Nos: 01-4007/4008 UNITED STATES OF AMERICA v. Edwin H. Lund

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos: 01-4007/4008
________________
UNITED STATES OF AMERICA
v.
EDWIN H. LUND,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 00-cr-00027)
District Judge: Honorable Maurice B. Cohill, Jr.
Submitted Under Third Circuit LAR 34.1(a)
on May 1, 2002
Before: NYGAARD, ROTH
and WEIS, Circuit Judges
(Opinion filed: August 16, 2002)
O P I N I O N
ROTH, Circuit Judge:
Edwin H. Lund appeals the October 23, 2001 Judgment of the United States
District Court for the Western District of Pennsylvania sentencing him on counts of bank
fraud and giving fraudulent statements to the IRS. In addition to providing terms of
imprisonment and supervised release, the Judgment orders Lund to pay restitution of
$3,146, 299.53 in accordance with a schedule. Cf. Mandatory Victim Restitution Act of
1996 (the "MVRA"), 18 U.S.C. 3663A & 3664 (2002) (mandating that restitution
awards be imposed when sentencing defendants convicted of certain offenses). Lund
alleges that the District Court made two reversible errors. He first argues that the District

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Court erred by refusing to make a downward departure to his sentence. Second, Lund
argues that the District Court erred by failing to consider his financial circumstances in
setting the restitution payment schedule. We will affirm the District Court’s Judgment.
Because Lund alleges legal error, we have jurisdiction to review the District
Court’s refusal to grant a downward departure. Compare United States v. McQuilkin, 97
F.3d 723, 729 (3d Cir. 1996) ("We lack jurisdiction to review a refusal to depart
downward when the district court, knowing it may do so, nonetheless determines that
departure is not warranted.") with United States v. Georgiadis, 933 F.2d 1219, 1222 (3d
Cir. 1991) ("[W]e have jurisdiction to decide whether a sentencing court erred legally
when not making a requested discretionary downward departure."). We exercise plenary
review over the District Court’s construction of the Sentencing Guidelines. See United
States v. McBroom, 124 F.3d 533, 541 (3d Cir. 1997).
We have appellate jurisdiction to review the restitution payment schedule under
28 U.S.C. section 1291. We review the appropriateness of a particular restitution award
for an abuse of discretion. See United States v. Crandon, 173 F.3d 122, 125 (3d Cir.),
cert. denied, 528 U.S. 855 (1999).
We are unconvinced by Lund’s first assignment of error. Lund contends that he
was eligible for a downward departure under Section 5K2.13 of the Sentencing
Guidelines because he suffered a "significantly reduced mental capacity" when he
committed the offenses for which he was sentenced. United States Sentencing
Commission, Guidelines Manual 5K2.13 (2001) (hereinafter "U.S.S.G."). Although
the District Court recognized its authority to grant a downward departure pursuant to
Section 5K2.13, it declined to do so, reasoning that Lund did not suffer from such a
reduced mental capacity. Lund alleges that the District Court erred by applying an
inaccurate definition of the term "significantly reduced mental capacity." To the
contrary, however, the District Court quoted the precise definition verbatim from the
Sentencing Guidelines commentary when sentencing Lund. See Appendix at 3 (quoting
U.S.S.G. 5K2.13, cmt. n.1). Accordingly, we hold that it did not misconstrue the
Sentencing Guidelines in considering and refusing the Section 5K2.13 departure.
Lund’s second assignment of error also lacks merit. Lund concedes that the
District Court was obligated to impose a restitution award pursuant to the MVRA. See
18 U.S.C. 3663A & 3664. Lund contends, however, that the District Court erred in
calculating the specific restitution payment schedule by: (1) failing to make findings
about his financial circumstances, and (2) declining to impose only "nominal periodic
payments" pursuant to 18 U.S.C. section 3664(f)(3)(B). We reject both contentions.
Although the District Court did not recite its particular findings during the
sentencing hearing, the record establishes that it did consider Lund’s financial
circumstances as the MVRA required it to do. Specifically, the District Court
considered the presentence report, Lund’s Position with respect to Sentencing Factors,
and the oral argument of Lund’s counsel at the sentencing hearing - each of which
discussed the relevant factors set forth in the MVRA. See Appendix at 53-57, 251-54.
Moreover, the Judgment explicitly adopts by reference the presentence report’s factual
findings and guideline applications - thereby giving us a basis on which to review the
District Court’s exercise of discretion. See Appendix at 15. See also United States v.
Palma, 760 F.2d 475, 480 (3d Cir. 1985) (requiring some factual findings to "facilitate
meaningful appellate review"). Accordingly, we find no deficiency in the District
Court’s findings.
Lund’s final contention - that the District Court abused its discretion by declining
to award only "nominal periodic payments" - is likewise without merit. The District
Court’s restitution payment schedule requires Lund to apply toward the restitution award
fifty percent of any salary earned while in prison and ten percent of his gross monthly
income earned during his supervised release. The payment obligations are proportionate
to Lund’s future income and appear to be the product of the District Court’s careful
consideration. Moreover, we are unconvinced by Lund’s suggestions that the schedule is
unfeasible. Accordingly, we find no reason to disturb it.
For the foregoing reasons, we affirm the October 23, 2001 Judgment of the
District Court.
_______________________
TO THE CLERK:
Please file the foregoing Opinion.

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BY THE COURT:
/s/ Jane R. Roth
Circuit Judg

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