Petition for Writ of Certiorari — Mrugeshkumar Kumar Shah, Petitioner v. United States

No.

In the Supreme Court of the United States

MRUGESHKUMAR KUMAR SHAH, PETITIONER,

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CHRISTOPHER D. MAN

WINSTON & STRAWN LLP

1901 L St., NW.

Washington, DC 20036

(202) 282-5000

JOHN P. ELWOOD

ANTHONY J. FRANZE

Counsel of Record

DANIEL YABLON

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

(202) 942-5000

anthony.franze@arnoldporter.com

QUESTION PRESENTED

Applying the longstanding Apprendi rule, this Court

in Southern Union Co. v. United States, 567 U.S. 343

(2012), held that the Sixth Amendment reserves to juries

the determination of any fact underlying a criminal fine.

The Court reasoned that “[c]riminal fines, like other

forms of punishment, are penalties inflicted by the

sovereign for the commission of offenses,” and the

allowable amount of a fine “is often calculated by

reference to particular facts.” Id. at 349.

As two Members of this Court have recognized, “it

would seem to follow that a jury must find any facts

necessary to support a (nonzero) restitution order,” and a

lower court ruling to the contrary “is worthy of [the

Court’s] review.” Hester v. United States, 139 S. Ct. 509,

510 (2019) (Gorsuch, J., joined by Sotomayor, J.,

dissenting from denial of certiorari).

Nevertheless, the Fifth Circuit below held that

petitioner must pay tens of thousands of dollars in a

criminal restitution penalty, based on facts the jury never

found.

The question presented is:

Whether the Sixth Amendment reserves to juries the

determination of any fact underlying a criminal

restitution order.

PARTIES TO THE PROCEEDINGS

Petitioner Mrugeshkumar Kumar Shah was a

defendant and appellant below.

Petitioner’s co-defendants at trial were Michael

Bassem Rimlawi, Jackson Jacob, Shawn Mark Henry,

Iris Kathleen Forrest, Douglas Sung Won, Wilton

McPherson Burt, William Daniel Nicholson IV, and Carli

Adele Hempel.

All of these co-defendants except

Nicholson and Hempel were also appellants below.

Respondent is the United States of America, appellee

below.

RELATED PROCEEDINGS

United States District Court (N.D. Tex.):

United States of America v. Alan Andrew

Beauchamp, No. 3:16-cr-516 (Apr. 12, 2021)

United States Court Appeals (5th Cir.):

United States of America v. Mrugeshkumar Kumar

Shah, No. 21-10292 (Oct. 2, 2023)

Supreme Court of the United States:

Shawn Mark Henry v. United States, No. 23-716

Jackson Jacob v. United States, No. 23A1059

Michael Bassem Rimlawi v. United States, No.

23A1069

(II)

TABLE OF CONTENTS

Page

Opinions Below ..................................................................... 1

Jurisdiction ........................................................................... 1

Statutory and Constitutional Provisions

Involved ................................................................................. 1

Introduction .......................................................................... 1

Statement .............................................................................. 4

Reasons For Granting The Petition................................... 7

I. The Decision Below Conflicts With This

Court’s Sixth Amendment Jurisprudence ................. 7

A. Like Criminal Fines, A Jury Must Find The

Facts Underlying Criminal Restitution ............... 7

B. The Reasoning Underlying The Court Of

Appeals Decisions Is Inconsistent And

Wrong .................................................................... 12

C. The Question Presented Has Divided

Members Of This Court And Lower Courts ..... 17

II. This Case Provides An Ideal Vehicle To

Address This Recurring Question Of

Exceptional Importance............................................. 21

Conclusion ........................................................................... 23

APPENDIX A:

Fifth Circuit Court of Appeals Decision (March 8, 2024) ....................... 1a

APPENDIX B:

Fifth Circuit Court of Appeals Order Denying Rehearing

(March 8, 2024) ............................. 86a

APPENDIX C:

Fifth Circuit Court of Appeals

Judgment (October 2, 2023) ........ 87a

APPENDIX D:

U.S. Const. Amend. VI. ............... 88a

APPENDIX E:

18 U.S.C. § 3663A ......................... 89a

APPENDIX F:

