United States v. Weinlein

22-533
United States v. Weinlein
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2023
No. 22-533
UNITED STATES OF AMERICA,
Appellee,
v.
LAURIE WEINLEIN,
Defendant-Appellant.
On Appeal from the United States District Court
for the Northern District of New York
SUBMITTED: NOVEMBER 30, 2023
DECIDED: JULY 25, 2024
Before: LYNCH, PARK, and MENASHI, Circuit Judges.
Defendant-Appellant Laurie Weinlein was convicted of bank
fraud and embezzlement from an employee benefit plan and
sentenced to sixty-three months in prison, a five-year term of
supervised release, and over $2 million in restitution payments. At
the time Weinlein committed her crimes, the Victim and Witness
Protection Act (“VWPA”) provided that a criminal restitution

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obligation terminated twenty years from the date of judgment. In
1996, Congress enacted the Mandatory Victims Restitution Act
(“MVRA”), which extended the enforcement period for restitution
orders. In 2021, in response to a subpoena from the government
seeking information on her finances and her ability to pay restitution,
Weinlein moved to terminate her restitution obligation. She argued
that the VWPA’s enforcement period had expired and that
retroactively applying the longer MVRA enforcement period to allow
the government to collect further restitution payments would violate
the Ex Post Facto Clause of the Constitution. The district court denied
Weinlein’s motion. We affirm the judgment of the district court.
Judge Menashi concurs in a separate opinion.
Adam J. Katz, John D. Hoggan, and Steven D. Clymer,
Assistant United States Attorneys, for Carla B. Freedman,
United States Attorney for the Northern District of New
York, Syracuse, New York, for Appellee.
Samuel C. Breslin, Breslin Law Group, Albany, New
York, for Defendant-Appellant.
MENASHI, Circuit Judge:
Defendant-Appellant Laurie Weinlein was convicted of bank
fraud and embezzlement from an employee welfare benefit plan in
2000.1 She was sentenced to sixty-three months in prison and a five-
year term of supervised release and was assessed over $2 million in
1 Weinlein now uses the surname “Black.” The parties refer to her by the
name “Weinlein” in the briefing, however, so we do as well.

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restitution payments. Weinlein committed the underlying criminal
acts in 1994 and 1995. In 1996, Congress enacted the Mandatory
Victims Restitution Act (“MVRA”), which extended the enforcement
period for criminal restitution obligations provided by 18 U.S.C.
§ 3613(b). Under the predecessor statute of the MVRA, the Victim and
Witness Protection Act (“VWPA”), Weinlein’s restitution obligations
would have terminated in 2020. Weinlein argues that applying the
MVRA’s enforcement period retroactively to allow the government to
continue to collect restitution payments from her violates the Ex Post
Facto Clause of the Constitution. We disagree and affirm the judgment
of the district court.
BACKGROUND
In 1989, Weinlein founded American Payroll Network, Inc.
(“APN”), an employee leasing business based in Albany, New York.
APN managed payroll, taxes, insurance, and other back-office
functions for small companies. To do so, APN would take its
customers’ employees onto its own payroll, manage their taxes,
insurance, and other back-office functions, and then lease the
employees back to the customers, receiving a fee in return for these
services.
APN maintained several bank accounts at two different
banks—Marine Midland Bank and Key Bank. The company used
these accounts to handle its customers’ payroll and to pay its own
operating expenses. Between September 1994 and February 1995,
Weinlein engaged in a “kiting” scheme to defraud the two banks. The
first step in the scheme involved writing a check on the Marine
Midland operating account—which was not covered by the funds in
the account—and depositing it in the Key Bank operating account.
Key Bank, unaware that the check was not supported by sufficient

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funds in the Marine Midland account, would immediately credit
APN’s account at Key Bank. While the check was being processed,
Weinlein would wire money from the Key Bank operating account to
the Marine Midland operating account to cover the overdraft, and
Marine Midland would immediately credit APN’s account. Finally,
Weinlein would write another check on the Marine Midland
operating account and deposit it in the Key Bank operating account
to cover the wire transfer. By repeating this process, Weinlein
artificially inflated the balances in each account—because the checks
and wire transfers increased the banks’ balances with the Federal
Reserve even before the funds were transferred—and enabled APN
to write checks for more money than it had.2 The scheme resulted in
a loss of approximately $1,000,000 to Marine Midland Bank.
In addition, beginning around July 1993, APN adopted a self-
funded, self-insured health insurance plan for its customers and
employees. Between 1993 and 1995, APN contracted with third-party
administrators to process and pay claims. By the fall of 1994, APN
was behind on its reimbursement payments to the third-party
administrators, and there were substantial unpaid claims. It turned
out that, between May 1994 and February 1995, Weinlein had
embezzled approximately $300,000 from the plan and converted the
money to her personal use.
As noted in the judgment of conviction in the district court, the
conduct underlying Weinlein’s convictions concluded on February
2 See Williams v. United States, 458 U.S. 279, 281 n.1 (1982) (noting that a
check kiter “take[s] advantage of the several-day period required for the
transmittal, processing, and payment of checks from accounts in different
banks” by using the float offered at each bank “as an interest-free loan for
an extended period of time”).

