Dolan v. United States – Oral Argument – April 20, 2010

Media for Dolan v. United States

Audio Transcription for Opinion Announcement – June 14, 2010 in Dolan v. United States

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 09-367, Dolan v. United States.

Ms. Karlan.

Pamela S. Karlan:

Thank you, Mr. Chief Justice, and may it please the Court: The Mandatory Victim Restitution Act makes restitution a mandatory part of a defendant’s sentence for certain crimes, and it sets out two paths by which a district court can meet its responsibilities.

First, section 3663A(a)(1) authorizes district courts to impose restitution when sentencing a defendant; that is, at the same time that they impose terms of imprisonment, fines, probation, or the like.

Second, section 3664(d)(5) of the Act allows final determination of the amount of restitution to occur during a period not to exceed 90 days.

Once those periods and the general deadlines for correcting or appealing a sentence have passed, a court’s judgment is final, even if it fails to order restitution.

In this, the Mandatory Victim Restitution Act is like all other mandatory sentencing provisions, and as this Court confirmed 2 years ago in Greenlaw v. United States, when a court fails to impose a mandatory sentence, that error can be corrected only by following what this Court called the dispositive direction regarding sentencing errors–

Sonia Sotomayor:

Excuse me.

Is your argument that if the district court — for whatever reason, unlikely as it may be — starts a hearing the day after the rest of the sentence was imposed and has to continue that hearing for 91 days before it can render a judgment–

Pamela S. Karlan:

–No.

Sonia Sotomayor:

–that it’s now barred from entering that judgment?

Pamela S. Karlan:

No.

If I understand your question correctly, the district court has imposed sentence on day one announcing imprisonment.

Any time during the next 90 days, it has a power to set a date and make final determination of the restitution amount.

Once that 90-day period has run — in this case, on October 28th, because the sentencing occurred on July 30th — the district court loses the authority to impose restitution.

Antonin Scalia:

And the sentence is not final until then?

Pamela S. Karlan:

That’s our position.

Antonin Scalia:

And — and what if — what if the court does set a date for additional sentencing?

Then it’s not final until then, right?

Pamela S. Karlan:

No, Justice Scalia.

It would be that once a court has started the sentencing process, it has 90 days within which to complete that process, if it announces at the initial sentencing that it intends to hold open the sentence for final determination of restitution–

Sonia Sotomayor:

I — I’m not sure I understood your response to my question.

It must impose that restitution order, complete all its proceedings within the 90-day period?

Pamela S. Karlan:

–Yes, that’s correct.

Sonia Sotomayor:

So it can’t hold a hearing over from the 90th day to the 91st day?

Pamela S. Karlan:

No, it cannot do that.

And if it were to do that in a case where restitution were mandatory, the sentence would become final, the government would file an appeal, and that appeal would certainly succeed, because it’s plain error not to have to imposed the restitution–

Samuel A. Alito, Jr.:

Your position is that if the court puts off the order of restitution for 90 days, during that period, the defendant cannot take an appeal?

Pamela S. Karlan:

–If the court has announced at the initial sentencing that it intends to do so, no, then it cannot.

Samuel A. Alito, Jr.:

Isn’t that dramatically contrary to the way criminal appeals have been handled for a long time?

Samuel A. Alito, Jr.:

There’s a very short period of time for a defendant to file a notice of appeal in a criminal case, and you’re saying that that is dramatically extended by the possibility of — of restitution later on or by the fact that the restitution order will be entered later?

Pamela S. Karlan:

No, Justice Alito.

What I’m saying is that a defendant can only appeal from a final sentence, and until the restitutionary term is imposed within the time period allowed by the MVRA, there is not a final sentence.

Then he has from the time that restitution is–

Samuel A. Alito, Jr.:

Yes, I understand that.

But you’re saying the defendant is — the defendant is incarcerated, let’s say; is convicted, is sentenced to prison.

The defendant wants to take a quick appeal.

The defendant thinks he’s going to win on appeal.

And you’re saying, well, no, you have to wait 90 days before you can file your notice of appeal?

Pamela S. Karlan:

–I believe that’s correct, because he has to have a final judgment before he can appeal.

Antonin Scalia:

Well, what — what do you do about the further provision that at any time later, if the government — or the victim finds additional basis for restitution, so long as after discovering it, within 60 days after that, the victim can come to the court and ask for restitution?

What does that do?

Does that–

Pamela S. Karlan:

Well–

Antonin Scalia:

–I mean, doesn’t that necessarily mean that there are indeed two final judgments?

That — that one has to be — has to go up on its own, doesn’t it?

Pamela S. Karlan:

–That’s correct, but section 3664(o) of the statute says that the initial restitution amount constitutes a final judgment, even though there can be amendment after it’s been entered–

Antonin Scalia:

Where is that?

Pamela S. Karlan:

–In our brief, it’s on page–

Antonin Scalia:

Oh.

Oh —

“a sentence that imposes an order– “

Pamela S. Karlan:

–It’s on page–

Antonin Scalia:

“– is a final judgment, notwithstanding the fact that– “

Pamela S. Karlan:

–Yes, petition appendix 60a.

Antonin Scalia:

–Got you.

Pamela S. Karlan:

So that’s why that has to be in there, because otherwise the defendant really would be in the position that Justice Alito–

Sonia Sotomayor:

Is there any circuit court who has addressed this issue of when an appeal is timely, in a situation in which a restitution order has not been entered at the initial sentencing?

Pamela S. Karlan:

–Not in precisely that way.

There are a couple of cases that are — that kind of circle around that.

Pamela S. Karlan:

So for example, Kapelushnik, which we cite in our petition for certiorari and in our brief as the wisest way of thinking about this, held that once the 90 days has lapsed, the judgment is final by operation of law.

There’s an opinion by Judge Posner in the Seventh Circuit that’s not on restitution but on a related issue, which says that if you have several components to the sentence, until that last component is entered, the time for filing an appeal under F.R.A.P. 4 does not begin to run.

And that’s–

John G. Roberts, Jr.:

In this — when the judge did not enter a date for restitution, did you object to that?

Pamela S. Karlan:

–We were not required to do so, so we did not.

John G. Roberts, Jr.:

Well, why not?

It seems that that’s when the violation occurred.

The statute said the court shall set a date if they’re not ready to calculate the restitution, and he didn’t do that.

Pamela S. Karlan:

Well, that’s correct, Mr. Chief Justice, but the statute doesn’t say when he has to set the date.

The statute simply says the date has to be set so that final restitution will occur during the period — and here I quote again from the statute — 90 days> [“].

So he can set that date once he gets the information from–

John G. Roberts, Jr.:

Well, I thought it says — maybe I am misreading it.

It says the court — this is at sentencing.

When sentencing — you look at the previous provision — what is it?

3663A(a)(1)–

Pamela S. Karlan:

–Yes.

John G. Roberts, Jr.:

–talks about what you do when sentencing it.

Pamela S. Karlan:

Right.

John G. Roberts, Jr.:

And the statute says,

“the court shall set a date for the final determination. “

90 days> [“].

And he didn’t.

Pamela S. Karlan:

That’s correct, he did not set it.