Second Superseding Indictment

(January 23, 2019) ........................ 93a

(III)

IV

APPENDIX G:

APPENDIX H:

APPENDIX I:

Jury Verdict

(April 9, 2019).............................. 148a

Minute Entry for Sentencing Proceedings for Shah

(March 22, 2021) ......................... 173a

Judgment in a Criminal Case for

Shah (April 12, 2021) .................. 174a

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99 (2013) ........................................................... 7

Apprendi v. New Jersey,

530 U.S. 466 (2000) ................................................... 7, 10

Blakely v. Washington,

542 U.S. 296 (2004) ................................................... 7, 13

Commonwealth v. Andrews,

2 Mass. 14 (1806) .......................................................... 16

Commonwealth v. Smith,

1 Mass. 245 (1804) ............................................ 11, 15, 16

Hester v. United States,

139 S. Ct. 509 (2019)

........................... 2, 3, 10, 11, 13, 15, 16, 17, 18, 19, 21, 22

Kellogg Brown & Root Servs., Inc. v.

United States ex rel. Carter,

575 U.S. 650 (2015) ....................................................... 16

Kelly v. Robinson,

479 U.S. 36 (1986) ......................................................... 15

Lagos v. United States,

584 U.S. 577 (2018) ....................................................... 13

Oregon v. Ice,

555 U.S. 160 (2009) ................................................. 10, 14

Paroline v. United States,

572 U.S. 434 (2014) ................................................. 15, 16

Pasquantino v. United States,

544 U.S. 349 (2005) ................................................... 8, 15

(V)

VI

Cases—Continued

Page(s)

Ramos v. Louisiana,

590 U.S. 83 (2020) ......................................................... 20

Ring v. Arizona,

536 U.S. 584 (2002) ......................................................... 7

Schoonover v. State,

17 Ohio St. 294 (1867) ................................................... 11

Southern Union Co. v. United States,

567 U.S. 343 (2012)

...............................................1, 7, 8, 10, 11, 13, 14, 16, 23

State v. Davison,

973 N.W.2d 276 (Iowa 2022) ........................................ 19

State v. Robison,

314 Kan. 245 (2021) .......................................... 12, 19, 20

State v. Somerville,

21 Me. 20 (1842) ............................................................ 12

United States v. Bajakajian,

524 U.S. 321 (1998) ....................................................... 15

United States v. Booker,

543 U.S. 220 (2005) ....................................................... 22

United States v. Carruth,

418 F.3d 900 (8th Cir. 2005) ........................................ 18

United States v. Green,

722 F.3d 1146 (9th Cir. 2013) ...................................... 17

United States v. Haymond,

588 U.S. 634 (2019) ................................................. 14, 15

United States v. Kluge,

2023 WL 3434035 (M.D. Fla. May 12,

2023) ............................................................................... 20

VII

Cases—Continued

Page(s)

United States v. Leahy,

438 F.3d 328 (3d Cir. 2006) .............................. 17, 18, 20

United States v. Rosbottom,

763 F.3d 408 (5th Cir. 2014) .................................... 6, 12

Constitutional Provisions

U.S. Const. Amend. VI ...................................................... 15

Statutes

18 U.S.C.

§ 1952 ........................................................................... 4, 5

§ 201(b) .......................................................................... 14

§ 3571(d) ........................................................................ 14

§ 3663A .......................................................................... 22

§ 3663A(a)(2) ................................................................... 8

§ 3663A(b) ...................................................................... 13

§ 3663A(c)(1)(B) .............................................................. 8

§ 3664(f)(1)(A) ........................................................... 8, 22

§ 645 ............................................................................... 14

42 U.S.C.

§ 1320a-7b ........................................................................ 4

§ 1320a-7b(b) ........................................................... 4, 5, 9

Act of March 15, 1785, 1785 Mass. Sess.

Laws 263 ............................................................ 11, 16, 17

Crimes Act of 1790, 1 Stat. 112 ................................... 11, 16

Mandatory Victims Restitution Act of

1996, 110 Stat. 1227 ...................................................... 21

VIII

Other Authorities

William Acker, The Mandatory Victims

Restitution Act is Unconstitutional:

Will the Court Say So After Southern

Union, 64 Ala. L. Rev. 803 (2013) ......................... 19, 22

Laura Appleman, Retributive Justice and

Hidden Sentencing, 68 Ohio St. L.F.