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10, 1995. At that time, the VWPA, which Congress enacted in 1982,
governed the issuance and enforcement of restitution orders. Under
the VWPA, a defendant’s liability for restitution terminated twenty
years after the judgment of conviction was entered. See 18 U.S.C.
§ 3613(b)(1) (1995). In 1996, Congress enacted the MVRA as part of the
Antiterrorism and Effective Death Penalty Act of 1996. See Pub. L. No.
104-132, tit. II, §§ 201-11, 110 Stat. 1214, 1227-41 (1996). Among other
changes to the statutes governing criminal restitution, the MVRA
amended § 3613(b) to provide that “[t]he liability to pay restitution
shall terminate on the date that is the later of 20 years from the entry
of judgment or 20 years after the release from imprisonment of the
person ordered to pay restitution.” 18 U.S.C. § 3613(b) (emphasis
added). Congress specified that the amendment “shall, to the extent
constitutionally permissible, be effective for sentencing proceedings
in cases in which the defendant is convicted on or after the date of
enactment of [the] Act.” Pub. L. No. 104-132, tit. II, § 211, 110 Stat.
1214, 1241 (1996).
Weinlein was indicted in the Northern District of New York on
May 22, 1998. The indictment charged her with two felonies: bank
fraud in violation of 18 U.S.C. § 1344 and embezzlement from an
employee welfare benefit plan in violation of 18 U.S.C. § 664.
Weinlein was convicted on both counts on February 28, 2000, and
sentenced to sixty-three months in prison and five years of supervised
release. In addition, she was ordered to pay $2,171,381.89 in
restitution. The district court determined that Weinlein was unable to
pay interest, so it waived interest on the restitution payments. On
April 11, 2000, the district court increased her restitution obligation
by $14,367.98 to account for losses incurred by an additional victim,
bringing her total restitution liability to $2,185,749.87.

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According to the certified payment history report of December
6, 2022, Weinlein made semi-regular payments amounting to between
$300 and $2,700 per year toward her restitution obligation from July
30, 2004, until June 29, 2009. By May 2, 2014, Weinlein had made a
total of $9,941.24 in payments, leaving a balance of $2,175,808.63. On
April 13, 2021, the Office of the United States Attorney for the
Northern District of New York wrote to Weinlein, noting that no
payments had been received since 2014 and asking her to complete a
financial statement that would allow the office to ascertain her ability
to pay.
Weinlein produced a financial statement on June 4, 2021, but
the government suspected it was incomplete and requested
supplemental information.3 On July 19, 2021, after Weinlein failed to
return a complete financial statement, the government issued a
subpoena duces tecum for Weinlein’s financial records and a
testimonial subpoena. Weinlein moved in the Northern District of
New York to quash the subpoenas and to terminate her restitution
obligation. Because Weinlein resided in Texas at the time, she invoked
Federal Rule of Civil Procedure 45(d)(3)(A)(ii), which requires a
district court to quash or to modify a subpoena issued with respect to
a person who resides more than 100 miles from the seat of the
tribunal. In addition, Weinlein argued that the subpoenas should be
quashed—and her restitution obligation terminated—on the ground
that the enforcement period for restitution obligations under the
3 In the district court, the government submitted the affidavit of an
investigative financial analyst in the United States Attorney’s Office who
said that Weinlein had “failed to disclose a multitude of assets” in her
financial statement, including “bank accounts and corporate holdings” that
“could and … should be used to satisfy her restitution obligations.” App’x
52.

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VWPA had expired. She maintained that retroactively applying the
MVRA’s amendments to 18 U.S.C. § 3613(b), which extended the
enforcement period until November 10, 2024—that is, twenty years
from the date Weinlein was released from prison—would violate the
Ex Post Facto Clause of the Constitution.
The district court denied the motion to terminate the restitution
obligation, holding that retroactive application of the MVRA’s
enforcement period did not violate the Ex Post Facto Clause. The
district court similarly declined to quash the subpoenas on that
ground, but it granted the motion to quash the subpoenas under Rule
45(d)(3)(A)(ii). This appeal followed.
DISCUSSION
Weinlein argues on appeal that retroactively applying the
MVRA’s longer enforcement period to allow the government to
collect further restitution payments violates the Ex Post Facto Clause.
The government suggests, however, that Weinlein lacks standing to
pursue this appeal because she prevailed when the district court
granted her motion to quash the subpoenas under Rule
45(d)(3)(A)(ii).
Before addressing those arguments, we consider whether we
lack jurisdiction to entertain Weinlein’s appeal because this action
amounts to an improper collateral attack on her criminal sentence. We
conclude that it does not. Next, we conclude that Weinlein has
standing to appeal because the denial of her motion to terminate her
restitution obligation created an independent injury in fact. Finally,
on the merits, we hold that retroactively applying the MVRA’s longer
enforcement period to a defendant who committed crimes when the
VWPA was in effect does not violate the Ex Post Facto Clause.

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I
Before reaching the merits, we address two threshold issues
that could implicate our jurisdiction to consider this appeal.
A
The first threshold issue is whether Weinlein’s action
constitutes an improper collateral attack on her sentence. The
government argued before the district court that Weinlein’s action
amounts to such a collateral attack and that it is barred because she
failed to raise her constitutional claims on direct appeal from her
conviction. See App’x 45 (“With regard to [Weinlein’s] attempt to
collaterally attack her judgment of conviction, it is clear as a matter of
law that she cannot ask the Court to do so through the instant motion
because she failed to raise any such arguments on direct appeal.”).
The Supreme Court has said that “[o]ut of respect for finality, comity,
and the orderly administration of justice, a federal court will not
entertain a procedurally defaulted constitutional claim in a petition
for habeas corpus absent a showing of cause and prejudice to excuse
the default.” Dretke v. Haley, 541 U.S. 386, 388 (2004).
The government has abandoned that argument in its appeal to
this court, and in any event we conclude that Weinlein’s action does
not constitute a collateral attack on her sentence. When Weinlein
moved in the district court to terminate her restitution obligation, she
asked the district court to declare only that the enforcement period
had expired; she did not challenge the validity or the amount of the
restitution order. That does not amount to a motion “to vacate, set
aside or correct the sentence.” 28 U.S.C. § 2255(a).

