Case No: 03-1452 UNITED STATES OF AMERICA v. Daniel G. Marchese

* The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-1452
UNITED STATES OF AMERICA
v.
DANIEL G. MARCHESE,
Appellant
_________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(Crim. No. 94-226)
District Judge: The Honorable Alan N. Bloch
_________________________________
Submitted Pursuant to LAR 34.1
January 9, 2004
BEFORE: BARRY and SMITH, Circuit Judges, and POLLAK, District Judge.*
(Filed: January 30, 2004 )
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1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291. We undertake a plenary review of claims of
double jeopardy. Ruggiano v. Reish, 307 F.3d 121, 126-27 (3d Cir. 2002); United States
v. Rice, 109 F.3d 151, 153 (3d Cir. 1997); United States v. Aguilar, 849 F.2d 92, 95 (3d
Cir. 1988). We exercise plenary review over whether an award of restitution is permitted
under the law, but we review specific awards for abuse of discretion. United States v.
Graham, 72 F.3d 352, 355 (3d Cir. 1995).
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OPINION OF THE COURT
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SMITH, Circuit Judge.
Appellant Daniel G. Marchese challenges an order issued by the District Court on
February 6, 2003, which amended his sentence with respect to the payment of restitution.
Marchese contends that the District Court’s action in modifying his sentence violates his
right to be protected from double jeopardy.1 Because the District Court acted in
accordance with 18 U.S.C. § 3663(g) in amending the restitution order following
Marchese’s failure to comply with the terms of the original order, we will affirm the
District Court.
I.
On May 12, 1995, Marchese was sentenced to 108 months incarceration, followed
by three years of supervised release for violating 26 U.S.C. § 5861(d) (possession of an
unregistered firearm) and 18 U.S.C. § 2 (aiding and abetting). Marchese was also ordered
to make restitution to the victim of his crime. In his oral sentence, the District Judge

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2 At the time the original sentencing order was issued, probation officers routinely
established restitution payment schedules following release from prison. As the District
Court discussed in the February 6, 2003 proceeding, in the years since the original
sentencing order was rendered, this Court announced that district judges, and not
probation officers, must determine the timing of restitution installment payments. United
States v. Graham, 72 F.3d 352, 357 (3d Cir. 1995). Recognizing this development, the
District Court elected not to find a violation of Marchese’s supervised release for his
failure to comply with the probation officer’s instructions regarding payment of
restitution, and instead amended the original sentencing order to include a schedule of
post-release restitution payments. This approach was appropriate given the change in the
law under Graham and the fact that Marchese had been on notice since the date of his
original sentence that he was obliged to pay $4,199 in restitution to the victim.
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stated,
I will make a finding that the victim is Mr. Schindehette and that the
amount of loss is $4,199. I will order that the Probation Office determine
what prison funds the defendant does earn and that half of those funds be
used to make restitution, whatever that might amount to.
The written order of restitution issued the same day in conjunction with the oral order
confirmed that “[o]ne-half of all of the defendant’s prison wages are to be paid as
restitution to Brian Schindehette,” and listed $4,199 as the “amount of restitution.” The
written order also contained standard language which provided that, “it shall be a
condition of supervised release that the defendant pay any such restitution that remains
unpaid at the commencement of the term of supervised release.” Rule 4 of the Standard
Conditions of Supervision, which are also set out in the written order, instructs that “the
defendant shall . . . follow the instructions of the probation officer.”2
While Marchese was incarcerated, a total of $430.25 was deducted from his prison
wages for restitution. After Marchese was released, his probation officer instructed him

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to pay $111 per month in restitution. When Marchese failed to make the restitution
payments, his probation officer filed a petition seeking revocation of his supervised
release. In a February 6, 2003 proceeding considering that petition, the District Court
amended its May 12, 1995 Judgment to require Marchese to make 28 restitution
payments, but waived interest on those payments. The District Judge noted that a letter
from the Bureau of Prisons advised the Court that Marchese had “chosen to minimize his
work hours in order to avoid meeting the requirements for participation in the Bureau of
Prison’s inmate financial responsibility program,” and that he had “flatly refused” a work
assignment in a prison factory which would have enabled him to receive the highest
possible prison wages. The District Court concluded that, “while incarcerated, the
Defendant took every opportunity to avoid this Court’s order requiring him to pay
restitution.”
II.
Marchese argues that the District Court’s amended judgment violated the Double
Jeopardy clause of the Fifth Amendment because he had a legitimate expectation that his
restitution obligation had been satisfied upon the collection of one half of all his prison
wages during his period of incarceration.
It is not clear from the face of the District Court’s oral sentencing order, which sets
$4,199 as the “amount of loss,” whether that amount is the amount of restitution ordered
or whether the District Court intended a lower amount because of the defendant’s

