Appellate Case: 20-6134 Document: 010110642395 Date Filed: 02/08/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 8, 2022
FOR THE TENTH CIRCUIT Christopher M. Wolpert
_________________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6134
CURTIS A. ANTHONY,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. Nos. 5:20-CV-00527-C &
5:15-CR-00126-C-5)
_________________________________
Curtis A. Anthony, Pro Se.
Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Office of the Federal Public Defender, Denver,
Colorado, for Defendant-Appellant.
Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting United
States Attorney, and K. McKenzie Anderson, Assistant United States Attorney, with him
on the brief), Office of United States Attorney, Oklahoma City, Oklahoma, for PlaintiffAppellee.
_________________________________
Before TYMKOVICH, Chief Judge, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________
TYMKOVICH, Chief Judge.
_________________________________
Appellate Case: 20-6134 Document: 010110642395 Date Filed: 02/08/2022 Page: 2
A federal prisoner has one year to file a motion under 28 U.S.C. § 2255
challenging his sentence. In most cases—and in this case—the one-year
limitations period begins to run when the “judgment of conviction” becomes
final.
This appeal addresses an open question: when does the judgment of
conviction become final in a deferred restitution case? In Curtis Anthony’s case,
the district court sentenced him to a custodial sentence shortly after trial but did
not determine the restitution amount until several months later. When Anthony
later filed a § 2255 motion challenging his conviction, the district court dismissed
the motion as untimely. The court concluded Anthony’s one-year limitations
period under § 2255 began to run when Anthony’s time to appeal the initial
judgment expired even though restitution proceedings were pending on direct
appeal.
We conclude that a judgment of conviction is not final for § 2255
limitations purposes until the defendant’s sentence becomes final upon the
conclusion of direct review. Anthony’s judgment of conviction has yet to become
final because restitution is a component of his sentence and direct review of the
restitution proceedings is still ongoing. Thus, the district court should not have
dismissed Anthony’s § 2255 motion as untimely.
We therefore REVERSE the district court’s order dismissing Anthony’s
§ 2255 motion as untimely, VACATE the resulting judgment, and REMAND for
further proceedings consistent with this opinion.
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I. Background
After a jury convicted Curtis Anthony of child sex trafficking and
conspiracy to commit child sex trafficking, the trial court sentenced Anthony to a
term of imprisonment and a term of supervised release. On October 26, 2017, the
district court entered a judgment containing Anthony’s convictions and sentence.
The judgment noted that Anthony must make restitution but that the
determination of restitution would be deferred until a later date. Several months
later, on March 5, 2018, the district court amended the initial judgment to include
the amount of restitution Anthony had to pay.
On March 16, 2018, Anthony’s attorney timely filed a notice of appeal
challenging only the amount of restitution imposed by the amended judgment.
Anthony claims that he told his attorney he wanted to appeal the conviction and
custodial sentence but that his attorney nevertheless decided to limit the appeal to
the restitution order.
While his restitution appeal was pending, Anthony filed a motion pursuant
to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. In the
motion, Anthony alleged his trial counsel was ineffective for failing to appeal his
conviction and sentence. The district court struck Anthony’s motion because it
found that Anthony’s trial counsel “did in fact file a direct appeal and that appeal
is currently pending before the Tenth Circuit.” Supp. R., Vol. 1 at 34. We later
granted Anthony’s appeal in part, vacated the restitution order, and remanded for
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a recalculation of the restitution amount. See United States v. Anthony, 942 F.3d
955 (10th Cir. 2019).
On June 8, 2020, while the remanded restitution proceedings were pending,
Anthony filed another motion under § 2255 to vacate his conviction and sentence.
Anthony again claimed that his counsel provided ineffective assistance for
limiting Anthony’s direct appeal to restitution and not contesting his conviction
or custodial sentence. Anthony also alleged his counsel filed a pre-trial motion to
be removed from Anthony’s case because his counsel was “convinced he could
not completely defend Anthony against charges of the federal [government].” R.,
Vol. 6 at 26. Anthony did not challenge the restitution portion of the judgment in
his second § 2255 motion.
The district court dismissed Anthony’s second § 2255 motion as untimely.
According to the court, Anthony failed to file the motion within one year of the
date on which his judgment of conviction became final, as required by § 2255.
The district court reasoned that Anthony’s judgment of conviction became
final when the time for filing an appeal of the initial judgment—containing
Anthony’s convictions and custodial sentence but not the restitution amount—
expired. As the district court explained, the initial judgment was entered by the
court on October 26, 2017. And because Anthony did not appeal that judgment
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within the 14-day timeframe set forth in Fed. R. App. P. 4(b)(1)(A)(i), 1 the
judgment became final on November 9, 2017, according to the district court.