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B
The second threshold issue is the government’s argument that
Weinlein lacks standing to pursue this appeal. “One of the
prerequisites to appellate jurisdiction … is that the appellant has
standing to pursue the appeal,” and “[s]tanding to appeal is conferred
only on parties ‘aggrieved’ by the judgment.” Concerned Citizens of
Cohocton Valley, Inc. v. N.Y. State Dep’t of Env’tl Conservation, 127 F.3d
201, 204 (2d Cir. 1997). As the government notes, the district court
granted Weinlein’s motion to quash the subpoenas under Rule 45(c),
despite its rejection of her argument that the subpoenas should be
quashed because enforcement of the restitution order would violate
the Ex Post Facto Clause. “[I]f a court grants the ultimate relief a party
requested, even though on grounds other than those urged by the
prevailing party, that party is generally not ‘aggrieved’ by the
judgment and may not appeal.” Id.; accord Allstate Ins. Co. v. A.A.
McNamara & Sons, Inc., 1 F.3d 133, 137 (2d Cir. 1993) (holding that an
appellant lacked standing because it was “not urging that we alter the
judgment in any way, but rather that we alter the reasons underlying
it”).
It is true that Weinlein obtained the relief she sought in her
motion to quash the subpoenas. But Weinlein separately moved to
terminate her restitution obligation. The district court denied that
motion, and Weinlein appeals from that denial. The government
asserts that Weinlein “cannot show that she is aggrieved” by the
denial of that motion and that she “can be aggrieved only by
additional government attempts to collect restitution, which were not
part of the district court litigation from which she appeals.”
Appellee’s Br. 15.

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We disagree. When a party has received “some, but not all, of
the relief she requested,” she “can appeal the District Court’s order
insofar as it denies her the relief she has sought.” Forney v. Apfel, 524
U.S. 266, 271 (1998). Having succeeded in quashing the subpoenas,
Weinlein may not be subject to an immediate obligation to pay
restitution. Yet because the restitution obligation has not been
terminated, Weinlein may be required to make payments in the
future. The federal appellate courts “have generally recognized” that
even “threatened harm in the form of an increased risk of future
injury may serve as injury-in-fact for Article III standing purposes.”
Baur v. Veneman, 352 F.3d 625, 633 (2d Cir. 2003); see also 15A Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 3902 (3d ed.) (stating that “standing to appeal can be
supported by abstract or slight injuries,” including “probabilistic
injury”). And at least two federal appellate courts have exercised
jurisdiction over an appeal from the denial of a motion to terminate
the appellant’s restitution order. See United States v. Rosello, 737
F. App’x 907, 907 (11th Cir. 2018); United States v. McGuire, 636
F. App’x 445, 446 (10th Cir. 2016). We conclude that Weinlein has
standing to maintain this appeal.
II
We now turn to the merits of Weinlein’s constitutional claim.
“We review an Ex Post Facto [Clause] challenge—an issue of law—de
novo.” United States v. Dailey, 868 F.3d 322, 327 (5th Cir. 2017)
(emphasis added); see also United States v. Richardson, 958 F.3d 151, 154
(2d Cir. 2020) (“[W]e review issues of law de novo.”) (quoting United
States v. Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005)).

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A
The Constitution provides that “[n]o Bill of Attainder or ex post
facto Law shall be passed.” U.S. Const. Art. I, § 9, cl. 3. “‘[E]x post facto
law’ was a term of art with an established meaning at the time of the
framing of the Constitution.” Collins v. Youngblood, 497 U.S. 37, 41
(1990). The “category” of ex post facto laws “includes ‘every law that
changes the punishment and inflicts a greater punishment, than the
law annexed to the crime, when committed.’” Peugh v. United States,
569 U.S. 530, 532-33 (2013) (alteration omitted) (quoting Calder v. Bull,
3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase, J.)).
“To violate the Ex Post Facto Clause … a law must be
retrospective—that is, it must apply to events occurring before its
enactment—and it must disadvantage the offender affected by it, by
altering the definition of criminal conduct or increasing the
punishment for the crime.” Abed v. Armstrong, 209 F.3d 63, 66 (2d Cir.
2000) (emphasis added) (internal quotation marks omitted). In
addition, “it has long been recognized by [the Supreme] Court that
the constitutional prohibition on ex post facto laws applies only to
penal statutes which disadvantage the offender affected by them.”
Collins, 497 U.S. at 41. In other words, “‘[e]x post facto’ is a term of art
applicable only to ‘punishment,’” and “if a legislative burden is
imposed ‘for the purposes of punishment—that is, to reprimand the
wrongdoer, to deter others, etc., it has been considered penal.’” Doe v.
Pataki, 120 F.3d 1263, 1272-73 (2d Cir. 1997) (emphasis added)
(quoting Trop v. Dulles, 356 U.S. 86, 96 (1958)). Because we conclude
that the retroactive application of the MVRA’s enforcement period to
Weinlein does not violate the Ex Post Facto Clause in any event, we
assume here—without deciding—that the MVRA imposes a criminal

