United States v. Ata Dighlawi , 452 F. App'x 758 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50287
Plaintiff - Appellee, D.C. No. 2:08-cr-01412-PSG-2
v.
MEMORANDUM *
ATA DIGHLAWI,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted August 31, 2011
Pasadena, California
Before: SCHROEDER and GOULD, Circuit Judges, and MCCUSKEY, Chief
District Judge.**
Appellant Ata Dighlawi (“Dighlawi”) appeals the district court’s order of
restitution requiring him to pay restitution totaling $438,326.39 to the victims of
his crime. Appellant also filed a Request for Judicial Notice for this court to take
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
**
The Honorable Michael Patrick McCuskey, Chief District Judge for
the U.S. District Court for Central Illinois, Urbana, sitting by designation.
judicial notice of matters not otherwise included in the record on appeal—
specifically the joint motion for amended judgment and the third amended
judgment filed in the district court in United States v. Mohamad Esmail, CR 08-
1412-PSG (C.D. Cal.)—which is granted. We have jurisdiction over Dighlawi’s
appeal under 28 U.S.C. § 1291, and we affirm the district court’s restitution order.
Dighlawi first contends that the district court abused its discretion by
holding him fully liable for the victims’ losses instead of apportioning the
restitution amount between the co-defendants based on varying levels of
culpability. If a restitution order is within the bounds of the statutory framework, it
is reviewed for an abuse of discretion. United States v. Fu Sheng Kuo, 620 F.3d
1158, 1162 (9th Cir. 2010). The Mandatory Victim Restitution Act (“MVRA”)
explicitly provides: “[i]f the court finds that more than 1 defendant contributed to
the loss of a victim, the court may make each defendant liable for payment of the
full amount of restitution or may apportion liability among the defendants to reflect
the level of contribution to the victim’s loss and economic circumstances of each
defendant.” 18 U.S.C. § 3664(h). If the trial court was clearly mistaken in its
ability to apportion restitution, and in fact believed that the only option was to
impose liability for the full amount, a finding of an abuse of discretion would be
appropriate. See United States v. Walton, 217 F.3d 433, 451 (7th Cir. 2000).
However, if the record reflects that the court knew it had the option to apportion
restitution but simply decided not to exercise that discretion, there is no abuse of
discretion. United States v. Booth, 309 F.3d 566, 576 (9th Cir. 2002). The record
reflects that the district court was aware that it had the option to apportion
restitution.1 Therefore, the district court’s order requiring Dighlawi to pay full
restitution for losses suffered by the victims of the conspiracy was not an abuse of
its discretion under the MVRA.
Dighlawi next contends that his due process rights were violated because of
inaccurate information the district court relied upon at his sentencing hearing. This
argument is without merit as the district court did not rely on inaccurate
information. Rather, the court was aware of the fugitive status of the most culpable
defendant and of its ability to apportion restitution, and it exercised its discretion
by ordering Dighlawi to pay full restitution.
Dighlawi further contends that the MVRA is unconstitutional as applied to
him, on the theory that the restitution order was grossly disproportionate to the
crime committed in violation of the Eighth Amendment. For the imposition of a
criminal restitution order under the MVRA, the applicable test for considering
1
The trial court made no statements indicating any confusion relating to its
ability to apportion restitution as an alternative to making each co-defendant fully
liable for payment of the full amount of restitution. Further, Dighlawi advanced
arguments for apportionment at length in his sentencing papers, and the trial court
acknowledged reading these papers on the record, indicating that it was aware of
the argument to apportion liability and rejected those arguments.
whether the order violates the Eighth Amendment’s prohibition on excessive fines
or cruel and unusual punishment is whether the restitution order is “grossly
disproportional” to the crime committed. United States v. Dubose, 146 F.3d 1141,
1145 (9th Cir. 1998). In this case, because the restitution amount was directly
based upon the losses the victims suffered as a result of the criminal conspiracy
that would not have been successfully accomplished without Dighlawi’s
participation, the restitution order was not grossly disproportionate to Dighlawi’s
criminal actions. See id. (explaining that “proportionality is inherent in a MVRA
restitution order”).
Finally, Dighlawi contends that the district court abused its discretion by
ordering him to pay nominal restitution payments of no less than $50 per month.
The district court’s restitution order in this case was in strict compliance with the
MVRA which allows the court to order the defendant to pay nominal periodic
payments where the defendant lacks an ability to pay the full amount of the
restitution order in the foreseeable future under any reasonable payment schedule.
See 18 U.S.C. § 3664(f)(3)(B). Here, a $50 monthly payment is nominal,
considering the restitution amount of $438,326.39. Also, the requirement during
supervised release to pay over “windfall” amounts such as lottery winnings to the
outstanding restitution order is within the discretionary power of the district court.
See United States v. Betts, 511 F.3d 872, 877 (9th Cir. 2007). Furthermore, any
concerns about a need to choose between supporting his family and violating the
restitution order are without merit, as under the MVRA, if Dighlawi’s financial
circumstances materially change, he must notify the court which has the ability to
modify the payment schedule. See 18 U.S.C. § 3664(k).
AFFIRMED.