In retrospect, the only truly curious feature of Wednesday’s Supreme Court decision in Manrique v. United States is why it took so long. Writing for a 6-2 majority, Justice Clarence Thomas held that when a criminal defendant files a notice of appeal from the original judgment of conviction and does not separately file a notice of appeal from a deferred restitution award, he may not challenge the restitution order on appeal if the government timely objects. The succinctness of Thomas’ nine-page majority opinion was matched by Justice Ruth Bader Ginsburg’s three-page dissent, in which, joined by Justice Sonia Sotomayor, she argued that the district court’s “transmission of the amended [post-restitution] judgment to the Court of Appeals [was] an adequate substitute for a second notice of appeal.” Simply put, it’s easy to understand what the Supreme Court held – and why. But we may never know why such a straightforward result took more than six months to write up and hand down.
As we noted in our argument preview, the issue in this case was teed up (and, indeed, perhaps even caused) by the justices’ 2010 ruling in Dolan v. United States. The majority in Dolan held that, so long as an initial judgment of conviction and sentence in a federal criminal case includes a deferred order of restitution, an amended, post-hearing judgment fixing the specific amount of restitution does not have to comply with the Mandatory Victims Restitution Act’s 90-day deadline for restitution awards, because the latter judgment was simply attaching an amount to the restitution already ordered by the former judgment. The result of Dolan is that significant time can often elapse between the initial judgment of conviction and sentence and the amended judgment that includes the determined restitution award. And in cases like Manrique, in which a defendant notices an appeal from an initial judgment, the question is whether the defendant must also notice an appeal from the amended judgment in order to challenge the restitution award on appeal. (All agree that a defendant can simply wait to notice an appeal until entry of the amended restitution judgment, which will subsume the underlying judgment of conviction and sentence, as well.)
In answering that question in the affirmative, Thomas seized on the language of 18 U.S.C. § 3742 and Rule 4 of the Federal Rules of Criminal Procedure, both of which “contemplate that the defendant will file the notice of appeal after the district court has decided the issue sought to be appealed.” Although it is not clear (and the court pointedly did not decide) whether that rule is jurisdictional, the “requirement that a defendant file a timely notice of appeal from an amended judgment imposing restitution is at least a mandatory claim-processing rule.” Thus, so long as the government timely objects to the absence of a second notice of appeal (as it did in this case), the substance of the amended judgment (the amount of restitution) cannot be appealed.
Today’s majority then dispatched Marcelo Manrique’s two arguments to the contrary, rejecting the view that deferred-restitution cases involve only one appealable judgment, or that Rule 4(b)(2), which allows a “prematurely filed notice of appeal [to] become effective … to challenge a later-entered judgment in some circumstances,” applies in this context. As Thomas explained:
Rule 4(b)(2) applies only to a notice of appeal filed after a sentence has been“announce[d]” and before the judgment imposing the sentence is entered on the docket. If the court has not yet decided the issue that the appellant seeks to appeal, then the Rule does not come into play. Accordingly, it does not apply where a district court enters an initial judgment deferring restitution and subsequently amends the judgment to include the sentence of restitution. By deferring restitution, the court is declining to announce a sentence.
In her brief dissent, Ginsburg did not take issue with any of the majority’s analysis. Instead, she focused on what actually happened in Manrique’s case, in which “the District Court appears to have assumed that no second notice was required to place the restitution amount before the Court of Appeals.” Thus, as she explained, “[w]ithout awaiting another appeal notice, the District Court clerk transmitted the amended judgment, five days after its entry, to the Court of Appeals, which filed that judgment on the docket of the appeal from the conviction and sentence already pending in that court.” In essence, the relevant actors all assumed that the deferred restitution award was subsumed within the already filed appeal. And “in lieu of trapping an unwary defendant,” Ginsburg argued, “I would rank the clerk’s transmission of the amended judgment to the Court of Appeals as an adequate substitute for a second notice of appeal.” After all, as she concluded, “[g]iven the steps taken by the District Court, Court of Appeals, and the clerks of those courts, it was likely no surprise to the Government when Manrique challenged the restitution award in his opening brief on appeal.”
The bottom line in this opinion now makes clear what most had already assumed – that a criminal defendant who wishes to challenge a deferred restitution award must notice an appeal from that judgment, whether or not he has previously noticed an appeal from the original judgment of conviction and sentence. The only question today’s opinion leaves open is whether a defendant’s failure to notice such an appeal is a jurisdictional defect that cannot be waived by the government, or a mandatory claim-processing rule that can be.