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    United States v. Regina Donaldson, 797 F.2d 125, 3rd Cir. (1986)

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    This document summarizes a court case regarding whether a district court properly interpreted a statute, 18 U.S.C. Sec. 3013(a), as authorizing the imposition of a separate assessment for each criminal offense a defendant is convicted of, rather than a single assessment for all offenses combined. The appeals court concluded that the district court correctly interpreted the statute to allow two $50 assessments against the defendant, who had been convicted of two felonies. The appeals court also held that the district court did not abuse its discretion in denying the defendant's request for more time to pay the assessments.

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    United States v. Regina Donaldson, 797 F.2d 125, 3rd Cir. (1986)

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    This document summarizes a court case regarding whether a district court properly interpreted a statute, 18 U.S.C. Sec. 3013(a), as authorizing the imposition of a separate assessment for each criminal offense a defendant is convicted of, rather than a single assessment for all offenses combined. The appeals court concluded that the district court correctly interpreted the statute to allow two $50 assessments against the defendant, who had been convicted of two felonies. The appeals court also held that the district court did not abuse its discretion in denying the defendant's request for more time to pay the assessments.

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    Filed: 1986-08-27 Precedential Status: Precedential Citations: 797 F.2d 125 Docket: 85-1676

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    This document summarizes a court case regarding whether a district court properly interpreted a statute, 18 U.S.C. Sec. 3013(a), as authorizing the imposition of a separate assessment for each criminal offense a defendant is convicted of, rather than a single assessment for all offenses combined. The appeals court concluded that the district court correctly interpreted the statute to allow two $50 assessments against the defendant, who had been convicted of two felonies. The appeals court also held that the district court did not abuse its discretion in denying the defendant's request for more time to pay the assessments.

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    19 views7 pages

    United States v. Regina Donaldson, 797 F.2d 125, 3rd Cir. (1986)

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    This document summarizes a court case regarding whether a district court properly interpreted a statute, 18 U.S.C. Sec. 3013(a), as authorizing the imposition of a separate assessment for each criminal offense a defendant is convicted of, rather than a single assessment for all offenses combined. The appeals court concluded that the district court correctly interpreted the statute to allow two $50 assessments against the defendant, who had been convicted of two felonies. The appeals court also held that the district court did not abuse its discretion in denying the defendant's request for more time to pay the assessments.

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    of 7

    797 F.

    2d 125

    UNITED STATES of America


    v.
    Regina DONALDSON, Appellant.
    No. 85-1676.

    United States Court of Appeals,


    Third Circuit.
    Argued June 4, 1986.
    Decided July 24, 1986.
    Rehearing and Rehearing In Banc Denied Aug. 27, 1986.

    Edward H. Weis (argued), Defender Ass'n of Philadelphia, Federal Court


    Div., Philadelphia, Pa., for appellant.
    Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty.,
    Chief of Appeals, Paul L. Gray (argued), Asst. U.S. Atty., Philadelphia,
    Pa., for appellee.
    Before ADAMS, WEIS and HIGGINBOTHAM, Circuit Judges.
    OPINION OF THE COURT
    ADAMS, Circuit Judge.

    Appellant, Regina Donaldson, was convicted of forging the payee endorsement


    on a United States Treasury check in violation of 18 U.S.C. Sec. 510(a)(2)
    (Supp. I 1983), and of uttering the check in violation of 18 U.S.C. Sec. 495
    (1982). The district court imposed a $50 assessment against her upon each of
    the two convictions under 18 U.S.C. Sec. 3013(a) (Supp. II 1984). The issue
    raised here is whether the district court properly interpreted Sec. 3013(a) as
    authorizing the imposition of a separate assessment for each offense of which a
    defendant is convicted, or whether Congress intended by Sec. 3013(a) to
    subject a defendant to a single assessment for all offenses of which she is
    convicted in the same proceeding.
    We conclude that the district court correctly interpreted and applied Sec.

    3013(a) to impose two $50 assessments upon appellant for her two felony
    convictions. We further hold that the district court did not abuse its discretion in
    denying appellant's request that she be allowed an extension of time to pay the
    assessments.