But the statute — I’m now looking at petition appendix 55a, which is where section 3664(d)(5) of the Act is set out.

It says,

“The court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing. “

The 90 days modifies the final determination.

It doesn’t modify the setting of the date.

So within that 90-day period, I think that what was–

John G. Roberts, Jr.:

No, I think that’s right.

John G. Roberts, Jr.:

I — I agree with you on that.

Pamela S. Karlan:

–Yes.

John G. Roberts, Jr.:

In other words, the final determination — the date for the — the final determination can’t exceed 90 days–

Pamela S. Karlan:

Right.

John G. Roberts, Jr.:

–but that doesn’t mean that the provision saying the court shall set a date can wait — that he can wait 89 days to do that.

Pamela S. Karlan:

No, I think it would be very unwise for a district court to do that, but the court can’t really set the date until it receives the information that it hopes to receive from the probation office or from the victim.

So that–

John G. Roberts, Jr.:

No, no, no–

Ruth Bader Ginsburg:

It can say 90 days.

Pamela S. Karlan:

–It — it could, yes.

Or it could say, as the district court did here, I’m going to hold open the date.

But it can only hold open that date until the point at which it actually imposes the restitution, within the 90 days.

Ruth Bader Ginsburg:

This is a — this is, in one respect, Ms. Karlan, a technical argument, is it not?

Because it’s true that this defendant, from the probation officer’s report, knew within the 90 days what restitution was going to be recommended.

Pamela S. Karlan:

Yes.

He knew within the 90 days what the government’s claim was going to be, but the court did not hold the hearing and did not impose the judgment.

And so the August 8th judgment became final by operation of law on October 28th, because that was 90 days after the July 30th sentencing.

At that point, the government could have filed an appeal in this case, and, quite frankly, they would have won.

As it was–

Samuel A. Alito, Jr.:

How is your position — how is your position consistent with the thrust of the victims’ rights legislation that Congress has enacted in recent years, including the statute that’s before us here?

Now, in this case, the victim — the victim’s medical bills were paid by the United States.

But that isn’t always going to be the case, and sometimes victims are going to have a lot of lost income.

So you have the victim, like the victim here, who is beaten to a pulp by a defendant and loses a substantial amount of future income as a result, and you say that if the judge makes a mistake, it’s just too bad for the victim.

The victim gets nothing because the judge waited too long.

Pamela S. Karlan:

–No, I don’t–

Samuel A. Alito, Jr.:

Do you think that’s what Congress had in mind?

Pamela S. Karlan:

–I don’t say that, and I don’t think that’s what Congress had in mind.

First, what Congress had in mind was to strike the balance it struck in this statute, which was to give victims the right to receive restitution as part of a criminal sentence, as long as it was done within 90 days of sentencing.

Second, the government can appeal if a court doesn’t follow the rules.

Third–

Samuel A. Alito, Jr.:

Yes, but wasn’t — wasn’t the whole thrust of the victims’ rights legislation that up to that point, Congress thought prosecutors were not sufficiently attending to the rights and the interests of victims?

They were doing their own prosecutorial thing, but they weren’t involving victims, making sure they knew about court proceedings, and so forth.

And you’re saying, well, if the court makes a mistake and the prosecution falls down in its responsibility, the person who suffers is the victim who gets victimized again.

Pamela S. Karlan:

–No, that’s not what I’m saying.

What I’m saying is Congress struck a balance.

They wanted to give restitution to victims.

They also wanted final sentencing for defendants.

Congress struck that balance by giving a 90-day extension.

It didn’t provide–

Anthony M. Kennedy:

Well, you’re not really — you’re not really answering Justice Alito’s question.

He says he understands that, as I understand the question.

We understand that argument.

But it doesn’t address the fact that the net result of your argument is (a) unfair to the victim and (b) inconsistent with the whole design and thrust of the Victims Act.

Pamela S. Karlan:

–It’s–

Anthony M. Kennedy:

And you, it seems to me, have to say: So be it; the technical rule prevails.

That’s too bad.

I mean, that’s your argument, it seems to me.

Pamela S. Karlan:

–No, my argument is Congress struck that balance, and in some cases, yes, too bad–

Antonin Scalia:

Of course, the same thing would happen if the trial judge makes a mistake of law which causes the — the defendant to be acquitted, so that he not only escapes the liability to the victim, he escapes any — any criminal punishment.

It happens all the time.

The judge makes a mistake; society pays for it.

Pamela S. Karlan:

–That’s correct, and Congress here has said 90 days.

And they meant it.

If they had meant to say, at any time, a victim can receive restitution, they would have said that.

Stephen G. Breyer:

But Congress says — to paraphrase and not get it accurate — that the Department of Transportation shall enact a rule governing tire safety within 9 months from the effective date of this legislation.

And the Department of Transportation fails to do that.

It doesn’t promulgate its law for 18 months.

Is that law invalid?

The rule?

Pamela S. Karlan:

No, generally, under this–

Stephen G. Breyer:

Of course, it isn’t.

Pamela S. Karlan:

–Because that’s–

Stephen G. Breyer:

So how is this different?

Pamela S. Karlan:

–Well, this is a criminal sentencing statute which is different than a civil agency action.

Stephen G. Breyer:

I understand that point.

I’m just asking what’s a relevant difference?

Pamela S. Karlan:

That is the incredibly relevant difference, for the following reason–

Stephen G. Breyer:

Because?

Pamela S. Karlan:

–that finality in sentencing is important, because otherwise a defendant cannot even appeal his conviction.

Stephen G. Breyer:

Why couldn’t he?

Pamela S. Karlan:

Because he–

Stephen G. Breyer:

You just read us the provision.

Pamela S. Karlan:

–It’s not a final–

Stephen G. Breyer:

The judge enters a — an order, a final order.

And that final judgment, as was true here, says: I haven’t decided restitution yet.

He can appeal.

Then what it says is when you get around to the restitution, then enter another judgment, and you’ll appeal that, as happens precisely in the case of the 60 days — you know, that extra stuff that Justice Scalia was referring to.

That’s a possible interpretation of the Federal Rules of Appellate Procedure.

I don’t see, you know, the appeals thing.

I don’t see anything — I don’t have in front of me the language on filing an appeal, but I can’t think of anything that’s contrary.

Pamela S. Karlan:

–What’s contrary to that is that the Federal courts of appeals only have jurisdiction to decide cases that come up, in criminal cases, on final judgment or under the collateral order.

Stephen G. Breyer:

That’s right.

Pamela S. Karlan:

This is not–

Stephen G. Breyer:

It’s a final judgment, and because there is another provision that says an order of restitution is itself a final judgment.

Pamela S. Karlan:

–No.

With all respect, Justice Breyer, there is no provision that says an order of restitution–

Stephen G. Breyer:

You read it to us.

I mean the one you read to us.

Pamela S. Karlan:

–No.

That says–

Stephen G. Breyer:

What?

Pamela S. Karlan:

–that a sentence that includes a term of restitution can be a final judgment, even though that 60-day provision to which Justice Scalia pointed is on the books.

But you can’t have a final judgment in a criminal case that involves several different components of a sentence until those aspects of the sentence have actually been imposed.