Anthony therefore had until November 10, 2018—one year later—to file his
§ 2255 petition challenging aspects of the initial sentence. Since Anthony filed
his § 2255 petition on June 8, 2020, the district court concluded Anthony’s
petition was untimely.
In dismissing Anthony’s motion, the court acknowledged that Anthony
properly filed an appeal but that the “appeal challenged only the amount of
restitution—an issue not raised in the [§ 2255] Motion.” R., Vol. 6 at 58.
According to the district court, “a timely § 2255 Motion raising the issues herein
had to be filed not later than November 10, 2018.” Id. The court also determined
that the remand for resentencing and resulting amended judgment did not
“extend” the limitations period. Id.
Anthony appealed, arguing that his motion was not untimely because his
judgment of conviction had yet to become final due to the ongoing restitution
proceedings. We granted Anthony a certificate of appealability on the question
of whether the district court incorrectly applied the one-year statute of limitations
under § 2255.
1
Rule 4 provides that a criminal defendant must file his notice of appeal “within
14 days after the later of: (i) the entry of either the judgment or the order being
appealed; or (ii) the filing of the government’s notice of appeal.” Fed. R. App. P.
4(b)(1)(A)(i).
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II. Analysis
To determine whether Anthony’s motion was timely, we must interpret 28
U.S.C. § 2255, a provision of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA). Section 2255 provides that a “1-year period of limitation shall
apply to a motion under this section.”
28 U.S.C. § 2255(f). The statute lists four
possible start dates for the one-year limitations period.
Id. The most common
start date—and the one applicable to Anthony’s timeline—is “the date on which
the judgment of conviction becomes final.”
Id. § 2255(f)(1).
The district court concluded that Anthony’s judgment of conviction became
final for § 2255 purposes on November 9, 2017. That is when Anthony’s time to
file an appeal of the initial judgment expired, according to the district court.
Anthony contends restitution is part of the judgment of conviction and that his
judgment of conviction will only become final for § 2255 purposes when the
pending restitution proceedings reach a final resolution.
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To decide whether the district court erred, we must apply the requirements
of § 2255 to the procedural timeline of Anthony’s case. Specifically, we need to
establish when Anthony’s judgment of conviction became final and triggered
§ 2255’s one-year period of limitations. As we see it, this determination involves
two inquiries. First, is a restitution order part of the judgment of conviction
under § 2255? Second, if restitution is part of the judgment of conviction, when
does the one-year limitations period begin if the district court waits until after
sentencing to impose a restitution amount, and that restitution order is
subsequently appealed?
We review these questions de novo. United States v. Denny, 694 F.3d
1185, 1189 (10th Cir. 2012).
A. Restitution as Part of the Sentence
It is undisputed that the “judgment of conviction” includes the defendant’s
sentence as well as his conviction. See Berman v. United States, 302 U.S. 211,
212 (1937) (“Final judgment in a criminal case means sentence. The sentence is
the judgment.”). Though Congress did not define “judgment of conviction” in
§ 2255, Congress has explained elsewhere that “[i]n the judgment of conviction,
the court must set forth the plea, the jury verdict or the court’s findings, the
adjudication, and the sentence.” Fed. R. Crim. P. 32(k)(1). The Supreme Court
has also told us that the judgment of conviction includes the defendant’s
sentence. In the AEDPA context, the Supreme Court has held that a defendant’s
judgment of conviction did not become final “until both his conviction and
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sentence became final.” 2 Burton v. Stewart, 549 U.S. 147, 156–57 (2007)
(internal quotation marks omitted). Given this background, it is unsurprising that
the parties in this case agree that the “judgment of conviction” includes both the
conviction and the sentence.
While the parties agree that the judgment of conviction includes the
sentence, the parties disagree about whether restitution is part of the sentence.
The government contends that restitution is not part of the sentence but rather a
sanction that is imposed in addition to the sentence.
We conclude that restitution is a component of a criminal sentence and
therefore included in the judgment of conviction. Our conclusion is based on the
restitution statutes and Supreme Court precedent, both of which treat restitution
as part of the defendant’s sentence.
The federal restitution statutes generally refer to restitution as being part of
the criminal sentence. For instance, the statute setting forth the procedures for
issuing an order of restitution states that a “sentence that imposes an order of
restitution is a final judgment” even though “such a sentence” can later be
corrected, appealed, amended, or adjusted. 18 U.S.C. § 3664(o) (emphasis
added). Section 3664 also provides that restitution orders may be appealed under
2
The habeas statute at issue in Burton was
28 U.S.C. § 2244(d)(1), not § 2255.
Although the statutes differ slightly in their description of when a judgment of
conviction becomes final, the Supreme Court has held that finality has the same
meaning under both statutes. See Clay v. United States,
537 U.S. 522, 528–32
(2003).
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the same statute that authorizes appeals of criminal sentences. Id.
