United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on the Government's Motion for
an Amended Judgment Finalizing Restitution. (Docket No. 66.)
For the following reasons, the Motion is granted in part and
denied in part.
2012, Defendant Susanne Eileen Mathis pleaded guilty to
conspiracy to commit mail and wire fraud, in violation of 18
U.S.C. § 1349, stemming from her role in a mortgage
fraud scheme. (Plea Agreement (Docket No. 12.) In the plea
agreement, Mathis agreed that this Court was required to
order restitution under 18 U.S.C. § 3663A, the Mandatory
Victim Restitution Act (“MVRA”). (Id. at
9-10.) She further agreed that restitution would be based on
the total loss and that it would “not be limited to the
counts of conviction.” (Id. at 9.) The plea
agreement stated that the stipulated loss was “more
than $7 million but less than $20 million.”
(Id. at 4.)
presentence report identified 43 victims and attributed to
Mathis a total loss of $7, 421, 172.60. The report also
included a restitution request of $186, 851.45 from SunTrust
Mortgage Company, the only victim who sought restitution. On
November 7, 2013, the Court sentenced Mathis to 35
months' imprisonment followed by three years'
supervised release, and it left restitution to be determined
pending additional information from the parties. (Docket No.
four years after sentencing and without explanation for its
delay, the Government filed this Motion, requesting “an
amended judgment finalizing restitution in the amount of
$186, 851.45 for the benefit of Sun Trust Mortgage.”
(Docket No. 66.) The Court has received no additional
information except a stipulation from the parties dated June
26, 2014, which required Mathis to place any proceeds owed to
her from the sale of her property into an escrow account
“to be applied towards the restitution judgment . . .
[o]nce the restitution amount is finally determined.”
(Docket No. 71.) Mathis objects to the Government's
Motion, arguing that the Motion is untimely and prejudicial.
(Def.'s Obj. (Docket No. 70).)
sentencing court must order restitution to identifiable
victims of certain offenses against property, including fraud
or deceit. United States v. Adetiloye, 716 F.3d
1030, 1039 (8th Cir. 2013) (citing 18 U.S.C. §
3663A(a)(1), (c)(1)(A)(ii)). The purpose of imposing
mandatory restitution “is to make victims of crime
whole, to fully compensate these victims for their losses and
to restore these victims to their original state of
well-being.” United States v. Balentine, 569
F.3d 801, 806 (8th Cir. 2009) (quoting United States v.
Gordon, 393 F.3d 1044, 1053 (9th Cir. 2004)).
victim's losses are not ascertainable before sentencing,
a court “shall set a date for the final determination
of the victim's losses, not to exceed 90 days after
sentencing.” 18 U.S.C. § 3664(d)(5). But that
court retains power to order restitution after this 90-day
deadline if it “ma[kes] clear prior to the
deadline's expiration that it would order restitution,
leaving open (for more than 90 days) only the amount.”
Dolan v. United States, 560 U.S. 605, 608, 611
(2010) (“The fact that a sentencing court misses the
statute's 90-day deadline, even through its own fault or
that of the Government, does not deprive the court of the
power to order restitution”).
courts retain the power to order restitution after the 90-day
deadline has elapsed, the Court is unaware of, and the
Government has not cited, any case in which restitution was
ordered more than two years after the 90-day deadline, let
alone nearly four years. See, e.g., Dolan,
560 U.S. at 609 (three months after deadline); United
States v. Adejumo, 848 F.3d 868, 870 (8th Cir. 2017)
(nine months after deadline); Balentine, 569 F.3d at
802 (two years after deadline). Mathis persuasively argues
that the Government's delay here warrants special
consideration from the Court.
Government contends that this Court should order $186, 851.45
in restitution because Mathis agreed that restitution was
required in her plea agreement, and she did not object to the
loss amount reported in the presentence report. (Docket No.
66.) In other words, Mathis knew that this Court would order
restitution, and she did not object at the time of
sentencing. Mathis may have known that this Court would order
restitution, but the plea agreement stated that the parties
did not agree on the amount of restitution, and this Court
left restitution to be determined pending additional
information at the sentencing hearing. The Government has
offered no additional information to support its restitution
request, other than the stipulation addressed below. The
Court is not satisfied, under these circumstances, that the
Government has met its burden of proving the total loss
amount of $186, 851.45 by a preponderance of the evidence.
See Adetiloye, 716 F.3d at 1039 (citing 18 U.S.C.
the Government's burden was met, the delay in seeking
restitution here has severely prejudiced Mathis. Mathis
received a sentence-monitoring form dated January 31, 2015,
which said that she owed no restitution. (Def.'s Obj. at
6.) Moreover, Mathis was placed on supervised release nearly
two years ago, and the Government still waited to bring this
Motion. The Court has discretion to set the amount of
restitution and will exercise that discretion as set forth
parties acknowledged in the plea agreement, restitution is
warranted here. Although it provided no additional evidence
to support restitution in the amount of $186, 851.45, the
Government did provide credible evidence that Mathis agreed
to apply any proceeds owed to her from the sale of her
property towards the restitution judgment. (Docket No. 71.)
The Government believes $55, 221.63 remains in ...