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United States v. Berrios

decided: February 13, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
ORLANDO BERRIOS, DEFENDANT-APPELLANT



Appeal from an order of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, denying motion for reduction of restitution ordered under Victim and Witness Protection Act, 18 U.S.C.A. § 3663, following defendant's plea of guilty to theft of mail.

Feinberg, Meskill, and Kearse, Circuit Judges. Judge Meskill concurs, in a separate opinion.

Author: Kearse

KEARSE, Circuit Judge.

Defendant Orlando Berrios appeals from an order of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, denying his motion for correction of sentence, entered after his plea of guilty to one count of theft of mail, in violation of 18 U.S.C. § 1709 (1982). Berrios's sentence included (1) a one-year jail term, execution of which was suspended, (2) a three-year term of probation, and (3) an order pursuant to the Victim and Witness Protection Act, 18 U.S.C.A. § 3663 (West 1985 & Supp. 1988) ("VWPA" or the "Act"), requiring him to pay $2,905 as restitution for amounts he admitted he had stolen. On appeal, he argues that the district court erred in ordering restitution in an amount higher than that charged in the information or reflected in his plea agreement. Finding his arguments to be without merit, we affirm the order of the district court.

BACKGROUND

In September 1987, Berrios, a former United States Postal Service employee, was charged in a one-count information with having stolen from the mail a United States Treasury check in the amount of $1,349. In a plea agreement with the government, Berrios agreed, inter alia, to plead guilty to that count in complete satisfaction of any federal criminal liability he might have for theft of negotiable instruments while he was a Postal Service employee. Without specifying an amount, the plea agreement advised Berrios that the court might order him to "make restitution to the victims of this offense" under the provisions of the VWPA in the amount of the value of the stolen property.

On September 30, 1987, a plea hearing was held. The government described its evidence against Berrios, which included his statement to a postal inspector that during a three-month period in 1986, he had taken 14 or 15 federal and state checks from the New Haven Post Office, one of which was the check described in the information. The government informed the court that nine of the stolen checks, including the one described in the information, had been paid by the New Haven Savings Bank (the "Bank"); the Bank's losses on account of those nine checks totaled $2,905. Pursuant to § 3663, the government sought restitution in that amount.

Berrios's counsel acknowledged that $2,905 was the total of the recovered stolen checks but disputed the court's authority to require restitution in this amount, stating as follows:

Ms. CHAMBERS: . . . I would agree that the total amount missing was two thousand, nine hundred and five dollars but the amount in the information was one thousand, three hundred and forty-nine dollars and my reading of the statutes that govern restitution limit the Court's authority to impose restitution to the amount contained in the offense for which the person is found guilty so I believe that this plea agreement effectively limits the Court's authority to order restitution in excess of thirteen, forty-nine.

(Plea Transcript at 18.) The court indicated that it believed it had the authority under the Act to order restitution in the higher amount but instructed the government to research the matter further prior to sentencing. The court warned Berrios that it might order restitution in the amount of $2,905. Immediately following this colloquy, Berrios pleaded guilty to the one-count information.

The sentencing hearing was held on November 13, 1987. The court began by stating that it was not planning to sentence Berrios to incarceration because it appeared that he had a good attitude: "You seem to have genuine remorse which is one of the major factors and you have tried to cooperate and the restitution will be important . . . ." (Sentencing Transcript ("Tr.") 4.) The court then invited the attorneys to comment on the permissible maximum amount of the restitution order.

The government took the position that the court had the power to order restitution in the entire amount requested. Berrios's attorney again stated the position that the Act forbade an order for restitution in any amount higher than that charged in the indictment or information unless the defendant agreed to a higher amount in a "fully bargained" plea agreement specifying that amount. After acknowledging that the check whose theft was charged in the information was included in the $2,905, Berrios's counsel also stated as follows:

(Tr. 8-9.)

After asking Berrios whether he wished to make any statement to the court before imposition of sentence, and receiving a negative response, the court stated:

All right, Miss Chambers has said it very well for you on the restitution point and I think she's made another statement which is very important and that's your moral obligation. Now, I'm going to order the full restitution and it may be that if you and she feel it appropriate you might appeal it to the Second Circuit to find out if I've exceeded my jurisdiction but I think that morally it certainly is the proper position to take and I'm pleased that you're taking it.

(Tr. 10.) The court proceeded to sentence Berrios as indicated above, ordering him to pay restitution in the amount of $2,905.

Berrios did not appeal from the judgment imposing sentence but moved in the district court for correction of his sentence, arguing that the court had no power to order him to pay restitution in an amount higher than the $1,349 charged in the information. The court denied the motion without comment. On Berrios's motion for reconsideration, the court adhered to its denial, stating that "the ...


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