United States v. Joseph Orville Youpee

Joseph Youpee appeals the dismissal of his motion to vacate the restitution element of his sentence.

Youpee’s motion, which characterized the relief he sought as available under Fed.R. Crim.P. 35(b), was filed more than 120 days after the imposition of his sentence. The district court dismissed the motion on the basis of an untimely filing and did not address the restitution issues on the merits.

We uphold the restitution provisions of Youpee’s sentence and remand for further proceedings.

I

Youpee entered a guilty plea to one count of theft in violation of 18 U.S.C. §§ 1153 and 661, pursuant to a plea bargain. The guilty plea was based on theft of money and checks from a B & W Quick store. Youpee’s two co-defendants stole a safe and Youpee opened it.

The district court sentenced Youpee to three years imprisonment. The court also ordered Youpee to pay restitution in an amount to be determined by the United States probation office. While the probation office did not recommend probation for Youpee or set a time for repayment, it did determine that Youpee should pay restitution in the amount of $3,383.46 to the Iowa Mutual Insurance Company and in the amount of $83.33 to Robert…