United States v. Fariduddin, Mahmood ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-4381
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAHMOOD FARIDUDDIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-CR-109—William C. Griesbach, Judge.
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ARGUED NOVEMBER 3, 2006—DECIDED DECEMBER 5, 2006
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Before EASTERBROOK, Chief Judge, and FLAUM and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. United States v. Day, 418
F.3d 746, 758-61 (7th Cir. 2005), holds that, even when
an award of full restitution is mandatory, 18 U.S.C.
§3664(f)(2) requires a district court to set a schedule for
payment if the defendant cannot pay the whole sum
immediately. Like almost all rights in the criminal process,
see United States v. Mezzanatto, 513 U.S. 196 (1995), the
entitlement to a schedule of payments may be waived.
Mahmood Fariduddin waived this entitlement when he
pleaded guilty to mail fraud and tax evasion and agreed
to make $384,000 in restitution.
2 No. 05-4381
Paragraph 28 of Fariduddin’s plea agreement reads: “The
defendant acknowledges and understands that any and all
financial obligations imposed by the sentencing court are
due and payable upon entry of the judgment of conviction.
The defendant agrees not to request any delay or stay in
payment of any and all financial obligations.” Notwith-
standing this promise, the only argument that Fariduddin
makes on appeal is that under Day he is entitled to a
schedule of payments that will postpone the time of full
payment. By making a request that he agreed not to make,
Fariduddin has broken his promise and should count
himself lucky that the United States has not proposed to
take back its own concessions and ask the judge to increase
his sentence. See United States v. Whitlow, 287 F.3d 638(7th Cir. 2002).
Fariduddin insists that a schedule of payments differs
from “any delay or stay in payment,” but a schedule is a
“delay” compared with full immediate payment. A pur-
chaser who negotiates to buy an automobile on time
payments, so much a month, is requesting a delay compared
with full payment on the car’s delivery. What Fariduddin
wants is not only a delay but also a cancellation of the debt.
He tells us that he would be satisfied with a schedule of
$150 per month. Yet interest alone on an unsecured debt of
$384,000 exceeds $3,000 per month at current rates. When
the interest rate is 10% per annum, the present value of
$150 paid monthly until the end of time is $18,000.
Fariduddin thus asks to be relieved of $366,000 worth of the
$384,000 obligation. Paying less than 5% of the total debt
is not what he promised in his plea agreement—and it was
in part by promising to make full and immediate restitution
that Fariduddin obtained a reduction in his prison term.
According to Fariduddin, the district court entered a
contradictory sentence by setting a schedule of payments to
begin after his release from prison while making the
full debt payable before release. That’s not how we under-
No. 05-4381 3
stand the sentence, however. The debt is payable in full
now, as Fariduddin agreed. Recognizing that Fariduddin
might not pay, the district judge set a minimum installment
as a condition of supervised release. Item 1 under “Addi-
tional Supervised Release Terms” reads: “The defendant is
to pay restitution at a rate of not less than $150.00 per
month. The defendant will also apply 100 percent of his or
her [sic] yearly federal and state tax refunds toward
payment of restitution.” (Emphasis added.) If while on
supervised release Fariduddin does not pay at least the
$150 monthly and devote all tax refunds to restitution, then
he is headed back to prison. A floor under payments differs
from a schedule; there is no contradiction in this sentence.
A checkbox later in the sentencing form could be read
to suggest that payment has been capped at $150 per month
for life. Yet the same preprinted line says that Fariduddin
must make complete restitution, and $150 a month will not
even keep up with interest. The form must be read harmo-
niously with the statute and the special condition of
supervised release, so that $150 per month is a floor rather
than a ceiling. Fariduddin must pay in full, as 18 U.S.C.
§3663A requires.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-5-06