§ 3664(o)(1)(B) (referencing
18 U.S.C. § 3742). And the restitution statutes
direct courts to order restitution “when sentencing a defendant.”
Id.
§ 3663(a)(1)(A); id. § 3663A(a)(1); see also id. § 3556 (“The court, in imposing a
sentence on a defendant who has been found guilty of an offense shall order
restitution[.]”).
In the same vein, the Mandatory Victims Restitution Act (MVRA)
describes the determination of restitution as part of the “sentencing process” and
authorizes courts to forgo ordering restitution if determining the amount of the
victim’s losses would “complicate or prolong the sentencing process to a degree
that the need to provide restitution to any victim is outweighed by the burden on
the sentencing process.” Id. § 3663A(c)(3)(B). Taken as a whole, these statutes
indicate that a criminal sentence includes restitution. See also id. § 3611
(referring to a “person who is sentenced to pay . . . restitution”); id. § 3614(a)
(authorizing courts to “resentence the defendant to any sentence which might
originally have been imposed” if the defendant knowingly fails to pay
restitution).
The government argues restitution is not a part of the sentence but rather a
sanction that is imposed in addition to the sentence. The government directs us to
18 U.S.C. § 3551(b), which provides that a defendant convicted of a federal crime
shall be sentenced to (1) a term of probation, (2) a fine, or (3) a term of
imprisonment. The statute does not list restitution as a sentence under subsection
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(b). Instead, the statute states that a “sanction authorized by section 3554, 3555,
or 3556 may be imposed in addition to the sentence required by this subsection.”
Id. § 3551(b). Because § 3556 is a restitution statute, the government contends
that Congress must have intended for restitution to be a sanction separate from
the criminal sentence. In the government’s view, only a term of probation, a fine,
or a term of imprisonment qualifies as a sentence. We disagree.
The government misreads § 3551(b), which simply states that a federal
sentence must include at least one of three components: either (1) probation, (2) a
fine, or (3) a term of imprisonment. It then says a court may also order
restitution “in addition to the sentence required by this subsection.” Id.
(emphasis added). The statute thus does not regard restitution as distinct from a
sentence. It merely states that every sentence has a mandatory component and
allows for restitution as part of a sentence when circumstances warrant it.
Any uncertainty surrounding § 3551 is easily resolved by looking to the
Supreme Court’s treatment of restitution. 3 The Supreme Court has consistently
treated restitution as a component of the criminal sentence. In Manrique v.
United States, for instance, the majority opinion begins with the following
3
The government also points to several statutes where Congress chose to use the
phrase “judgment of conviction” to refer to probation, fines, and imprisonment,
and then refrained from using the phrase when describing restitution. See Aple.
Br. at 14–16. But this is beside the point. Congress and the Supreme Court have
told us unequivocally that the “judgment of conviction” includes the sentence.
See Fed. R. Crim. P. 32(k)(1); Burton, 549 U.S. at 156–57. So if restitution is
part of the sentence, it is part of the judgment of conviction.
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explanation: “Sentencing courts are required to impose restitution as part of the
sentence for specified crimes.” 137 S. Ct. 1266, 1270 (2017) (emphasis added).
Later in the opinion, the majority explains that when a court imposes a term of
imprisonment but waits to impose restitution, there is no sentence until the court
enters an amended judgment to include the “sentence of restitution.”
Id. at 1273.
Manrique tells us that when a court defers imposing restitution until after
sentencing, “the court is declining to announce a sentence.”
Id. 4
The Supreme Court has similarly observed that while the primary purpose
of restitution is to make victims whole, restitution also “serves punitive
purposes.” Paroline v. United States, 572 U.S. 434, 456 (2014); see also
Pasquantino v. United States,
544 U.S. 349, 365 (2005) (“The purpose of
awarding restitution in this action is not to collect a foreign tax, but to mete out
appropriate criminal punishment for that conduct.”); Kelly v. Robinson,
479 U.S.
36, 49 n.10 (1986) (“[T]he direct relation between the harm and the punishment
gives restitution a more precise deterrent effect than a traditional fine.”). 5
4
We acknowledge that in adjacent sentences with similar phrasing, Congress
referred to a fine as a “sentence” but a restitution order as a “sanction.” See 18
U.S.C. § 3551(b) (“A sentence to pay a fine may be imposed in addition to any
other sentence. A sanction authorized by section 3554, 3555, or 3556 may be
imposed in addition to the sentence required by this subsection.”). Still, the
reading most consistent with the overall statutory scheme and Supreme Court
precedent is what we adopt.
5
Our precedent is less clear about whether restitution serves a punitive function.
We have previously held that restitution statutes such as the MVRA do not inflict
criminal punishment and thus are not punitive. See United States v. Serawop, 505
(continued . . .)
