United States v. Pablo Alvarez , 835 F.3d 1180 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-50506
Plaintiff-Appellee, 15-50047
v. D.C. No.
3:14-cr-01748-GPC-1
PABLO ALVAREZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted March 10, 2016
Pasadena, California
Filed September 1, 2016
Before: Richard R. Clifton, Consuelo M. Callahan,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton
2 UNITED STATES V. ALVAREZ
SUMMARY*
Criminal Law
The panel affirmed the district court’s restitution order in
a case in which the defendant pled guilty to knowingly
transporting illegal aliens.
The panel rejected the defendant’s contention that the
Supreme Court’s decision in Paroline v. United States, 134
S. Ct. 1710 (2014), undermines this court’s holding in United
States v. Batson, 608 F.3d 630 (9th Cir. 2010), that restitution
can be imposed as a condition of supervised release. Because
Paroline did not establish that restitution is a punishment, the
defendant could not succeed on his argument that the district
court violated Apprendi v. New Jersey, 530 U.S. 466 (2000),
by imposing restitution based on facts not found by a jury.
The panel rejected the defendant’s contention that the
company from whom the defendant rented a car that was
damaged while a co-defendant was transporting the aliens
therein was not a victim of the offense. The panel held that
the causal nexus between the crime of transporting aliens and
the resulting damage to the car is not too attenuated, and that
restitution to the rental car company is appropriate.
The panel held that the government did not breach the
plea agreement by pursuing restitution even though the
agreement did not mention it, where the government pursued
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ALVAREZ 3
restitution subsequent to the defendant’s clear statement that
he expected to have to pay it.
The panel held that the district court’s failure to advise
the defendant at his change of plea hearing that he may be
subject to restitution was harmless.
COUNSEL
Jodi D. Thorp (argued), San Diego, California, for Defendant-
Appellant.
Daniel E. Zipp (argued), Assistant United States Attorney;
Peter Ko, Chief, Appellate Section, Criminal Division; Laura
E. Duffy, United States Attorney; United States Attorney’s
Office, San Diego, California; for Plaintiff-Appellee.
OPINION
CLIFTON, Circuit Judge:
Defendant Pablo Alvarez and a co-defendant were
arrested by Border Patrol officers while transporting aliens
who were in the United States illegally. Alvarez was driving
his own Chevrolet, and his co-defendant was driving a Ford
that Alvarez had rented. Border Patrol officers had set up
spike strips along the road on which Alvarez and his co-
defendant were traveling, and when Alvarez hit the spikes
and came to an abrupt halt, Alvarez’s co-defendant was
unable to stop the Ford before it crashed into the Chevrolet.
The crash caused significant damage to the rental car.
4 UNITED STATES V. ALVAREZ
Alvarez pleaded guilty to transportation of aliens in the
United States illegally in exchange for the government’s
promise to recommend a custodial term on the low end of the
sentencing guideline range and a special assessment fee of
$100.00. The plea agreement did not provide for restitution,
but the presentence report recommended that Alvarez be
required to pay for the cost of repairing the rental car. At his
sentencing hearing, Alvarez acknowledged responsibility for
the damage to the rental car and accepted his responsibility to
pay restitution for the damage. Later, however, Alvarez
changed his position, and at a subsequent hearing he argued
that restitution was improper. The district court disagreed
and ordered that Alvarez pay restitution for the damage to the
rental car in the amount of $2,900.
On appeal, Alvarez argues that the Supreme Court’s
decision in Paroline v. United States, 134 S. Ct. 1710 (2014),
established that restitution is a form of punishment. He
contends, therefore, that restitution cannot be imposed as a
condition of supervised release under the relevant statutes.
For the same reason, he argues that restitution cannot be
imposed based on facts not found by a jury under Apprendi v.
