United States v. Mark Hack
Case No. 19-6278
999 F.3d 980 (6th Cir. 2021)
Decided: June 3, 2021
This case underscores the importance of carefully drafted plea agreements and the lack of importance given to the victims’ preferences for payment under the Mandatory Victims Restitution Act (“MVRA”).
In 2013, Mark Hack (“Hack”) was indicted of one count of conspiracy to commit bank fraud, mortgage fraud, and wire fraud. He pled guilty under a plea agreement containing an appeal waiver. Among other things, the plea agreement stipulated that Hack must pay $803,420 in restitution to two mortgage companies, as required by the MVRA. In accordance with the MVRA, the district court set a payment schedule during Hack’s imprisonment and ordered the probation office to recommend a payment schedule once his supervised release began. The probation officer never recommended a post-release schedule.
During Hack’s period of supervised release, he filed a motion to modify the restitution order, which stipulated that he would pay discounted lump-sum payments to the victims rather than continuing to make restitution payments. Hack argued for the modification because 1) he had a one-time opportunity to obtain lump-sum amounts to pay the victims, and 2) the defrauded companies made statements that they preferred to receive lump-sum payments instead of incremental payments. The district court denied the motion, reasoning it did “not have the authority under the MVRA to modify its final Restitution Order into two reduced lump-sum restitution payments.”
Ultimately, the Sixth Circuit affirmed the district court’s order. On appeal, there were functionally three issues: 1) whether the Sixth Circuit had jurisdiction to hear Hack’s appeal, 2) whether Hack’s plea agreement waived any ability to appeal the restitution portion of the judgment, and 3) whether Hack should be able to know how much he would be required to pay during the remainder of his 20-year post-release period. First, the Court found it had jurisdiction. Specifically, the Court found that 28 U.S.C. § 1291 confers statutory jurisdiction over an appeal from a district court’s decision to deny a motion to modify supervised release terms, while 18 U.S.C. § 3742 merely confines the court’s power to grant certain types of relief in sentencing appeals. See United States v. Marshall, 954 F.3d 823 (6th Cir. 2020). Since Hack only waived his right to appeal under 18 U.S.C. § 3742, the Court maintained its jurisdiction over his appeal under 28 U.S.C. § 1291.
Second, the Court found that Hack waived his ability to appeal the restitution order. In its opinion, the Court distinguished Hack’s situation from United States v. Smith, 344 F.3d 479, 71 Fed. Appx. 511 (6th Cir. 2003). In that case, the Court found that a plea agreement that waived the right “to appeal any sentence which is within the parameters of this agreement” did not cover the right to appeal the calculation of a restitution amount; whereas Hack’s agreement to waive the right to appeal “his conviction, [and] the resulting sentence . . . pursuant to  18 U.S.C. § 3742” was not limited to a sentence expressly within the agreement’s parameters and instead broadly refers to ‘the resulting sentence,’ of which restitution is part.” Id. Accordingly, Hack waived his ability to appeal the restitution order.
Lastly, the Court held that Hack should be able to know how much he will be required to pay during the remainder of the 20-year period after his release from prison and when he will be required to pay it. 18 U.S.C. § 3613(b). The Court first noted that the companies Hack defrauded said that they would prefer Hack’s proposed arrangement at this stage, but that preference was not binding on the district court as generally, the MVRA requires the restitution amount be “the full amount of each victim’s losses.” 18 U.S.C. § 3664(f)(1)(A).
Ultimately, the Court held that the failure to set a full restitution payment schedule is error. United States v. Davis, 306 F.3d 398, 425-26 (6th Cir. 2002). The Court advised the district court to set a payment schedule in an expeditious manner, ensuring that the schedule accounts for the factors in § 3664(f)(2). However, the Court noted that in doing so, the district court may tailor restitution orders to particular circumstances, but it could not modify the amount of restitution. 18 U.S.C. § 3664(k).
This case demonstrates that a valid appeal waiver does not generally deprive the appellate court of statutory jurisdiction. Further, this case underscores the importance of making sure the plea agreement only waives the right to appeal the conviction, not the resulting sentence if the defendant is interested in later modifying his restitution agreement. Lastly, this case shows that the MVRA requires payment for the full amount of each victim’s losses despite a victim’s preference to be paid in a discounted lump sum.
*DBL Law Summer Associate Tyler Powell contributed to this article.
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