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Restitution resembles other components of a criminal sentence in that it is
“imposed by the Government ‘at the culmination of a criminal proceeding and
requires conviction of an underlying’ crime.” Paroline, 572 U.S. at 456 (quoting
United States v. Bajakajian,
524 U.S. 321, 328 (1998)); see also
id. (“[D]espite
the differences between restitution and a traditional fine, restitution still
implicates the prosecutorial powers of government[.]”) (internal quotation marks
and citations omitted). Like the other portions of a sentence, restitution is
intended to some degree to inflict criminal punishment and serve as a deterrent.
The Supreme Court’s treatment of restitution as a method of imposing criminal
punishment rather than solely performing a restorative function supports our
conclusion that restitution is a component of the criminal sentence.
6
F.3d 1112, 1122 (10th Cir. 2007); see also United States v. Visinaiz,
428 F.3d
1300, 1316 (10th Cir. 2005) (“In the Tenth Circuit, restitution is not criminal
punishment.”). But we reexamined this conclusion after the Supreme Court
explained in Paroline that restitution “serves punitive purposes.” United States v.
Ferdman,
779 F.3d 1129, 1132 (10th Cir. 2015) (quoting Paroline,
572 U.S. at
456). We recognized in Ferdman that “the Supreme Court’s statement [in
Paroline] regarding the general nature of criminal restitution calls into question
our view that the MVRA lacks a penal element.”
Id. at 1132 n.1.
6
Nearly all the other circuits also view restitution as penal and part of the
criminal sentence. See United States v. Ziskind, 471 F.3d 266, 270 (1st Cir.
2006) (“[R]estitution ordered as part of a criminal sentence is a criminal penalty,
not a civil remedy.”); Gonzalez v. United States,
792 F.3d 232, 236 (2d Cir. 2015)
(“Restitution is a serious component of criminal punishment.”); United States v.
Leahy,
438 F.3d 328, 335 (3d Cir. 2006) (“[R]estitution ordered as part of a
criminal sentence is criminal rather than civil in nature.”); United States v.
Bruchey,
810 F.2d 456, 461 (4th Cir. 1987) (“Criminal restitution . . . is part of
the sentencing process [and thus] is fundamentally ‘penal’ in nature.”); United
States v. Chaney,
964 F.2d 437, 451 (5th Cir. 1992) (“Restitution under the
(continued . . .)
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Like the Supreme Court and the other circuits, we tend to treat restitution
as part of the criminal sentence. We have explained that an order imposing a
restitution amount greater than the total loss caused by the defendant constitutes
an “illegal sentence.” United States v. Hudson, 483 F.3d 707, 710 (10th Cir.
2007) (quoting United States v. Arutunoff,
1 F.3d 1112, 1121 (10th Cir. 1993));
see also United States v. Delano,
981 F.3d 1136, 1137 (10th Cir. 2020) (“Delano
challenges the restitution portion of his current sentence[.]”). We have also
referred to restitution proceedings as a “phase of criminal sentencings.” United
States v. Ferdman,
779 F.3d 1129, 1133 (10th Cir. 2015).
Our conclusion that restitution is part of the sentence also conforms with
the realities of the sentencing process. When a trial court defers ordering
restitution until after sentencing, the court does not enter a separate judgment
[Victim and Witness Protection Act of 1982 (VWPA)] is a criminal penalty and a
component of the defendant’s sentence”); United States v. Vandeberg, 201 F.3d
805, 814 (6th Cir. 2000) (“Restitution is a part of one’s sentence[.]”); United
States v. United Sec. Sav. Bank,
394 F.3d 564, 567 (8th Cir. 2004) (“A criminal
restitution order is penal, not compensatory.”); United States v. Snider,
957 F.2d
703, 706–07 (9th Cir. 1992) (“Restitution imposed as a component of the
defendant’s sentence is a criminal penalty, not a civil remedy.”); United States v.
Satterfield,
743 F.2d 827, 837 (11th Cir. 1984) (“The history [of the VWPA] is
replete with references to restitution as part of the criminal sentence. . . . There
can be little doubt that Congress intended the restitution penalties of the VWPA
to be incorporated into the traditional sentencing structure.”); United States v.
Monzel,
641 F.3d 528, 541 (D.C. Cir. 2011) (“Amy is asking the court to revisit
her restitution award, which is part of Monzel’s sentence.”). But see United
States v. LaGrou Distrib. Sys., Inc.,
466 F.3d 585, 593 (7th Cir. 2006)
(“‘[R]estitution for harm done is a classic civil remedy’ that is administered for
convenience by the courts that have entered criminal convictions.”).