    I.
    3

    Regina Donaldson was charged in a two-count indictment in August 1985 with


    forging and uttering a United States Treasury check in violation of 18 U.S.C.
    Secs. 495, 510(a)(2). She pleaded guilty to both counts on September 25, 1985.
    Prior to that time, the government had made clear its position that Donaldson
    could be subjected to an assessment on each count, if convicted, under 18
    U.S.C. Sec. 3013(a). That section provides:

    (a) The court shall assess on any person convicted of an offense against the
    United States--

    5(1) in the case of a misdemeanor-6

    (A) the amount of $25 if the defendant is an individual; and

    (B) the amount of $100 if the defendant is a person other than an individual;
    and

    8(2) in the case of a felony-9

    (A) the amount of $50 if the defendant is an individual; and

    10

    (B) the amount of $200 if the defendant is a person other than an individual

    11

    (b) Such amount so assessed shall be collected in the manner that fines are
    collected in criminal cases.

    12

    Inasmuch as Donaldson was charged with two felonies, the government argued
    that she was subject to a total assessment of $100. Donaldson, however,
    contended that Sec. 3013(a) authorized only the imposition of a single $50
    assessment, since the two felonies with which she was charged had been joined
    in a single proceeding. When she entered her guilty pleas, she expressly
    reserved the right to contest the government's construction of Sec. 3013.

    13

    On August 29, 1985, Donaldson was sentenced to a two-year term of probation

    on each count, the terms to run concurrently; the imposition of any custodial
    sentence was suspended. Pursuant to Sec. 3013(a), the court levied two $50
    assessments against Donaldson, one for each felony of which she was
    convicted.
    14

    At the time of the imposition of the assessments, Donaldson requested that she
    be allowed a period of one year to pay the assessments because of her poor
    financial condition. The district court denied this request.

    15

    In this appeal, Donaldson argues that the district court misinterpreted Sec.
    3013(a) as authorizing that assessments be levied on a "per count" rather than a
    "per defendant" basis. She also contends that Sec. 3013(b) incorporates the
    provisions of 18 U.S.C. Sec. 3565 (1982), as amended by Act of Oct. 30, 1984,
    Secs. 2, 12(a)(7), Pub.L. No. 98-596, 98 Stat. 3134, 3139 (1984), which allow
    for deferral of the payment of fines "in the interest of justice." Sec. 3565(b)(1)
    (A). She maintains that, in view of her unemployment and indigency, it was an
    abuse of discretion for the district court to deny her request for additional time
    to pay the $100 assessment.

    II.
    A.
    16

    Congress enacted Sec. 1405(b) of the Comprehensive Crime Control Act of


    1984, 18 U.S.C. Sec. 3013, in order to authorize the imposition of a nominal
    assessment on defendants convicted of offenses against the United States. The
    monies collected under Sec. 3013 are paid into a Crime Victims Fund to be
    awarded to eligible state crime victim compensation programs. See 42 U.S.C.
    Secs. 10601(b)(2), 10602 (Supp. II 1984).

    17

    Section 3013, the provision at issue here, states that specified amounts shall be
    assessed "on any person convicted of an offense against the United States...."
    Sec. 3013(a). Donaldson insists that this language indicates that a defendant
    convicted of more than one offense in a single proceeding, as she was, may be
    required to pay only one assessment. She further urges that the legislative
    history of Sec. 3013 supports this reading of the statute. Finally, she maintains
    that Sec. 3013 is a criminal statute and that the Court is therefore bound by the
    "rule of lenity" to construe any ambiguity in the terms of the statute in her
    favor. See Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 2089, 85
    L.Ed.2d 434 (1985); Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct.
    2247, 2252, 65 L.Ed.2d 205 (1980).

    18

    Addressing the last of her contentions first, we reject the assertion that the rule
    of lenity applies to our interpretation of Sec. 3013. The statute neither defines a
    substantive criminal offense nor establishes the sentence to be imposed for a
    criminal offense. Rather, Sec. 3013 requires the assessment of nominal amounts
    against defendants, and 42 U.S.C. Sec. 10601 provides that the sums be paid
    into the Crime Victims Fund. The amount assessed depends solely upon
    whether the offense is classified as a felony or a misdemeanor, and thus is not
    related to the specific nature of the crime committed. Indeed, Donaldson herself
    concedes that Congress' purpose in enacting Sec. 3013 was not to punish
    criminal defendants, but rather was to raise revenue to support state crime
    victim compensation programs. See Brief for Appellant at 17 n. 8 (citing
    S.Rep. No. 497, 98th Cong., 2d Sess. 13, reprinted in 1984 U.S.Code Cong. &
    Ad.News 3182, 3607, 3619). As Sec. 3013 is not a criminal statute, the rule of
    lenity does not require that we construe any ambiguity in its terms in favor of a
    defendant.