Samuel A. Alito, Jr.:

Well, why isn’t the–

Pamela S. Karlan:

Justice Scalia, I believe, was referring to the 60-day provision.

Stephen G. Breyer:

Yes, the same problem.

Pamela S. Karlan:

The 60-day provision is specifically immunized from the final judgment rule by section 3664(o) of the statute.

The 90-day provision is not.

So until a defendant — perhaps I could — perhaps I could use a slightly different example, which is: Suppose a defendant is supposed to be a sentenced to a fine, a mandatory fine–

Stephen G. Breyer:

I see.

Pamela S. Karlan:

–and a mandatory prison sentence.

If you sentence him to the mandatory prison sentence and say I still need to calculate the fine — there is no final judgment.

He cannot appeal that sentence.

Samuel A. Alito, Jr.:

–But isn’t there a difference between those two situations?

A fine is a criminal penalty.

It goes — it — the prosecution is brought in the same of the sovereign.

The fine goes to the sovereign.

It’s a traditional criminal penalty.

Restitution is not a traditional criminal penalty.

It’s much like, arguably, attorneys’ fees in a civil case.

It is — it is like — it is really a — a benefit for the victim.

It is not something that inures to the benefit of the sovereign.

And so why doesn’t it make sense to view that judgment of restitution as a separate judgment, just as the award of an attorney’s fees is a separate final appealable order in a civil case?

Pamela S. Karlan:

Well, because this judgment of restitution is not a civil judgment.

It is part of the defendant’s criminal punishment, and, therefore, it is not like attorneys’ fees, something that’s separate.

As we point out in our reply brief, in order to calculate the amount of imprisonment, in order to calculate the fine, the Federal criminal sentencing provisions — and I should note that section 3664(a) appears in Title 18 in the section under miscellaneous sentencing provisions, not civil provisions.

All of those things interact.

And so you can’t calculate one of those without knowing all of them.

Ruth Bader Ginsburg:

But, functionally, isn’t it a substitute for the remedy that the victim of a crime might have?

Wasn’t what Congress was trying to do was to spare the victim the necessity of suing the defendant and having this kind of civil restitution tacked onto the criminal proceeding?

Pamela S. Karlan:

That’s certainly Congress’s purpose, but they did it within the context of sentencing.

So, for example, Justice Ginsburg, if this really were a civil penalty, defendants would not be entitled to the assistance of counsel in challenging the amount of restitution, because the Sixth Amendment would not apply.

The dates for filing an appeal would be different.

There would be a jurisdictional bar that doesn’t exist in criminal cases.

This Court said several times that restitution under these kinds of circumstances — in Hughey, under the predecessor to this Act, and in Kelly v. Robinson — is a penal statute.

Justice Sotomayor in her opinion for the Second Circuit in Varrone said this is a penal statute.

So there is no question here that this is a substitute for a civil remedy or a supplement for a civil remedy, but it is a criminal punishment.

And Congress has said that you have to order it at sentencing or within 90 days, or else it is error that can be corrected through Rule 35 or by appeal, but not otherwise.

Antonin Scalia:

Now, what — what can the defendant do within that 90 days?

He has to wait 90 days before he appeals the sentence that he has been given; is that right?

Pamela S. Karlan:

That’s correct.

There is not a final judgment in his case.

Antonin Scalia:

That’s 3 months that–

that he has to sit on his hands.

Pamela S. Karlan:

That’s correct.

Stephen G. Breyer:

Where does it say that?

Pamela S. Karlan:

Well, the final judgment rule says that.

Stephen G. Breyer:

Well, this is a court-made rule of what counts as a final judgment.

Pamela S. Karlan:

Right.

And — and–

Stephen G. Breyer:

Is there anything in the decisions of this Court interpreting that rule?

I mean, you could have collateral orders.

You could have all kinds of things.

And doesn’t it boil down to the same question?

I mean, I agree with you that if Congress wanted to make a 90-day deadline, you really have to do it, and you can’t restitute thereafter.

All right.

That’s one thing.

But if they didn’t, why didn’t they equally intend the judgment without the restitution order to be a final judgment?

Pamela S. Karlan:

–Well–

Stephen G. Breyer:

And then later on, just as in (o), if the judge does impose an order of restitution, then of course, that’s appealable, and that’s a different judgment.

Stephen G. Breyer:

Is there — what in the law prevents the — that interpretation?

Pamela S. Karlan:

–I think two things prevent that interpretation.

Stephen G. Breyer:

Yes.

Pamela S. Karlan:

One is this Court’s precedent, and let me talk about that.

And two is a proper reading of section 3664(o).

So I’ll turn first to the precedent and then to 3664(o).

Stephen G. Breyer:

So you have precedent.

Pamela S. Karlan:

So the precedent is, for example, this Court said in Parr v. United States, which is cited on page 12 of the reply brief, among other places, that

“a judgment or decision is final for purpose of appeal only when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined. “

Until restitution has been determined, a case does not fit within Parr.

Parr is, I believe, an interpretation of 1291, 28 U.S.C. 1291, which is the provision that gives the courts of appeals jurisdiction.

John G. Roberts, Jr.:

–So you can — under your view, you can change the amount of jail time up to the point at which you have to set the restitution.

The judge says: I’m going to sentence you to 3 years, and I’m going to figure out the restitution.

He looks, and the restitution turns out to be a lot more than he thought.

So he says: Well, I’m only going to give you 2 years.

Or it’s less, and he says: I’m going to give you 4 years.

Because the judgment is still open, he can do that?

Pamela S. Karlan:

I believe, Your Honor, that he can.

And the reason for that is the sentencing statute itself — 18 U.S.C. section 3553, I believe it is — talks about how a court, in sentencing a defendant, is supposed to be considering all of these penalties and how they interact with one another.

So if a defendant can make restitution to a victim by, for example, being put on community release or probation rather than serving time in prison, a court can take that into account in setting the sentence.

Antonin Scalia:

Must take it into account–

Pamela S. Karlan:

Yes.

Antonin Scalia:

–if you read 3553 the way it’s written.

Pamela S. Karlan:

Yes, I think they must take it into account.

Now, whether — how they’ll actually strike that balance is–

Ruth Bader Ginsburg:

Is there no — is there no possibility that a judge could say: I want to make this analogous to 54(b) under the civil rules; that is, I don’t want to delay the time that the defendant can appeal from the — from the — from the sentence.

So this order is final, and 3 months later, I’ll take up the question of restitution when all the information is in.

The court is prevented from doing that?

Pamela S. Karlan:

–I’m unaware of any criminal rules analogue to Rule 54(b) in the civil context, because in general, as I understand the way this Court’s precedents have worked, there have been what might look like interlocutory appeals in criminal cases, but they’ve always involved collateral issues.

And the problem here, for the reason that Justice Scalia just pointed to, is restitution and the amount of imprisonment are not collateral to one another; that is, they may interact.

Pamela S. Karlan:

And a fine certainly isn’t, because the statute itself says you can’t impose a fine to the extent that it will impair restitution.

So if–

Ruth Bader Ginsburg:

So the judge — but the judge could say — once she thinks she needs — that they need time for more information: I’m going to defer the whole sentencing.