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with the restitution amount. Instead, the court amends the initial judgment
containing the defendant’s conviction and sentence so that all the defendant is left
with is a single judgment containing the entire sentence. 7 The district court here
acted in accordance with this standard practice. When the court sentenced
Anthony to imprisonment and supervised release, it noted on the same judgment
form that Anthony “must make restitution” but that the “determination of
restitution is deferred until a later date.” Supp. R., Vol. 1 at 8, 11. When the
district court determined Anthony’s restitution amount several months later, the
court did not enter a separate judgment imposing restitution—rather, it amended
the original judgment containing the initial sentence to include the restitution
amount. Id. at 18–19. This shows that, in practice and in Anthony’s case,
restitution is more accurately treated as part of the judgment of conviction. 8
For these reasons, we conclude that restitution is part of the criminal
sentence. And because restitution is included in the sentence, it is necessarily
part of the judgment of conviction for § 2255 purposes.
7
The standardized judgment form used by federal courts is Form AO 245B. See,
e.g., Supp. R., Vol. 1 at 6–12. The form contains designated spaces for the court
to enter a term of imprisonment, supervised release, and probation, as well as to
enter fines, restitution, forfeiture, and various costs.
8
It makes further sense to view restitution as a component of the sentence
because a district court may take restitution into account when imposing other
parts of the sentence, such as a fine. At Anthony’s sentencing hearing, for
example, the district court declined to order Anthony to pay a fine in part because
the court thought it “far more important that Mr. Anthony pay restitution than
that he pay a fine.” R., Vol. 3 at 36.
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B. Finality in Deferred Restitution Cases
We turn now to the next question: if restitution is part of the judgment of
conviction, has Anthony’s judgment of conviction become final? As we explain
below, a judgment of conviction becomes final for § 2255 limitations purposes
when there is no further avenue for direct appeal of any portion of the sentence,
including restitution. Thus, Anthony’s judgment of conviction will not become
final until the pending restitution proceedings conclude.
1. Finality Under § 2255(f)(1)
“Finality is variously defined; like many legal terms, its precise meaning
depends on context.” Clay v. United States, 537 U.S. 522, 527 (2003). In the
context of § 2255(f)(1), we have made it clear that “§ 2255’s use of ‘final’ plainly
means ‘a decision from which no appeal or writ of error can be taken.’” United
States v. Burch,
202 F.3d 1274, 1277 (10th Cir. 2000) (quoting Black’s Law
Dictionary 629 (6th ed. 1990)). Thus, a judgment becomes final when the
defendant’s time to file a direct appeal expires or when there is no further avenue
for direct appeal (i.e., the Supreme Court affirms the defendant’s conviction and
sentence or denies the defendant’s petition for a writ of certiorari). See Clay,
537
U.S. at 527 (under § 2255(f)(1), “[f]inality attaches when this Court affirms a
conviction on the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition expires”); United States
v. Prows,
448 F.3d 1223, 1227–28 (10th Cir. 2006).
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As we explained above, it is settled law that the judgment of conviction is
not final until the sentence is final. See Berman, 302 U.S. at 212 (“Final
judgment in a criminal case means sentence. The sentence is the judgment.”);
Burton, 549 U.S. at 156–57 (explaining the defendant’s one-year limitations
period under AEDPA “did not begin until both his conviction and sentence
became final”) (internal quotation marks and citations omitted); see also Corey v.
United States,
375 U.S. 169, 176 (1963). If any part of the sentence—including
restitution—has not been finalized, then the judgment of conviction is not final.
This means that a remand for resentencing delays finality until the defendant is
resentenced and direct review of the new sentence is complete. 9 United States v.
Carbajal-Moreno,
332 F. App’x 472, 474–75 (10th Cir. 2009) (unpublished)
(“[A] case on remand for resentencing [is] not final for purposes of habeas
proceedings . . . until the resentencing and the direct appeal thereof [are]
complete.”) (citing Burton,
549 U.S. at 156).
Applying these principles to the facts at hand, we conclude that Anthony’s
§ 2255 motion was timely. The district court entered an initial judgment
containing Anthony’s convictions and custodial sentence on October 26, 2017.
But that judgment was not final for § 2255 purposes because the amount of
9
This rule applies unless “the resentencing is purely ministerial, such that the
district court is limited on remand.” Najera v. Murphy, 462 F. App’x 827, 829
(10th Cir. 2012) (unpublished). A ministerial remand is one that requires a
“routine, nondiscretionary act by the district court that could not have been
appealed on any valid ground.” Carbajal-Moreno,
332 F. App’x at 476 (citing
Burrell v. United States,
467 F.3d 160, 161, 165–66 (2d Cir. 2006)).
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restitution had yet to be determined. When the district court entered the
restitution amount on March 5, 2018, Anthony appealed the restitution portion of
his sentence. Anthony’s appeal further delayed the finality of the judgment of
conviction for § 2255 limitations purposes. See Burton, 549 U.S. at 156–57.