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3We note that this distinction would now be of no consequence to a sentencing court as
18 U.S.C. § 3664 was amended in April 1996, adding § (f)(1)(A) which instructs courts to
“order restitution to each victim in the full amount of each victim’s losses as determined
by the court and without consideration of the economic circumstances of the defendant.”
At the time Marchese was sentenced, however, “amount of loss” and “amount of
restitution” were not necessarily one and the same.
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indigence.3 The written sentencing order is more specific, listing $4,199 as the “amount
of restitution.”
This Court has held that when a sentencing court’s oral sentence and its written
sentence conflict, the oral sentence prevails. Ruggiano, 307 F.3d at 133 (citing United
States v. Faulks, 201 F.3d 208, 211 (3d Cir. 2000)). Where the oral sentence is merely
ambiguous, however, the oral sentencing order must be construed “in the context of the
overall proceeding.” Rios v. Wiley, 201 F.3d 257, 269 (3d Cir. 2000), cited by Ruggiano,
307 F.3d at 134.
We conclude that the oral sentence is ambiguous rather than in conflict with the
written order. This Court requires that, at the time of sentencing, a district judge make
factual findings concerning, “(1) the amount of loss sustained by the victims, (2) the
defendant’s ability to make restitution, and (3) how the amount of restitution imposed
relates to any loss caused by the conduct underlying the offenses for which [defendant]
remains convicted.” United States v. Logar, 975 F.2d 958, 961 (3d Cir. 1992) (internal
citations, quotations and ellipses omitted). The District Court complied with these
requirements, specifically finding that the amount of loss was $4,199 and that Marchese
was able to begin restitution payments while in prison. After hearing of the defendant’s

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indigence, the District Judge initially expressed his inclination not to order restitution:
THE COURT: Yes. It is your burden to show the financial resources
of the defendant to pay restitution.
MR. BARTKO: Well, the financial burden is placed forth in the
presentence report, showing that my client was
indigent and has no money right now and with a
sentence of even 87 months does not look in the near
future to have the financial ability to pay restitution.
THE COURT: That would appear to be correct, as far as I can see.
MR. SWEENEY: I can’t refute that, Your Honor.
THE COURT: The Court therefore will not order restitution, finding
that the defendant is not financially able to pay
restitution.
The prosecutor persisted, however, pointing out that Marchese could earn money while in
prison to apply toward restitution:
MR. SWEENEY: Your Honor, could I ask that the Court order in
connection with the sentence that through the Inmate
Financial Responsibility Program, that a certain
amount of the wages earned on the prison term be
applied to restitution?
THE COURT: I don’t have any problem with that. We wouldn’t
know at this time–Well, what I will do is, I will make a
finding that the victim is Mr. Schindehette and that the
amount of loss is $4,199. I will order that the
Probation Office determine what prison funds the
defendant does earn and that half of those funds be
used to make restitution, whatever that might amount
to.
MR. SWEENEY: Thank you, Your Honor.
Although the oral decree did not specify that M archese’s restitution obligation was to
continue following his release, it did indicate that “[w]hile on supervised release
[Marchese] . . . shall comply with the standard conditions that have been adopted by this
Court.” Those standard conditions are set forth in detail in the written order, including

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that “it shall be a condition of supervised release that the defendant pay any such
restitution that remains unpaid at the commencement of the term of supervised release.”
The standard conditions also provided that the defendant shall follow the instructions of
the probation officer, which at the time, included the probation officer’s directives as to
the payment of restitution. We therefore conclude that an ambiguity existed in the oral
sentencing order, but that the written order resolved that ambiguity and that Marchese
was required to pay $4,199 in restitution as a term of his supervised release. This
obligation did not cease upon his release from prison.
Because restitution was a condition of Marchese’s supervised release, “[t]he court
may revoke probation or a term of supervised release, or modify the term or conditions of
a term of supervised release . . . if the defendant fails to comply with such an order.” 18
U.S.C. § 3663(g) (1995). That section goes on to instruct the court that
[i]n determining whether to . . . modify the term or conditions of probation
or supervised release . . . the court shall consider the defendant’s
employment status, earning ability, financial resources, the willfulness of
the defendant’s failure to pay, and any other special circumstances that may
have a bearing on the defendant’s ability to pay.
Id. The District Court considered these factors after hearing argument and ordered that
Marchese make 27 monthly restitution payments of $133.53 per month and one payment
of $133.44. In doing so, the District Judge noted that, “this is a reasonable monthly
installment schedule which will allow the Defendant to make full restitution to the victim
of his offense and provide for the needs of his family.” Marchese’s failure to avail
himself of the opportunity to satisfy this obligation while in prison does not provide a

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basis for reducing its amount.
III.
Because we conclude that the District Court properly amended Marchese’s
restitution order following his failure to comply with the terms of the original order under
18 U.S.C. § 3663(g), we hold that the amended order is not a violation of the Double
Jeopardy Clause. Accordingly, we will affirm the order of the District Court.
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TO THE CLERK:
Please file the foregoing Opinion.
/s/ D. Brooks Smith
Circuit Judge

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