United States v. Nelson Walker, AKA \Steve Wilson, 353 F.3d 130 (2003). · Go Syfert
United States v. Nelson Walker, AKA \Steve Wilson, 353 F.3d 130 (2003). Cases Citing This Book View Copy Cite
43 citation events (43 in the last 25 years) across 9 distinct courts.
Strongest positive: Matter of National Union Fire Ins. Co. of Pittsburgh, Pa (nyappdiv, 2023-11-01)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of National Union Fire Ins. Co. of Pittsburgh, Pa
N.Y. App. Div. · 2023 · confidence medium
In United States v Walker ( 353 F3d 130, 133 [2d Cir]), the United States Court of Appeals for the Second Circuit implicitly recognized that a victim has the right to enforce a lien obtained pursuant to 18 USC § 3664 (m)(1)(B).
discussed Cited as authority (rule) Jackson v. United States
D. Conn. · 2023 · confidence medium
Wilitaylk teor pay (Pet’r Mem. at 43; Pet’r Reply at 11) has been superseded. , 353 F.3d 130, 131-32, 134 (2d Cir. 2003) (explaining that because of the courts’ reduced discretion in determining restitution amounts following the passage of the Mandatory Victims Restitution Act, courts have no “obligation . . . to announce their consideratBio.n Porf othsee crueqtouririaedl M faicstcoorns.d”)u. c t • Petitioner sets out 12 grounds of claimed prosecutorial misconduct: • Ground 1: Abuse of preemptory challenge. • Ground 2: Failure to authenticate evidence. • Ground 3-9: Failure t…
discussed Cited as authority (rule) United States v. Kelsey
2d Cir. · 2020 · confidence medium
Although a district court is not required to state on the record that it has considered the mandatory factors in § 3664(f)(2), United States v. Walker, 353 F.3d 130, 134 (2d Cir. 2003), if “the record does not establish that the sentencing judge considered the factors, we must vacate the restitution order and remand the case for resentencing,” United States v. Harris, 302 F.3d 72, 75 (2d Cir. 2002) (per curiam).
discussed Cited as authority (rule) United States v. Desnoyers
2d Cir. · 2014 · confidence medium
We review awards of restitution for abuse of discretion, United States v. Lucien, 347 F.3d 45, 52 (2d Cir.2003), but a district court lacks discretion under the Mandatory Victims Restitution Act (“MVRA”) “to deny an award of restitution or to award restitution for anything less than the full amount of the victim’s losses,” United States v. Walker, 353 F.3d 130, 131 (2d Cir.2003); see also United States v. Coriaty, 300 F.3d 244, 253 (2d Cir.2002) (holding that “statutory focus” of MVRA is “making victims whole”).
discussed Cited as authority (rule) United States v. Desnoyers
2d Cir. · 2014 · confidence medium
We review awards of restitution for abuse of discretion, United States v. Lucien, 347 F.3d 45, 52 (2d Cir. 2003), but a district court lacks discretion under the Mandatory Victims Restitution Act (ʺMVRAʺ) ʺto deny an award of restitution or to award restitution for anything less than the full amount of the victimʹs losses,ʺ United States v. Walker, 353 F.3d 130, 131 (2d Cir. 2003); see also United States v. Coriaty, 300 F.3d 244, 253 (2d Cir. 2002) (holding that ʺstatutory focusʺ of MVRA is ʺmaking victims wholeʺ).
discussed Cited as authority (rule) United States v. Al Halabi
2d Cir. · 2014 · confidence medium
Although a district court is required to consider the defendant’s financial circumstances in setting a restitution schedule, see 18 U.S.C. § 3664 (f)(2), it is not required to state on the record that it has done so, see United States v. Walker, 353 F.3d 130, 131-32 (2d Cir.2003).
discussed Cited as authority (rule) United States v. Desnoyers
2d Cir. · 2013 · confidence medium
We 2 review awards of restitution for abuse of discretion, United 3 States v. Lucien, 347 F.3d 45, 52 (2d Cir. 2003); but a 4 district court lacks discretion under the MVRA “to deny an 5 award of restitution or to award restitution for anything 6 less than the full amount of the victim’s losses,” United 7 States v. Walker, 353 F.3d 130, 131 (2d Cir. 2003). 8 A 9 The government argues that the district court erred by 10 refusing to consider newly submitted clean-up costs for the 11 projects underlying Counts V and VI when it calculated the 12 restitution amount. 13 Under 18 U.S.C. § 3664…
discussed Cited as authority (rule) United States v. Desnoyers
2d Cir. · 2013 · confidence medium
We review awards of restitution for abuse of discretion, United States v. Lucien, 347 F.3d 45, 52 (2d Cir.2003); but a district court lacks discretion under the MVRA “to deny an award of restitution or to award restitution for anything less than the full amount of the victim’s losses,” United States v. Walker, 353 F.3d 130, 131 (2d Cir.2003).
discussed Cited as authority (rule) United States v. Pickett
2d Cir. · 2010 · confidence medium
First, with respect to the factors set forth in 18 U.S.C. § 3664 (f)(2), we have held that “we will not vacate and remand [restitution orders] solely by reason of the sentencing judge’s failure to indicate consideration of the mandatory factors.” United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003).
discussed Cited as authority (rule) United States v. Mammedov
2d Cir. · 2008 · confidence medium
Although a district court is not required to state on the record that it has considered the mandatory factors in § 3664(f)(2), United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003), if “the record does not establish that the sentencing judge considered the factors, we must vacate the restitution order and remand the case for resentencing,” United States v. Harris, 302 F.3d 72, 75 (2d Cir.2002).
discussed Cited as authority (rule) United States v. Mammedov
2d Cir. · 2008 · confidence medium
Although a district court is not required to state on the record that it has considered the mandatory factors in § 3664(f)(2), United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003), if “the record does not establish that the sentencing judge considered the factors, we must vacate the restitution order and remand the case for resentencing,” United States v. Harris, 302 F.3d 72, 75 (2d Cir.2002).
cited Cited as authority (rule) United States v. Miller
W.D. Mich. · 2008 · confidence medium
United States v. Walker, 353 F.3d 130, 133 (2d Cir.2003).
discussed Cited as authority (rule) United States v. Kirk
2d Cir. · 2006 · confidence medium
Kirk’s contention that the judgment should be vacated because the district court failed to state on the record that it considered the statutorily enumerated factors in imposing restitution is foreclosed by this Court’s decision in United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003) (in light of the mandatory character of the MVRA and the relatively small facet of restitution that is left to the sentencing judge’s discretion, the judge’s failure to state on the record that he considered the MVRA factors provides no basis for reversal).
discussed Cited as authority (rule) United States v. Hawkins
W.D. Va. · 2005 · confidence medium