After we vacated the district court’s first restitution order, the district court
entered a second amended judgment with a new restitution amount, which the
government appealed. Like Anthony’s appeal of the first amended judgment, the
government’s appeal postponed the finality of Anthony’s judgment of conviction.
The district court concluded the deferred restitution order and remand for
resentencing did not “extend” Anthony’s limitations period. R., Vol. 6 at 58.
The government similarly characterizes the issue in this case as whether a
deferred restitution order “restarts” the limitations period. Aple. Br. at 10. The
issue before us is not whether Anthony’s § 2255 period of limitations was
extended or restarted—rather, the issue is whether Anthony’s one-year period
under § 2255 ever started in the first place. Because restitution proceedings are
still pending, we conclude Anthony’s § 2255 limitations period has yet to begin. 10
10
Our holding is consistent with the Second Circuit’s decision in Gonzalez v.
United States, 792 F.3d 232 (2d Cir. 2015). In that case, the Second Circuit was
confronted with facts similar to the facts before us. The district court entered an
initial judgment with a term of imprisonment but noted that restitution would be
determined later.
Id. at 233. The district court dismissed the defendant’s § 2255
motion as untimely because he filed it more than a year after the initial judgment,
even though the motion was filed within one year of the entry of an amended
judgment following a remand for the recalculation of the restitution amount. Id.
at 234. The Second Circuit reversed and held that the AEDPA limitations period
“begins to run only when the revised restitution order becomes final.” Id. at 233.
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The government’s argument that Anthony’s judgment of conviction has
already become final is twofold. The government argues (1) there were two final
judgments in Anthony’s case, and (2) because the second judgment containing
only the restitution order is not subject to collateral attack, the first judgment
must be the judgment of conviction for § 2255 purposes. For support, the
government relies on the Supreme Court’s decision in Manrique, in which the
Court held that there are two final appealable judgments in deferred restitution
cases. 137 S. Ct. at 1272–73. The government also relies on our prior cases
holding that a restitution order is not subject to collateral attack under the habeas
statutes.
We begin with the government’s argument that there were two final
judgments in this case based on Manrique. In Manrique, like here, the district
court entered an initial judgment without determining the amount of restitution.
Id. at 1270. The defendant timely appealed the initial judgment and the court
later entered an amended judgment with the restitution amount. Id. Although the
defendant never appealed the amended judgment, the defendant attempted to
challenge the restitution amount through his earlier appeal of the initial judgment.
Id. at 1270–71. The defendant claimed that his appeal of the initial judgment
“springs forward” to appeal the amended judgment imposing restitution. Id. at
1272. The Supreme Court rejected this argument and held that the defendant
forfeited his right to challenge the restitution order because he failed to file a
notice of appeal from that order. Id.
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Relevant here, the Court also rejected the defendant’s argument that in a
deferred restitution case, there is only one “judgment” as that term is used in
Federal Rule of Appellate Procedure 4. See Fed. R. App. P. 4(b)(1)(A)(i) (notice
of appeal must be filed within 14 days after “the entry of either the judgment or
the order being appealed.”). The defendant argued that the initial judgment and
amended judgment imposing a restitution amount had merged to become a single
judgment for appellate review purposes. Manrique, 137 S. Ct. at 1272. The
Court disagreed, explaining that “deferred restitution cases involved two
appealable judgments, not one.”
Id. at 1272–73 (citing Dolan v. United States,
560 U.S. 605, 618 (2010)). According to the Court, both the initial judgment and
the subsequent order of restitution are each “immediately appealable final
judgments.” Id. at 1272.
The government relies on Manrique to argue that there were two final
judgments in Anthony’s case—the first being the conviction and initial sentence
and the second being the restitution order. While it is true that there are two final
judgments in deferred restitution cases for direct appeal purposes, the
government’s argument that there are two final judgments for AEDPA purposes is
misplaced. Under § 2255(f)(1), there is only one final judgment of conviction.
This difference between the direct appeal context and AEDPA context can
be seen in the text of the applicable statutes. Federal Rule of Appellate
Procedure 4 provides in relevant part that a criminal defendant must file his
notice of appeal within 14 days after “the entry of either the judgment or the
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order being appealed.” Fed. R. App. P. 4(b)(1)(A)(i). By its plain language, the
rule contemplates that there may be more than one judgment or order. On the
other hand, § 2255 speaks of a single judgment, the judgment of conviction: “The
limitation period shall run from . . . [t]he date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1) (emphasis added). So while
there can be multiple judgments in a deferred restitution case for direct appeal
purposes, only one final judgment exists for § 2255(f)(1) purposes.
For this reason, it does not matter that restitution is not subject to collateral
attack. See Erlandson v. Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir.
