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
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