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punishment by extending the liability period of the restitution order
and therefore meets the penal-statute requirement.4
The Supreme Court has held that the “touchstone” of the ex post
facto analysis “is whether a given change in law presents a ‘sufficient
risk of increasing the measure of punishment attached to the covered
crimes.’” Peugh, 569 U.S. at 539 (quoting Garner v. Jones, 529 U.S. 244,
250 (2000)). “The question when a change in law creates such a risk is
‘a matter of degree’; the test cannot be reduced to a ‘single formula.’”
Id. (quoting California Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995)).
The Court long ago eliminated the “doctrinal hitch” that “purported
to define the scope of the [Ex Post Facto] Clause along an axis
distinguishing between laws involving ‘substantial protections’ and
those that are merely ‘procedural.’” Carmell v. Texas, 529 U.S. 513, 539
(2000). “[B]y simply labeling a law ‘procedural,’ a legislature does not
thereby immunize it from scrutiny under the Ex Post Facto Clause.”
Collins, 497 U.S. at 46. Rather, “the constitutional prohibition is
addressed to laws, whatever their form, which make innocent acts
criminal, alter the nature of the offense, or increase the punishment.”
Id. (internal quotation marks omitted).
4 The government acknowledges that “[t]he majority view among federal
appellate courts is that imposition of a mandatory restitution order under
the MVRA is punitive” and therefore the Ex Post Facto Clause applies.
Appellee’s Br. 24. The leading case representing the minority position is
United States v. Newman, 144 F.3d 531 (7th Cir. 1998), in which the Seventh
Circuit held that restitution orders pursuant to the VWPA are not punitive
under the two-step analysis articulated by the Supreme Court in United
States v. Hudson, 522 U.S. 93 (1997). The Tenth Circuit has also concluded
that “restitution is not punitive and is therefore not governed by the [Ex
Post Facto] Clause.” McGuire, 636 F. App’x at 446.

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Despite the clarification from the Supreme Court, in some of
our cases we have continued to focus on whether a law is
“procedural” or “substantive.” See, e.g., United States v. Kostakis, 364
F.3d 45, 51 (2d Cir. 2004) (“The Act’s change in the standard of review
is ‘properly characterized as procedural rather than substantive and
therefore can be applied to a pending appeal without violating the Ex
Post Facto clause.’”) (emphasis added) (quoting United States v.
Hutman, 339 F.3d 773, 775 (8th Cir. 2003)). The government also
frames the question in this case in terms of the procedural-substantive
distinction.5 Yet the Supreme Court has made clear that the ex post
facto inquiry does not turn on whether a law is “procedural” or
“substantive.” The Court has emphasized that “[t]he prohibition
which may not be evaded is the one defined by the Calder categories.”
Collins, 497 U.S. at 46.6 The question in this case, then, is whether the
5 See, e.g., Appellee’s Br. 11 (“The retroactively[]applied law that Weinlein
challenges … is procedural and not additional ‘punishment’ under the ex
post facto clause even if it may be detrimental to her.”); id. at 23 (“[N]o ex
post facto violation occurs if the change effected is merely procedural, and
does not increase the punishment nor change the ingredients of the offense
or the ultimate facts necessary to establish guilt.”) (internal quotation marks
omitted) (quoting Weaver v. Graham, 450 U.S. 24, 31 (1981)); id. at 31
(“Although retroactive application of the MVRA’s enlargement of the
restitution limitations period may disadvantage Weinlein by extending the
time within which the government can enforce her obligation to make her
victims whole, this is a procedural modification, not a substantive one.”).
6 In Calder, Justice Chase identified four categories of “ex post facto laws”
that fall “within the words and the intent of the prohibition”:
1st. Every law that makes an action, done before the passing of the
law, and which was innocent when done, criminal; and punishes such
action. 2nd. Every law that aggravates a crime, or makes it greater
than it was, when committed. 3rd. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed. 4th. Every law that alters the legal rules

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MVRA “changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when [it was] committed.” Calder,
3 U.S. at 390 (Chase, J.).
B
We must decide whether the retroactive application of the
MVRA’s enforcement period to Weinlein increases the punishment
for her crime. We conclude that it does not.
The district court sentenced Weinlein to pay $2,185,749.87 in
restitution. She is liable for the same total amount regardless of the
length of the enforcement period. The longer enforcement period
funder the MVRA, to be sure, disadvantages Weinlein because under
the VWPA her restitution obligation would have terminated in 2020,
when she had paid only a fraction of the amount due.7 But the effect
on Weinlein of applying the MVRA to extend the enforcement period
is analogous to the effect on a criminal defendant of retroactively
extending the statute of limitations for a crime that is not yet time-
of evidence, and receives less, or different, testimony, than the law
required at the time of the commission of the offence, in order to
convict the offender.
Calder, 3 U.S. at 390 (Chase, J.). The third category is at issue in this appeal.
7 We note, however, that Weinlein could not have been disadvantaged at
the time of her sentencing by the decision of the district court to apply the
MVRA’s enforcement period retroactively. At the time of sentencing,
imposing the longer enforcement period did not increase the present value
of the restitution payments she was obligated to make. “[B]ecause paying
more money later under the MVRA does not increase the value of [a
defendant’s] initial restitution liability, it does not present a significant risk
of increased punishment.” United States v. Norwood, 49 F.4th 189, 222 (3d
Cir. 2022) (Phipps, J., dissenting). The MVRA disadvantages Weinlein now
only because she evaded most of the restitution obligation through 2020.

