OPINION OF THE COURT
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Appellant Sylvane Hawthorne appeals from the order of the district court denying appellant's motion for correction of sentence requesting a reduction of the amount of restitution imposed as a condition of her probationary sentence. We must decide whether the district court erred in imposing an order of restitution in the amount of $28,280.00, where the dollar amount charged in the counts upon which appellant's plea of guilty was tendered was $231.00.
On October 30, 1985, the grand jury returned a 69-count indictment against defendant/appellant Sylvane Hawthorne and two co-defendants. Specifically, Hawthorne was charged with one count of conspiracy, in violation of 18 U.S.C. § 371 (1982); thirty counts of making false statements, in violation of 18 U.S.C. § 1001
On December 30, 1985, pursuant to a plea bargain agreement, Hawthorne entered a plea of guilty to one count of mail fraud (Count 26), one count of false representation of a Social Security account number (Count 33), and one count of unauthorized possession of food coupon authorizations (Count 40). The pleas were entered pursuant to Federal Rule of Criminal Procedure 11(e)(1)(A), with the government agreeing to move the district court to dismiss the remaining counts of the indictment.
Subsequently, Hawthorne was sentenced to two years incarceration and a fine of $10,000.00 on Count 40. On Count 26, Hawthorne received a suspended sentence. On Count 33, the focus of this appeal, the district court, in apparent reliance on the Government's Sentencing Memorandum,
Pursuant to 18 U.S.C. § 3651 (1982) a district court is authorized to order restitution as a condition of probation.
The government maintains, however, that this Court's recent decisions in United States v. Martin, 788 F.2d 184 (3d Cir.1986) and United States v. Woods, 775 F.2d 82 (3d Cir.1985), support the proposition that where the count to which the defendant has entered a guilty plea charges one component of a "unitary scheme," the defendant may be required to make full restitution for all of the losses caused by the scheme.
Appellant contends "that pursuant to 18 U.S.C. Section 3651 and this Court's decision in U.S. v. Buechler, 557 F.2d 1002 (3d Cir.1977), absent a plea agreement which specifies restitution in an amount greater than the conviction as a condition of probation, or the defendant agreeing to such excess restitution, an order of restitution greater than the conviction is improper." Brief of Appellant at 4.
Brief of Appellant at 12 (emphasis in original). Although appellant perhaps overstates the limitation on the district court's power to impose restitution as a condition of probation,
In United States v. Buechler, supra, we reserved the question "whether restitution in an amount exceeding that involved in the count to which a guilty plea is entered may be imposed as a condition of probation,
Our decisions in Woods and Martin indicate our approval of the broader conception of the term "offense" in § 3651 that has been accepted in other circuits. See, e.g., United States v. Davies, 683 F.2d 1052, 1055 (7th Cir.1982) (offense involved "a continuing scheme to defraud"); Phillips v. United States, 679 F.2d 192, 194 (9th Cir.1982) (in mail fraud cases, offense includes fraudulent scheme alleged as element of offense); United States v. Tiler, 602 F.2d 30, 34 (2d Cir.1979) (conspiracy to defraud covers actual damages incurred as result of scheme). Under this broader conception, the district court may properly order restitution in an amount exceeding that charged in the particular count(s) to which defendant pleaded guilty. Here, appellant essentially asks us to condition the exercise of that authority on the defendant's explicit agreement thereto. We decline to do so. At a minimum, however, a defendant is entitled to some notice, from the prosecution or the district court, that restitution may be imposed as a result of his or her plea.