So, Defendant, you’ll have to wait 3 months to find out how much time you’re going to serve.

That would be all right.

You could use the 90-day period to extend the time for imposing the sentence.

Well, in effect, you’re saying the sentence isn’t final, so she could change it any time within the 90 days?

Pamela S. Karlan:

–There’s a slight complication there, but I think the answer to your question is yes; that is, the judge could delay the entire sentencing under Federal Rule of Criminal Procedure 32.

Look, we’re not saying that you couldn’t get restitution in a case like this.

We’re simply saying that you have to follow the rules.

Stephen G. Breyer:

All right.

Well, what about that as a possible answer?

If we accept — the — the judge, of course, could say to the defendant: I’m not going to sentence you; I’m not going to put that sentence — I’m not going to sentence you at all–

Pamela S. Karlan:

That’s correct.

Stephen G. Breyer:

–for 100 days.

Pamela S. Karlan:

That’s correct.

Stephen G. Breyer:

And your remedy, then, might be to ask for mandamus, if that was too long a period?

Pamela S. Karlan:

It — it might be.

I–

Stephen G. Breyer:

And — and — so why wouldn’t that be similar here?

If the judge is going to go after the 90 days, he’d have the power to do it, but it would be like a continuance, and he’d have to exercise that reasonably.

Pamela S. Karlan:

–Because you have to follow the rules as laid down.

Stephen G. Breyer:

No, no.

I know.

You’re interpreting it literally, and–

Pamela S. Karlan:

Yes.

Stephen G. Breyer:

–and that’s–

Pamela S. Karlan:

–that is, there are many mechanisms for ensuring that a victim–

Stephen G. Breyer:

–But I mean, if I thought, for argument’s sake–

Pamela S. Karlan:

–You can’t–

Stephen G. Breyer:

–that Congress doesn’t care about whether it’s after 90 days — it was just to sort of speed things up — on that assumption, wouldn’t you still have a remedy, because it would be like the unreasonable continuance?

Pamela S. Karlan:

–That’s correct.

Stephen G. Breyer:

That is correct?

I’ve got it?

Pamela S. Karlan:

If — if you — you can’t have a continuance from the 90 days.

You can have a continuance–

Stephen G. Breyer:

No, no.

I’m thinking of–

Pamela S. Karlan:

–of sentencing itself.

Stephen G. Breyer:

–I’m thinking of the general problems–

Pamela S. Karlan:

Yes.

Stephen G. Breyer:

–of continuances for sentencing.

Pamela S. Karlan:

Yes, that’s correct.

Stephen G. Breyer:

And your argument is that 90 days is long enough?

Pamela S. Karlan:

That’s correct.

Stephen G. Breyer:

Okay.

I’ve got it.

Pamela S. Karlan:

And I’d like to reserve the remainder–

John Paul Stevens:

May I ask you one question?

Antonin Scalia:

I — I have a question going just to that.

It seems to me that if 3553, as — as I said — maybe you shouldn’t have agreed — requires the sentencing court to consider the totality of the sentence it’s imposing, including the restitution, that would mean that the judge cannot impose a sentence before the expiration of the 90 days; that is, has to wait until the restitutionary issue is resolved to impose the incarceration part of the sentence.

No?

Pamela S. Karlan:

–I think the way that the statute is written contemplates that the judge will do the regular sentencing at which he imposes these other terms, but may keep it open for 90 days.

John Paul Stevens:

May I ask this question before you sit down?

Are you aware — maybe you cite them in the briefs and I didn’t catch it — of any cases in which the courts — a court of appeals has dismissed an appeal because it was taken before the — the civil remedy had been imposed?

Pamela S. Karlan:

I’m not aware of a case that does that directly under the Mandatory Victims Restitution Act.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Heytens.

Toby J. Heytens:

Thank you, Mr. Chief Justice, and may it please the Court: To begin by addressing the question just raised by Justice Stevens, the government agrees that we are not aware of any cases that directly confront this finality question.

There are, however, at least four cases in the courts of appeals where one of two things happened: Either the defendant took an appeal from the original term of his imprisonment, then later took an appeal from the order of restitution and the appeals were consolidated.

Toby J. Heytens:

That happened, among other things, in the Cheal case, which is the First Circuit decision cited in our brief.

There are at least two other circuit court cases that do that as well.

Antonin Scalia:

Was it within the 90 days?

Toby J. Heytens:

No.

It–

Antonin Scalia:

The restitution sentence was after the 90 days?

Toby J. Heytens:

–That’s correct, Justice Scalia.

Now–

John Paul Stevens:

In those — in those — in that case, or any of those four cases, did they discuss the problem of whether there was — both appeals were proper?

Toby J. Heytens:

–Justice Stevens, I’m not aware of any case that squarely–

John Paul Stevens:

They just went ahead and consolidated?

Toby J. Heytens:

–That’s correct, Justice Stevens.

I’m not aware of any case that directly confronts this issue.

Now–

Sonia Sotomayor:

Under your view of things, however, that’s fortuity that the underlying conviction was still in the appeal process, because there is no statute of limitations under your reading.

A victim could come 1, 2, 5, 10, 15, 20, or 100 years later and say: I’m entitled to restitution.

Toby J. Heytens:

–The statute–

Sonia Sotomayor:

And absent prejudice to the defendant, that would be okay?

Toby J. Heytens:

–Absent prejudice or some sort of double jeopardy problem, that’s correct.

The statute, by its terms, says as long as the victim comes forward within 60 days of the discovery of his losses, (d)(5) expressly says that the victim can do that.

So I think this–

Sonia Sotomayor:

I’m sorry, that’s 60 days after the restitution order has been issued.

Am I–

Toby J. Heytens:

–I believe that’s incorrect, Your Honor.

The provision that we’re referring to, subsection (d)(5), is reproduced on page 6A of the appendix to the government’s brief.

It’s the, I believe, second sentence of (d)(5) that we’re discussing right now that states:

“If the victim subsequently discovers further losses, the victim shall have 60 days after the discovery of those losses in which to petition the court for an amended restitution order. “

Sonia Sotomayor:

–That 60 days says after there has been an — a restitution order.

I’m positing the situation where the victim comes 10 years later.

Toby J. Heytens:

That’s correct.

Sonia Sotomayor:

That says there’s no restitution order.

It’s the initial action.

And you’re saying that’s okay?

It’s an endless statute?

Toby J. Heytens:

It is — it is certainly not okay, Your Honor.

Congress has directed that this determination must be made and that it must be made within 90 days.

And Federal district courts are required to comply with that obligation.

But what Congress has not done is to specify a consequence that occurs in the situation where the–

Antonin Scalia:

But it — it — it’s sort of a ridiculous consequence that 5 years later, and the judge who tried the original case is dead.

I think it’s bad enough to have the issue of whether this victim suffered $100,000 damages decided by the judge, if that’s what you’re going to be sentenced to, but at least it’s being decided by the judge who tried the case.

And under your proposal, it can be decided by some other judge who is just — just pulled in, because the — the trial judge has — has been deceased.

That doesn’t seem to me to make any sense at all.

