UNITED STATES of America, Plaintiff-Appellee,

                                                     v.

                                Kenneth ROMINES, Defendant-Appellant.

                                               No. 98-5401.

                                     United States Court of Appeals,

                                             Eleventh Circuit.

                                              Feb. 18, 2000.

Appeal from the United States District Court for the Southern District of Florida.(No. 96-CR-349-SH), Shelby
Highsmith, Judge.

Before BLACK and HULL, Circuit Judges, and GOODWIN*, Senior Circuit Judge.

        PER CURIAM:

        Kenneth Romines appeals an order of restitution imposed upon revocation of a term of supervised

release. The government concedes that the district court plainly erred, although disagreeing to some extent

with Romines on the grounds. For the reasons outlined below, we hereby vacate the restitution order.

        After being originally convicted and sentenced for interstate transportation of stolen goods, Romines

completed the custodial term of that sentence, but violated his supervised release. He was next sentenced to

ten additional months of imprisonment. Confined in a half-way house, he escaped, was caught, and convicted

of escape from custody. This conviction resulted in a sentence of fifteen months of additional imprisonment

to be followed by two years of supervised release.

        After serving the custodial portion of the escape sentence, Romines again commenced a period of

supervised release. He obtained residence and employment from Stephen and Vicki Gailey, who trusted him

to their detriment. On April 29, 1997, Romines drew and cashed an $8000 check on the Gailey's corporate

bank account, and rode away on a motorcycle owned by the Gaileys. After a year of freedom, he was again




   *
    Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
apprehended and brought into the district court to show cause why his supervised release on the escape

sentence should not be revoked, and an enhanced sentence imposed.

        At his revocation and sentencing hearing, Romines admitted that he had violated the conditions of

his release following his conviction on the escape charge. Romines also admitted that he had victimized the

Gaileys when he absconded from the supervised release on the escape sentence. However, no court charged

him with embezzlement, and the Gaileys elected not to press charges.

        The district court then (1) revoked Romines's supervised release, on the escape sentence, (2)

sentenced him to twenty-one months of imprisonment to be followed by an additional fifteen months of

supervised release, and (3) ordered him to pay the Gaileys $8000 in restitution. Romines did not object to

the restitution at time of sentencing, but now appeals the restitution provision of the latest supervised release

sentence.

         This court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

Romines filed a motion for leave to file a late notice of appeal, and the district court granted the motion.

Accordingly, for our purposes, the appeal is timely. See Brooks v. Britton, 

(11th Cir.1982);

Fed R.App. P. 4(b). Because Romines failed to object to the restitution order at sentencing, we review only

for plain error. See United States v. Davis, 

, 462 (11th Cir.), cert. denied, 

, 

, 

(1997). Unfortunately for the planned sentence, plain error is present. The crime

of conviction, for which Romines has been sentenced to serial periods of supervised release after his

conspicuous failures to comply with earlier sentencing conditions, was the crime he committed when he

escaped from the half-way house, now some years in the past. The only victim of that crime was the

government, whose confidence in Romines's rehabilitation seems to have been misplaced.

        The Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3556, 3663(a)(1), authorizes

restitution to compensate "victims of the offense," which has been interpreted to allow district courts to

impose restitution only for losses caused by the conduct underlying the offense of conviction. See Hughey



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v. United States, 

, 412-13, 

, 

(1990); United States v. McArthur,

, 1352 (11th Cir.1997).1 Restitution here was ordered as a condition of supervised release,

rather than under the VWPA. Still, the same limitation applies to orders as conditions of probation and

supervised release, because the rules regarding probation and supervised release adopt the VWPA standard

and authorize restitution for "victims of the offense." 18 U.S.C. § 3563(b)(2) (regarding probation); 18

U.S.C. § 3583(d) (applying § 3563(b) to supervised release); Gall v. United States, 

, 108 (6th

Cir.1994); United States v. Cottman, 

, 169 (3rd Cir.1998).

        Romines's original federal offense (interstate transportation) resulted in a conviction and sentence

which did not include a provision for restitution. The next crime for which he was sentenced was the escape

from custody. The challenged restitution provision was prompted by conduct which did not underlie, or have

anything to do with, either his original offense or his first escape. The violation of the terms of his supervised

release (absconding from supervision) resulted not in a conviction of crime, but in the revocation of his

supervised release on the escape sentence and an increased custodial term. This additional penalty relates

back to the conviction for the escape from the half-way house.

        The restitution order here was unauthorized because while the Gaileys were victims, they were not

victims of the "offense of conviction"—the escape from the half-way house. That escape had no victim but

the government and was completely unrelated to the embezzlement and flight from the Gaileys. The

revocation of supervised release was not the offense of conviction, but was "part of his original

sentence"—the escape from the half-way house—"and constituted punishment for the crimes underlying that

sentence." United States v. Woods, 

, 992 (11th Cir.1997).

        As for the embezzlement itself, it remains uncharged. The restitution order was imposed in a

commendable effort to provide some remedy to innocent victims of the defendant's effort to regain his liberty

    1
     The two 1990 post-Hughey amendments to the VWPA do not apply here. First, restitution was not
ordered as a part of a plea agreement. See 18 U.S.C. § 3663(a)(3). Second, revocation of supervised release
is not "an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity." 18
U.S.C. § 3663(a)(2). Thus, the Hughey rule limiting restitution to "victims of the offense" still applies.

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at the Gailey's expense. In the absence of textual authority to grant restitution, however, this is a matter better

left to the criminal or civil courts of Florida.

        Accordingly, the judgment of restitution is VACATED.




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