In the instant case, the failure of the district court and the government to inform Hawthorne of the possibility of restitution cannot be considered to have been without significance. The plea agreement indicates that, although the government specifically maintained that it would recommend that Hawthorne be sentenced to a period of incarceration,
Id. See also United States v. Garcia, 698 F.2d 31, 36 (1st Cir.1983) ("[P]articularly where the amount involved is as large as it is here, restitution is a material condition unlikely to be left to implication. Implying such a condition [subsequent to the negotiated plea] would work a material change in the plea bargain.") Runck clearly requires some notice to the defendant of the possible imposition of restitution. We find this reasoning equally applicable here, although we conclude that this Court's opinions in Woods and Martin do not mandate both notice to and agreement from the defendant. Consequently, while we join the Runck court in requiring notice, we do not believe that our cases impose a prior agreement requirement on prosecutors or the district courts.
In Woods we held that, where "the likelihood of a restitution order and its extent were fully explained ... by the district court before accepting the plea," the defendant could not later vitiate his plea on the ground that restitution was inconsistent with the terms of the plea agreement. 775 F.2d at 83, 86-87. Similarly, considering the effect of the enactment of the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3579 (1982) on the district court's responsibility under Federal Rule of Criminal Procedure 11(c)(1)
Fed.R.Crim.P. 11 advisory committee's note (1985 Amendment) (emphasis added). We think the possibility of a restitution order under § 3561 requires no less.
In sum, then, where a plea is sought on a count(s) on which restitution in an amount exceeding that charged in the particular count(s) may properly be imposed, the government must in the course of negotiating the plea, inform the defendant of the possibility that restitution will be required, so as to afford the defendant a full opportunity to assess adequately all the consequences prior to entering a plea of guilty. In the absence of a provision for restitution in the plea agreement, the district court must, prior to accepting the plea, inform the defendant of the possibility of its imposition before a subsequent order of restitution in an amount exceeding that charged in the count(s) to which the defendant pleaded may be sustained. Because neither the government nor the district court in the instant case informed Hawthorne of the possibility of restitution prior to her plea agreement, the order for restitution exceeding the amount in the counts to which she pled guilty cannot stand.
Ordinarily, where a sentence imposed is inconsistent with the terms of a plea agreement, the proper remedy is to remand to the district court to "conform the sentence to the provisions of the plea bargain or allow withdrawal of the plea." United States v. American Bag & Paper Corp., 609 F.2d 1066, 1068 (3d Cir.1979). See also Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971) (same). In a last-ditch effort to obtain an order of full restitution against Hawthorne, the government urges us to remand this case for resentencing on Count 26, which charges Hawthorne with mail fraud.
We recognize, however, that the district court may have imposed a different
In United States v. Busic, 639 F.2d 940 (3d Cir.1981), this Court conducted an exhaustive review of the law of double jeopardy. As we noted in Busic, contrary to appellant's contention, it is well settled that "correction of an illegal sentence by resentencing does not implicate double jeopardy rights." Id. at 946-47 (citing United States v. Denson, 603 F.2d 1143, 1148 (5th Cir.1979)(en banc)). Our disposition of this case simply does not implicate double jeopardy considerations. Moreover, the district court's authority on remand to "conform the sentence to the provisions of the plea bargain," American Bag & Paper Corp., supra, contemplates the authority to impose the maximum sentence, absent the excised illegality, that could have properly been imposed in the first instance. Thus, although the district court, if it elects to impose restitution, is limited to that amount charged in the counts to which Hawthorne entered a plea, the court may impose a fine of up to five thousand dollars ($5,000) and a term of imprisonment up to five years if such penalties are appropriate at the time of resentencing.
Similarly, in United States v. Martin, 788 F.2d 184 (3d Cir.1986), we noted in dicta that "a scheme to defraud furthered by separate mailings may properly be viewed as one unitary offense," id. at 189, and that the district court was authorized pursuant to § 3651 to "order restitution for all losses suffered" as a result of the scheme. Id. at 189 n. 6.
Furthermore, at the Change of Plea Sentencing proceeding, appellant Hawthorne represented her full understanding of the plea agreement to be as follows: "At trial they request that I go to jail." Change of Plea Sentencing, Transcript at 8. According to this record, the first mention of restitution was at the time it was imposed. Jt.App. at 50-51.