As the Second Circuit noted in United States v. Walker, “[t]he significance of [a court-imposed payment schedule] is diminished” by the fact that a victim has this ability to enforce the debt immediately. 353 F.3d 130, 133 (2nd Cir.2003).
discussed Cited as authority (rule) United States v. Brown
2d Cir. · 2005 · confidence medium
See United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005) (collecting cases invoking the presumption with respect to departures, restitution and revocation); United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003) (“We have never required judges to state on the record that they considered the mandatory factors affecting sentences of imprisonment, probation, or fine.”).
discussed Cited as authority (rule) United States v. Bernard Jaffe, Jr.
2d Cir. · 2005 · confidence medium
In arguing otherwise, appellant relies upon United States v. Giwah, in which we vacated and remanded an order of restitution because its terms did not evidence sufficient consideration of the financial needs of the defendant and his dependents. 84 F.3d 109, 114-15 (2d Cir.1996), superseded by statute as stated by United States v. Walker, 353 F.3d 130, 131-33 (2d Cir.2003).
discussed Cited as authority (rule) United States v. Fiore
2d Cir. · 2004 · confidence medium
Even if we believed that the district court failed in this regard—and we do not—DeSimone's argument is barred by a recent decision of this court. 42 In United States v. Walker, 353 F.3d 130, 134-35 (2d Cir.2003), we stated that "[t]he only question we address is whether the sentencing judges must state on the record that they have considered the factors, on pain of remand.
discussed Cited as authority (rule) United States v. Fiore
2d Cir. · 2004 · confidence medium
In United States v. Walker, 353 F.3d 130, 134-35 (2d Cir.2003), we stated that “[t]he only question we address is whether the sentencing judges must state on the record that they have considered the factors, on pain of remand.
discussed Cited as authority (rule) United States v. Wint
2d Cir. · 2004 · confidence medium
“We have never required judges to state on the record that they considered the mandatory factors affecting sentences of imprisonment, probation, or fine.” United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003).
discussed Cited as authority (rule) United States v. James
E.D. Va. · 2004 · confidence medium
The significance of that schedule is diminished, however, by the fact that the victim may convert the restitution order into an abstract of judgment for the full amount of the restitution order, which “shall be a lien on the property of the defendant ... in the same manner and to the same extent and under the same conditions as a judgment of a court of general jurisdiction in that State.” 353 F.3d 130, 133 (2d Cir.2003) (citing 18 U.S.C. § 8664 (m)(l)(B) and §§ 3664(m)(l)(A) & 3613(c)).
discussed Cited as authority (rule) United States v. Castillo
2d Cir. · 2004 · confidence medium
Suarez also maintains that the district court did not give individualized consideration to her ability to pay when setting the payment schedule. “[I]n considering restitution sentences imposed by the MVRA, we will not vacate and remand ... solely by reason of the sentencing judge’s failure to indicate consideration of the mandatory factors [of 18 U.S.C. § 3664 (f)(2)].” United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003).
discussed Cited as authority (rule) United States v. Cohen
2d Cir. · 2004 · confidence medium
That argument, however, is foreclosed by our decision in United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003) (“[W]e will not vacate and remand ... solely by reason of the sentencing judge’s failure to indicate consideration of the mandatory factors.”).
discussed Cited "see" United States v. Rainford (2×)
2d Cir. · 2024 · signal: see · confidence high
See United States v. Walker, 353 F.3d 130, 131 (2d Cir. 2003). 20“In contrast to the MVRA, . . . restitution under the VWPA is discretionary.” United States v. Battista, 575 F.3d 226, 230 (2d Cir. 2009). 41 1 the insurance company claims and determine which claims were part of the 2 charged scheme, and to then award 100% of the losses on the fraudulent claims, 3 and only the fraudulent claims, to the actual victims.
discussed Cited "see" United States v. Manuelian
D.D.C. · 2018 · signal: see · confidence high
See United States v. Walker , 353 F.3d 130 , 133 (2d Cir. 2003) (noting that the MVRA "substantially diminished the discretion of sentencing courts in fashioning restitution *258 orders" because, although sentencing courts retain the power to schedule payments, "[t]he significance of that schedule is diminished [ ] by the fact that the victim may convert the restitution order into an abstract of judgment for the full amount of the restitution order").
discussed Cited "see" United States v. Chu
2d Cir. · 2006 · signal: see · confidence high
There is no dispute that restitution was mandatory under the Mandatory Victims Restitution Act, 18 U.S.C. § 3668A, and that such restitution must be “in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664 (f)(1)(A); see United States v. Walker, 353 F.3d 130, 133 (2d Cir.2003).
cited Cited "see" United States v. Bedonie
D. Utah · 2004 · signal: see · confidence high
See United States v. Walker, 353 F.3d 130, 133 (2nd Cir.2003); United States v. James, 312 F.Supp.2d 806 , 2004 WL 764535 at * 4 (E.D.Va.2004). 231 . 202 F.3d 711 (4th Cir.2000). 232 .
discussed Cited "see" United States v. Valentino Nucci
2d Cir. · 2004 · signal: see · confidence high
See United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003)(concluding that, “in considering restitution sentences imposed under MVRA, we will not vacate and remand, as we did under the prior statute, solely by reason of the sentencing judge’s failure to indicate consideration of the mandatory factors”).
cited Cited "see" United States v. Laws
2d Cir. · 2004 · signal: see · confidence high
See United States v. Walker, 353 F.3d 130, 134 (2d Cir.2003); United States v. Corbett, 357 F.3d 194, 195 , 2004 U.S.App.
discussed Cited "see" United States v. David Corbett (2×)
2d Cir. · 2004 · signal: see · confidence high
See U.S. v. Nnebe, 353 F.3d 130 (2d Cir.2003) (holding that sentencing judges ordinarily need not make any particular statement on the record to demonstrate that they have considered the mandatory factors).
discussed Cited "see, e.g." United States v. Lacorte
2d Cir. · 2013 · signal: see also · confidence medium
App’x 35; see also United States v. Walker, 353 F.3d 130, 134-35 (2d Cir.2003) (district court need not make any particular statement on the record to demonstrate that it has considered defendant’s ability to pay restitution).
Retrieving the full opinion text from the archive…
\" AKA \"Darrell Marshall
Dec 17, 2003.
353 F.3d 130
2003 U.S. App. LEXIS 25380
2003 WL 22961259
RU
McLaughlin, Leval, Sotomayor.
LEVAL, Circuit Judge.

