BARRETT, Senior Circuit Judge.
James D. Wainwright ("Wainwright") appeals from a restitution order imposed following his plea of guilty to one count of bank fraud in violation of 18 U.S.C. §§ 2 and 1344.
On May 8, 1990, Wainwright and Margaret J. Moore ("Moore") were charged in a seven-count indictment accusing the two of "devis[ing] and intend[ing] to devise a scheme or artifice to obtain monies, funds, or credits owned by and under the custody and control of" six different banks in the District of Kansas between September 4, 1987, and January 22, 1988. (R., Vol. I, Tab 1 at 2).
On July 9, 1990, Wainwright entered a plea of guilty to Count 7 of the indictment, which alleged that he and Moore "executed and attempted to execute" a scheme to defraud the Mid-American Bank of Roeland Park on October 2, 1987. At the time Wainwright entered his plea, the government represented to the district court that: on October 2, 1987, Moore entered Mid-American and said she was Laverne McNabb; Moore presented a $1,489.00 check drawn from the account of John Snowden; this check had been stolen when it had been blank; Moore withdrew $700.00 of the check in cash and deposited the balance into McNabb's account; when Moore returned later to get the rest of the money, she was denied access. The government also represented that: a month after the Mid-American incident, Moore was caught trying to cash another check at another bank; she was interviewed and confessed that she had been doing this for some time in association with Wainwright; and she told investigators that Wainwright ran the scheme by getting checks from a letter carrier who had stolen them.
On September 10, 1990, Wainwright appeared for sentencing. In accordance with the plea agreement, the government gave the court no sentencing recommendation. The presentence report indicated that the loss suffered by the six banks listed in the indictment totaled $9,927.00. This total included Mid-American's loss of $700.00. The presentence report also indicated that: Wainwright had no income, assets, monthly expenses, outstanding liabilities, or verifiable employment history; Wainwright had supported himself in the past through illegal activity; he had court-appointed counsel; and he could be considered indigent for the purpose of imposing a fine.
The district court sentenced Wainwright to five years imprisonment under Count 7 of the indictment. The court also ordered Wainwright to pay a total of $4,963.00 restitution under the Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. §§ 3579, 3580 (recodified at 18 U.S.C. §§ 3663, 3664), which states that "a defendant convicted of an offense" may be ordered to "make restitution to any victim of such offense." 18 U.S.C. § 3663(a)(1). According to the court, the $4,963.00 restitution order represented half of the losses suffered by all the banks identified in the indictment and included $350.00 of the $700.00 lost by Mid-American. Finally, the court assessed Wainwright $50.00 as to Count 7 pursuant to 18 U.S.C. § 3013 and, upon the government's motion, dismissed Counts 1 through 6. Wainwright did not object to the imposition or amount of restitution.
On appeal, Wainwright asserts that the district court imposed an illegal sentence and thus committed plain error when it imposed a restitution order involving losses not related to Count 7, the only count of
At the outset, we note that Rule 35, supra, provides that the court may correct an illegal sentence at any time. Indeed, the imposition of an illegal sentence constitutes plain error. United States v. Vance, 868 F.2d 1167, 1169 (10th Cir.1989). In Bartone v. United States, 375 U.S. 52, 84 S.Ct. 21, 11 L.Ed.2d 11 (1963), the Supreme Court held that the error in enlarging the sentence in the absence of the defendant constituted plain error which can be noticed at any stage. Plain errors or defects affecting substantial rights may be noticed at any stage even though they were not brought to the attention of the trial court. Rule 52(a), Fed.R.Crim.P., 18 U.S.C. Thus, if the district court did impose an illegal sentence in setting Wainwright's restitution order, Wainwright is entitled to relief.
Under the VWPA, a sentencing court may order "a defendant convicted of an offense" to "make restitution to any victim of such offense." 18 U.S.C. § 3663(a)(1). An order of restitution under the VWPA is part of the sentencing process. United States v. Richard, 738 F.2d 1120, 1122 (10th Cir.1984). An "illegal sentence" is one which is ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by statute, is uncertain as to the substance of the sentence, United States v. Becker, 536 F.2d 471, 473 (1st Cir.1976) (citations omitted), or is a sentence which "the judgment of conviction did not authorize." United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 250, 98 L.Ed. 248 (1954). See also United States v. Romero, 642 F.2d 392 (10th Cir.1981).
In Hughey v. United States, ___ U.S. ___, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990),
Given the plain language of Hughey, the government's argument that Wainwright has waived his right to appellate review by failing to object below is without merit. The government, citing to United States v. Lemire, 720 F.2d 1327 (D.C.Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984), argues that preservation of a sentencing issue on appeal requires comprehensible communication of some sort to the sentencing court to allow the court to correct or modify its error. The government points to United States v. Novey, 922 F.2d 624, 629 (10th Cir.1991), where this court stated in dicta, "Ordinarily, [a] defendant's failure to object would preclude review of the issue on appeal."
In Adams v. United States, 375 F.2d 635, 638 (10th Cir.1967), we quoted the following from United States v. Pridgeon, 153 U.S. 48, 62, 14 S.Ct. 746, 751, 38 L.Ed. 631 (1894), as authority to remand for correction/modification of sentence:
We REMAND to the district court with directions to VACATE its restitution order with the exception of the $350.00 to be paid to Mid-American. We AFFIRM the district court in all other respects.