Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-89-369C. John C. Coughenour, District Judge, Presiding. This Opinion Substituted by Court for Withdrawn Opinion of September 26, 1991, Original Opinion Reported at,.
Before: Eugene A. Wright, Diarmuid F. O'Scannlain, Circuit Judges, and Philip M. Pro,*fn** District Judge.
Lawrence Snider, who pled guilty to a money laundering charge, challenges the restitution component of his sentence. Because the district court lacked authority to order restitution, we vacate Snider's sentence.
On September 5, 1989, Snider pled guilty to a one-count information charging him with structuring a financial transaction to evade federal reporting requirements in violation of 31 U.S.C. §§ 5322(a) and 5324. A written plea agreement, which Snider signed, stipulated the factual basis for his plea. According to that stipulation, Snider participated in the sale and promotion of a fraudulent debt-elimination scheme from March until September 1987.
Snider's information and guilty plea were based on a single transaction in which the victim suffered a loss of $18,750. The plea agreement contained the following language:
Lawrence E. Snider acknowledges that the Court may direct him to pay restitution up to the amounts listed in the column captioned "Fee (15%)" in the Stipulated Factual Basis for Plea.
Plea Agreement at Par. 1, United States v. Snider, No. 88-369 (W.D. Wash. Sept. 5, 1989). The amounts listed in the column captioned "Fee (15%)" totalled $183,250.
On December 15, 1989, the district court sentenced Snider. It assigned him to the custody of the Attorney General for imprisonment for a term of eighteen months and further ordered that he pay restitution in the amount of $183,250, to be paid jointly and severally with his codefendants who had been convicted in a separate action. Snider then filed this timely appeal, in which he challenges only the restitution component of his sentence.
We review the legality of a criminal sentence, including its restitution component, de novo. United States v. Barany, 884 F.2d 1255, 1259 (9th Cir. 1989), cert. denied, 493 U.S. 1034, 107 L. Ed. 2d 771 , 110 S. Ct. 755 (1990). If the sentence complies with statutory requirements and limits, then we review it for an abuse of discretion. Id.
The district court's order of restitution in the immediate case does not specify whether it was entered under the Victim and Witness Protection Act of 1982 ("VWPA"), 18 U.S.C. §§ 3663-64, or under the Federal Probation Act ("FPA"), 18 U.S.C. § 3651, repealed by Pub. L. No. 98-473, tit. II, 98 Stat. 1987, 2031. In United States v. Pomazi, 851 F.2d 244, 247 (9th Cir. 1988), overruled on other grounds, Hughey v. United States, 495 U.S. 411, 109 L. Ed. 2d 408 , 110 S. Ct. 1979 (1990), we recognized that the FPA authorizes restitution only as a condition of probation. Because the district court did not even grant Snider probation, let alone condition his probation upon the payment of restitution, it follows that the FPA does not authorize the court's order.
Nor can the restitution order be upheld under the VWPA.*fn1 At the time of Snider's plea agreement and ...