This appeal raises the question what a sentencing court must do or say in imposing a sentence of restitution in order to discharge the obligation imposed on the court by 18 U.S.C. § 3664(f)(2) to consider specified aspects of the defendant’s financial circumstances. Acknowledging that, under our case law devised for prior statutory law, sentencing judges were obligated to state that they had considered those mandatory factors, the government contends that by reason of changes established in 1996 by the Mandatory Victims Restitution Act, 18 U.S.C. §§ 3663A and 3664 (“MVRA”), sentences of restitution should no longer be vacated merely because the sentencing judge failed to state that the court had considered the factors required to be considered.

Prior to the passage of the MVRA, courts imposing sentences of restitution exercised virtually unlimited discretion. They were free to grant or deny restitution of the victim’s losses, and, in making an award of restitution, to provide for payment of any percentage of the victim’s losses that the court found appropriate. No obligations were imposed on the court other than to consider certain factors relating to the defendant’s financial circumstances. Given that virtually unlimited discretion, our court found it appropriate to impose on sentencing judges an obligation to indicate on the record that they had considered the factors required to be considered. See, e.g., United States v. Giwah, 84 F.3d 109, 114 (2d Cir.1996); United States v. Soto, 47 F.3d 546, 550-51 (2d Cir.1995); United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993). See also United States v. Atkinson, 788 F.2d 900, 902-03 (2d Cir.1986).