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barred—and “[t]he long-standing rule in this circuit is that Congress
has the power to extend the period of limitations without running
afoul of the ex post facto clause, provided the original period has not
already run.” United States v. Morgan, No. 96-1632, 1997 WL 268712,
at *7 (2d Cir. May 21, 1997); see also Weingarten v. United States,
865 F.3d 48, 57 (2d Cir. 2017) (“[R]etroactively revoking a vested
statute of limitations defense is different from retroactively extending
the filing period for a still-viable claim.”). Almost a century ago, Judge
Learned Hand wrote for the court that “[c]ertainly it is one thing to
revive a prosecution already dead, and another to give it a longer
lease of life.” Falter v. United States, 23 F.2d 420, 425 (2d Cir. 1928). It
would be “unfair and dishonest” for the government “to assure a man
that he has become safe from its pursuit, and thereafter to withdraw
its assurance,” he explained, “[b]ut, while the chase is on, it does not
shock us to have it extended beyond the time first set, or, if it does,
the stake forgives it.” Id. at 426; see also Stogner v. California, 539 U.S.
607, 629 (2003) (“Judge Hand’s comments [in Falter] had support in
pre-existing case law, commentary, and published legislative
debates.”).
Since that decision, the federal appellate courts have gone on to
“hold—with near uniformity—that Congress may retrospectively
extend a still-open criminal statute of limitations without offending
the Constitution.” Miller v. United States, 77 F.4th 1, 7 (1st Cir. 2023).8
8 See United States v. Marcum, 199 F. App’x 261, 262 n.1 (4th Cir. 2006);
United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir. 1998); United States v.
Brechtel, 997 F.2d 1108, 1113 (5th Cir. 1993); United States v. Taliaferro, 979
F.2d 1399, 1402-03 (10th Cir. 1992); United States v. Knipp, 963 F.2d 839, 843-
44 (6th Cir. 1992); United States v. Madia, 955 F.2d 538, 539-40 (8th Cir. 1992);
United States ex rel. Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir. 1982);

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The Supreme Court has been “careful to leave in place the uniform
decisions by state and federal courts to uphold retroactive extension
of unexpired statutes of limitations against an ex post facto challenge.”
Stogner, 539 U.S. at 650 (Kennedy, J., dissenting).
It follows from that precedent that Congress may also extend
the enforcement period of a restitution order, at least before the
original enforcement period has expired, without violating the Ex Post
Facto Clause. We agree with those circuits that have held that
retroactive application of the MVRA does not violate the Ex Post Facto
Clause. See Rosello, 737 F. App’x at 908 (“The continued enforcement
of Rosello’s judgment of restitution under amended section 3613(b)
does not violate the Ex Post Facto Clause. Amended section 3613(b)
does not retroactively increase Rosello’s sentence. The amended
statute merely extends the span of time in which Rosello’s victims can
collect restitution from him.”); McGuire, 636 F. App’x at 446-47
(holding that “restitution is not punitive and is therefore not
governed by the Ex Post Facto Clause” and that “even if restitution is
punitive, extending an unexpired limitations period does not violate
the Ex Post Facto Clause”); United States v. Richards, 472 F. App’x 523,
525 (9th Cir. 2012) (“Appellee’s argument that application of the
MVRA would violate the Ex Post Facto Clause of the Constitution is
without merit, for an expansion of the period in which Appellee is
liable for restitution does not increase Appellee’s punishment.”).
The Third Circuit disagreed with the Ninth, Tenth, and
Eleventh Circuits in United States v. Norwood, 49 F.4th 189 (3d Cir.
2022). The Third Circuit held that retroactively applying the longer
enforcement period of the MVRA would violate the Ex Post Facto
United States v. Richardson, 512 F.2d 105, 106 (3d Cir. 1975); Clements v. United
States, 266 F.2d 397, 399 (9th Cir. 1959).

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Clause in three ways. First, it would “allow the Government to collect
on the funds at issue here, which Norwood would otherwise not have
to pay.” Id. at 218. Second, it would “increase the total amount of
Norwood’s restitution obligation by subjecting him to decades of
additional interest.” Id. Third, it would “increase the portion of
Norwood’s restitution that he must ultimately pay by permitting the
Government to seek collection over a greater period of time, including
on future income that would otherwise never be subject to collection
under the VWPA.” Id.
The district court in this case waived Weinlein’s obligation to
pay interest on her restitution liability, so the second point is not
relevant here. 9 The other points are unpersuasive. The Supreme
Court has said that a law violates the Ex Post Facto Clause if it
“increas[es] the measure of punishment attached to the covered
crimes,” Peugh, 569 U.S. at 539 (quoting Garner, 529 U.S. at 250),
beyond what “the law annexed to the crime, when [it was]
committed,” id. at 538 (quoting Calder, 3 U.S. at 390 (Chase, J.)). The
purpose of the MVRA and of the predecessor VWPA is to compensate
victims. See United States v. Maynard, 743 F.3d 374, 377-78 (2d Cir.
2014) (“The purpose of the MVRA is to make victims of crime whole,
to fully compensate these victims for their losses and to restore these
victims to their original state of well-being.”) (internal quotation
marks omitted); United States v. Brown, 744 F.2d 905, 910 (2d Cir. 1984)
(“[T]he VWPA was intended to compensate the victim.”). “Since at
least 1898, the Supreme Court has focused upon the intent underlying
9 Even so, we are inclined to the view that retroactively requiring a
defendant to pay interest for a longer period does not impose a new penalty
but merely “ensures … that [the defendant] does not receive a windfall
from his criminal activity” in the form of the time value of money. Norwood,
49 F.4th at 222 (Phipps, J., dissenting).

