United States v. Sanchez-Maldonado, 1st Cir. (2013)

United States Court of Appeals
For the First Circuit
No. 12-1571
UNITED STATES OF AMERICA,
Appellee,
v.
JOSU SNCHEZ-MALDONADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelp, U.S. District Judge]
Before
Howard, Selya and Lipez,
Circuit Judges.
Carlos M. Snchez La Costa on brief for appellant.

Rosa Emilia Rodrguez-Vlez, United States Attorney, Nelson
Prez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.
December 18, 2013
SELYA, Circuit Judge.
The truth of the ancient maxim
that crime does not pay is nowhere more evident than when, as in
this case, the crime involves the theft of government property from
the offices of the Federal Bureau of Investigation (the FBI).
The
tale follows.
On July 13, 2011, a federal grand jury sitting in the
District
of
Puerto
Rico
returned
an
indictment
charging
the
appellant, Josu Snchez-Maldonado, and two confederates with

aiding and abetting the depredation of federal property resulting
in damage in excess of $20,000.
See 18 U.S.C. 2, 1361.
To be
specific, the indictment accused the defendants, who were allegedly

seeking to strip and sell copper, of approaching the local office
of the FBI and causing damage to an air conditioning system.
Within
matter
of
months,
the
government
and
the
appellant advised the district court that plea negotiations had

borne fruit.
Shortly thereafter, they submitted a signed plea

This non-binding agreement, see Fed. R. Crim. P.
agreement.
11(c)(1)(A)-(B), stated in relevant part that the appellant "waives

and surrenders his right to appeal the judgement and sentence in
this case."
That same day, a change-of-plea hearing was held
before a magistrate judge.
The magistrate judge recommended that
the district court accept the tendered plea, and the court did so.
The
probation
department
proceeded
presentence investigation report (the PSI Report).
-2-
to
prepare
The PSI Report
noted, among other things, that an FBI agent had estimated the
property loss at $24,000 and that "[r]estitution in the amount of
$24,000 [was] owed."
The same document recommended that the
district court order restitution in that amount, with the order to

run jointly and severally against the three malefactors.
The
appellant interposed no objection to any portion of the PSI Report.

At the disposition hearing, the district court sentenced
the defendant to serve 30 days in prison, followed by a three-year
term of supervised release. The court then allocated the suggested
restitution
amount
equally
among
the
three
persons
who
were
responsible for the property damage and ordered the appellant to

pay his pro rata share ($8,000) in restitution to the FBI.
The
appellant did not object to the imposition of restitution in that

amount.
This timely appeal followed.
In it, the appellant seeks
belatedly to challenge the restitution order.

The government's first line of defense is that the plea
agreement's
challenge.
waiver-of-appeal
provision
blocks
the
appellant's
The appellant rejoins that he agreed only to waive the
right to appeal his "sentence," a term that, in his estimation,

does not encompass restitution.
We have explained before that no consensus exists as to
whether a waiver-of-appeal provision that explicitly applies to a
sentence but omits any mention of restitution extends to orders for
-3-
restitution. See United States v. Salas-Fernndez, 620 F.3d 45, 47

(1st Cir. 2010).
When the resolution of the underlying appeal
plainly dictates affirmance, we often have elected to avoid the

murky waters surrounding the waiver's scope and proceeded to
consider the merits of the appeal on the arguendo assumption that
the waiver does not apply.
See, e.g., id. at 47-48.
We follow
that prudential path today.1

The appellant protests that the district court's order
for restitution reflects two errors under the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. 3663A. Because these claims of
error are proffered for the first time on appeal, we review them
only for plain error.
See Salas-Fernndez, 620 F.3d at 48.
To
show plain error, the appellant must demonstrate: "(1) that an

error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings."
United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001).
Debates about whether or not a waiver-of-appeal provision

extends to orders for restitution are wasteful and can easily be
avoided. A modicum of careful drafting by the government would
make such debates unnecessary.
A word to the wise should be
sufficient: we urge the government to expend the minimal effort
that this prophylaxis would require.
-4-
The appellant's principal claim of error rests on the

premise that the district court's $8,000 restitution order was not
supported by reliable evidence.
This claim lacks force.
In a property-destruction case like this one, the MVRA

requires a district court to order restitution in the amount of the
value of the affected property.
See 18 U.S.C. 3663A(b)(1)(B).
Where multiple defendants contribute to the property damage, "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."
Id. 3664(h).
A district court's calculation of restitution is not held

to standards of scientific precision.
F.3d at 48.
See Salas-Fernndez, 620
As long as the court's order reasonably responds to
some reliable evidence, no more is exigible.
See id.
In this instance, the district court's order relied on

the $24,000 loss amount quoted in the PSI Report. That information
came straight from the mouth of the victim the FBI.
The
defendant did not object to this portion of the PSI Report,2 and we
The appellant's acquiescence in the loss-amount figure