Toby J. Heytens:

–Your Honor, I don’t think it is our proposal.

Congress has not specified — Congress has certainly required this to be done within 90 days.

That meant Congress wanted it to be done within 90 days.

But Congress has not specified a consequence for–

John G. Roberts, Jr.:

Well, the consequence is the usual consequence when trial courts make errors, which is to appeal.

Toby J. Heytens:

–Your Honor, I think this Court said in Montalvo-Murillo what the consequence is in this category of cases, which is when a trial court fails to comply with a mandatory time limitation for doing something that the court is required to do, the remedy is — unless Congress provides otherwise, such as it does in the Speedy Trial Act, the remedy is not a loss of the power on the part of the court to act.

Antonin Scalia:

Doesn’t the statute establish time limits for filing an appeal?

Toby J. Heytens:

The statute does, Your Honor.

Antonin Scalia:

Does it — does it state a remedy for it?

I don’t think so.

But if you don’t comply with the time limit, you’re too late; you can’t file the appeal.

Toby J. Heytens:

Justice Scalia–

Antonin Scalia:

Same thing here.

Toby J. Heytens:

–There’s a critical difference between a statute of limitations for filing a notice of appeal and what’s happening here that’s illustrated by the example given by Judge Gorsuch in his opinion for the courts of appeals.

There can be two kinds of time limits.

The first kind can say, if you want to do something — you’re not required to do it — but if you want to do it, you have to do it within a certain time.

That’s what a statute of limitations is.

The second kind of time limit is to say you must do something and you must do it within a second — within a certain amount of time.

Toby J. Heytens:

This case is the second category, just as the statute at issue in Montalvo-Murillo was in the second category of cases, and just as–

Sonia Sotomayor:

Except that that was a bail question, where there’s not issues of finality at play, and bail is a question that repeats itself throughout the proceedings.

Defendants are denied bail and then make a different showing of either resources or less danger or whatever, and they get out.

And vice versa, defendants are out and are put in.

That’s it.

There are no finality questions there.

What do you do in this situation when you’re dealing with a criminal sentence where there are finality rules?

And I’m going to tie that back to my starting point, which is I’m looking in your brief for the precedent and/or legal basis for us to treat restitution as not part of the final judgment in this criminal action.

What — what other examples do we have in the criminal context?

Toby J. Heytens:

–We cited the things we cite in our brief.

There is, however, also a statute; I apologize to the Court, it is not cited in our brief, but it is section 18 U.S.C. section 3582(b).

That provision is captioned Imposition of a Sentence of Imprisonment.

Subsection (b) — subsection (b) of that provision says Effect of Finality of the Judgment.

It then says,

“Notwithstanding the fact that a sentence of imprisonment can subsequently be. “

modified or altered in certain ways, and then this is the critical language:

“a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes. “

In this case there was a judgment of conviction.

It was entered on July 3, 2007.

And that judgment of conviction imposed a sentence of imprisonment on Mr. Dolan.

Stephen G. Breyer:

Okay, now suppose — now we’re getting to exactly the point where I thought your co-counsel, your sister counsel had a good point that I wasn’t — hadn’t thought through, and that is what happens now in — on day — we’re finished the trial.

The sentencing is over.

They got the presentence report, and the judge enters — suppose he entered a judgment but didn’t say anything about restitution, because he says: I’d like to give you a chance to appeal this.

And I’m not going to deal with restitution for a month when the victim recovers — all within the 90 days.

Can the defendant appeal that piece of paper?

Toby J. Heytens:

Yes.

Stephen G. Breyer:

The answer is because of this provision?

Toby J. Heytens:

We think because of that provision and because of general principles of law.

Stephen G. Breyer:

Whoa, whoa.

What about what the — what — what you just heard quoted, forgetting this particular sentence in the code, was that a judgment isn’t final — you can only appeal a final judgment until all the parts that are there, and the restitution is part of it.

Stephen G. Breyer:

And so until it’s final, you can’t appeal it.

That’s what — that’s what the case Parr, which it quoted.

What is — what is your response to that?

Toby J. Heytens:

That certainly establishes the general rule that this Court has said repeatedly–

Stephen G. Breyer:

Yes.

Toby J. Heytens:

–that the jurisdiction of the Federal courts is established by Congress.

Anthony M. Kennedy:

Well, I just want to make clear where we are.

Justice Breyer said, can the defendant appeal?

You said yes.

Suppose he said, must the defendant appeal?

Toby J. Heytens:

The defendant in our view is required to appeal–

Anthony M. Kennedy:

Must?

Toby J. Heytens:

–Once the district court enters a judgment that imposes a sentence of imprisonment, if the defendant wishes to appeal that sentence of imprisonment he has 14 days to do so following the entry of the judgment, yes, which is the normal rule in Federal criminal cases.

Ruth Bader Ginsburg:

And if he misses–

Anthony M. Kennedy:

Even though — even though he says the restitution shall be held in abeyance pending receipt of information?

Toby J. Heytens:

Well, to the extent that he has an objection to the district court’s — it depends on the precise circumstances of the case, Justice Kennedy.

To the extent what he says is, I think the district court needs to, when it imposes the sentence of restitution, take into account the other aspects of the sentence, at that time the issues become interrelated.

Antonin Scalia:

Let me see if I understand this.

He has 14 days to appeal that.

And if he doesn’t do that, then later within the 90 days or even after the 90 days, a sentence of restitution is imposed, he can — he can appeal that sentence of restitution, right?

Toby J. Heytens:

Absolutely.

Antonin Scalia:

On the same grounds on which he would have appealed the — the sentence of imprisonment, right?

Toby J. Heytens:

Well, it — to the extent–

Antonin Scalia:

If — if it’s an error in the trial, he claims: I was innocent.

Toby J. Heytens:

–No, Justice Scalia.

Antonin Scalia:

No?

Toby J. Heytens:

To the — his time for appealing from the judgment of conviction runs from the entry of the judgment of conviction, which is contemporaneous with the imposition of the sentence of imprisonment.

If he wants to appeal that, he needs to do that like any other–

Stephen G. Breyer:

Well, I suppose it’s no — no imprisonment; it’s supervised release.

Now what happens?

Toby J. Heytens:

–If it’s — if the judge imposes a sentence of supervised release, I am not aware if there is a specific statute.

Stephen G. Breyer:

Yes, but I mean, what’s bothering me about this, and I’m not aware — but you’re quoting a sentence that wasn’t in your brief and what I hadn’t taken in at all is the extent to which this is inextricably mixed up with the rules of appeals, which are very important.

So unless I have in my own mind how — how this all fits together, I — I don’t know how to decide this case.

I don’t want to say something in here that’s going to muck up the — the rules of appealing from a criminal case.

Now, what you’ve told me is I’m supposed to say that within 14 days of a — of a judgment imposing imprisonment, he has to appeal, but of course if it’s supervised release, he doesn’t, or I’m not sure.

Toby J. Heytens:

Justice Breyer, first and foremost, the Court doesn’t need to say anything about any of these issues.

Stephen G. Breyer:

Why not?

Toby J. Heytens:

For one very simple reason: The only thing that this defendant has ever attempted to appeal at any point is the order of restitution.