    19

    Similarly, since we are concerned here not with the imposition of cumulative
    sentences but with the levying of multiple assessments, the rule barring
    "pyramiding" of sentences does not apply. The pyramiding rule provides that,
    where a defendant is convicted of two offenses based upon the same criminal
    transaction, and one of the offenses of necessity requires the commission of the
    other, a court will not impute to Congress the intention to impose multiple
    punishments unless such an intention has been expressed unequivocally. See,
    e.g., Prince v. United States, 352 U.S. 322, 328, 77 S.Ct. 403, 406, 1 L.Ed.2d
    370 (1957) (entering bank with intent to commit robbery merges into offense of
    bank robbery); United States v. Gomez, 593 F.2d 210, 213 (3d Cir.) (in banc)
    (possession of a controlled substance with intent to distribute may not be
    punished separately from offense of actual distribution where both charges are
    based upon distribution of the same drugs), cert. denied, 441 U.S. 948, 99 S.Ct.
    2172, 60 L.Ed.2d 1052 (1979). Like the rule of lenity, the doctrine of
    pyramiding is based on the principle that any ambiguity in Congress' expression
    of its intent to penalize certain conduct must be construed in favor of the
    defendant.

    20

    We need not reach the question whether the two offenses here--forgery and
    uttering--are related in such a way as to invoke the pyramiding doctrine when
    based upon the attempted negotiation of the same check. But see United States
    v. Richardson, 582 F.2d 968, 969 (5th Cir.1978) (approving the imposition of
    separate sentences on counts of forging and uttering a single check under 18
    U.S.C. Sec. 495); Shields v. United States, 310 F.2d 708, 709 (6th Cir.1962)
    (same), cert. denied, 374 U.S. 837, 83 S.Ct. 1888, 10 L.Ed.2d 1058 (1963);
    United States v. Huggins, 184 F.2d 866, 867-68 (7th Cir.1950) (same).

    Donaldson does not challenge her sentences; she contests only the imposition of
    multiple assessments. Consequently, as stated above, the doctrine of
    pyramiding is inapplicable to this appeal.
    21

    Having concluded that Sec. 3013 may be interpreted under normal canons of
    statutory construction, we turn first to its language. The statute states that an
    assessment shall be imposed "on any person convicted of an offense...."
    (emphasis added). This language appears to contemplate that an assessment
    will be imposed for each offense of which a defendant is convicted.
    Furthermore, as the Second Circuit recently observed in United States v. Pagan,
    785 F.2d 378, 381 (2d Cir.1986), to read this language as authorizing only one
    assessment on a defendant in a given proceeding would produce an illogical
    result in the treatment of multiple offenders. Such an interpretation would make
    the number of assessments imposed upon a defendant turn, not upon the
    number of offenses of which she was convicted, but upon whether she was tried
    for those offenses in one or more proceedings.

    22

    Additionally, the construction of the statute advanced by Donaldson raises


    questions as to the appropriate amount to be assessed when the defendant is
    convicted of both a felony and a misdemeanor. It is at odds with common sense
    to suppose that Congress intended that such a person would be required to pay
    $75 in assessments whereas an individual such as Donaldson, who was
    convicted of two felonies, would be assessed only $50. See Pagan, 785 F.2d at
    381. If Sec. 3013 is read to require that a separate assessment be levied for each
    offense upon which a defendant is convicted, such inconsistencies do not arise.
    Thus, we conclude that the language of Sec. 3013 more reasonably lends itself
    to the government's interpretation than to Donaldson's.

    23

    The legislative history of Sec. 3013 is somewhat sparse, and provides little
    illumination on the question with which we are concerned here. Donaldson
    points to passages in the Senate Report and hearings regarding a predecessor
    bill, in which the assessments are referred to as "nominal" or as "modest flatrate fees." See S.Rep. No. 497, 98th Cong., 2d Sess. 13-14, reprinted in 1984
    U.S.Code Cong. & Ad.News, 3607, 3619; The Victims of Crime Assistance
    Act of 1984: Hearings on S. 2423, 98th Cong., 2d Sess. 21 (1984) (statement of
    Senator Heinz); id. at 36. According to Donaldson, such references illustrate a
    congressional intent to impose a single assessment on each defendant.
    However, these fleeting and ambiguous remarks will not bear the weight that
    Donaldson would assign to them.

