U.S. v. Paup and Appeals With Outstanding Restitution Issues
In United States v. Paup, the Tenth Circuit held that it had jurisdiction to review a district court order remanding a criminal sentence to a magistrate judge. The remand order did not affect the conviction or sentence and left open only the amount of a restitution order. It was accordingly a final decision that was immediately appealable.
The defendant in Paup was charged with shoplifting from a military exchange. She was convicted in a jury trial before a magistrate judge, and the sentence imposed by the magistrate judge included a restitution order in the amount of the stolen merchandise. The defendant appealed her conviction and sentence to the district court, which affirmed everything except the restitution award. The district court vacated that part of the sentence and remanded for further proceedings. The defendant then appealed the district court’s decision.
The Tenth Circuit held that it had jurisdiction despite the outstanding restitution issue. It noted the Supreme Court’s suggestion in Dolan v. United States that there were good reasons to treat a conviction and sentence as appealable regardless of any delay in determining restitution. Postponing an appeal until after restitution is determined could hinder a defendant’s ability to speedily challenge a conviction or sentence. Also relevant was the Supreme Court’s decision in Manrique v. United States, which read Dolan to mean “that deferred restitution cases involve two appealable judgments, not one.” Several courts of appeals have accordingly held that a sentence of imprisonment is final and appealable despite an outstanding issue of restitution.
The Tenth Circuit noted that Paup involved a vacated restitution order, not a deferred one. But it saw no meaningful difference between the two. The Supreme Court’s cases in this area, according to the Tenth Circuit, show “that a defendant sentenced to imprisonment need not wait until restitution is finally resolved . . . before being allowed to challenge her conviction and sentence on appeal to this court.”
United States v. Paup, 2019 WL 3756446 (10th Cir. 2019), available at the Tenth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
The collateral-order doctrine is one of the most frequently invoked exceptions to the final-judgment rule. The doctrine deems final a district court order that (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The collateral-order doctrine is also […]
Continue reading....
In United States v. Rivera-Rodríguez, the First Circuit held that the government can appeal from orders granting a criminal defendant’s request for compassionate release. Although several courts of appeals have reviewed these appeals, few have addressed their jurisdiction to do so in any depth. But the issue requires some thought—as the Rivera-Rodríguez panel noted, “[t]he […]
Continue reading....
Updated to correct the publication dates in the article cites. The Akron Law Review just published its symposium on federal appeals. The symposium collects contributions from Cassandra Burke Robertson & Gregory Hilbert, Andrew Pollis, Michael Solimine, Adam Steinman, Joan Steinman, and me. The in-person portion of the symposium was unfortunately canceled due to COVID-19. But […]
Continue reading....
October Term 2017 could have been a big one for appellate jurisdiction at the Supreme Court. But it was not to be. Salt River Project Agricultural Improvement and Power District v. Tesla Energy Operations Inc. settled before the Court could decide whether denials of state-action immunity are immediately appealable collateral orders. United States v. Sanchez-Gomez—which […]
Continue reading....Recent Posts
In City of Martinsville v. Express Scripts, Inc., a divided Fourth Circuit held that a court must stay proceedings—and not process a remand order—if the defendant appeals before the district court can send the remand order to the state court. The majority thought that the rule of Griggs v. Provident Consumer Discount Co.—particularly as the […]
Continue reading....
Perlman Appeals in the Grand Jury Context In In re Grand Jury Subpoeans Dated Sep. 13, 2023, the Second Circuit held that the target of a grand jury investigation could appeal an order directing the target’s attorneys to disclose documents over a claim of attorney-client privilege. The order was appealable via the Perlman doctrine, which generally […]
Continue reading....
In Fleming v. United States, the Eleventh Circuit became the fifth court of appeals to reject pure Bivens appeals. The court held that federal officials cannot immediately appeal the Bivens question without also appealing the denial of qualified immunity. Unlike some of the prior decisions, this one was unanimous. And it puts the government’s record […]
Continue reading....
Last month produced decisions involving a variety of appellate-jurisdiction issues. The Fifth Circuit decertified a § 1292(b) appeal. Judge Pillard of the D.C. Circuit explained that appellate “standing” does not require re-establishing standing in the court of appeals. The Sixth Circuit said that qualified immunity and an action’s merits are intertwined, which suggests (perhaps unintentionally) […]
Continue reading....
A new cert petition asks whether the denial of derivative sovereign immunity is immediately appealable via the collateral-order doctrine.
Continue reading....