ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 97-117-1)
Before: McKEE And Rendell, Circuit Judges, Debevoise, District Judge.* *Honorable Dickinson Debevoise, United States Senior District Court Judge for the District of New Jersey, sitting by designation.
The opinion of the court was delivered by: Rendell, Circuit Judge
Argued Under Third Circuit LAR 34.1(a) October 8, 1998
(Opinion Filed: November 27, 1998)
In this appeal, we are asked to determine whether the Victim and Witness Protection Act ("VWPA") or the Mandatory Victims Restitution Act ("MVRA") applies to the imposition of restitution in sentencing a defendant who committed his offenses prior to the effective date of the statute but is convicted on or after its effective date. The District Court found that although Edwards had no present ability to pay restitution, full restitution should be imposed under the MVRA. Edwards timely appealed to this court. Both sides now agree that the District Court incorrectly applied the MVRA to Edwards, and that the Victim and Witness Protection Act (VWPA) should have been applied.*fn1 We hold that the application of the MVRA to Edwards constitutes a violation of the ex post facto prohibition, and we accordingly reverse and remand for a determination of whether restitution is appropriate for Edwards under the VWPA.
Between December of 1992 and October of 1993, Edwards was involved in various schemes involving counterfeit checks, forged commercial checks, and stolen travelers' checks. PSI ¶ 1. Edwards was sentenced on December 23, 1997, after pleading guilty to one count of conspiracy, one count of bank fraud, seven counts of money laundering, and one count of criminal forfeiture. Potential monetary penalties included a fine range of $12,500 to $5,000,000, restitution of $418,397.15, and a special assessment of $500. PSI ¶ 77, 81. The probation office's review of Edwards's liabilities and assets indicated that he had children to support, did not own property or appear to have any assets of note, and had a total liability of $92,854 of debts owed to credit card companies and banks. PSI ¶¶ 61-68.
At sentencing, defense counsel argued that Edwards did not have the ability to pay restitution, while the government contended that restitution was mandatory for his offenses under the MVRA. The district Judge found that although the defendant did not have the present ability to pay restitution, the MVRA required restitution and ordered full restitution in the amount of $418,397.15. (A. at 14, 16, 22).*fn2 This court has jurisdiction pursuant to 28 U.S.C.§ 1291 and 18 U.S.C. § 3742. As the ex post facto argument was not raised before the District Court, plain error review applies. See United States v. Dozier, 119 F.3d 239, 241 (3d Cir. 1997).
II. The MVRA and the VWPA
In 1996, Congress passed the MVRA, or "Mandatory Victims Restitution Act of 1996," Title II, Subtitle A of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, codified in relevant part at 18 U.S.C. §§ 3663A, 3664 (1996). The MVRA became effective April 24, 1996, to the extent its application is constitutionally permissible. See 18 U.S.C. § 2248 (statutory notes). The MVRA makes restitution mandatory for particular crimes, including those offenses which involve fraud or deceit. See 18 U.S.C. § 3663A(c)(1)(A)(ii). If the MVRA applies to a defendant, a court must order restitution to each victim in the full amount of that victim's losses, and the court cannot consider the defendant's economic circumstances. See 18 U.S.C. § 3664(f)(1)(A). While the MVRA clearly applies to convictions on or after its effective date, its applicability to offenses committed before that date is at issue here. See 18 U.S.C.§ 2248 (statutory notes).
The prior restitution statute, the Victim and Witness Protection Act, or "VWPA," requires the court to consider the economic circumstances of the defendant prior to ordering restitution. In this Circuit, a District Court has to make certain factual findings before ordering restitution under the VWPA: 1) the amount of the loss sustained by the victims; 2) the defendant's ability to pay that loss; and 3) how the amount of restitution imposed relates to any loss caused by the conduct underlying the offense(s) at issue. See Government of Virgin Islands v. Davis , 43 F.3d 41, 47 (3d Cir. 1994). Under the VWPA, an indigent defendant can be made to pay restitution, but the court must tailor its findings to a defendant's potential assets or earning capacity. Id.
Neither side contests the fact that Edwards's crimes fall under § 3663A if the MVRA applies to him. If the VWPA applies to Edwards, however, the District Court erred by failing to make the required factual findings prior to imposing restitution. In order to determine which statute applies, we must determine the constitutionality of applying the MVRA ...