United States v. Gilbert

When a judgment is entered but leaves open the amount of restitution to be determined, the statute of limitations for filing a 28 U.S.C. § 2255 motion does not restart when the actual amount of restitution is later entered.

Weldon Gilbert was charged and pled guilty to multiple counts of producing child pornography, transporting a minor to engage in sexual activity, and obstruction of justice. Gilbert was sentenced to 300 months of imprisonment and was ordered to pay restitution to his victims. When Gilbert was sentenced, his assets were in the process of being liquidated so the exact amount of restitution was to be determined. Gilbert claimed that his counsel told him that he could not challenge his federal sentence under 28 U.S.C. § 2255 until the final amount of restitution was entered, which occurred almost two years after his sentence was entered. A year and three days after the restitution award was entered, Gilbert filed a motion challenging his plea agreement and the effectiveness of his counsel. The Ninth Circuit held that the statute of limitations for filing a § 2255 motion begins to run once a judgment is imposed, even if the amount for restitution is left open, and the statute of limitations does not restart when the exact amount of restitution is later determined. Since the final order of restitution was only an amended judgment, the panel found it would not make sense to allow Gilbert to restart the statute of limitations at that time. The panel explained that there are grave policy concerns with requiring imprisoned defendants to delay filing their appeals until the district court has entered a final amount of restitution. The panel also rejected Gilbert’s argument that he was entitled to equitable tolling because Gilbert failed to raise this issue previously, thus waiving the claim. The panel also found that even if the claim was not waived, it had no merit because erroneous legal advice on a filing deadline is not the kind of extraordinary incident that requires equitable tolling. AFFIRMED.