceration and restitution is 'final' within the meaning of 28 U.S.C. § 1291, even if the sentence defers determination of the amount of restitution."); United States v. Gilbert, 807 F.3d 1197, 1200 (9th Cir. 2015) ("[A] sentence of incarceration coupled with an unspecified amount of restitution is a sufficiently final judgment to support a direct appeal"); United States v. Muzio, 757 F.3d 1243, 1250 (11th Cir. 2014) ("[F]ollowing the Supreme Court's dicta in Dolan and applying its holding in Corey, we conclude that a judgment imposing a prison sentence and restitution but leaving the specific amount of restitution unsettled is immediately appealable."); United States v. Donohue, 726 Fed.Appx. 333, 339 (6th Cir. 2018) ("There is no dispute that [under Manrique] the court has jurisdiction to decide defendants' challenges to their original judgments, which represent final appealable judgments under 18 U.S.C. § 3742(a) (final sentence) and 28 U.S.C. § 1291 (final judgment), even though the district court had deferred determination of the restitution amount to a later date.").

         True, the district court in this case vacated rather than deferred the restitution determination. But we believe Supreme Court precedent directs that a defendant sentenced to imprisonment need not wait until restitution is finally resolved (here, after reconsideration by the magistrate judge and appeal to the district court) before being allowed to challenge her conviction and sentence on appeal to this court. In our view, we have jurisdiction over Defendant's appeal.

         B. Standard of Review

         Appeal from a judgment in a criminal case entered by a magistrate judge is to the district court. See 18 U.S.C. § 3402. "The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed. R. Crim. P. 58(g)(2)(D). When the district court's order is appealed, our court exercises a "second tier of appellate review" in which we apply to the magistrate judge's order "the same standard" that the district court is to use in its own review. United States v. Pilati, 627 F.3d 1360, 1364 (11th Cir. 2010) (internal quotation marks omitted); see United States v. Peck, 545 F.2d 962, 964 (5th Cir. 1977) ...


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