     Case: 14-30797      Document: 00513072150         Page: 1    Date Filed: 06/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30797                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                    June 9, 2015
                                                                           Lyle W. Cayce
              Plaintiff – Appellee,                                             Clerk

v.

LUTRICIA S. FEAST,

              Defendant – Appellant.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:13-CR-253-1


Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Lutricia S. Feast pleaded guilty to one count of making and subscribing
a false individual income tax return and one count of aiding and assisting in
the preparation of a false and fraudulent individual income tax return, in
violation of 26 U.S.C. § 7206(1) and (2). As part of her sentence, the district
court imposed restitution, and Feast appeals the restitution award. Because




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 14-30797
the district court mistakenly relied on 18 U.S.C. § 3663A to impose restitution,
we vacate the district court’s restitution order and remand for resentencing.
                                              I.
      Feast, a professional income tax preparer, admitted that she failed to
report $830,986.50 of her income for tax years 2006 through 2009 and falsified
22 federal income tax returns for other taxpayers that resulted in the United
States being owed $96,915. However, Feast pleaded guilty to only two counts:
falsifying her return for the 2008 tax year by failing to report $280,170 in
additional income, and assisting in the preparation of an individual income tax
return for another taxpayer that contained a false deduction. The counts did
not incorporate by reference the allegations contained in the preamble of the
information. The factual basis attached to Feast’s plea agreement stated that
as a result of underreporting her income for tax years 2006 through 2009, Feast
owed the government $287,860. It also stated that Feast owed an additional
$94,681 as a result of falsifying tax returns for other taxpayers. In other words,
the factual basis set forth the amount that Feast owed the government due to
all of the conduct alleged in the information, including the conduct that was
alleged in the preamble.
      At rearraignment, Feast stipulated to the accuracy of the factual basis,
including its loss amounts, 1 and she pleaded guilty to both counts.                    The


      1   The exchange occurred as follows:

      THE COURT: The defendant admits that she underreported her income for
      numerous tax years. The defendant admits that from 2006 to 2009 she received
      $830,986.50 from [her tax-preparation business], none of which was declared
      on her income tax return. The defendant admits that she owes the United
      States $287,860. The defendant admits that on her 2008 tax return she falsely
      listed her income as $14,400 when in fact she earned an additional $280,170
      which she knowingly failed to report to the Internal Revenue Service. Are those
      statements true, Ms. Feast?

      THE DEFENDANT: Yes, sir.
                                              2
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                                   No. 14-30797
presentence investigation report (PSR) stated that, based on Feast’s stipulated
factual basis, Feast owed $382,541 in restitution pursuant to 18 U.S.C. §
3663A.    The district court adopted the PSR, imposed 24 months of
imprisonment and one year of supervised release on each count, to run
concurrently, and ordered Feast to pay $382,541 in restitution. The restitution
was to be paid “immediately,” with any of Feast’s tax refunds to be applied
toward restitution. If Feast did not pay restitution immediately, she was
ordered to satisfy any unpaid balance in monthly installments while she was
on supervised release. The judgment specifically provided that making these
monthly payments was a condition of supervised release, as was the
application of Feast’s tax refunds toward restitution. Feast did not raise any
objection to the restitution award in the district court, and she timely noticed
this appeal.
                                          II.
      Feast first argues that the district court was not statutorily authorized
to award restitution. We review the legality of the restitution award de novo
even though Feast did not object in the district court. See United States v.
Nolen, 472 F.3d 362, 382 (5th Cir. 2006) (noting that while the defendant did
not object at sentencing to the district court’s statutory authority for imposing
restitution, “because he is claiming that [the restitution award] is illegal, we
review it de novo”). The district court adopted the PSR, which stated that
restitution was authorized under § 3663A, but during its oral pronouncements
at sentencing, the district court did not specify the statutory basis for




      THE COURT: The defendant admits that by falsifying tax returns for her
      clients, the United States is owed an additional $94,681. Is that statement
      true?

