Convicted of bank robbery, Atkinson appeals from an order of the United States District Court for the District of Connecticut, Warren G. Eginton, Judge, denying his Fed. R. Crim. P. Rule 35(b) motion, which he sought to reduce that part of his sentence ordering him to make restitution to three banks under the Victim and Witness Protection Act. Remanded to the district court for further proceedings.
Before: CADAMONE, and PRATT, Circuit Judges, and WYZANSKI, District Judge of the United States District Court for the District of Massachusetts, sitting by designation.
Anderson Atkinson pled guilty to three counts of bank robbery and, as part of his sentence, was ordered by the United States District Court for the District of Connecticut, Warren G. Eginton, Judge, pursuant to the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3579, 3580, to make restitution to the three victim banks of the full amount of their losses. Atkinson argues that in ordering full restitution the district judge did not comply with the provisions of the VWPA because he failed to consider all the statutory factors and that, in any event, ordering full restitution here, when defendant was indigent, was an abuse of discretion. We remand to allow Judge Eginton to perform the statutory balancing mandated by congress in 18 U.S.C. § 3580(a) and to consider whether, under 18 U.S.C. § 3579(e)(1), and third-party payments have been or will be made to any of the banks as reimbursement for losses sustained in the robberies.
Atkinson and a codefendant were charged with the commission of armed robberies of three different banks during December 1983 and January 1984, in violation of 18 U.S.C. §§ 2113(a),(b),(d). Atkinson ultimately pled guilty to three counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a) and was sentenced to 20 years on each count, to run concurrently with each other as well as with a prior state sentence he was already serving. In addition, Atkinson was ordered to make restitution to the three banks: $3,196.76 to Connecticut Bank & Trust, $4,117.00 to Dime Savings Bank, and $22,500.00 to American National Bank, for a total restitution amount of $29,813.76. In arriving at the restitution amounts for each bank, the district judge relied on undisputed figures in the victim impact statements that were supplied by the respective banks and incorporated into Atkinson's pre-sentence report.
Atkinson did not appeal from the judgment of conviction ordering restitution, but he did move under Fed. R. Crim. P. 35(b) for reduction of his sentence. On this motion, counsel for Atkinson argued that the restitution order should be vacated as inappropriate in light of Atkinson's troubled past and dim prospects for the future. Atkinson had been a heroin addict for most of his life and had minimal employment experience. In addition, counsel averred that, in light of Connecticut's sentencing procedures, the earliest Atkinson would be released from prison was at age 55. Given his drug addiction, dearth of work experience and skills, and probable age upon release, counsel argued that Atkinson could not possibly pay the restitution amount of nearly $30,000 and suggested that the burdens imposed by that order would negatively affect Atkinson's attitude upon release. That motion and a subsequent motion to reconsider the motion for reduction of sentence, on which oral argument was heard, were both denied, leading to this appeal.
Atkinson first asserts that the district judge erred by failing to consider all the stated factors in 18 U.S.C. § 3580(a). That section directs that:
The court, in determining whether to order restitution under section 3579 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.
18 U.S.C. § 3580(a) (emphasis added). Atkinson contends that the district judge ignored the statutory directive to consider the financial condition of the defendant and, instead, simply ordered restitution of the undisputed amounts claimed by the banks in their victim impact statements. Arguing that the VWPA envisions a balancing of factors, Atkinson alleges that the district judge's findings were inadequate.
The third circuit has recently used its supervisory power to require district courts "to make specific findings as to the factual issues that are relevant to the application of the restitution provisions of the VWPA." United States v. Palma, 760 F.2d 475, 480 (3d Cir. 1985). Believing that such fact finding would unnecessarily encumber a sentencing proceedings, we respectfully decline to follow the course taken by our third circuit colleagues. The plain language of section 3580(a) requires only that the district judge "consider" the listed factors; there is no requirement, as urged by defendant, that specific findings be made on each factor. Nor would specific findings on any factor other than the amount of the loss seem to be of much assistance in arriving at a particular dollar amount of restitution. Like other aspects of sentencing, restitution orders require an exercise of discretion within the legislative parameters provided for the court's consideration, see United States v. Ciambrone, 602 F. Supp. 563, 566 (S.D.N.Y 1984), and this requires a delicate balancing of diverse, sometimes incomparable factors, some of which not only lack certainty but may indeed be based on mere probabilities, expectations, guesswork, even a "hunch". In such a context, detailed findings on each statutory factor would be worse than useless; they would be misleading because they would not reflect the judgmental process actually traversed by the court. Therefore, the most a district judge should be required to do before imposing a sentence of restitution is to give consideration to all the material that would be relevant under section 3580(a).
It would be possible to interpret the district judge's language at the sentencing hearing on September 7, 1984, as indicating, erroneously, that the mere filing by the banks of victim impact statements is sufficient to support an order of restitution regardless of any other conditions. However, in fairness we note that Judge Eginton at that time was not so much focusing on the conditions for restitution as he was primarily concerned with the then-undecided question of the constitutionality of the VWPA, and, therefore, invited defendant's counsel to make a Rule 35 motion attacking the restitution order. Coincidentally, however, in an opinion decided the same day as Atkinson was sentenced, this court upheld the constitutionality ...