Does Notice of Appeal Cover Later-Imposed Restitution? SCOTUS Considers Split

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By Alisa Johnson

Oct. 11 — U.S. Supreme Court justices Oct. 11 focused on the details of the appeals process during oral argument Oct. 11 in case whose resolution will be very important to defendants who’ve been ordered to pay restitution ( Manrique v. United States, U.S., No. 15-7250, argued 10/11/16 ).

The justices addressed issues such as the district court’s notice to defendants of what they must do to perfect an appeal and on whether there is any such thing as a judgment that may not really be final for purposes of appeal.

The U.S. Court of Appeals for the Eleventh Circuit is unique in its requirements for appealing a deferred restitution award. All other circuits that have addressed the issue have held that a single notice of appeal suffices.

Deferred Restitution, New Notice?

Marcelo Manrique seeks to appeal a restitution award imposed for his conviction of possession of material involving a minor engaging in sexually explicit conduct. The amount of restitution was deferred and was decided by the district court some time after the original sentencing, which Manrique appealed.

The circuit court ordered restitution during the pendency of the sentence appeal. Manrique did not file a new notice of appeal referencing the restitution amount he now seeks to challenge.

The Eleventh Circuit held that it lacked jurisdiction to entertain Manrique’s challenge to his restitution amount, due to his failure to file a notice of appeal specifically designating the amended judgment setting forth the restitution amount.

It said Manrique was required to either appeal both the original judgment and the amended judgment, or appeal the amended judgment only. Instead, he appealed only the original judgment. Therefore, it dismissed Manrique’s challenge to the restitution for lack of jurisdiction.

Back and Forth

During the argument there was much discussion of the Federal Rules of Appellate Procedure, which Paul M. Rashkind, of Miami, who argued for the defendant, said have always contemplated just one notice of appeal.

Rashkind said “it doesn’t matter whether the appeal is first noticed at the completion, after restitution is decided, or if the appeal is noticed at the outset, after the initial sentencing hearing. In either event, that single notice of appeal perfects appeal of all issues that arise within that judgment and sentence when it is fully completed.”

He also said that if the initial appeal ends before the restitution order is entered, the defendant has a new window of time in which to appeal. Chief Justice John G. Roberts Jr. commented that “that’s a very unusual type of approach when it comes to jurisdictional rules,” to say “final enough” and sometimes having to ask is an order “final enough.”

When Rashkind said that the Eleventh Circuit has been holding appeals in abeyance to await a restitution order, Justice Anthony Kennedy commented that the average appeal takes too long and that such a procedure makes it take even longer.

Roberts expressed a desire for a simple rule to apply in these cases.

Justice Stephen G. Breyer said “the simplest thing” that “doesn’t hurt anybody,” is “just follow what the government says there. You appeal, then you appeal.”

Justice Ruth Bader Ginsburg brought up the requirement of Fed. R. Crim. P. 32 that the trial court advise the defendant of his right to appeal the sentence. She noted that the defendant here was so advised at his initial sentencing but not again when the restitution was ordered.

Allon Kedem, of the Department of Justice, Washington, arguing for the government, agreed that the defendant should have received a new advisement, but said the standard for relief should be whether he had actual notice.

To contact the reporter on this story: Alisa Johnson in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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