2008) (holding the payment of restitution on its own is not a “significant restraint
on liberty” contemplated in the custody requirement of the federal habeas
statutes). Nor does it matter that Anthony never appealed his conviction or initial
sentence within the 14-day window. Because there is only one judgment of
conviction for § 2255 purposes and restitution is part of the judgment of
conviction, Anthony’s § 2255 limitations period will only begin once restitution
proceedings conclude.
The government’s application of Manrique to the § 2255 context not only
conflicts with the language of the statute, but it is also inconsistent with the
Supreme Court’s decision in Burton v. Stewart, 549 U.S. 147 (2007). In Burton,
the defendant challenged the dismissal of his § 2244 petition as an unauthorized
successive petition. Id. at 152. The defendant filed his first habeas petition after
he was convicted but before the state review of his sentencing claims was
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complete. Id. at 151. Later, the defendant filed a second habeas petition
challenging his new sentence imposed after resentencing. Id. at 151–52. The
lower court dismissed the second petition as an unauthorized successive petition.
Id. at 152.
On appeal, the defendant argued that he had to file his first petition before
the state review of his sentencing claims was complete because if he did not, he
risked losing the opportunity to collaterally attack his conviction due to
AEDPA’s one-year statute of limitations. Id. at 156. The Supreme Court rejected
this argument, explaining that the defendant’s AEDPA limitations period “did not
begin until both his conviction and sentence ‘became final by the conclusion of
direct review or the expiration of the time for seeking such review.’” Id. at 156–
57 (quoting 28 U.S.C. § 2244(d)(1)(A)).
Because we conclude that restitution is part of the sentence and direct
review of the restitution amount is pending, we hold that Anthony’s AEDPA
limitations period has not commenced. 11 Thus, the district court erred by
11
We recognize that our ruling could lead to delays in federal habeas review.
But even though AEDPA “seeks to eliminate delays in the federal habeas review
process . . . [i]t did not seek to end every possible delay at all costs.” Holland v.
Florida, 560 U.S. 631, 648, 649 (2010). In any event, Anthony did not cause the
delay in this case; the parties agreed to continue the restitution hearing because
“Anthony ha[d] only recently been sentenced and Defendant Baker [had] yet to
enter his guilty plea.” Supp. R., Vol. 2 at 27–28. Moreover, Congress has
authorized district courts to delay the determination of restitution for up to 90
days after sentencing.
18 U.S.C. § 3664(d)(5); see also Dolan v. United States,
560 U.S. 605, 607–08 (2010) (a court may delay ordering restitution for more
(continued . . .)
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dismissing Anthony’s § 2255 motion as untimely. 12
2. Appeals in Deferred Restitution Cases
We turn now to the final unresolved issue in this case: whether the district
court erred in concluding that Anthony’s time to appeal his conviction and initial
sentence expired 14 days after the entry of the initial judgment. While the
Supreme Court decided in Manrique that a direct appeal of an initial judgment
does not include an appeal of a subsequent restitution order, the Court left open
the converse question of whether a direct appeal of a subsequent restitution order
can include an appeal of the initial judgment.
The Supreme Court’s decision in Corey sheds some light on the question.
There, the trial court imposed a preliminary sentence, including custody, but
deferred imposing a final sentence until after the Bureau of Prisons completed a
study of the defendant pursuant to 18 U.S.C. § 4208(b). Corey,
375 U.S. at 170.
After the Bureau completed the study, the district court reconsidered its initial
sentence and imposed a final sentence of probation rather than imprisonment.
Id.
The defendant appealed the new sentence, but the appeal was dismissed as
than 90 days after sentencing so long as the court informs the defendant that
restitution will be imposed).
12
The fact that Anthony’s one-year limitations periods has not started does not
mean that Anthony needs to wait until restitution proceedings conclude to
challenge his conviction and custodial sentence under § 2255. So long as there is
no potential conflict between the collateral proceedings and the direct appeal—
and there is no conflict in Anthony’s case—a district court may entertain a § 2255
motion while a direct appeal is pending. See Prows, 448 F.3d at 1228.
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untimely on the ground that the time to appeal had expired ten days after entry of
the initial sentence. Id. at 170–71.
The Supreme Court reversed and held that the defendant’s appeal was
timely. Id. at 175. The Court explained that while the defendant could have filed
his appeal after the initial sentence, he was not required to do so: “While an
initial commitment under § 4208(b) is . . . freighted with sufficiently substantial
indicia of finality to support an appeal, the fact remains that the proceedings in
the trial court are not actually terminated until after the period of diagnostic
study, review of the same by the district judge, and final sentence.” Id. “Long-
accepted and conventional principles of federal appellate procedure require
recognition of the defendant’s right to await the imposition of final sentence
before seeking review of the conviction.” Id. at 176.
