USA v. Exala

Filing 22

Order

MINUTES OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA

v.

FRANCISCO SONZA EXALA

THE HONORABLE JOHN W. SEDWICK

PROCEEDINGS:

ORDER FROM CHAMBERS

CASE NO. 3:07-cr-00141 (JWS)

Date: January 28, 2008

Defendant was convicted of one count of false use of a passport in violation of 18
U.S.C. § 1543, and five counts of false use of a social security number in violation of 42
U.S.C. § 408(a)(7)(A). The false use of the social security number enabled defendant
to obtain permanent fund dividends to which he was not entitled. The parties have
agreed that the amount of loss to the State of Alaska, which was the victim of the social
security crimes, is $4,714.28. Plaintiff asks the court to include a restitution order in the
judgment.
The court sua sponte raised a concern as to the authority for imposition of
restitution in this case. Under 42 U.S.C. § 408(b) the court may impose restitution only
in favor of "individuals" and the Commissioner of Social Security. The State of Alaska is
neither an individual nor is it the Commissioner. The court asked for further briefing.
The United States eventually responded at docket 21. There, it takes the position that
the court has authority to impose restitution under 18 U.S.C. § 3563(b). That provision
applies to sentences of probation, and defendant was sentenced to 27 days of
incarceration to be followed by supervised release. However, by virtue of 18 U.S.C.
§ 3583(d)(3), the court may include in the conditions of supervised release any
condition that may be imposed under the portion of 18 U.S.C. § 3563(b) which is
pertinent here.
Thus, the question is whether section 3563(b) authorizes restitution to the State
of Alaska which is undeniably a victim. It does. Subsection 3563(b)(2) authorizes
imposition of restitution "under section 3556 (but not subject to the limitation of section
3663(a) or 3663A(c)(1)(A)." (Italicized emphasis added). The limitation in section
3663(b) is one which confines the imposition of restitution to crimes which are a
violation of Title 18 or certain sections of Title 21, thus by implication excluding offenses
which are in violation of the provisions found in other titles, such as Title 42. Absent the
limitation, the court has discretion to include restitution for violation of such provisions.
Here, when all the factors pertinent to the exercise of the courts discretion are
considered, restitution is appropriate (indeed, defendant himself did not contest that he
should reimburse the State of Alaska in the amount of the permanent fund dividends he
obtained by fraud).

For the reasons above, the court will include in its judgment a restitution
obligation requiring defendant to pay the State of Alaska restitution in the amount of
$4,714.28.
IT IS SO ORDERED.

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