New Jersey, 530 U.S. 466 (2000). Alvarez also urges us to
find that the rental company, San Diego Rent-A-Car, was not
a victim of his offense, that the government breached the plea
agreement, and that the district court erred in declining to
order specific performance as a remedy for its failure to
adequately inform him of the potential consequences of a
guilty plea. We conclude that restitution is not clearly a form
of punishment and can be imposed as a condition of
supervised release. We also conclude that the government
did not violate the plea agreement and that the district court
did not abuse its discretion. We affirm.
UNITED STATES V. ALVAREZ 5
I. Background
On the morning of May 22, 2014, Border Patrol agents
observed a blue Ford Taurus and a red Chevrolet Astro pull
up near a group of seven suspected illegal aliens hiding on a
hillside near a park in San Diego, California. According to a
Border Patrol agent on the scene, three of the aliens entered
the Chevrolet, which was driven and owned by defendant
Pablo Alvarez, and four entered the Ford, which was driven
by Alvarez’s co-defendant. Alvarez had rented the Ford from
San Diego Rent-A-Car earlier that day. The cars drove away
at a high rate of speed, with Alvarez in the lead.
One of the Border Patrol agents followed the cars out of
the park, while others went ahead to set up a spike strip to
interdict the vehicles further down the road. As Alvarez
approached the location where the spike strip had been set up,
one of the Border Patrol agents activated the emergency
lights on his vehicle and signaled to Alvarez to pull over.
Alvarez attempted to comply but could not stop the Chevrolet
before hitting the spike strip. The car’s tires deflated, and the
car came to an abrupt stop. The driver of the Ford, who had
been driving closely behind Alvarez, was unable to brake in
time and collided with the Chevrolet. The collision caused
significant damage to the Ford.
Border Patrol agents placed both drivers and all seven
illegal aliens under arrest. Alvarez waived his rights and
provided a statement to a Border Patrol agent on the scene.
A month later, the United States charged Alvarez with
knowingly transporting illegal aliens, in violation of 8 U.S.C.
§ 1324(a)(1). Alvarez pleaded guilty in exchange for a
promise from prosecutors that they would recommend
6 UNITED STATES V. ALVAREZ
sentencing for Alvarez at the low end of the advisory
guideline. As will be detailed below, the plea agreement
referred to restitution but did not provide that restitution
would be recommended.
Alvarez appeared before a magistrate judge for a change
of plea. During the colloquy, the court informed Alvarez that
he was facing a maximum term of three years of supervised
release and a maximum fine of $250,000. Alvarez responded
that he understood that those were the maximum penalties he
faced by pleading guilty to violating 8 U.S.C. § 1324(a)(1).
The court did not inform Alvarez that he could face
restitution for the damage to the Ford.
The presentence report submitted by the probation office
recommended restitution to San Diego Rent-A-Car in the
amount of $9,114.03. In response, Alvarez filed a sentencing
memorandum agreeing that restitution was appropriate in this
case but questioning the amount. The government
subsequently filed a sentencing summary chart that
recommended a custody term range but was silent regarding
restitution.
Alvarez appeared before the district court for sentencing
on October 31, 2014. At the hearing, the government did not
recommend restitution. However, Alvarez’s attorney
conceded that the damage to the Ford would not have
occurred but for Alvarez’s transportation of undocumented
aliens. Defense counsel further conceded that “restitution is
appropriate in this case.” Alvarez also personally addressed
the court and stated, “I know I do have to pay restitution for
the vehicle that was damaged. I know that for a fact, and I
have no problem doing that.” The district court proceeded to
calculate the sentencing guideline range and imposed a
UNITED STATES V. ALVAREZ 7
sentence of thirteen months of custody. The court then
continued the hearing on restitution and ordered the
government to provide additional information regarding the
damage to the Ford.
Before the restitution hearing took place, the court
appointed Alvarez new counsel. Alvarez’s new counsel
argued for the first time that the government had breached the
plea agreement by recommending restitution and that
restitution was not available as a condition of supervised
release. The district court rejected that argument, and
imposed restitution in the amount of $2,900. This appeal
followed.
