Second Notice of Appeal Required to Challenge Deferred Restitution Award

By: Douglas E. Roberts 

The Mandatory Victims Restitution Act, 18 U.S.C. § 3663(a), requires courts to impose restitution as part of the sentence for defendants convicted of certain crimes. But sometimes at sentencing, the amount of restitution to be imposed is not yet known. In such instances, the court may enter a judgment that sets aspects of the punishment, like a term of imprisonment or probation, while deferring the amount of restitution, which is ordered later via an amended judgment.

In Manrique v. United States, the U.S. Supreme Court was presented with the following question: When a defendant appeals from an initial judgment that does not set a restitution amount, is he entitled to appeal the subsequently entered restitution award? By a 6-2 majority (Justice Gorsuch took no part in the decision), the Court held that a defendant endeavoring to appeal a restitution order in a deferred restitution case must file a notice of appeal from that order, i.e., the amended judgment. By failing to file a notice of appeal from the amended judgment, Manrique, who had noticed appeal of the sentence of imprisonment imposed in the initial judgment, forfeited his right to challenge the restitution amount imposed in his case.

Per the Court, under both Federal Rule of Appellate Procedure 3(a)(1) and 18 U.S.C. § 3742(a), which governs criminal appeals, a defendant is required to file a notice of appeal after the district court has decided the issue he wishes to appeal. It thus rejected Manrique’s arguments that (1) there is only one “judgment,” as that term is used in the Federal Rules of Appeals, in a deferred restitution case, and (2) a notice of appeal filed after the initial judgment springs forward to appeal the amended judgment.

In dissent, Justice Ginsburg, whose opinion Justice Sotamoyor joined, expressed concern that the district court had not fulfilled its obligation to notify Manrique of his right to appeal. At sentencing, the court – as it is obligated to do – told Manrique that he had a right to appeal the sentence imposed and must exercise that right within 14 days of entry of judgment. But it did not provide such notice to Manrique when it amended the judgment. Under the circumstances, Justice Ginsburg would have held that the clerk’s dispatch of the amended judgment to the Court of Appeals served as an “adequate substitute” for a second notice of appeal.

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