He never attempted to appeal from his guilty plea.

Stephen G. Breyer:

Yes, but if — but I have to be able to write my reasons, and in doing that I have to respond to the argument of the other side, which is that the strongest reason for thinking Congress intended this to be final and not beyond 90 days is that if you don’t do that, you muck up the rules of appeal.

Now, explain to me why that isn’t so.

Toby J. Heytens:

A couple of reasons, Your Honor: First of all, I think it’s actually one of the strongest arguments against their position, because it creates the unlikely scenario where it will be routinely — we know that Congress has authorized these determinations to be made up to 90 days after the imposition of sentence.

So their rule would create the situation where it would be completely consistent with Congress’s intent to routinely create a situation where a Federal criminal defendant has to wait 3 months after sentencing until he can appeal.

Stephen G. Breyer:

Which is just what you say he has to do if the sentence is supervised release.

Toby J. Heytens:

What I’m saying, Justice Breyer, is I — I — I know there is a statute that governs imprisonment.

I believe there is a similar statute that governs a sentence of probation.

Antonin Scalia:

What was that statute on imprisonment?

Toby J. Heytens:

18 U.S.C. 3582(b), Justice Scalia.

I know there is a statute that governs that.

We also know there is a statute governing a term of restitution itself.

That’s the provision cited, 3664(o), which is reproduced at 11a of the appendix to our brief–

Antonin Scalia:

I’ve got it.

Toby J. Heytens:

–which is the rules governing finality with regard to an order imposing restitution.

Ruth Bader Ginsburg:

–Mr. Heytens, one problem with the — we have said that notice of appeal — that that time limit is jurisdictional, which means if the defendant misses that deadline, no appeal.

And we’re leaving this in a nebulous state if the judge says, within — this is — this is a judgment of conviction and sentence, but I’m still thinking about the restitution.

The defendant has to know at that point, must I appeal that first judgment?

Because if I don’t, I’ll never be able to appeal it.

But on your reading, the defendant can’t wait.

When the judge imposes a sentence, the defendant must meet the time clock for notice of appeal from the sentence.

Toby J. Heytens:

That’s correct, Justice Ginsburg.

Toby J. Heytens:

In our view, the defendant — when the judgment of conviction was imposed on this case, which imposed a sentence of imprisonment on Mr. Dolan, the time for appealing the judgment of conviction and the term of imprisonment began to run.

If I could go back to Justice Breyer’s question–

Ruth Bader Ginsburg:

But that — that would mean even if the judge says, I’m going to impose the restitution order 10 days from now, defendant’s time clock for notice of appeal would begin at — at the time the sentence is imposed, not 10 days later when restitution is–

Toby J. Heytens:

–That’s correct.

He files a notice of appeal when the judgment of conviction is entered, and then 10 days later he can file a second notice of appeal, and courts of appeal can consolidate that case in the ordinary course.

You don’t — to answer Justice Breyer’s very specific question about the supervised released, I have been advised that a district court cannot impose a term of supervised release unless it also imposes a sentence of imprisonment.

So that particular hypothetical that Justice Breyer raised wouldn’t arise.

The court can’t just–

John G. Roberts, Jr.:

Counsel, let’s — let’s suppose there’s no 3664(d)(5), and we’re back to just 363(a)(1), which says when sentencing a defendant, the court shall order restitution.

What if the judge doesn’t — is that mandatory?

It has to be when sentencing the defendant?

Toby J. Heytens:

–I don’t think so, Your Honor.

I think what–

John G. Roberts, Jr.:

So you think even without 3664(d)(5), the judge can say: I know it says when I’m sentencing I’ve got to order restitution.

But 2 months later, he can do it?

Toby J. Heytens:

–Mr. Chief Justice, let me amend my answer slightly.

He — the judge is required to do it when sentencing–

John G. Roberts, Jr.:

Yes, but nothing happens if he doesn’t.

Is that–

Toby J. Heytens:

–Well, the question then becomes one of a remedy.

The court is required to do it, and the question becomes what is the remedy when the court does not.

And what the Court said in Montalvo-Murillo is that we presume that Federal district courts will comply with the law, and that it is inappropriate in situations where Congress doesn’t specify a remedy for courts to impose their own remedy.

That was exactly the situation in Montalvo-Murillo.

Stephen G. Breyer:

Why don’t we go back to my hypothetical–

Toby J. Heytens:

Sure.

Stephen G. Breyer:

–and just substitute the word “fine” for “supervised release”.

Toby J. Heytens:

Justice Breyer, I’m — I’m fairly certain there is a statute that addresses the finality when it comes to a sentence that imposes a term of a fine, which is similar to the statute that addresses finality of a judgment of conviction that imposes only a term of imprisonment.

Stephen G. Breyer:

I’m not — I’m not an expert in this area, as you can see.

And — and I need to have a place to go to look so that I can see that these things, in your view, all work out, and you’re not creating some odd appellate system.

Do you have any suggestions for me as to what I could go and read and look at that would help me?

Toby J. Heytens:

Justice Breyer, to address your very specific fine question, there is in fact a statute that addresses that as well.

That is 18 U.S.C. 3572(c).

It’s structured very similarly to the — the section regarding judgments of imprisonment that I quoted to the Court earlier, and Congress has addressed that.

It says:

“Notwithstanding the fact that a sentence to pay a fine can subsequently be altered in various respects, a judgment that includes such a sentence is a final judgment for all other– “

Stephen G. Breyer:

Can the (o) — you remember — you know what I’m referring to by (o)?

Toby J. Heytens:

–Yes, Justice Breyer.

Stephen G. Breyer:

All right.

Can that be read to refer to initial — an initial judgment of restitution as well as an amended judgment?

Toby J. Heytens:

Absolutely, Justice Breyer.

That’s exactly what the First Circuit said in the Cheal case, which is cited in our brief.

The First Circuit in that case addressed an initial judgment that said, similarly, somewhat, to the judgment in this one — the original judgment, if you recall, in this case says the Mandatory Victims Restitution Act is applicable; however, the court does not have sufficient information to calculate restitution at this time.

What the First Circuit reasoned in Cheal is that that can be interpreted as a judgment imposing a restitution obligation, which is thus final under subsection (o).

If you conclude that, you don’t need to look at any other statute to resolve–

Antonin Scalia:

Even though there’s no amount given?

Toby J. Heytens:

–Yes, Justice Scalia.

Because the one thing we know for certain is that even if it had stated an amount, the fact that the amount can be amended later doesn’t deprive the judgment of finality.

John Paul Stevens:

May I ask this–

Antonin Scalia:

Simply because when you state an amount, that amount can be amended later, that leads to the conclusion that you need not even state an amount?

Do you do the same thing for imprisonment?

You say: I’m going to send you to prison; I’m not sure how many years, but I’m going to send you to prison.

Is that appealable right away?

Toby J. Heytens:

Well, Justice Scalia, the district court is not permitted to do any of this.

Congress has required the district court to set the amount–

Antonin Scalia:

I understand that, but district courts don’t always do what they are supposed to.

And it seems to me a very strange result that you’re–

Toby J. Heytens:

–It’s true that, regrettably, district courts sometimes don’t do what they are supposed to.

