Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 CR 0016 -- Nicholas J. Bua, Judge.
Pell, Circuit Judge, Floyd R. Gibson,*fn* Senior Circuit Judge, and Eschbach, Circuit Judge.
This is an appeal from the district court's denial of the defendant Maurice Davies' motion to correct an illegal sentence under Fed.R.Crim.P. Rule 35. The sole question presented by the appeal is whether the district court exceeded its legal authority by imposing as a condition of probation that the defendant make restitution in an amount greater than that specified in the two counts of a multicount indictment to which he limited his plea of guilty, pursuant to a plea agreement.
Davies was named in an indictment charging mail fraud, in violation of 18 U.S.C. § 1341 (1976), on the basis of his participation in a scheme of fraudulently obtaining property tax refunds from the State of Illinois. The scheme was masterminded by Davies' mother, who had previously worked for the state and was conversant with the tax relief program involved. All the other defendants were related to or otherwise connected with her, and all, including Davies and his mother, were charged in the same multicount indictment. The fraud involved filing petitions for tax refunds falsely claiming that the defendants were entitled to relief on the grounds of age or infirmity. The state processed the fraudulent petitions, and remitted checks which the defendants subsequently cashed.
The defendant withdrew his original plea of not guilty, and pleaded guilty to counts 16 and 17 of the indictment pursuant to a plea agreement. Counts 16 and 17 alleged that the defendant had signed his wife's name to claim forms, and knowingly caused checks totalling $661.00 to be delivered by mail. The terms of the plea agreement signed by the defendant acknowledged that pursuant to the scheme the defendant had cashed State of Illinois checks totalling $2,725.00. The agreement also provided for restitution as a condition of probation. Originally, the agreement provided for restitution in the amount of $2,725.00, but counsel "agreed to disagree on the amount," and the phrase "in such amount as the court shall determine" was substituted.
The Government's version of the facts as set forth in the plea agreement was repeated in open court during the plea proceedings. The following colloquy then occurred between the court and the defendant:
The Court: Mr. Davies, do you now admit that you committed those acts as just recited by Mr. Podliska [the Assistant United States Attorney]?
Mr. Davies: Yes, your Honor. I didn't know, but I don't remember no two thousand dollars. I remember, you know, cashing about six hundred dollars worth of checks.
The Court: You just have a quarrel with the amount. Very well.
The court then accepted the defendant's plea, entered judgment and ordered a presentence report. That report, which again reiterated the Government's version of the facts, was presented to the court, and a sentencing hearing was held. The court then announced its intention "to require restitution in an amount over and above that charged in the counts to which the defendant pled guilty." The defendant objected, but the court sentenced him to three years probation, a fine of $1,000.00, and restitution of $2,000.00 as a condition of probation. Davies thereafter filed his Rule 35 motion alleging that the restitution portion of the sentence exceeded the court's authority under 18 U.S.C. § 3651 (1976). This appeal followed the denial of that motion.
18 U.S.C. § 3651 provides, in pertinent ...