In 1996, however, the statutory law governing restitution orders was significantly modified, and the sentencing court’s discretion was severely curtailed. Under the MVRA, the court no longer has discretion to deny an award of restitution or to award restitution for anything less than the full amount of the victim’s losses. The sole discretion left to the sentencing court is to devise a schedule of payments for the period in which the defendant remains under the sentence.

The government argues that the reduction in the sentencing judge’s discretion reduces the dangers of abuse of discretion, and correspondingly reduces the need for a prophylactic rule to protect against abuse of discretion. The argument has considerable force.

The sentencing law requires a sentencing judge to consider a variety of factors in fashioning each aspect of the sentence. Nonetheless, we have never required sentencing judges to state on the record that they considered the mandatory factors applicable to a sentence of imprisonment, probation or fine. Given MVRA’s change in the law, we see no reason why our court should impose on sentencing judges with[*132] respect to restitution alone an obligation not mentioned in the statute to announce their consideration of the required factors. We therefore agree with the government’s argument.

BACKGROUND

After trial in the United States District Court for the Southern District of New York (Scheindlin, J.), Michael Nnebe was found guilty of securities fraud in violation of 15 U.S.C. § 77q(a) and conspiracy to commit securities fraud in violation of 18 U.S.C. § 371.

Nnebe was the founder, president and chief executive officer of Fargo Holdings, Inc., which he used as a vehicle to defraud investors. Nnebe employed a number of telephone salespersons who “cold-called” potential victims, inducing them to purchase stock in Fargo Holdings with false promises of an impending initial public offering and sure profits for early investors. Nnebe falsely communicated to investors that Fargo was developing a day-trading facility for speculators in the stock market; that Fargo owned a jeans factory in Honduras; and that big stores such as Bloomingdale’s and Macy’s had entered into contracts to carry Fargo jeans.