II. Discussion
A. Restitution can be imposed as a condition of
supervised release
Alvarez first argues that restitution cannot be imposed as
a condition of supervised release following the Supreme
Court’s decision in Paroline, 134 S. Ct. 1710. We review the
legality of a restitution order de novo and the factual findings
supporting the order for clear error. United States v. Brock-
Davis, 504 F.3d 991, 996 (9th Cir. 2007).
In United States v. Batson, 608 F.3d 630 (9th Cir. 2010),
we held that restitution can be imposed as a condition of
supervised release under the authority of 18 U.S.C. § 3583(the Supervised Release Statute) and 18 U.S.C. § 3563(b) (the
Probation Statute). Id. at 635. The Supervised Release
Statute grants federal courts the authority to order a condition
of supervised release so long as the condition is “reasonably
related” to the considerations in 18 U.S.C. §§ 3553(a)(1) and
8 UNITED STATES V. ALVAREZ
3553(a)(2)(B)–(D), both of which set forth factors that courts
can take into account in imposing a sentence. 18 U.S.C.
§ 3583. The factors set forth in § 3553(a)(1) are “the nature
and circumstances of the offense and the history and
characteristics of the defendant,” and the factors set forth in
§ 3553(a)(2)(B)–(D) are “the need for the sentence imposed
. . . (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and (D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.” The Supervised
Release Statute excludes from consideration those factors set
forth in § 3553(a)(2)(A), which provide that courts may
impose a sentence “to reflect the seriousness of the offense,
to promote respect for the law, and to provide just
punishment for the offense.” None of these three factors can
form the basis for a condition of supervised release.
The Supervised Release Statute does not specifically
mention restitution, but it does permit courts, within limits
including those described above, to impose “any condition set
forth as a discretionary condition of probation” in the
Probation Statute as a condition of supervised release.
18 U.S.C. § 3583(d). One condition the Probation Statute
sets forth as a discretionary condition of probation is
restitution. 18 U.S.C § 3563(b)(2). Thus, as we held in
Batson, “the Supervised Release Statute, together with the
Probation Statute, unambiguously authorizes federal courts to
order restitution as a condition of supervised release for any
criminal offense . . . for which supervised release is properly
imposed.” Batson, 608 F.3d at 635.
Alvarez argues that the Supreme Court’s decision in
Paroline undermines our conclusion in Batson by
UNITED STATES V. ALVAREZ 9
establishing that restitution is a form of punishment, meaning,
according to Alvarez, that it is therefore excluded as a
permissible condition of supervised release under § 3583. In
Paroline, the Court noted that a restitution order requiring a
possessor of child pornography to pay for damages caused by
the actions of thousands of other independent possessors and
distributors of child pornography could potentially raise
issues under the Excessive Fines Clause of the Eighth
Amendment. 134 S.Ct. at 1726. In so noting the Court
observed that “[t]he primary goal of restitution is remedial or
compensatory, but it also serves punitive purposes.” Id.(internal citations omitted).
Later, however, Paroline clearly stated that restitution is
fundamentally “remedial and compensatory” and repeatedly
referenced restitution’s remedial nature when emphasizing
the need to compensate victims for harms suffered as a result
of a crime. See, e.g., id. at 1726 (“Just as it undermines the
purposes of tort law to turn away plaintiffs harmed by several
wrongdoers, it would undermine the remedial and penological
purposes of § 2259 to turn away victims in cases like this.”).
That there might sometimes be a secondary punitive motive
in imposing restitution does not make restitution into a form
of punishment proscribed by the Supervised Release Statute.
Indeed, the observation that restitution may have some
punitive purposes is nothing new in our circuit. In United
States v. Green, 722 F.3d 1146 (9th Cir. 2013), we noted that
we have described restitution as a “hybrid, with ‘both
compensatory and penal purposes,’” but concluded that even
so, restitution is not “clearly” punishment. Id. at 1150(quoting United States v. Rich, 603 F.3d 722, 729 (9th Cir.
