United States v. Reuben Mandish ( 2022 )

FILED
NOT FOR PUBLICATION
MAR 3 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30113
Plaintiff-Appellee, D.C. Nos. 3:18-cr-00069-JO-1
3:18-cr-00069-JO
v.
REUBEN JAMES MANDISH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued and Submitted December 14, 2021
Portland, Oregon
Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.
Dissent by Judge W. FLETCHER.
Reuben James Mandish appeals the district court’s March 21, 2020 amended
restitution order, which imposed an additional $12,000 of restitution under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.1
Although due to the government’s oversight the district court missed the 90-
day deadline prescribed by 18 U.S.C. § 3664(d)(5) for imposing restitution after
sentencing, it retained the power to order additional restitution. Dolan v. United
States, 560 U.S. 605, 611 (2010). At the sentencing hearing, the district court
stated that it would impose $3,000 in restitution and hold open the restitution order
for 90 days to add further restitution amounts for additional victims. It further
stated that it “want[ed] to make clear” that Mandish was “willing to have a
deference of 90 days for further restitution evaluation.” In addition, the district
court’s judgment stated that the “determination of restitution is deferred for 90
days,” and that “[a]n Amended Judgment in a Criminal Case will be entered after
such determination.” We have held that when the district court states at sentencing
that “the defendant is going to be compelled to assist to pay for certain
enumerat[ed] victim restitution matters,” and that the government’s motion for
restitution “will be filed and the government is given leave to file that within the
appropriate statutory time,” the district court’s statements “made clear to the
1
Although Mandish signed an appeal waiver waiving his right to appeal his
sentence, the government has waived the appeal waiver.
2
parties, before the deadline expired, that it would order restitution; accordingly, the
court retain[ed] the power to order restitution.” United States v. Fu Sheng Kuo,
620 F.3d 1158, 1163 (9th Cir. 2010) (cleaned up). We see no material difference
between the substance of the notice in this case and the notice in Fu Sheng Kuo.2
Accordingly, the district court’s clear expression of the court’s “inclusion of
restitution as a part of the pronouncement of sentence,” id. at 1162–63, is sufficient
to make “clear prior to the deadline’s expiration that [the court] would order
restitution,” Dolan, 560 U.S. at 608, and the district court here had authority to
order restitution.
Nor was Mandish prejudiced by the district court’s failure to indicate on
Mandish’s August 9, 2019 written judgment form that Mandish would be required
to “make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other
statute authorizing a sentence of restitution.” Mandish was already on sufficient
notice that additional restitution would be awarded, see Fu Sheng Kuo, 620 F.3d at
1163, and an “oral pronouncement of sentence, ordering restitution, is controlling”
2
There is no doubt that Mandish understood that additional restitution would
be imposed. At oral argument, Mandish’s counsel confirmed that Mandish was on
notice and understood that more restitution would be ordered, because he informed
the court that Mandish was saving money to pay “potential additional restitution”
and only stopped after the 90-day deadline had elapsed.
3
notwithstanding that the written judgment failed to reflect “that restitution was
ordered and that the amount would be determined at a later time,” id.AFFIRMED.
4
FILED
United States v. Reuben James Mandish, No. 20-30113
MAR 3 2022
W. Fletcher, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. In my view, the district judge did not provide timely
notice to Mandish under 18 U.S.C. § 3664(d)(5) that additional restitution would
be imposed after the expiration of the statutory 90-day deadline.
Under Dolan v. United States, 560 U.S. 605, 607 (2010), “a sentencing court
that misses the 90-day deadline nonetheless retains the power to order
restitution—at least where . . . the sentencing court made clear prior to the
deadline’s expiration that it would order restitution, leaving open (for more than 90
days) only the amount.” In United States v. Fu Sheng Kuo, 620 F.3d 1158, 1163
(9th Cir. 2010), we applied Dolan to hold that the district court retained
jurisdiction to order restitution by “plainly express[ing] its inclusion of restitution
as a part of the pronouncement of sentence, which occurred before the statutory
deadline expired.” In Kuo, the district court stated before the expiration of the 90-
day deadline that “the defendant is going to be compelled to assist to pay for
certain enumerat[ed] victim restitution matters.” Id. The sentencing judge in both
Dolan and Kuo thus made clear before the expiration of the 90-day deadline that
the amount of restitution would be determined later.
Here, by contrast, the district court did not provide notice to Mandish before
1
the expiration of the 90-day deadline that he would have to pay additional
restitution. Instead, when the government asked that “restitution for the remaining
victims be held open for the 90 days” (emphasis added), the court responded, “It
will.” Then, after the expiration of the specified 90 days, the district court granted
restitution of an additional $12,000 to additional victims. Because the district
court failed to provide notice to Mandish during the 90-day period that it would
award additional restitution, it did not have the authority under § 3664(d)(5) to do
so.
I would vacate the order imposing additional restitution.
2