But this Court has said, most notably in Montalvo-Murillo, is that we should assume that they will, and that it’s inappropriate for courts to craft legal rules that are based on the presumption that they are going to violate their legal obligations–

John Paul Stevens:

–May I ask this hypothetical?

Supposing the defendant fails to appeal when he’s sentenced, and then 90 days later, they impose a restitution order and he appeals from that.

John Paul Stevens:

May he raise the issues about guilt and innocence and error in the trial in that appeal?

Toby J. Heytens:

–Justice Stevens, just to make sure I understand — I want to make sure I understand the hypothetical — it’s that the district court sentences him, enters a judgment of conviction, and then 90 days later imposes an order of restitution?

John Paul Stevens:

Correct.

Toby J. Heytens:

Okay.

In that situation, no.

It is the government’s view that he has — the time for appealing the judgment of conviction and the sentence of imprisonment has run.

John Paul Stevens:

But he — he can appeal just the restitution order.

Toby J. Heytens:

Just the restitution order, in that situation, yes.

Now, if he has appealed them both, they can be consolidated, which has been done in several cases in the courts–

John Paul Stevens:

No, I understand that.

Toby J. Heytens:

–in the circuit court of appeals.

Anthony M. Kennedy:

You attach no significance to the fact that in this case the judge said: I shall order restitution?

It’s the same as if he said nothing at all about restitution, so far as you are concerned?

Toby J. Heytens:

We think this makes it an easier case, in terms of it establishes that there is no conceivable prejudice to Mr. Dolan as a result of the delay in this case.

John Paul Stevens:

Let me ask you this question: If we conclude there’s a hole in the statute that Congress has to amend, is it more likely that Congress will cure the statute if we rule for you or if we rule against you?

It’s pretty clear, the answer to that, isn’t it?

Toby J. Heytens:

Yes, Justice Stevens.

I think Montalvo-Murillo supplies the answer to that.

Montalvo-Murillo says, where Congress does not supply a remedy for violation of a statutory time obligation, it is inappropriate for courts to invent their own in order to coerce district courts into complying–

Ruth Bader Ginsburg:

–So this then becomes a goal, not a time line — a deadline?

Toby J. Heytens:

–I think — at some point, it becomes a debate over precise wording, Justice Ginsburg.

I think it is a deadline.

I think Congress intended for district courts to do this.

I think district courts who have sworn an oath to uphold the Constitution and laws of the United States are required to do it.

The question is: What is the remedy in the rare, regrettable situation where they do not do it?

And–

John G. Roberts, Jr.:

–So a — a defendant who is sentenced to a week in prison, and he decides, that’s no big deal, I’m not going to appeal, and then finds out, you know, 90 days later he has got to pay a million dollars in restitution, is just out of luck, right?

Toby J. Heytens:

–Well, that would be — yes.

That would be our view, Mr. Chief Justice.

Now, what I would say is, it is, first of all, our view that the Court doesn’t need to resolve any of this.

Toby J. Heytens:

But, second of all, one of the reasons is there is another way the Court could resolve this, which is to follow the approach the Court took in its decision in Corey v. United States, which is cited in the blue brief.

Now, Corey involved a statute.

It’s presentence — it’s pre-Federal sentencing guidelines.

It involves a statute that said if, at the time of the sentencing, the district court feels like it needs more information to decide how long to send the defendant to jail for, it may commit the defendant to the discretion of the Attorney General for a period of either 3 to 6 months; get, essentially, a PSR, before there were PSRs; and then make a determination then.

The Court in Corey faced the question: When the district court does that — it says, I’m going to give you to the Attorney General, and we’ll come back in 6 months and decide what your sentence will be — when does the defendant have to appeal?

That was the question before the Court in Corey.

What the Court said in Corey is that the defendant may appeal either at the time he is committed to the discretion of the Attorney General or at the time the district court imposes the final sentence.

The reason the Court said that — this is the language that’s cited in the blue brief — is the Court said it would be extraordinary to tell a Federal criminal defendant that he might have to wait up to 6 months in order to take a notice of appeal from his judgment of conviction.

Stephen G. Breyer:

Look, you straightened me out, from your point of view.

But now you’ve mixed me up again.

[Laughter]

Toby J. Heytens:

Sorry.

I didn’t realize, Justice Breyer.

Stephen G. Breyer:

Because I think you said that the defendant is just out of luck.

But, previously, you had said that (o) applies, so I thought what you were saying was that the sentence of imprisonment is immediately appealable and must be appealed within 14 days because of that 3582.

Toby J. Heytens:

That’s our–

Stephen G. Breyer:

And then you said (o) applies, and (o) says that a sentence that imposes an order of restitution is a final judgment.

So if (o) applies, when, 8 months later or 20 months later, that restitution is made final and embodied in another judgment, that is a final judgment which can’t be appealed.

So if you’re right about (o) applying, then the answer to the question is, no, he is not out of luck.

Now, don’t just agree with me because I seem to be on your side in this question.

[Laughter]

Toby J. Heytens:

–No–

Stephen G. Breyer:

I’ve got to figure this out.

Toby J. Heytens:

–I apologize, Justice Breyer.

The government’s position is that at the time the judgment of conviction and the sentence of imprisonment are entered, that is the time at which the defendant has to appeal and, in our view, he may appeal.

Later, when the sentence of restitution is imposed, that is when he appeals that.

What I was suggesting is that, to the extent the Court has any concern about that, the alternative way of resolving this issue would be the same way the Court approached the issue in Corey, and you could say that the defendant could appeal at either time.

Now, we think that would be incorrect, but it would be open to the Court to do so to — or to leave the issue open in order to resolve this case.

Because as I said before, this defendant never attempted to appeal his judgment of conviction or his original term of imprisonment.

So it’s not, in this case, necessary to decide what exactly would have happened had he attempted to do so.

Antonin Scalia:

–This criminal judgment of restitution — I assume it’s the judge who finds that the victim suffered so much money?

Toby J. Heytens:

That’s correct, Justice Scalia.

Antonin Scalia:

Does he find that beyond a reasonable doubt?

Toby J. Heytens:

No, Justice Scalia.

The burden–

Antonin Scalia:

Just more likely than not?

Toby J. Heytens:

–That’s correct, 366.

Antonin Scalia:

And it’s a criminal — it’s a criminal judgment?

Toby J. Heytens:

That’s what Congress has provided.

And in this Court’s decision in Oregon v. Ice, the Court, admittedly in dictum, stated that restitution determinations are a category of determinations that have been historically made by the court, not by the jury.

And regardless of what anyone thinks is the answer to that question, it is certainly not within the question presented.

It has not been raised at any point by the Petitioner in this case.

Anthony M. Kennedy:

I suppose that an answer to the Chief Justice’s concern about the 1-week sentence and — and he’s not concerned — is that all criminal defendants know that an adjudication of guilt is preclusive of later issues with — with respect to civil — civil liability, and they take their chances.

But that — that points up a difference between this case and Montalvo-Murillo.

In this case, finality is central to the system, and that wasn’t — that’s not really — wasn’t really true in Montalvo.