2010)). Thus, Paroline is not “clearly irreconcilable” with
our prior circuit authority authorizing restitution as a
10 UNITED STATES V. ALVAREZ
condition of supervised release, and Batson remains good
law. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.
2003) (holding that a panel may disregard circuit precedent
only when “the reasoning or theory of our prior circuit
authority is clearly irreconcilable with the reasoning or theory
of intervening higher authority.”).
Because Paroline did not establish that restitution is a
punishment, Alvarez also cannot succeed on his argument
that the district court violated Apprendi by imposing
restitution based on facts not found by a jury. As we stated
in Green, the Ninth Circuit “has categorically held that
Apprendi and its progeny . . . don’t apply to restitution.”
722 F.3d at 1149. For the reasons stated above, Paroline is
not “clearly irreconcilable” with that authority, and Green is
still viable precedent. See Miller, 335 F.3d at 892; United
States v. Eyraud, 809 F.3d 462, 471 (9th Cir. 2015) (“We
held in Green that Apprendi v. New Jersey, 530 U.S. 466(2000), does not apply to restitution orders, and Paroline does
not invalidate that holding.”).
B. San Diego Rent-A-Car was a victim of Alvarez’s
offense
Next, Alvarez argues that restitution is improper because
San Diego Rent-A-Car was not a victim of his offense.
Under the applicable statutes, restitution can be imposed
“only for the loss caused by the specific conduct that is the
basis for the offense of conviction.” Hughey v. United States,
495 U.S. 411, 413 (1990).1 The Ninth Circuit has rejected a
1
The Hughey opinion interpreted the restitution provisions of the Victim
and Witness Protection Act of 1982, which is not at issue in this case.
495 U.S. at 413. However, in Batson, we held that Hughey applies
UNITED STATES V. ALVAREZ 11
“but for” standard of causation in restitution, and held that
instead, “restitution is proper only for losses directly resulting
from the defendant’s offense.” United States v. Meksian,
170 F.3d 1260, 1262 (9th Cir. 1999) (quoting United States
v. Tyler, 767 F.2d 1350, 1351 (9th Cir. 1985)). “It is clear
from our cases that the phrase ‘directly resulting’ means that
the conduct underlying the offense of conviction must have
caused a loss for which a court may order restitution, but the
loss cannot be too far removed from that conduct.” United
States v. Gamma Tech Indus., Inc., 265 F.3d 917, 928 (9th
Cir. 2001).
Alvarez argues here that San Diego Rent-A-Car’s loss
was not caused by the specific conduct that was the basis for
the offense to which he pleaded guilty, but rather by the
Border Patrol’s decision to use a spike strip to stop his flight.
Alvarez misunderstands the inquiry under our case law. In
United States v. Reed, 80 F.3d 1419 (9th Cir. 1996), we
confirmed that the Hughey standard applied to limit
restitution to conduct that is “an element of the offense of
conviction.” Id. at 1420. In accordance with that principle,
we overturned a lower court decision granting restitution to
the owners of vehicles damaged in a crash that occurred in
the process of apprehending the defendant, who ultimately
pleaded guilty to being a felon in possession of a firearm. Id.Reed concluded that “fleeing the police is not part of the
conduct underlying [Reed’s] offense of conviction and thus
cannot serve as the basis for a restitution order.” Id. at 1421.
In contrast, Alvarez pleaded guilty to a violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), which makes it a crime to “transport[], or
move[] or attempt[] to transport or move [an] alien within the
equally to awards of restitution imposed as a condition of supervised
release. 608 F.3d at 636–37.