(c) Advice to Defendant. Before accepting a plea of guilty ..., the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
In United States v. Paul, 783 F.2d 84 (7th Cir.1986), the Seventh Circuit considered whether the district court could properly transfer a restitution order, imposed in violation of § 3561, from one count of embezzlement on which imprisonment was also imposed, to another count of embezzlement for which no imprisonment had been imposed. The Seventh Circuit held that the district court properly shifted the restitution to the second count to which Paul had pleaded guilty. See id. at 87. Two factors distinguish Paul from this appeal. First, in Paul both the original count on which restitution was imposed and the second count to which the restitution order was moved charged the defendant with the same offense, embezzlement. Here, Counts 26 and 33 charge appellant with mail fraud and false representation of a Social Security number, respectively. More important for the purposes of this appeal, in Paul the district court specifically informed the defendant that "`in addition to a maximum sentence ... I can impose upon you the requirement that you make restitution up to the amount approved by the government. Asked whether she understood, Mrs. Paul replied affirmatively." Id. at 86. Hawthorne never received such notice.
Fed.R.Crim.P. 11. We think that the imposition of restitution in the amount of $231.00, notwithstanding the absence of notice to Hawthorne of the power of the court to impose restitution at all, satisfies the mandates of this section. Moreover, in appellant's motion for correction of sentence, Hawthorne "suggested that restitution cannot exceed $231.00, ... [and requested] that the current sentence of th[e district c]ourt be corrected to reflect the lesser amount of restitution." Joint App. at 57. Thus, if on remand Hawthorne's plea is enforced, the maximum restitution that may be properly imposed — whether as a condition of probation or as part of a sentence — is two-hundred and thirty one dollars ($231.00).
In the instant appeal, the government argues that our opinion in Busic authorizes similar disposition of Hawthorne's unchallenged sentences. See Letter Brief of the Government at 3. (In that regard, it should be noted that the government limits its Busic argument to vacation of and resentencing on only Count 26.) By its own terms, however, Busic dealt with cases "where the sentences were interdependent," 639 F.2d at 947, and has been cited in this Circuit only in cases involving sentences on counts charging lesser included offenses, see Government of Virgin Islands v. Soto, 718 F.2d 72, 75 (3d Cir.1983); predicate offenses, see United States v. Gomberg, 715 F.2d 843, 851 (3d Cir.1983); or merged offenses, see United States v. Marino, 682 F.2d 449 (3d Cir.1982). In addition, since Busic, at least two other Circuits have expressed reservations as to the propriety of increasing the penalty on an unchallenged legal sentence to compensate for a vacated illegal sentence where the sentences involved were not interdependent. See United States v. Jefferson, 760 F.2d 821, 824 n. 1 (7th Cir.1985) ("We do not decide here whether, in a context ... in which the various counts are not interrelated[,] ... increasing the sentence on one count to compensate for a vacated illegal sentence would violate due process under [North Carolina v.] Pearce, [395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)]); McClain v. United States, 676 F.2d 915, 918 (2d Cir.1982) (accepting this Court's holding in Busic that "the Double Jeopardy Clause does not prohibit, on resentencing after an appeal by defendant of a sentence on one count and vacatur of the entire sentence, imposition of a higher sentence on the remaining count," with the qualification that "what we have said above is in no way addressed to a situation involving concurrent or non-interlocking sentences"). Although what constitutes an interrelated sentence was not defined by this Court in Busic, the Jefferson court recognized an interrelatedness where "the evidence for the illegal counts was also the evidence for the legal counts." 760 F.2d at 824 n. 1. Because we will remand for resentencing only as to Count 33, we need not address this issue.
Of course, upon remand the district court must resentence in accordance with the due process considerations enunciated by the Supreme Court in North Carolina v. Pearce. See 395 U.S. 711, 723-26, 89 S.Ct. 2072, 2079-81, 23 L.Ed.2d 656 (1969).