What are the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely appeal of a criminal judgment imposing sentence, a question left open by the Court’s decision in Dolan v. United States, 560 U.S. 605 (2010)?
This case will be of interest to lawyers handling federal criminal appeals. It addresses a split in the federal circuits about jurisdiction over appeals from so-called deferred restitution judgments. Here’s the background:
At Manrique’s sentencing hearing, the district judge imposed sentence and, under the Mandatory Victim Restitution Act, 18 U.S.C. § 3664(d)(5), ordered restitution, but deferred setting the precise amount. The final judgment imposing sentence deferred entry of the precise restitution amount, stating it would be contained in an amended judgment. Manrique filed a notice of appeal. While the appeal was pending, but before any briefing took place, a second final judgment was entered, identical to the first except that it specified the amount of restitution. The parties thereafter briefed the appeal, including a challenge to the restitution award, but the Court of Appeals sua sponte ruled it did not have jurisdiction over the restitution award because Manrique did not file a second notice of appeal from the amended judgment containing the restitution amount.
By contrast, at least four other circuit courts have held that they have jurisdiction in cases like Manrique’s, though one has, due to uncertainty about the rule, ordered defendants to file a second notice of appeal, and another will dismiss the challenge to restitution if the government objects. In addition, four circuits have held in other contexts that a premature notice of appeal in a criminal case “matures” upon entry of the written judgment, which would imply a defendant like Manrique need not file a second notice of appeal. (The Seventh is in the latter group. United States v. Cantero, 995 F.2d 1407, 1408 n.1 (7th Cir. 1993)). The resolution of the split turns on Federal Rule of Appellate Procedure 4(b)(2), which says that “[a] notice of appeal filed after the court announces a decision, sentence or order – but before entry of the judgment – is treated as filed on the date of and after entry.” The circuits’ different ideas about how this rule interacts with deferred restitution judgments like Manrique’s deepened following the Court’s decision in Dolan, which allows a sentencing court to retain jurisdiction after sentencing to award restitution under the Mandatory Victim Restitution Act. Dolan acknowledged that “the interaction of [deferred] restitution orders with appellate time limits could have consequences”, but it “le[ft] all such matters for another day.” 560 U.S. at 618. That day has come—or, more precisely, will come next Term, when the case will be argued and decided.