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18
the enactment of, or the end served by, the challenged sanction as the
touchstone of the ex post facto analysis.” Pataki, 120 F.3d at 1273
(emphasis added). Accordingly, the punishment that the MVRA—
and the predecessor VWPA—annexes to the underlying crime is the
obligation to compensate the defendant’s victims in the amount
determined by the district court at sentencing. 10 The MVRA’s
amendment to 18 U.S.C. § 3613(b) did not increase that restitution
obligation but “merely increased the time period over which the
government could collect” the restitution; Weinlein “remain[s] liable
for the same amount of fines and restitution”—the amount imposed
by the restitution order—under either version of the statute. United
States v. Blackwell, 852 F.3d 1164, 1166 (9th Cir. 2017).
A particular defendant, such as Weinlein, may be financially
unable to compensate her victims fully. But the defendant’s ability to
pay is not the measure of the punishment imposed. Instead, under
both the VWPA and the MVRA, the appropriate sanction is the
“proper amount” of compensation determined “by the court” at
10 The MVRA, as its name suggests, makes restitution mandatory for
certain crimes and requires the district court to “order restitution to each
victim in the full amount of each victim’s losses … without consideration of
the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A).
The VWPA, by contrast, required the district court to consider the
defendant’s economic circumstances. See 18 U.S.C. § 3664(a) (1995). The
federal appellate courts have generally held that “the shift from
discretionary to mandatory restitution increases the punishment meted out
to a particular defendant.” United States v. Edwards, 162 F.3d 87, 89 (3d Cir.
1998) (citing cases). But the MVRA’s extension of the enforcement period
does not itself increase the defendant’s punishment, which is the obligation
to compensate victims in the amount determined by the district court.
Neither party in this case challenges the amount of restitution originally
imposed at Weinlein’s sentencing. All that is at issue here is the time in
which the government may enforce that obligation.

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19
sentencing and reflected in the restitution order. 18 U.S.C. § 3664(e);
id. § 3664(d) (1995) (same). The retroactive extension of the
enforcement period may increase the fraction of the restitution
obligation that Weinlein will ultimately pay, but it may do so only as
a consequence of Weinlein’s having made only modest payments
toward her obligation over the twenty years following her conviction.
The extension does not impose a greater punishment than the
preexisting obligation under the restitution order. The MVRA and
VWPA are concerned primarily with compensation to victims; the
punishment is how much is owed, not how much is paid. See United
States v. Kyles, 601 F.3d 78, 83 (2d Cir. 2010) (explaining that an order
modifying a payment schedule “left untouched the pronounced
amount of restitution” and therefore created “no change in sentence”);
United States v. Cohan, 798 F.3d 84, 89 (2d Cir. 2015) (explaining that
“a writ of garnishment” that “seeks to enforce an already existing
order of restitution” is “not part of [the] defendant’s criminal
sentencing because it does not implicate the imposition of restitution”)
(emphasis added). Instead, the extension does no more than “prolong
the length of time in which the defendant remains responsible for the
consequences of past conduct.” Miller, 77 F.4th at 7.
The Third Circuit saw meaningful differences between the
retroactive extension of an enforcement period for restitution
obligations, on the one hand, and the retroactive extension of an
unexpired criminal statute of limitations, on the other hand. “The
liability period [of the MVRA] and a statute of limitations have very
different legal effects,” it said, because a statute of limitations only
“creates a procedural bar to seeking a remedy or prosecuting a crime
but does not extinguish a plaintiff’s underlying rights or the crime
itself.” Norwood, 49 F.4th at 217. By contrast, the MVRA “expressly
extinguishes a defendant’s liability once the liability period has run.”

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20
Id. at 218. Additionally, a statute of limitations “ensures cases are
brought while evidence is still ripe” while the liability period of the
MVRA “has nothing to do with evidentiary concerns and aims
instead to place a clear temporal limit on a defendant’s liability.” Id.
In our view, these arguments miss the point.
With these arguments, the Third Circuit emphasized that a
statute of limitations primarily serves a procedural or evidentiary
purpose while the MVRA’s sunsetting of restitution liability is a
substantive constraint. The Third Circuit thereby resurrected the
distinction between “procedural” and “substantive” laws that the
Supreme Court has said should not guide the ex post facto analysis. See
Carmell, 529 U.S. at 539. Setting aside that formalistic distinction, a
liability period and a statute of limitations appear to be
fundamentally similar. Each type of provision provides a deadline at
which the consequences that normally attach to criminal activity will
terminate. A person who has committed a crime may expect to be
prosecuted and has no right to avoid prosecution until after the
statute of limitations has expired. 11 Extending the statute of
11 The criminal acquires that right only because of the statutory limitations
period. See Forrest Revere Black, Statutes of Limitation and the Ex Post Facto
Clauses, 26 Ky. L.J. 41, 41 (1937) (“‘Nullum tempus occurrit regi’ is a well
known and ancient maxim of the common law. In the absence of some
statutory bar, a prosecution can be brought no matter how long the time
which has elapsed since the crime charged was committed.”); see also United
States v. Summerlin, 310 U.S. 414, 416 (1940) (“It is well settled that the
United States is not bound by state statutes of limitation or subject to the
defense of laches in enforcing its rights.”). That legal background supports
Judge Hand’s intuition that not “much violence is done to our instinctive
feelings of justice and fair play” when the statute of limitations is extended
“while the chase is on.” Falter, 23 F.2d at 426. Congress may decide whether
to grant the right to be free from prosecution at a certain time, and it may

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21
limitations before it has expired may increase the risk of prosecution,
but it does not violate the Ex Post Facto Clause because the defendant
has not yet acquired the right to be free from that risk. See, e.g.,
Commonwealth v. Duffy, 96 Pa. 506, 514 (1880) (“[W]here a right to
acquittal has not been absolutely acquired by the completion of the
period of limitation, that period is subject to enlargement or repeal
without being obnoxious to the constitutional prohibition against ex
post facto laws.”). Similarly, a person who is convicted of a crime
subject to the MVRA may expect to be required to make restitution to
the victims. Extending the liability period may increase the risk that
the defendant will ultimately be forced to pay the full amount—given
that, like the defendant who has so far avoided prosecution, she has
so far not paid the full amount—but it does not violate the Ex Post
Facto Clause because the defendant does not yet have the right to be
free of the obligation that the restitution order imposed.
The Third Circuit also noted that extending the enforcement
period for restitution liability has collateral consequences. The
extension prolongs the time during which the defendant’s property is
subject to a lien in favor of the government and during which he may
be denied the right to vote, serve on a jury, run for office, drive, or
own a firearm. See Norwood, 49 F.4th at 219. The court clarified that its
“point is not that restitution … can become a form of criminal
punishment when collateral consequences attach” but rather that
“collateral consequences can attach because … restitution is a form of
criminal punishment in the first place.” Id. at 219 n.19. But even
assuming that restitution is a form of criminal punishment, it does not
follow that retroactively extending the enforcement period for
modify that right provided it has not already provided “its assurance” that
the defendant “has become safe from its pursuit.” Id.