Consistent with Corey, other circuits have held that a defendant in a
deferred restitution case may wait until restitution is ordered before filing an
appeal. See United States v. Muzio, 757 F.3d 1243, 1250 (11th Cir. 2014) (“The
Supreme Court has . . . recognized that if the defendant chooses to do so, he may
avoid bifurcation of his appeal by waiting until restitution has been resolved to
appeal.”) (citing Corey,
375 U.S. at 175); United States v. Shehadeh,
962 F.3d
1096, 1099 (9th Cir. 2020) (“[W]here a district court defers its restitution order, a
defendant wishing to appeal his conviction and sentence of imprisonment may
enter a notice of appeal either within fourteen days following the district court’s
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entry of the custodial sentence, or within fourteen days of the entry of the
amended judgment.”).
Our own precedent supports this conclusion. In United States v. Paup, 933
F.3d 1226 (10th Cir. 2019), we held 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.”
Id. at 1230 (emphasis added).
This language implies that a defendant may wait to appeal his conviction and
initial sentence until after restitution is ordered. This makes sense. A defendant
may want to challenge a custodial sentence as soon as possible, even if collateral
matters are yet to be resolved. 13
We thus conclude that in a deferred restitution case a defendant may file
his appeal of his conviction and sentence within 14 days of either (1) the entry of
the initial judgment or (2) the entry of the amended judgment containing the
restitution amount. 14 See Fed. R. App. P. 4(b)(1)(A)(i); Paup, 933 F.3d at 1230.
13
Our conclusion promotes judicial economy. See Shehadeh, 962 F.3d at 1100
n.2 (“The government’s proposed rule would require a defendant to appeal twice:
first, immediately after the custodial sentence is imposed, and then again after the
amount of restitution is determined. This rule would be inefficient, and it is
required neither by Manrique nor by the Federal Rules of Appellate Procedure.”).
14
To be clear, a remand for resentencing does not reopen the door for a
defendant to appeal aspects of his conviction or sentence not previously appealed.
See United States v. Mendes, 912 F.2d 434, 437 (10th Cir. 1990) (“The grant of
remand on appeal does not reopen the order appealed from[.]”). Nor does
resentencing following a probation violation resurrect time-barred challenges to a
conviction or sentence. See Prendergast v. Clements,
699 F.3d 1182, 1187 (10th
Cir. 2012).
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We note in closing that such a rule reinforces our conclusion that
Anthony’s judgment of conviction has yet to become final. Because a defendant
can wait until after the entry of a restitution order to appeal his initial sentence, it
would be incongruent to hold that the judgment of conviction becomes final prior
the determination of restitution. If a defendant’s judgment of conviction became
final for AEDPA purposes after the initial judgment but the defendant did not
have to appeal until after restitution is ordered, there is a possibility that the
defendant’s one-year period of limitations would run before the defendant ever
had a chance to directly appeal his conviction and initial sentence (e.g., if the
district court deferred imposing restitution until a year or more after the initial
sentence was entered). 15 This would be contrary to § 2255 and the overall
AEDPA scheme, which require the completion of the direct review before
collateral attack. See Burton, 549 U.S. at 156–57 (AEDPA limitations period
“did not begin until both his conviction and sentence ‘became final by the
15
The district court cited the Ninth Circuit’s decision in United States v. Gilbert,
807 F.3d 1197, 1201 (9th Cir. 2015), as support for the proposition that
restitution proceedings do not extend the § 2255 limitations period. See R., Vol.
6 at 58. In Gilbert, the Ninth Circuit held that “when a judgment imposes a
sentence but leaves the amount of restitution to be determined, the one-year
statute of limitations to file a § 2255 motion does not restart when the specific
amount of restitution is later entered.” Id. at 1201. We disagree with the Ninth
Circuit’s conclusion and side with the Second Circuit. See Gonzalez, 792 F.3d at
233–34. If a defendant can wait until after restitution is ordered to file his direct
appeal, then it does not make sense that a defendant’s § 2255 clock would start
before a final restitution amount is determined, as Gilbert holds. The Ninth
Circuit’s more recent decision in Shehadeh highlights this tension. It holds that a
defendant can wait until after the restitution order is entered to appeal his
conviction and sentence. See Shehadeh,
962 F.3d at 1099.
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conclusion of direct review or the expiration of the time for seeking such
review.’”) (quoting 28 U.S.C. § 2244(d)(1)(A)).
In sum, Anthony did not need to appeal his conviction and sentence within
14 days of the district court entering the initial judgment. Anthony could have
challenged the initial judgment when he appealed the first restitution order.
III. Conclusion
For the foregoing reasons, we REVERSE the district court’s order
dismissing Anthony’s § 2255 motion as untimely, VACATE the resulting
judgment, and REMAND for further proceedings consistent with this opinion.
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