United States v. Burnette

          United States Court of Appeals
                     For the First Circuit


No. 02-1814

                          UNITED STATES,

                            Appellee,

                               v.

                       CHERYL A. BURNETTE,

                      Defendant, Appellant.


         ON REMAND FROM THE UNITED STATES SUPREME COURT


                             Before

                       Lynch, Circuit Judge,
                   Stahl, Senior Circuit Judge,
                    and Lipez, Circuit Judge.


     Cheryl A. Burnette on supplemental brief pro se.

     Peter E. Papps, Assistant United States Attorney, and Thomas
P. Colantuono, United States Attorney, on supplemental brief for
appellee.



                        September 9, 2005
               Lipez, Circuit Judge.       In United States v. Burnette, 

375 F.3d 10

 (1st Cir. 2004), we affirmed Cheryl Burnette's conviction

for wire fraud, 

18 U.S.C. § 1343

, and impersonation of a federal

employee, 

18 U.S.C. § 912

.          We also affirmed her sentence, which

included 24 months of imprisonment and three years of supervised

release, with the special condition that she pay almost $50,000 in

restitution.        Burnette then sought further review in the United

States Supreme Court.           The Supreme Court vacated judgment and

remanded the case to us for reconsideration in light of United

States v. Booker, 

125 S. Ct. 738

 (2005), which was decided after we

affirmed Burnette's conviction and sentence.                 See Burnette v.

United States, 

125 S. Ct. 1406

 (2005).                We invited supplemental

briefing on whether the case should be remanded to the district

court for resentencing in accordance with Booker.

               Noting that she has already finished serving her prison

term and has begun serving her term of supervised release, Burnette

only       poses   Booker    challenges    to   the   restitution   order   and

conditions of supervised release.1              Burnette failed to preserve

either claim in the district court by arguing that the sentence was

unconstitutional.2          See United States v. Antonakopoulos, 

399 F.3d 1

      Burnette has waived any challenge to her sentence of
incarceration, stating specifically in her brief that she does not
want us to revisit that issue.
       2
      In a supplemental brief, Burnette asserts that she preserved
her Booker claim by arguing "in the District and the Circuit that
the Guidelines and PSI Report were unconstitutional."      The two

                                          -2-
68, 76 (1st Cir. 2005) ("The argument that a Booker error occurred

is preserved if the defendant below argued Apprendi or Blakely

error or that the Guidelines were unconstitutional.").

           On appeal, Burnette's challenge to the conditions of

supervised release is so inadequately developed that we deem it

waived.   See United States v. Bongiorno, 

106 F.3d 1027, 1034

 (1st

Cir. 1997) (noting that "[w]e have steadfastly deemed waived issues

raised on appeal in a perfunctory manner, not accompanied by

developed argumentation").3   We review her Booker challenge to the

restitution order, which is somewhat more developed, for plain

error.    See Antonakopoulos, 

399 F.3d at 75

.   To establish plain

error, an appellant must point to (1) an error (2) that is plain

and that both (3) affects substantial rights and (4) seriously

affects the fairness, integrity or public reputation of judicial

proceedings.    United States v. Olano, 

507 U.S. 725, 732, 736

(1993).

           Burnette asserts that under the logic of Booker and the

line of cases that preceded it, "restitution can be imposed only


documents that Burnette cites as evidence that she preserved her
claim, however, do not appear to include any argument that the
Guidelines were unconstitutional.    In the absence of any other
indication that Burnette challenged the constitutionality of her
sentence in the district court, we treat her claim as unpreserved.
     3
      Without authorization, Burnette submitted a reply brief which
we will not consider. Burnette was bound by the terms of our order
inviting one supplemental brief from each party.       We do note,
however, that the reply brief did not contain any argumentation on
the issue of supervised release.

                                -3-
for an amount that has been proven to the Jury beyond a reasonable

doubt or admitted by the defendant," and thus that the district

court committed plain error when it imposed a restitution order

based on its own loss calculation.           We have not yet considered the

applicability of Booker to the statutory provisions governing

restitution orders.4 Several of our sister circuits, however, have

ruled that restitution orders imposed pursuant to statute do not

implicate Booker for a variety of reasons, including the fact that

there is no statutory maximum for such orders.                 See, e.g., United

States v. Miller,           F.3d     , 

2005 WL 1993936, at *1

 (8th Cir.

Aug. 19, 2005); United States v. Sosebee,                      F.3d    , 

2005 WL 1941286, at *8-9

 (6th Cir. Aug. 12, 2005); United States v.

Rattler,   

2005 WL 1670257

,    at    *1    (4th   Cir.    July   19,   2005)

(unpublished); United States v. Bussell, 

414 F.3d 1048, 1060

 (9th

Cir. 2005); United States v. George, 

403 F.3d 470, 473

 (7th Cir.

2005);   cf.   Booker,    

125 S. Ct. at 764

    (recognizing    that   the

forfeiture statute remains "perfectly valid" post-Booker). Indeed,

no circuit has held that Booker applies to restitution orders.5


     4
      Although Antonakopoulos included a challenge to the amount of
a restitution order, that challenge was based on the accuracy of
the court's loss calculation rather than on constitutional
principles.    See 

399 F.3d at 83

-84 and n.13 ("The defendant
presents no serious claim of Booker error as to restitution.").
     5
       But see Susan R. Klein, The Return of Federal Judicial
Discretion in Criminal Sentencing, 

39 Val. U. L. Rev. 693

, 722
n.138 (2005) (arguing that the logic of Booker extends to
restitution orders imposed under the Mandatory Victim's Restitution
Act, 18 U.S.C. § 3663A).

                                      -4-
            This case does not require us to decide the restitution

issue    definitively.   To   prevail   on   her   claim,   Burnette   must

demonstrate not only that there was an error, but that the error

was plain.     Even if there is an argument to be made that the

district court erred in imposing the restitution order (and we are

not suggesting that it did), that error certainly was not plain,

and henceforth Burnette's claim fails.6

     Accordingly, we direct the entry of judgment affirming both

the conviction and the sentence.

     So ordered.




     6
      Burnette also complains about two issues unrelated to
sentencing: her conviction based on the admission of certain
evidence, and her unhappiness with appellate counsel. These claims,
unlike her Booker claims, do not rest on an intervening change in
the law.   Rather, she seeks to relitigate issues which we have
already decided. Although we have the power to "reexamine an issue
that lies beyond the circumference of the Supreme Court's specific
order" -- in this case, further consideration in light of Booker --
"[t]his power is to be exercised . . . only when its invocation is
necessary to avoid extreme injustice." United States v. Estevez,
    F.3d      , 

2005 WL 1969745, at *3

 (1st Cir. Aug. 17, 2005)
(internal quotation marks omitted).     There is no injustice in
refusing to reexamine a carefully considered decision based on the
same arguments that we have already rejected.

                                  -5-