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22
restitution liability increases the punishment in violation of the Ex Post
Facto Clause. The purpose of the VWPA and the MVRA is to
compensate victims, and the “punishment” imposed by both statutes
is the obligation to the victims set at sentencing. Depending on the
defendant’s financial circumstances, extending the enforcement
period may—or may not—increase the amount that the defendant
will actually pay. But it does not change the amount of the victims’
losses or the defendant’s obligation to make them whole. Until the
defendant satisfies that obligation, she may be subject to certain
collateral consequences. The “punishment,” however, is the
obligation to compensate the victims in the amount set forth in the
restitution order, not the collateral consequences of failing to do so,
and the time horizon in which a defendant may meet that obligation
is not a separate punishment.12 The retroactive application of the
MVRA’s extended enforcement period does not affect the defendant’s
restitution obligation and therefore does not violate the Ex Post Facto
Clause.
CONCLUSION
Even assuming that restitution is punitive, the retroactive
application of the longer enforcement period for restitution liability
under the MVRA does not violate the Ex Post Facto Clause of the
Constitution. While retroactive application may increase the portion
of the restitution obligation that Weinlein will ultimately pay, the
12 In fact, a shorter time horizon might appear more punitive in some
circumstances. All else equal, even if he is paying interest, a defendant
might prefer to pay a given sum of money over a longer period as opposed
to a shorter period because that would allow him to pay in smaller
installments. If the defendant’s income is so low that he likely will never be
able to pay the full restitution amount, however, the defendant might prefer
a shorter period.

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23
punishment that “the law annexed to the crime, when committed”
remains unchanged. Calder, 3 U.S. at 390 (Chase, J.). We affirm the
judgment of the district court.

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22-533
United States v. Weinlein
MENASHI, Circuit Judge, concurring:
I agree that Weinlein’s action does not amount to a collateral
attack on her sentence. I write separately to explain that, even
assuming that this action constitutes such a collateral attack, a
procedurally improper collateral attack on a criminal sentence is not
a jurisdictional defect. So we would have jurisdiction in any event.
The government’s argument before the district court that
Weinlein is “precluded from attempting to raise a collateral attack
here” raises three concerns. App’x 45. First, a habeas corpus proceeding
under 28 U.S.C. § 2255 is usually the proper mechanism for a federal
prisoner to subject a criminal sentence to collateral attack. Because
this is not a habeas corpus proceeding, we may not be able to entertain
Weinlein’s collateral challenge to the restitution order in the context
of her motion to terminate the order. Second, Ҥ 2255 may not be used
to bring collateral challenges addressed solely to noncustodial
punishments” such as restitution orders. Kaminski v. United States,
339 F.3d 84, 87 (2d Cir. 2003). Because Weinlein is no longer in
custody, we may not be able to address a collateral challenge to her
restitution order even if we overlook the form in which that challenge
was brought. Third, the “procedural default” rule “prevents claims
that could have been brought on direct appeal from being raised on
collateral review absent cause and prejudice.” Yick Man Mui v. United
States, 614 F.3d 50, 54 (2d Cir. 2010); see also 3 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 631 (5th ed.) (“In a
collateral attack under § 2255, the district court may not consider any
matter that the petitioner should have raised at trial or on direct
appeal and did not.”). Because Weinlein could have raised the matter
of the MVRA on direct appeal but did not, we may not be able to

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2
address that argument even if we entertain a collateral challenge in
this posture.
Neither party raises these concerns in this appeal, but it is
appropriate to consider the concerns because of the potential
implications for our subject-matter jurisdiction. “When a requirement
goes to subject-matter jurisdiction,” the Supreme Court has said,
“courts are obligated to consider sua sponte issues that the parties have
disclaimed or have not presented.” Gonzalez v. Thaler, 565 U.S. 134,
141 (2012).
The third concern is the simplest to resolve. The Supreme Court
has held that when a petitioner in a habeas corpus proceeding has failed
to raise a claim on direct appeal from his conviction, “[a] court of
appeals is not required to raise the issue of procedural default sua
sponte.” Trest v. Cain, 522 U.S. 87, 89 (1997) (internal quotation marks
omitted). The court of appeals need not do so because “the presence
of a procedural default” does not “deprive[] the federal court of
jurisdiction.” Id. As the Court has explained, “in the habeas context, a
procedural default, that is, a critical failure to comply with state
procedural law, is not a jurisdictional matter.” Id.1 Our court has also
held in the habeas context that the government may “forfeit[] or
waive[]” the argument that a defendant’s collateral attack has been
procedurally defaulted for failure to raise the issue on direct appeal.
Rosario, 164 F.3d at 732. That means the procedural default is not
1 Trest involved a state-court conviction, while Weinlein was convicted in
federal court, but the principle is the same. See Rosario v. United States,
164 F.3d 729, 732 (2d Cir. 1998); see also United States v. Quinn, 826 F. App’x
337, 339 n.2 (5th Cir. 2020); Oakes v. United States, 400 F.3d 92, 95 (1st Cir.
2005); Howard v. United States, 374 F.3d 1068, 1073 (11th Cir. 2004); Elzy v.
United States, 205 F.3d 882, 886 (6th Cir. 2000); Hines v. United States, 971 F.2d
506, 508 (10th Cir. 1992).