    24

    Donaldson also stresses the fact that Congress declined to adopt the exact
    language of another proposed bill, which provided for assessments of "$25 to

    $500 for each felony." See S. 704, 98th Cong., 2d Sess. (1983). She claims that,
    by choosing the language eventually employed in Sec. 3013, Congress was
    expressing its intention to impose assessments upon each defendant rather than
    upon each offense. However, we do not agree that the use of different language
    from that employed in the unenacted bill is significant, since, under the most
    reasonable interpretation, Sec. 3013(a) produces the same result.
    25

    Because the legislative history is inconclusive, and because the language of


    Sec. 3013(a) requires that a separate amount be assessed against a defendant for
    each offense of which she is convicted, we hold that the district court did not err
    in its construction of the statute. Consequently, it was not improper to impose a
    total of $100 in assessments against Donaldson for her two felony convictions.

    B.
    26

    Donaldson also protests that the district court abused its discretion in denying
    her request that she be allowed one year to pay the assessments in light of her
    limited financial resources. She notes that, under Sec. 3013(b), the amounts
    assessed are to "be collected in the manner that fines are collected in criminal
    cases." Donaldson maintains that this language was intended to incorporate into
    Sec. 3013 the provisions of 18 U.S.C. Sec. 3565.1 That section states, inter alia,
    that "[a] judgment imposing the payment of a fine or penalty shall ... provide
    for immediate payment unless, in the interest of justice, the court specifies
    payment on a date certain or in installments...." Sec. 3565(b)(1)(A). Under this
    language, defendant argues, she was entitled to an allowance of additional time
    to pay the assessments.

    27

    The government agrees with Donaldson that Sec. 3565(b)(1)(A) is applicable to


    the collection of assessments under Sec. 3013. Thus, the government does not
    contend that the district court lacked statutory authority to grant Donaldson's
    request for an extended period of time to pay her assessments. Rather, it argues
    that the decision whether to grant Donaldson's request was committed to the
    sound discretion of the district court and that no abuse of discretion has been
    shown. See Callahan v. United States, 371 F.2d 658, 661 (9th Cir.1967)
    (imposition of fine and imprisonment until fine is paid under Sec. 3565 are
    matters within discretion of district court).

    28

    Here, the district court suspended imposition of a sentence of imprisonment and


    placed Donaldson on concurrent two-year terms of probation. It did not order
    Donaldson to make any restitution to the check cashing agency at which she
    attempted to negotiate the forged check. The district court, in denying
    Donaldson's request for additional time to pay the assessments, explained that

    the immediate payment of the assessment would provide Donaldson with "an
    opportunity to demonstrate that she will from this day forward be a law-abiding
    citizen...." App. at 22. The district court thus concluded that requiring timely
    payment of the assessments would assist in impressing upon Donaldson the
    gravity of her offenses and the importance of conforming her conduct to the
    requirements of the law. As such, we cannot say that a deferral of payment was
    necessary "in the interest of justice." See 18 U.S.C. Sec. 3565(b)(1)(A).
    Accordingly, we conclude that the district court did not abuse its discretion in
    denying Donaldson's request for one year to pay the assessments.2
    III.
    29

    We hold that Sec. 3013(a) authorizes the district court to impose a separate
    assessment for each offense of which a defendant is convicted, and that,
    consequently, the district court did not err in imposing $100 in assessments
    against Donaldson based upon her two felony convictions. We further conclude
    that the district court did not abuse its discretion in denying Donaldson's request
    that she be granted an extension of time to pay the assessments.

    30

    The judgment of the district court will be affirmed.

    Title 18 U.S.C. Sec. 3565 was repealed on October 12, 1984 by Pub.L. No. 98473, Title II, Sec. 238(g)(1), 98 Stat. 1837, 2039 (1984). That law also enacted
    a new Sec. 3565, dealing with revocation of probation, to become effective
    November 1, 1986. However, Pub.L. No. 98-596, Secs. 2, 12(a)(7), 12(a)(9),
    12(b), 98 Stat. 3134, 3134-36, 3139-40 (1984), apparently reenacted the old
    Sec. 3565 and amended it, adding subsections (b) through (h). Consequently, it
    appears that, as of November 1, 1986, there will be two sections codified at 18
    U.S.C. Sec. 3565

    At oral argument, the government indicated that if Donaldson were able to


    establish in the district court that she made a good faith effort to obtain the
    money to pay the assessments but was unsuccessful, it would not seek to collect
    the $100 from her. We note that, effective November 1, 1986, Pub.L. No. 98473, Title II, Sec. 212(a)(2), 98 Stat. 1837, 1997 (1984) (to be codified at 18
    U.S.C. Sec. 3573), provides that a defendant may petition the district court at
    any time for modification or remission of a fine

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