      THE DEFENDANT: Yes, sir.
                                          3
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                                       No. 14-30797
restitution. Feast’s offenses of conviction arose under Title 26 of the United
States Code, and she did not agree to pay restitution in the plea agreement.
Therefore, as the government concedes, § 3663A—which mandates restitution
for certain crimes that do not arise under Title 26—could not serve as the basis
for the award. 2
       The government argues, however, that 18 U.S.C. § 3583(d) authorized
the district court to impose restitution as a condition of supervised release, and
that the district court ordered restitution pursuant to § 3583(d).                   Section
3583(d) generally authorizes a sentencing court to impose as a condition of
supervised release any discretionary condition of probation found in
§ 3563(b)—which includes awarding restitution to the victim of the offense.
See § 3563(b)(2). We have held that § 3583(d) “permit[s] a restitution award
regardless of the limitations set out in § 3663(a).” 3 United States v. Dahlstrom,
180 F.3d 677, 686 (5th Cir. 1999). In particular, we have held that § 3583(d)
permits restitution awards for tax offenses even though “[§ 3663] does not
expressly cover tax offenses.” United States v. Miller, 406 F.3d 323, 329 (5th
Cir. 2005).
       Although the government is correct that the district court could have
ordered restitution as a condition of supervised release, the district court did
not do so.     As noted above, the PSR cited only § 3663A as the basis for



       2 The Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. § 3663A, requires
that restitution be awarded to the victim when the defendant is convicted of certain
enumerated offenses. § 3663A(a)(1). Offenses under Title 26 are not among them.
§ 3663A(c)(1). The MVRA also requires an award of restitution to persons other than the
victim of the offense, but only if the parties agree to such an award in the plea agreement.
§ 3663A(a)(3). The Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. § 3663,
contains similar provisions for certain enumerated offenses, but restitution under that act is
discretionary.

       3As we explained in footnote 2, supra, the VWPA, § 3663, is the discretionary
counterpart to the MVRA, § 3663A.
                                              4
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                                   No. 14-30797
restitution, and the district court adopted the PSR without correcting that
error.     Moreover, the district court ordered that restitution was payable
immediately. As Feast correctly observes, we have previously held that a
restitution award due prior to the commencement of a term of supervised
release is a component of the sentence, not a condition of supervised release.
United States v. Howard, 220 F.3d 645, 647 (5th Cir. 2000). The government
argues that the immediate nature of the restitution award should not prevent
us from characterizing it as a condition of supervised release, citing United
States v. McDonald, 108 F. App’x 916 (5th Cir. 2004), and Miller, 406 F.3d 323.
However, the government’s attempt to distinguish Howard is unavailing.
McDonald, which is unpublished, does not explain why a district court can
order immediate payment of restitution as a condition of supervised release.
See 108 F. App’x at 917. In addition, Miller did not consider whether the
immediate nature of a restitution award is inconsistent with characterizing it
as a condition of supervised release. Miller held only that a district court did
not plainly err in making restitution immediately payable because the
defendant had not shown that the payment schedule was unrealistic. 406 F.3d
at 328.
         While it is true that during the sentencing hearing, the district court
discussed restitution after it discussed the mandatory conditions of release and
before it discussed the special conditions, the district court also discussed
mandatory special assessments and statutory fines during that time, which
are not conditions of supervised release. Moreover, while the judgment lists
restitution-related conditions of supervised release, those conditions would
only take effect if Feast failed to immediately pay restitution. Therefore, in
light of the district court’s adoption of the PSR, which specifically referenced
§ 3663A as the statutory basis for restitution, and in light of the immediate
nature of the restitution award, neither the transcript of the sentencing
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                                       No. 14-30797
hearing nor the judgment itself reflects an intention to award restitution as a
condition of supervised release.
         As an alternative argument, the government contends that we may
affirm on the ground that the district court’s error did not affect Feast’s
substantial rights because restitution would have been lawful under § 3583(d).
However, as we have already explained, we review the legality of a sentence
de novo, not for plain error. Nolen, 472 F.3d at 382 & n.52. By adopting the
PSR without correction and by making restitution due immediately, the
district court imposed restitution pursuant to § 3663A, not § 3583(d). This was
error.
                                            III.
         All that remains for us to determine is the proper disposition. Feast asks
us to vacate the restitution award “inasmuch as it was not imposed in a
statutorily authorized manner.” As we have noted, the district court imposed
restitution because it mistakenly believed that § 3663A required it. However,
as we have also explained and as Feast concedes, § 3583(d) could serve as a
discretionary basis for restitution. Accordingly, we vacate the restitution order
and remand for resentencing. See Nolen, 472 F.3d at 382 (reversing the district
court’s restitution order and remanding for resentencing because the district
court erroneously relied on § 3663 to award restitution). 4
                                             IV.
         For the foregoing reasons, we VACATE the district court’s restitution
order and REMAND for resentencing.




         Because resentencing is required, we need not determine whether the district court
         4

committed plain error by awarding restitution for losses beyond those attributed to Feast’s
counts of conviction. We note, however, that restitution awards are ordinarily limited to “the
loss caused by the specific conduct that is the basis of the offense of conviction.” Hughey v.
United States, 495 U.S. 411, 413 (1990); see also Nolen, 472 F.3d at 382 n.53.
                                              6