recounted in the PSI Report also defenestrates his assertion that
the government failed to carry its burden under 18 U.S.C.
3664(e). By the statute's own terms, such a burden emerges only
when a "dispute" arises as to the amount or type of restitution.
Id.; see United States v. Savoie, 985 F.2d 612, 617 (1st Cir.
1993). Here, the FBI's loss estimate was uncontradicted, and an
uncontradicted loss amount does not give rise to a dispute.
-5-
cannot fault the district court for its acceptance of the lossamount figure. See United States v. Prochner, 417 F.3d 54, 66 (1st
Cir. 2005); see also United States v. Ocasio-Cancel, 727 F.3d 85,
92 (1st Cir. 2013).
The appellant's remaining contention is that the district
court failed to consider his financial resources when imposing the
restitution order.
This contention need not detain us.
The MVRA requires a sentencing court to consider a

defendant's financial circumstances in setting a payment schedule.
See 18 U.S.C. 3664(f)(2).
But this hurdle is not a high one.
"[T]he court need not make explicit findings or even indicate what
it has considered; it suffices if the record contains relevant
information about, say, the defendant's income and assets." SalasFernndez, 620 F.3d at 49.
Given
the
minimalist
nature
of
this
appellant's claim of error is easily dispatched.
standard,
the
The PSI Report
contains a detailed account of the appellant's financial condition.

The district court reviewed that account and, at sentencing,
ordered the appellant to pay only his pro rata share of the $24,000
loss.3 The court acknowledged that the appellant's economic status
would make it "pretty hard for that [sum] to be restituted."
The
court then left it to the probation department to work out an
The court could have ordered the appellant to repay the full
amount.
See 18 U.S.C. 3664(h).
The court chose instead to
allocate the loss among the three miscreants.
-6-
appropriate
payment
schedule.4
Thus,
the
record
evinces
court's keen awareness of the appellant's financial condition.
the
We
discern no error, plain or otherwise.

We need go no further. In the absence of any evidence to
the contrary, the district court was fully entitled to rely upon
the $24,000 loss-amount figure in fashioning its restitution order.
By like token, the appellant's claim that the district court failed
to consider his financial condition is without merit.
Affirmed.
In some circumstances, the propriety of enlisting the

probation department to set a payment schedule might be
problematic. See United States v. Merric, 166 F.3d 406, 409 (1st
Cir. 1999) (explaining that "the judge rather than the probation
officer must have the final authority to determine the payment
schedule" for a fine).
But the appellant has not pursued that
issue on appeal, and we deem it waived.
See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990); cf. United States v.
Sawyer, 521 F.3d 792, 798 (7th Cir. 2008) (holding that the lack of
a set payment schedule for restitution does not amount to plain
error).
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United States v. Sanchez-Maldonado, 1st Cir. (2013)

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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

Carlos M. Snchez La Costa on brief for appellant.

December 18, 2013

SELYA, Circuit Judge.

The truth of the ancient maxim

appellant, Josu Snchez-Maldonado, and two confederates with

See 18 U.S.C. 2, 1361.

specific, the indictment accused the defendants, who were allegedly

appellant advised the district court that plea negotiations had

Shortly thereafter, they submitted a signed plea

11(c)(1)(A)-(B), stated in relevant part that the appellant "waives

That same day, a change-of-plea hearing was held

before a magistrate judge.

The magistrate judge recommended that

presentence investigation report (the PSI Report).

The PSI Report

The same document recommended that the

district court order restitution in that amount, with the order to

appellant interposed no objection to any portion of the PSI Report.

responsible for the property damage and ordered the appellant to

appellant did not object to the imposition of restitution in that

In it, the appellant seeks

belatedly to challenge the restitution order.

The appellant rejoins that he agreed only to waive the

right to appeal his "sentence," a term that, in his estimation,

restitution. See United States v. Salas-Fernndez, 620 F.3d 45, 47

When the resolution of the underlying appeal

plainly dictates affirmance, we often have elected to avoid the

See, e.g., id. at 47-48.

that prudential path today.1

See Salas-Fernndez, 620 F.3d at 48.

show plain error, the appellant must demonstrate: "(1) that an

United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001).

Debates about whether or not a waiver-of-appeal provision

The appellant's principal claim of error rests on the

This claim lacks force.

In a property-destruction case like this one, the MVRA

See 18 U.S.C. 3663A(b)(1)(B).

Where multiple defendants contribute to the property damage, "the

A district court's calculation of restitution is not held

See Salas-Fernndez, 620

As long as the court's order reasonably responds to

some reliable evidence, no more is exigible.

In this instance, the district court's order relied on

The appellant's acquiescence in the loss-amount figure

This contention need not detain us.

The MVRA requires a sentencing court to consider a

But this hurdle is not a high one.

appellant's claim of error is easily dispatched.

The PSI Report

contains a detailed account of the appellant's financial condition.

court then left it to the probation department to work out an

court's keen awareness of the appellant's financial condition.

discern no error, plain or otherwise.

In some circumstances, the propriety of enlisting the

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