United States v. Moschella

When a sentence outside the Sentencing Guidelines range is the result of a “variance” based on the application of statutory factors and not a “departure” from the provisions of the Sentencing Guidelines, notice under Fed. R. Crim. P. 32(h) is not required; 18 U.S.C. § 3664(n) does not prevent the district court from exercising its discretion in imposing a special condition of restitution during a supervised release.

In accordance with a plea agreement, Ronald Moschella pled guilty to mail fraud and wire fraud, and the government recommended an imprisonment sentence no higher than the lower end of the applicable Sentencing Guidelines range. Citing factors enumerated in 19 U.S.C. § 3553(a), the district court increased Moschella’s sentence by four levels to reflect the seriousness of the offense, ordered restitution in an amount that included the losses of two newly-discovered victims, and ordered a three-year supervised release following his imprisonment where all monies would be applied to the outstanding court-ordered restitution amount. On appeal, Moschella claimed that: (1) the government had breached the plea agreement by tacitly encouraging the district court to impose an increased sentence; (2) Fed. R. Crim. P. 32(h) required the court to give notice before imposing a sentence outside of the advisory Sentencing Guidelines range; (3) the court erred in ordering restitution for the newly-discovered victims; and (4) 18 U.S.C. § 3554(n) authorized the court to impose the condition requiring that Moschella’s monies be applied to the court-ordered financial obligations only during his incarceration. The Ninth Circuit disagreed, concluding that the government did not breach the specified objectives of the plea agreement. The panel also held that because the increased sentence was the result of a “variance” based on the application of statutory factors and not a “departure” from the provisions of the Sentencing Guidelines, notice under Fed. R. Crim. P. 32(h) was not required. Reviewing the record for plain error, the panel concluded that because the government had timely disclosed the additional victims without Moschella’s objection, Moschella failed to establish that an error had occurred. Finally, the panel rejected Moschella’s fourth contention, holding that the district court properly exercised its discretion in imposing the special condition of restitution during Moschella’s supervised release. AFFIRMED.