UNITED STATES of America, Plaintiff-Appellee, v. Donald John LORENZINI, Defendant-Appellant

71 F.3d 1489 95 Cal. Daily Op. Serv. 9446 , 95 Daily Journal D.A.R. 16,519 UNITED STATES of America, Plaintiff-Appellee, v. Donald John LORENZINI, Defendant-Appellant. No. 94-30409. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 12, 1995. Decided Dec. 13, 1995. Michael R. Levine, Assistant Federal Public Defender, Portland, Oregon, for defendant-appellant. Robert B. Ross, Assistant United States Attorney, Portland, Oregon, for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before: SCHROEDER, REINHARDT, and FERNANDEZ, Circuit Judges. Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERNANDEZ. OPINION REINHARDT, Circuit Judge: 1 Mr. Lorenzini, the defendant in this case, pleaded guilty to one count of bank fraud, 18 U.S.C. Sec. 1344 (2) and was sentenced to five years probation with the following conditions: (1) he serve six months home confinement; (2) he acknowledge responsibility for and pay $25,000 of restitution at $600 per month; and, (3) he repay the government his court-appointed attorney's fees in the amount of $4,000 within one year. Lorenzini has raised a number of issues…

concurring and dissenting:

I concur in all but Part I of the majority opinion. 1 As to that part, I cannot agree.

As I see it, the district court does have the authority to order the repayment of all fees as a condition of probation. The required repayment will, at the very least, “promote respect for the law” and “reflect the seriousness of the offense.” See 18 U.S.C. § 3558 (a)(2)(A).

A court’s telling a criminal that there are costs and expenses that one incurs when one commits crimes is quite connected to the seriousness of the offense itself. Due to illness or leniency, Lorenzini was given the advantage of probation. The knowledge that his frauds will cause him to be out of pocket for the costs of defending himself and that he cannot avoid the costs should help bring home to him the seriousness of what he did.

Moreover, a probation term of this kind does help promote respect for the law because a defendant will not get away with defrauding others of their money for his own gain, while at the same time having his affordable defense fees paid by the government. It does so in still another way. As the majority opinion recognizes, the district court can order a defendant to…

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

OPINION

Mr. Lorenzini, the defendant in this case, pleaded guilty to one count of bank fraud, 18 U.S.C. § 1344 (2) and was sentenced to five years probation with the following conditions: (1) he serve six months home confinement; (2) he acknowledge responsibility for and pay $25,000 of restitution at $600 per month; and, (3) he repay the government his court-appointed attorney's fees in the amount of $4,000 within one year. Lorenzini has raised a number of issues on appeal. The principal *1491 one is whether making repayment of court-appointed attorney’s fees a condition of probation violates 18 U.S.C. § 3563 (b).

We recently held that the district court may not make repayment of court-appointed attorney’s fees a condition of supervised release. United States v. Eyler, 67 F.3d 1386, 1393-94 (9th Cir.1995). For the reasons stated below, we now hold that it is improper to order repayment of court-appointed attorney’s fees as a condition of probation.

BACKGROUND

Lorenzini was a used ear dealer in Portland, Oregon. He and his five named co-defendants were indicted for running a scheme to…