United States District Court, E.D. California
MICHAEL J. SENG, Magistrate Judge.
This matter is before the court on a request filed by defendant Otto Godinez-Sales and joined by defendant Francisco Martinez-Cruz to vacate the restitution hearing and order no restitution. The court heard argument on the request on September 10, 2014. Assistant Federal Defender Tim Zindel appeared for defendant Godinez-Sales; CJA Panel Attorney Gilbert Roque appeared for Martinez-Cruz; Assistant United States Attorney Matthew Morris appeared for the United States. As explained below, defendants' request is DENIED. While the court declines to vacate the hearing, it also DENIES Recording Industry Association of America's (RIAA) request to amend the judgment of conviction previously entered to order payment of restitution.
I. BRIEF BACKGROUND
A. Proceedings Against Defendants
This court sentenced defendant Martinez-Cruz on June 4, 2014 and filed his written judgment and commitment on June 13, 2014. ECF Nos. 74, 78. The court sentenced defendant Godinez-Sales on July 23, 2014 and filed his written judgment and commitment on July 31, 2014. ECF Nos. 91, 92. A restitution hearing for defendant Martinez-Cruz was scheduled for August 20, 2014 and for Godinez-Sales on September 3, 2014. ECF Nos. 74, 91. These hearings were later combined and reset to September 10, 2014. ECF No. 96.
The government claims it forwarded the RIAA's request for restitution on June 3, 2014 to Martinez-Cruz's counsel and on June 6, 2014 to Godinez-Sales's counsel. Opp'n at 1-2, ECF No. 100. Defense counsel for Godinez-Sales says he never received the request, as he advised the court at Godinez-Sales's sentencing. Def.'s Req. at 1, ECF No. 97. As noted, the court deferred determination of restitution until September 3, 2014 without objection. ECF No. 92 at 3.
Defendant Godinez-Sales requests the court vacate the restitution hearing as procedurally barred for untimeliness. Def.'s Req. at 2. Defendant Martinez-Cruz joins.
B. Mandatory Victims Restitution Act
The Mandatory Victims Restitution Act of 1996 ("MVRA"), as codified at 18 U.S.C. § 3663A and the post-1996 version at 18 U.S.C. § 3664, requires a court to order full restitution to the identifiable victims of certain crimes, including fraud, without regard to a defendant's economic circumstances. 18 U.S.C. § 3663A(c)(1).
The procedures for identifying victims and the losses they sustained as a result of a defendant's criminal conduct are set forth in section 3664. As a general rule, the sentencing court may direct a probation officer to prepare a report providing "a complete accounting of the losses to each victim." 18 U.S.C. § 3664(a). To facilitate the preparation of this report, section 3664(d)(1) provides for the prosecutor, upon request of the probation officer, to consult with victims and, not later than sixty days before the sentencing date, to detail any losses subject to restitution. Section 3664(d)(2) further provides that prior to submitting a report to the court, the probation officer shall, to the extent practicable, provide notice of the court proceedings to all victims and afford them the opportunity to submit an affidavit detailing any losses subject to restitution.
Where victims' losses are not ascertainable by a date ten days prior to sentencing, as here, the prosecutor or the probation officer shall so inform the court, and "the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." 18 U.S.C. § 3664(d)(5). If a victim later discovers losses that could not reasonably have been included in his initial claim for restitution, that victim may, within sixty days of discovering the loss, petition the court for an amended restitution order. Id.
The court resolves disputes regarding the amount of restitution by a preponderance of the evidence. 18 U.S.C. § 3664(e). The government has the burden of establishing the amount of loss. Id.
II. TIMELINESS OF RESTITUTION REQUESTS
Defendants contend the restitution hearing is procedurally barred for untimeliness and should be vacated. Godinez-Sales specifically contends he was not given notice of a claim for restitution until the government filed its amended restitution request on September 9, 2014, the day before the restitution hearing. Id. at 1. "[T]he purpose behind the statutory ninety-day limit on the determination of victims' losses is not to protect defendants from drawn-out sentencing proceedings or to establish finality; rather, it is to protect crime victims from the willful dissipation of defendants' assets." United States v. Cienfuegos, 462 F.3d 1160, 1163 (9th Cir. 2006) (quoting United States v. Zakhary, 357 F.3d 186, 191 (2d Cir. 2004)); see also United States v. Dando, 287 F.3d 1007, 1110 n.4, 1111 n.6 (10th Cir. 2002). A district court's failure to determine identifiable ...