12 UNITED STATES V. ALVAREZ
United States by means of transportation or otherwise” with
knowledge or in reckless disregard of the fact that the alien is
in the United States illegally. As transportation is an element
of the crime to which Alvarez pleaded guilty, restitution does
not fall afoul of the limitations established by Hughey and
Reed.
Nor does the causal chain between Alvarez’s offense and
the damage to the car “extend so far, in terms of the facts or
the time span, as to become unreasonable.” Gamma Tech,
265 F.3d at 928. While the Border Patrol’s use of a spike
strip was an intervening cause of the damage to the Ford, a
“[d]efendant’s conduct need not be the sole cause of the loss”
to the victim for restitution to be appropriate. Id. at 928.
Rather, the law requires that “any subsequent action that
contributes to the loss, such as an intervening cause, must be
directly related to the defendant’s conduct.” Id. “[W]e have
approved restitution awards that included losses at least one
step removed from the offense conduct itself.” Id.Here, the damage to the Ford was no more than one step
removed from Alvarez’s crime. As noted above, Alvarez’s
crime involved transporting aliens, which made it reasonably
foreseeable that the instrument of transportation (i.e., the car)
would be damaged in its commission. Therefore, the causal
nexus between the crime of transporting aliens and the
resulting damage to the car in which the aliens were being
transported “is not too attenuated,” and restitution is
appropriate. Id.C. The government did not breach the plea agreement
Alvarez also argues that the government breached his plea
agreement by requesting restitution even though the
UNITED STATES V. ALVAREZ 13
agreement did not mention it. We review a claim that the
government has breached the terms of a plea agreement de
novo. United States v. Whitney, 673 F.3d 965, 970 (9th Cir.
2012).
The sequence of events leading up to the district court’s
ultimate restitution order is important here. The plea
agreement stated that the crime to which Alvarez was
pleading guilty carried a maximum of 10 years in prison, a
maximum $250,000 fine, a mandatory special assessment of
$100 per count, and a term of supervised release of no more
than three years. It did not specifically warn that Alvarez
may be required to pay restitution, but it did mention
restitution twice. First, in a subsection on supervised release,
the agreement provided that Alvarez would not attempt to
reduce any term of supervised release until he has “fully paid
and satisfied any special assessments, fine, criminal forfeiture
judgment and restitution judgment.” Second, the agreement
included a provision in which Alvarez promised to waive, “to
the full extent of the law, any right to appeal or to collaterally
attack the conviction and sentence, including any restitution
order.”2
Restitution first came up in Alvarez’s sentencing in the
presentence report, which recommended that Alvarez pay
$9,114.03 in restitution for the damage done to the car. The
government did not ask for restitution until Alvarez raised it
himself at the sentencing hearing. At that hearing, Alvarez’s
attorney told the court that “restitution is appropriate in this
case” because “there was an actual loss to someone,” and
contested only the amount of restitution that the presentence
2
The government has not sought to enforce an appeal waiver or argued
that we should dismiss this appeal on that basis.
14 UNITED STATES V. ALVAREZ
report had recommended. Alvarez himself then told the court
that he knew that he would have to pay restitution for the
damaged Ford and that he did not have any problem doing so.
The district court agreed that restitution would be appropriate
and asked the government for its position on the appropriate
amount. As noted above, the court ultimately ordered
restitution in the amount of $2,900.
“Plea agreements are subject to contract-law standards of
interpretation.” United States v. Kamer, 781 F.2d 1380, 1387
(9th Cir. 1986). Thus, “[i]n determining whether a plea
agreement has been broken, courts look to what was
reasonably understood by [the defendant] when he entered his
plea of guilty.” Id. (quoting United States v. Travis, 735 F.2d
1129, 1132 (9th Cir. 1984)). The reasonable expectations of
the defendant can be ascertained through “the objective proof
on the record.” Id.In Kamer, we held that the defendant had shown a
reasonable expectation that restitution would not be imposed
when the district judge indicated multiple times that there
would be no restitution and when “subsequent to signing the
plea agreement [the defendant] told the judge it was his
understanding that no restitution would be imposed.” Id. at
1388–89. Moreover, the restitution amount in Kamer was “in
the millions,” and was therefore “material enough to demand
express inclusion in the plea agreement.” Id. at 1389 (quoting
United States v. Garcia, 698 F.2d 31, 36 n.4 (1st Cir. 1983)).