Victims of the fraud invested more than $2 million in Fargo, which Nnebe (as well as his co-conspirator) then diverted to personal use. He employed the funds to purchase a Rolls Royce, a Ferrari, a Range Rover, and a Mercedes Benz, as well as to pay his home mortgage, to clean his pool, and to wire more than $300,000 to himself and his family members in Nigeria. Nnebe’s crime inflicted losses aggregating $1,820,767 on his victims.

Nnebe was tried before a jury and found guilty. The court sentenced him to sixty months in prison, followed by a three-year term of supervised release. As the MVRA requires a restitution award of “the full amount of each victim’s losses ... without consideration of the economic circumstances of the defendant,” 18 U.S.C. § 3664(f)(1)(A), the court also imposed an order of a restitution of $1,820,767.

In § 3664(f)(2), the statute directs that the court “specify ... the schedule according to which[] restitution is to be paid.” The schedule is to be made “in consideration of

(A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled;
(B) projected earnings and other income of the defendant; and
(C) any financial obligations of the defendant; including obligations to dependents.

The schedule ordered by the court provided that Nnebe was to pay ten percent of his gross monthly earnings toward restitution during the 3-year period of supervised release. In setting this schedule of restitution payments, the judge specifically mentioned some of the required factors, but did not mention the “financial obligations of the defendant ... to dependents.” [1] 18 U.S.C. § 3664(f)(2)(C).[*133] Nnebe contends that because of this failure we must vacate the sentence and remand for reconsideration. In support of his argument he cites primarily cases that arose under the restitution statutes that were in effect prior to the MVRA.

DISCUSSION

If Nnebe’s appeal had arisen under the law of restitution as it existed before the passage of the MVRA in 1996, his argument would not be frivolous. In cases arising under the now superseded statute, we ruled, “If the record fails to demonstrate that the court considered [the] mandatory factors, then this court will vacate a restitution order.” Giwah, 84 F.3d at 114. See also Soto, 47 F.3d at 550-51 (“[T]he record must demonstrate that the court has considered [the mandatory] factors in ordering restitution.”); Tortora, 994 F.2d at 81 (same). If those precedents remain good law for restitution sentences imposed under the MVRA, Nnebe presents a substantial argument in favor of vacating the sentence and remanding in view of the failure of the record to reveal whether the court considered Nnebe’s obligations to dependents. The government argues, however, that the changes introduced in the restitution law by the MVRA make our former requirements unnecessary. We agree.

Under 18 U.S.C. § 3663(a)(1), as it read prior to MVRA, the sentencing court had virtually unfettered discretion either to deny restitution outright or to set it at any percentage of the victim’s loss. The requirement that the court consider various aspects of the financial circumstances of the defendant was thus the only constraint upon the court’s vast discretion. It was in light of that virtually unfettered discretion that our court came to require an affirmative indication that the sentencing court had taken into account the only guide imposed on it in crafting its restitution order.

The passage of the MVRA in 1996, however, very substantially diminished the discretion of sentencing courts in fashioning restitution orders. In eases to which it applies, the Act requires the court to “order ... that the defendant make restitution to the victim of the offense, or, if the victim is deceased, to the victim’s estate.” 18 U.S.C. § 3663A(a)(l). It goes on to specify that the restitution to each victim must be

in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant

18 U.S.C. § 3664(f)(1)(A) (emphasis added). The MVRA thus eliminates most of the discretion courts previously exercised. The court’s discretion is now restricted to crafting the schedule of payments during the time the defendant is under sentence. The significance of that schedule is diminished, however, by the fact that the victim may convert the restitution order into an abstract of judgment for the full amount of the restitution order, which “shall be a lien on the property of the defendant ... in the same manner and to the same extent and under the same conditions as a judgment of a court of general jurisdiction in that State.” 18 U.S.C. § 3664(m)(l)(B). See also §§ 3664(m)(l)(A) and 3613(c). Thus, under MVRA, the sentencing judge exercises discretion over only a relatively small facet of a restitution order. The mandatory factors enumerated in § 3664(f)(2) pertain only to an exercise of discretion which has considerably diminished importance in comparison to the discretion exercised under the pre-MVRA law.