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3
jurisdictional because “[j]urisdictional requirements cannot be
waived or forfeited [and] must be raised by courts sua sponte.”
Boechler, P.C. v. Comm’r of Internal Rev., 596 U.S. 199, 203 (2022).
Of course, “calling a rule nonjurisdictional does not mean that
it is not mandatory.” Gonzalez, 565 U.S. at 146; see also Donnelly v.
CARRP, 37 F.4th 44, 56 (2d Cir. 2022) (“Though not jurisdictional,
mandatory claim-processing rules remain mandatory.”). “The
Supreme Court has repeatedly said that ‘if a party properly raises’ a
mandatory claim-processing rule, the rule is ‘unalterable.’” Donnelly,
37 F.4th at 56 (alteration omitted) (quoting Manrique v. United States,
581 U.S. 116, 121 (2017)). 2 In this case, however, while the
government argued before the district court that Weinlein could not
collaterally attack her sentence because she failed to raise her
arguments on direct appeal, see App’x 45, it has abandoned that
argument on appeal. And there is no question that “objections based
on nonjurisdictional claim-processing rules may be waived or
forfeited.” Donnelly, 37 F.4th at 54 (quoting In re Indu Craft, Inc., 749
F.3d 107, 112 n.7 (2d Cir. 2014)).
The first two concerns more plausibly affect our jurisdiction.
We have held that a federal court lacks subject-matter jurisdiction to
2 The “procedural default doctrine” requires that “[o]ut of respect for
finality, comity, and the orderly administration of justice, a federal court
will not entertain a procedurally defaulted constitutional claim in a petition
for habeas corpus absent a showing of cause and prejudice to excuse the
default.” Dretke v. Haley, 541 U.S. 386, 392, 388 (2004). The “general rule” is
subject only to “a narrow exception,” not applicable here, “when the habeas
applicant can demonstrate that the alleged constitutional error has resulted
in the conviction of one who is actually innocent of the underlying offense,”
id. at 388, and courts are not to “riddle the cause and prejudice standard
with ad hoc exceptions whenever they perceive an error to be ‘clear’ or
departure from the rules expedient,” id. at 394-95.

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4
consider a collateral challenge to the restitution component of a
criminal sentence under § 2255. See United States v. Rutigliano, 887 F.3d
98, 105 (2d Cir. 2018); Kaminski, 339 F.3d at 91. But § 2255 is not the
only possible avenue for Weinlein to subject her restitution obligation
to collateral attack. Writing for himself in Kaminski, Judge Calabresi
argued that an extraordinary writ such as the writ of error coram nobis
could provide collateral relief from the non-custodial aspects of a
criminal sentence—such as a restitution order—that could not be
challenged under 28 U.S.C. § 2255. See 339 F.3d at 89-91; see also United
States v. Morgan, 346 U.S. 502, 507 (1954) (recognizing that the All
Writs Act, 28 U.S.C. § 1651, “gives federal courts power to employ
coram nobis”). The Seventh Circuit has specifically “approved the use
of a writ of error coram nobis to challenge a restitution order.”
Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997).
In Rutigliano, meanwhile, our court acknowledged “[t]he
possibility that coram nobis could afford collateral relief from
restitution,” and we considered whether, assuming it could do so, the
petitioner in that case would be entitled to relief from a restitution
order. 887 F.3d at 108 (“[W]e need not decide if, or when, coram nobis
might be invoked collaterally to challenge the restitution component
of a criminal sentence because, even assuming [the petitioner] could
do so here, her claim would necessarily fail on the merits.”). In
conducting that analysis, we observed that the burden on a party
seeking coram nobis relief is “heavy”:
To secure coram nobis relief, a petitioner must show that
(1) “there are circumstances compelling such action to
achieve justice,” (2) “sound reasons exist for failure to
seek appropriate earlier relief,” and (3) “the petitioner
continues to suffer legal consequences from his

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5
conviction that may be remedied by granting of the
writ.”
Id. (quoting Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996)).
Weinlein may not be able to meet these requirements. In
particular, she may not have a “sound reason” for her failure to raise
her ex post facto argument on direct appeal from her conviction in
2000. But the availability of the writ of error coram nobis—and our
prior precedent considering on the merits whether a petitioner
challenging a restitution order was entitled to coram nobis relief—
indicates that the district court had subject-matter jurisdiction to
consider Weinlein’s motion to terminate the restitution order.
Weinlein could request coram nobis relief from the district court, and
the district court could consider whether that relief was available to
Weinlein and whether Weinlein should receive it. Cf. Morgan, 346 U.S.
at 506-07 (“If there is power granted to issue writs of coram nobis by
the all-writs section, we hold it would comprehend the power for the
District Court to take cognizance of this motion in the nature of a
coram nobis. To move by motion instead of by writ is purely
procedural.”) (citation omitted). If Weinlein cannot establish
entitlement to the writ, that would mean only that she has failed to
state a claim on which relief can be granted. It would not mean that
the district court lacked jurisdiction to hear her request.
In this case, we have no occasion to consider the coram nobis
framework—or Weinlein’s compliance with it—because the
government has waived the issue of whether Weinlein meets the
requirements for coram nobis relief. The government argues only that
Weinlein lacks standing to pursue this appeal and that her ex post facto
argument fails on the merits. I would therefore conclude—even
assuming that this action involves a collateral attack on Weinlein’s
sentence—that neither her use of a motion to terminate the restitution

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6
order nor her failure to raise the ex post facto argument on direct
appeal deprives us of jurisdiction to consider that merits argument.

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