Here, in contrast, Alvarez told the judge at the initial
sentencing hearing, “I know I do have to pay restitution for
the vehicle that was damaged. I know that for a fact, and I
have no problem doing that.” In addition, the total restitution
ordered was under $3,000. Under these circumstances, it is
UNITED STATES V. ALVAREZ 15
clear that Alvarez reasonably understood that he could be
required to pay restitution. The government did not breach
the agreement by pursuing restitution subsequent to Alvarez’s
clear statement that he expected to have to pay it.
D. The district court’s failure to advise Alvarez that he
may be subject to restitution was harmless
Finally, Alvarez argues that the district court erred in
imposing restitution even though it failed to warn him at his
change of plea hearing that the imposition of restitution was
a possible consequence of his guilty plea. We review the
adequacy of a Rule 11 plea colloquy de novo. United States
v. Minore, 292 F.3d 1109, 1115 (9th Cir. 2002).
Where restitution is a possible penalty for a crime, Rule
11 of the Federal Rules of Criminal Procedure requires that
a defendant be advised of the court’s authority to impose
restitution before the court can accept a guilty plea. Fed. R.
Crim. P. 11(b)(1)(K). Here, the government concedes that
the court’s failure to advise Alvarez of its power to impose
restitution at the change of plea hearing constituted error.
However, any variance from Rule 11 “is harmless error if it
does not affect substantial rights.” Fed. R. Crim. P. 11(h).
Under our case law, “a district court’s failure to advise the
defendant of the possibility of restitution [does] not constitute
reversible error where the defendant was advised he was
subject to a fine in an amount in excess of the restitution
imposed.” United States v. Crawford, 169 F.3d 590, 592 (9th
Cir. 1999). The judge in this case informed Alvarez that he
could face a fine of up to $250,000, which is far more than
the $2,900 in restitution he was ultimately required to pay.
Thus, the Rule 11 error was harmless.
16 UNITED STATES V. ALVAREZ
Moreover, the court acknowledged the mistake at the
sentencing hearing and offered Alvarez the opportunity to
withdraw his plea. Alvarez argued that this remedy was
insufficient and instead requested specific performance in the
form of a sentence that did not provide for any restitution.
The district court concluded that specific performance was
“unavailable” after noting that there was a “disconnect”
between the harm of a possible involuntary plea and a remedy
that would “limit the options that are otherwise available for
supervised release.” Alvarez now argues that the district
court erred in failing to recognize its discretion not to impose
restitution.
Because the district court’s failure to advise Alvarez of
the possibility that he might face restitution was harmless, the
court was under no obligation to offer him any remedy for the
error. See Crawford, 169 F.3d at 592–93. It nevertheless
offered him the opportunity to withdraw his plea agreement,
which is the standard remedy for a Rule 11 violation. See
McCarthy v. United States, 394 U.S. 459, 472 (1969) (“[A]
defendant whose plea has been accepted in violation of Rule
11 should be afforded the opportunity to plead anew.”). A
district court also has “the opportunity, at its discretion, to
render harmless its earlier oversight by deleting the restitution
portion of [a] sentence” imposed in violation of Rule
11(b)(1)(K). United States v. Rogers, 984 F.2d 314, 318–19
(9th Cir. 1993) (emphasis added). However, the district court
is not required to offer that option, and the decision of the
district court here not to eliminate restitution was well within
its discretion.
UNITED STATES V. ALVAREZ 17
We affirm the district court’s order of restitution in the
amount of $2,900.
AFFIRMED.