[*134] In light of the diminution of the sentencing court’s discretion relating to restitution orders, it would be anomalous to continue to single out restitution, among all the elements of sentencing, for a requirement that the sentencing judge announce consideration of the mandatory factors. For virtually every aspect of sentencing, the governing statutes prescribe a set of factors which courts are required to consider in setting the sentence. For prison sentences, 18 U.S.C. § 3553(a) directs the court “in determining the particular sentence to be imposed [to] consider” a list of enumerated factors. For sentences of probation, 18 U.S.C. § 3562 directs the court to consider the factors set forth in § 3553(a). Section 3572 lists factors the sentencing court must consider in imposing fines. We have never required judges to state on the record that they considered the mandatory factors affecting sentences of imprisonment, probation, or fine. The stakes 'with respect to a term of imprisonment are at least as high as those governing the establishment of a schedule of restitution payments. If we trust district judges to comply with their obligation to consider statutorily mandated factors as to imprisonment, fines, and probation, without requiring them to state on the record that they have done so, should we not extend the same trust with respect to their exercise of what is now a narrow scope of discretion affecting an interim schedule for the making of restitution payments? Whatever need we felt for such a requirement when, prior to MVRA, district courts were exercising vast discretion in fashioning restitution orders, such a need is greatly diminished now that MVRA has severely curtailed that discretion.

We recognize that our court’s decisions imposing the declaration requirement were not limited to cases arising prior to MVRA. In reviewing several restitution sentences passed under MVRA, we followed the rule of the older cases. See, e.g., United States v. Harris, 302 F.3d 72, 75 (2d Cir.2002); United States v. Ismail, 219 F.3d 76, 78 (2d Cir.2000); United States v. Kinlock, 174 F.3d 297, 299-300 (2d Cir.1999) (declining to decide whether case arose under MVRA or the prior law). In none of these cases, however, did we consider the question the government has here argued. Our opinions simply applied the old rule to the new statute without considering whether the changes it established eliminated the conditions which had previously supported the rule. [2]

We conclude that, in considering restitution sentences imposed under MVRA, we will not vacate and remand, as we did under the prior statute, solely by reason of the sentencing judge’s failure to indicate consideration of the mandatory factors. Our opinion should not be understood to suggest that sentencing judges are not obligated to consider the mandatory factors in setting payment schedules for restitution orders. Of course they must do so. [3] The only question we address is whether the sentencing judges must state on the record that they have considered the fac[*135] tors, on pain of remand. We now abandon that requirement. We reject Nnebe’s argument, and affirm the sentence imposed on him. [4]

The judgment of the district court is AFFIRMED.

1

. The judge said:

While the amount [of restitution] is mandatory, in setting the payment schedule, the court must consider the financial resources of the defendant, the assets, the earnings, projected earnings, other obligations, et cet-era. The defendant prepared a personal financial statement that revealed assets of approximately $20,000 made up of bank accounts and an old car, but liabilities of approximately $40,000, primarily credit card debt. He also defaulted on one or more mortgages. He has been employed since 1986 in either real estate or the financial industry. He has filed tax returns since 1996 showing income ranging from $32 a[*133] year to $126,000 a year. Of course, he is currently unemployed.
2

. Nonetheless, because this decision might be seen as a departure from the court’s previous rulings, prior to filing we have circulated this opinion in draft to all the judges of this court.

3

. Nor should we be understood as discouraging judges from placing on the record their consideration of the mandatory factors. To the contrary, such clarification can serve a useful purpose and can eliminate the need for remand in questionable cases. If the facts are such as to lead the reviewing court to doubt that the sentencing judge would have made a particular ruling had the judge considered a factor required to be considered, specific acknowledgment that the factor was considered may avert an unnecessary remand. It is a useful practice, although no longer mandatory-

4

. We have considered the other arguments in Nnebe’s brief and found them meritless.