United States of America v. Robert M. Riley

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 31, 2008∗
Decided April 9, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
Nos. 07-1386 & 07-2941
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT M. RILEY,
Defendant-Appellant.
Appeals from the United
States District Court for the
Northern District of Illinois,
Eastern Division.
No. 03 CR 126
Ruben Castillo, Judge.
Order
Robert Riley has filed two appeals from orders that the district court issued in a
proceeding to collect what Riley owes under a criminal judgment that includes an
∗ These successive appeals have been submitted to the original panel under Operating Procedure 6(b).
After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed.
R. App. P. 34(a); Cir. R. 34(f).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Nos. 07-1386 & 07-2941 Page 2
award of restitution. After the appeals were filed, we vacated the underlying judgment.
United States v. Caputo, No. 06-3612 (7th Cir. Feb. 27, 2008). The United States maintains
that this makes the appeals “moot.” That’s not right. Some assets have been collected,
and what to do with them remains contested. But neither is Riley correct in proposing
that we resolve the appeals in their current posture. The judgment is no more (the
mandate issued on March 20), and the district court must recalculate how much Riley
owes in restitution. That process includes the setting of a new schedule, and by doing
this the district court may affect some or all of the issues that Riley has briefed on
appeal.
Some of the problems arise from this passage in the judgment: “defendant’s
monthly payment schedule will be twenty percent of his monthly income.” Riley
believes that this entitles him to shelter all of his existing assets from the obligation to
pay restitution. That may or may not be a sound reading of the district court’s
language, but when restitution is recalculated per our mandate, the district judge will
set a new schedule. As this court explained in United States v. Sawyer, No. 06-1275 (7th
Cir. Apr. 9, 2008), a restitution order should require the defendant to turn over
immediately all non-exempt assets. The statutory schedule deals only with payments
out of future income, which must be set high enough that the debt can be paid in full
within 20 years.
Riley will be entitled to appeal from both the restitution order and the schedule
once the district court has completed its proceedings on remand. If the United States is
dissatisfied with the schedule, it too should appeal, rather than attempt to bypass the
schedule as it has done so far. In the meantime any assets collected from Riley should
be retained within the district court’s jurisdiction, so that they are neither transferred to
the Treasury nor placed in a position in which they could be dissipated or hidden by
Riley.
The district court’s decisions are vacated, and the case is remanded for further
proceedings consistent with this order and the opinion in Caputo.

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