Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 41 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.James P. FARINO, Defendant-Appellant.

No. 89-50012.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 5, 1989.* Decided May 3, 1990.

Before JAMES R. BROWNING, FERGUSON and REINHARDT, Circuit Judges.


MEMORANDUM** 

James P. Farino appeals from the district court's denial of his Fed. R. Crim. P. 35(b) motion to reduce an eight-year sentence following the revocation of his probation for a non-criminal probation violation. We review the denial of a Rule 35 motion for an abuse of discretion. See United States v. Hooton, 693 F.2d 857, 859 (9th Cir. 1982) ("A Rule 35 motion is essentially a plea for leniency and is addressed to the sound discretion of the district court.").

This case presents a threshold question about the validity of the restitution order the terms of which Farino is alleged to have violated. Under the Federal Probation Act, 18 U.S.C. § 3651 (the Probation Act), a probationer "may be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had." Id. We have held that under the Probation Act, " [t]he amount of loss must be established by proof at trial, some other judicial determination, or some consensual means." United State v. Signori, 844 F.2d 635, 640 (9th Cir. 1988) (citations omitted). We have stressed that "the Probation Act requires the district court to determine with certainty the actual damages resulting from defendant's offenses and to fix the maximum amount of restitution in light of that loss." United States v. Barany, 884 F.2d 1255, 1260 (9th Cir. 1989), cert. denied, 110 S. Ct. 755 (1990). In the instant case, the judgment states that the defendant "shall make restitution to those persons that have suffered from his unlawful conduct." Excerpt of Record (E.R.) 3. It makes no further mention of the amount and terms of the restitution imposed.

Because the district court failed to determine the appropriate amount of restitution, so much of the judgment as ordered restitution, the subsequent probation revocation and the post-revocation sentence are invalid. Accordingly, we vacate them and remand the matter to the district court with directions to reinstate Farino's probationary status. The district court may, if it so chooses, enter an appropriate restitution order consistent with the principles described above. See Barany and Signori, supra.

VACATED and REMANDED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3