USA v. Orvil Duane Hassebrock, No. 10-3296.

Orvil Duane Hassebrock was convicted by a jury of tax evasion, a felony offense under 26 U.S.C. § 7201, and failure to file a tax return for the 2004 tax year, a misdemeanor offense under 26 U.S.C. § 7203.

With respect to the narrow issue of restitution, we conclude that, although the district court possessed the statutory authority to impose restitution as a condition of supervised release, we are unclear as to whether it acted pursuant to this authority in its order of restitution.

For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

Imposition of Restitution For the full opinions visit the 7th Circuit Court of Appeals Web Site

Authority to Impose Restitution

We review de novo questions of law involving the district court’s authority to order restitution. United States v. Webber, 536 F.3d 584, 601 (7th Cir. 2008).

The government properly acknowledges that restitution is not permitted pursuant to 18 U.S.C. § 3663 or 18 U.S.C. § 3663A for offenses that fall within Title 26 of United States Code. However, a district court may impose restitution for Title 26 offenses as a condition of probation, see 18 U.S.C. § 3563(b)(2), or as a condition of supervised release, see 18 U.S.C. § 3583(d).

Section 3583(d), the Supervised Release Statute, provides in relevant part: “The court may order, as a further condition of supervised release, . . . any condition set forth as a discretionary condition of probation in section 3563(b) and any other condition it considers to be appropriate . . . .”

See also U.S.S.G. § 5E1.1(a)(2) (“In the case of an identifiable victim, the court shall . . . impose a term of probation or supervised release with a condition requiring restitution for the full amount of the victim’s loss, if the offense is not an offense for which restitution is authorized under 18 U.S.C. § 3663(a)(1) but otherwise meets the criteria for an order of restitution under that section.”).

Thus, it is clear that district courts possess the authority to impose restitution for tax offenses as a condition of supervised release.

It is less than clear, however, whether the district court in this case actually did impose restitution as a condition of supervised release, rather than as an independent component of the sentence. The court linked the order of restitution to the sentence of supervised release on two occasions but stopped short of directly identifying restitution as a condition of supervised release.

Because a district court can only impose restitution as a condition of supervised release, a defendant cannot be required to pay restitution until his period of supervised release begins. We are therefore troubled by the district court’s oral and written statements that require immediate payment of restitution.

For Title 26 offenses, a district court is only authorized to impose restitution as a condition of probation or as a condition of supervised release. Given that the government carefully explained the court’s authority, it seems likely that the court was aware that it could only impose restitution as a condition of supervised release.

But because a degree of uncertainty remains, we remand for the limited purpose of allowing the district court to clarify the statutory basis for its order of restitution. The district court does not have the authority to impose restitution pursuant to § 3663, nor does it have the authority to require immediate payment when imposing restitution as a condition of supervised release.

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