Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1989)

No. 87-5352.

United States Court of Appeals, Ninth Circuit.

Before CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges, and HOWARD D. McKIBBEN,*  District Judge.

MEMORANDUM** 

Friedrich Moder appeals the sentence of the district court. Pursuant to plea negotiations Moder pleaded guilty to count three of the indictment charging willful failure to file an income tax return for the calendar year 1981, a violation of Title 26 U.S.C. § 7203. Counts one and two were dismissed. There was no plea agreement for Moder to make restitution for any count other than the count of conviction.

Moder raises two issues on appeal concerning the conditions of probation imposed by the district court. First, he contends the district judge exceeded his authority in imposing a condition of probation which would require Moder to pay back taxes for the years 1979 and 1980 reflected in counts one and two of the indictment. Second, he argues the sentence is improper to the extent the district judge failed to set forth in the order of probation the amount of taxes due.

We review the legality of a criminal sentence de novo. United States v. Van Cauwenberghe, 827 F.2d 424, 434 (9th Cir. 1987), cert. denied, 108 S. Ct. 773 (1988). But " [s]entencing that falls within statutory limits ... is left to the sound discretion of the district court and is reviewed under an abuse of discretion standard." Id. A claim that a district court has improperly ordered restitution of amounts beyond those alleged in the indictment is premised on the theory that the court acted outside its authority under the Federal Probation Act, 18 U.S.C. § 3651 (1982). United States v. Whitney, 785 F.2d 824, 825 (9th Cir. 1986), as amended, 838 F.2d 404 (9th Cir. 1988). We therefore review Moder's claim de novo because it raises the question whether the district court exceeded its statutory authority as a matter of law. Id.

At the time of sentencing, Moder's counsel and the United States probation officer urged the district judge to limit his order of restitution to count three, which was the count of conviction. The judge rejected these arguments and, after suspending the imposition of sentence, ordered:

(1) the defendant comply with the rules and regulations of the probation office and General Order 225. General Order 225 is construed by the court to include compliance with defendant's obligation to pay all back taxes and penalties due and owing ... and (2) the defendant pay all back taxes and penalties and show proof thereof to the probation officer.

Paragraph one of General Order 225, which establishes general conditions of probation for defendants in the Central District of California, requires the probationer to "refrain from violation of any law (federal, state or local)."

Under the provisions of the Federal Probation Act a defendant " [m]ay be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had." 18 U.S.C. § 3651.

The Government argues the order of the court requiring the defendant to comply with General Order 225 and specifically to pay all back taxes and penalties due and owing is not an order of restitution within the meaning of section 3651. In support of this position, the Government offers the definition of "restitution" in Webster's Third New International Dictionary which is "an act of restoring or a condition of being restored." The Government's position is not consistent with the earlier decisions of this court. This court recognized that a condition of probation requiring any payment of back taxes is restitutionary when it ?? that an order of restitution must be confined to the tax involved in the offense for which the defendant has been convicted absent a plea agreement for a greater amount. United States v. Green, 735 F.2d 1203, 1205 (9th Cir. 1984).

In United States v. Orr, 691 F.2d 431, (9th Cir. 1982), this court held that "absent a fully bargained plea agreement or modification thereof for restitution in an amount greater than the conviction as a condition of probation, the sentencing court is limited by section 3651 to imposing restitution of amounts charged in counts for which conviction was had." Id. at 433-434. This court is bound by its earlier decision in Green limiting restitution to an amount for which the defendant was actually convicted.1  The Government did not require Moder to agree to pay taxes for the years contained in counts one and two of the indictment as a condition of the plea agreement. Therefore, to the extent probation was conditioned on the payment of taxes due under counts one and two of the indictment, the district court exceeded its authority and that portion of the sentence is void. See Green, 735 F.2d at 1206.

The second argument advanced by Moder is that an order requiring the payment of taxes "due and owing" is impermissibly vague and the district court should be required to determine and set forth the specific amount of tax which Moder owes. In Green this court held that in most instances the exact amount of back taxes is not determined in the criminal prosecution. Therefore, a condition of probation requiring the payment of taxes "due and owing" is proper provided the final determination of the amount owing is made before probation is revoked. Therefore, we conclude it was not an abuse of discretion for the district court to impose this restitution condition as to count three of the indictment.2 

We therefore REVERSE in part and REMAND for modification of the probation condition to require payment of taxes for the tax year contained in count three of the indictment and not for the years contained in counts one and two.

 *

Hon. Howard D. McKibben, United States District Judge for the District of Nevada, sitting by designation

 **

The disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by 9th Cir.R. 36-3

 1

A recent Ninth Circuit decision, United States v. Youpee, 836 F.2d 1181 (9th Cir. 1988), states that there are "conflicting lines of authority in this circuit" on this issue. Although the Youpee court found there to be two conflicting lines of authority, the court did not attempt to resolve this asserted conflict because the restitution order was clearly permissible under the narrower Whitney standard. The defendant's plea agreement made precise reference to the maximum amount of restitution he could be required to pay. Id

The Whitney limitation applies only in the absence of a "fully bargained plea agreement" specifying an amount of restitution. Whitney, 785 F.2d at 825. Consequently, the existence of the plea agreement in Youpee which made "precise reference" to the amount of restitution makes that decision inapposite to Whitney and Green. The Youpee decision cites two Ninth Circuit decisions as conflicting with the Whitney rule, Phillips v. United States, 679 F.2d 192 (9th Cir. 1982), and United States v. Black, 767 F.2d 1334 (9th Cir.), cert. denied, 474 U.S. 1022 (1985).

Neither Phillips nor Black is inconsistent with Whitney. Phillips makes it clear that the defendant "was not, however, required to pay restitution in an amount set forth in a dismissed count." Phillips, 679 F.2d at 194. Second, the defendant in Phillips consented to paying the restitution in a valid plea agreement and even signed a stipulation as to the exact amount. Id. The Black court specially rejected Phillips as controlling precedent on the basis that Phillips only applied in the "plea bargain context." 767 F.2d at 1343. Consequently, the Black court found that the district court erred by ordering restitution beyond the specific amounts alleged in the indictment. Id. at 1344.

 2

Moder also contends in his opening brief that pursuant to Whitney, restitution is improper where a defendant enters into a plea agreement which does not provide for restitution and the indictment does not state the actual amount of damages. We need not determine whether restitution as to count three is improper on this basis, however, because Moder's trial counsel conceded that "it would be a lawful sentence and permissible if Mr. Moder is ordered to pay restitution, to wit, the back taxes, as well as supplemental penalties that have been assessed thereto as to count three."