Toby J. Heytens:

That’s certainly correct, Justice Kennedy.

That was by its terms a bail determination, which by its nature is not a final determination in the sense that a criminal statute is, though the Court’s language doesn’t really suggest that that would make any difference.

And I would say that some of the other cases in this same line of cases, including some of the ones Justice Breyer mentioned, did raise finality concerns.

There was a very strong finality concern raised in the Peabody Coal case.

There were finality concerns raised in Brock, that Congress had said this needs to be done, and once it’s done, it needs to be done.

And so, there are — some of the cases in this same line have also involved finality, admittedly not in the criminal context.

But I think the — the most important thing that the Court said in — the two most important things that the Court said in Montalvo-Murillo, as are relevant here, is that, first, when Congress doesn’t specify a remedy — and Congress has not specified a remedy in this case — it’s inappropriate for courts to impose their own.

The second thing that the Court said is that we should presume that Federal district courts are going to comply with legal obligations, and we shouldn’t make rules based on the assumption that they won’t.

And third is that when courts do impose remedies, they shouldn’t make — impose a remedy where there’s a profound lack of fit between the violation that occurred and the remedy that the defendant is asking them to impose.

Let me give you an example on that.

The general rule in Federal criminal litigation is that the Federal district court is supposed to impose sentence without unnecessary delay.

Now, say the district court violates that obligation.

It takes too long to impose a sentence.

I think it would be extraordinary to suggest that the remedy of a district court’s unnecessary delay in sentencing the defendant means the defendant should get off scot-free.

The remedy is to tell the district court you have taken too long to impose the sentence; impose the sentence forthwith.

Toby J. Heytens:

The same thing is true here.

Congress has told the district court you need to impose restitution in every case where the defendant is convicted of a crime of violence.

John G. Roberts, Jr.:

So, your argument is 90 days> [“] means the same thing as “without undue delay”?

Toby J. Heytens:

We don’t think it means the same thing, Mr. Chief Justice.

What we think it means is the violation should have the same consequences.

The violation is to say if you don’t do what you are supposed to, the remedy is to do it immediately.

The remedy isn’t to say you don’t have to do it anymore.

If there are no further questions, the government urges that the judgment of the court below be affirmed.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Karlan, you have 4 minutes.

Pamela S. Karlan:

I have three points — excuse me — to make: The first goes to what the remedy is here and what the error is here.

The error here occurred when the district court did not impose restitution.

The government should have filed a timely appeal under Rule 4.

They had 30 days to do so.

The government did not appeal the failure to make restitution.

That error is not before this Court now.

What’s before this Court is a second judgment.

Sonia Sotomayor:

They couldn’t do that until the end of the 90 days.

If the judge has 90 days to order restitution, that’s a vicious cycle argument.

Pamela S. Karlan:

No, Justice Sotomayor, because had the — had the government on October 28 looked and said, there’s no restitution order in this case, they could have filed an appeal then under Rule 4, and they would have won.

They didn’t do so.

Second–

Ruth Bader Ginsburg:

Well, that’s rather theoretical because if that — I mean, the — the judge surely would have acted before he could process an appeal.

Pamela S. Karlan:

–Well, he lacks actually the — the power to do that.

Once the appeal is taken, he can’t do that.

And may I just say that here I think the critical rule to understand is one sentence, one appeal.

So turning first–

Sonia Sotomayor:

But that’s not true.

I don’t know if you’ve had time to look at 3582 or 35–

Pamela S. Karlan:

–Yes, I have.

Sonia Sotomayor:

–Those do appear to say that once there’s a term of imprisonment, that that constitutes a final judgment.

Pamela S. Karlan:

But they do so in the context of Section 3553(a), which is cited on page 6 of the yellow brief, which says

“the court shall impose a sentence. “

Now, the different components can each be added together.

But there is one sentence in a criminal case on a particular charge, and that sentence can include restitution, it can include a fine, it can include imprisonment.

That doesn’t make it three sentences.

And only when all of those have been imposed is there a final judgment.

Until then, the judgment–

Samuel A. Alito, Jr.:

It can also include forfeiture.

What’s — what is the rule for forfeiture?

Pamela S. Karlan:

–I don’t know the rule for forfeiture.

I do know the rule for all of the other criminal proceedings, which is 3582(b), to which the government refers; 3572(c) for fines; 3562(b) for community release; and 3664(o) for restitution.

All of those have to make one sentence, and then there is one appeal.

Under our rule, which I think comports with the plain language of the statute, we know when an appeal takes place, and there will be one appeal.

Under the government’s rule–

Samuel A. Alito, Jr.:

What is the difference — in response to the last argument that your opponent made, what is the difference between the provision here and Rule 32(b)(1) of the criminal rules, the court must impose sentence without unnecessary delay?

Pamela S. Karlan:

–There, the question is, did it do it without unnecessary delay?

Here the question is, did it do it within 90 days?

When it didn’t, the government had to appeal.

The government did not do that.

Samuel A. Alito, Jr.:

So if the — I didn’t understand the answer.

If the sentence is not imposed without unnecessary delay, the consequence is that there can be no sentence?

Pamela S. Karlan:

No.

This Court has never decided what the rule means there.

But this is a statute.

And if I could turn to the question of what the statute–

Antonin Scalia:

Before you do that, tell me what the government appeal would consist of.

The 90 days has expired–

Pamela S. Karlan:

–And the judgment of August 8th became final.

Antonin Scalia:

–And you — you tell me the court — the court has no ability to impose restitution after 90 days.

Pamela S. Karlan:

That’s right.

The–

Antonin Scalia:

What’s the use of appealing?

Pamela S. Karlan:

–Because on appeal you say the court erred, and it imposed an illegal sentence–

Antonin Scalia:

And the appellate court says too bad–

Pamela S. Karlan:

–No–

Antonin Scalia:

–90 days are up.

Pamela S. Karlan:

–No, Justice Scalia.

In the same way that if a court failed to impose a mandatory minimum sentence and there was a final judgment, the government could appeal.

And the fact that the initial sentence didn’t do that doesn’t mean anything at that point.

Antonin Scalia:

There is no time limit on the mandatory minimum.

Pamela S. Karlan:

But the — but — but, Your Honor, if the government appeals an illegal sentence, that sentence can be corrected and the new mandate from the court of appeals saying you erred in not imposing mandatory restitution starts the 90-day clock again.

Now, this is–

Stephen G. Breyer:

Could you go back to — could you go back to Justice Alito’s question, because–

Pamela S. Karlan:

–Yes.

Stephen G. Breyer:

–that was exactly the same thing.

I think what he may be saying, though, is it makes more sense to read these statutes as saying imprisonment or community — or community service, a form of supervised release, or fines — I don’t know about forfeiture — can be appealed as separate final judgments, because then you don’t have to wait for 90 days.

Pamela S. Karlan:

No.

Stephen G. Breyer:

And if you read it that way, it’s fairer to the defendant, and you don’t have to worry about the restitution appeal because of (o).

Now, what blocks the reading — what blocks the reading I just gave?

Pamela S. Karlan:

The principle that there must be one sentence that determines each of the punishments for a particular crime.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at [= 10 a.m.].