1307 (2007)..................................................................... 19

James Barta, Guarding the Rights of the

Accused and Accuser: The Jury’s Role

in Awarding Criminal Restitution

Under the Sixth Amendment,

51 Am. Crim. L. Rev. 463 (2014) ..................... 10, 11, 19

James Bertucci, Apprendi-Land Opens its

Borders: Will the Supreme Court’s

Decision in Southern Union Co. v.

United States Extend Apprendi’s

Reach to Restitution?,

58 St. Louis U. L.J. 582 (2014) ........................ 12, 13, 21

Gretta L. Goodwin, GAO, Federal

Criminal Restitution (Feb. 2018) .............................. 21

Gretta L. Goodwin, GAO, Federal

Criminal Restitution: Department of

Justice Has Ongoing Efforts to

Improve Its Oversight of the Collection

of Restitution and Tracking the Use of

Forfeited Assets (Sept. 2020) ...................................... 22

LaFave, Criminal Procedure § 26.6(c) ........ 2, 8, 10, 19, 21

Cortney Lollar, What is Criminal

Restitution, 100 Iowa L. Rev. 93 (2014) .................... 19

IX

Other Authorities—Continued

Page(s)

Melanie Wilson, In Booker’s Shadow:

Restitution Forces a Second Debate on

Honesty in Sentencing, 39 Ind. L. Rev.

369 (2006)....................................................................... 19

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals and its order

denying rehearing en banc (App. 1a-86a) are reported at

95 F.4th 328.

JURISDICTION

The judgment of the court of appeals was entered

October 2, 2023.

The court of appeals issued a

superseding opinion and denied timely petitions for

rehearing en banc March 8, 2024. On May 30, 2024,

Justice Alito extended the time within which to file a

petition for a writ of certiorari to and including July 8,

2024. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Sixth Amendment provides in relevant part that

“[i]n all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury.”

The Mandatory Victims Restitution Act, 18 U.S.C.

§ 3663A(c)(1)(B), provides in relevant part that criminal

restitution “shall” be imposed in the full amount of the

victim’s loss when “an identifiable victim or victims has

suffered a physical injury or pecuniary loss.”

INTRODUCTION

This case presents an important question that has

divided Members of this Court and jurists throughout the

country: whether the Sixth Amendment reserves to juries

the determination of any fact underlying a criminal

restitution order. The answer is yes.

Applying the longstanding Apprendi rule, this Court

in Southern Union Co. v. United States, 567 U.S. 343

(2012), held that the Sixth Amendment prohibits a court

(1)

2

from ordering a criminal fine based on facts not found by

the jury beyond a reasonable doubt. There is no

principled reason for a different rule to govern criminal

restitution.

Nevertheless, lower courts have resisted that

conclusion based on reasoning that Members of this

Court, federal court judges, state court judges, and

leading criminal law treatises and commentators have

said “isn’t well-harmonized with” Southern Union, and is

“difficult to reconcile with the Constitution’s original

meaning.” E.g., Hester v. United States, 139 S. Ct. 509,

509-10 (2019) (citations omitted) (Gorsuch, J., joined by

Sotomayor, J., dissenting from denial of certiorari);

accord LaFave, Criminal Procedure § 26.6(c) (“[I]f a

judge must impose restitution upon finding loss, a

defendant under Apprendi * * * should have the right to

insist that the government prove that loss beyond a

reasonable doubt to a jury.”).

Instead, over multiple powerful dissents, lower

courts have clung to their pre-Southern Union rulings

that judges can find facts underlying criminal restitution

orders, and have even read this Court’s silence on the

question as tacit approval for such judicial factfinding.

Only this Court can correct course now.

The question is recurring and important. While once

rare, courts now order restitution in thousands of cases

every year. In 2023 alone, federal courts sentenced more

than 8,000 criminal defendants to pay more than $13

billion in restitution. The effects of such massive

restitution orders can be profound since inability to pay

can result in reincarceration and deprive a defendant of

other rights, including the right to carry a firearm, the

right to serve on a jury, and the right to vote.

This case presents an ideal vehicle to resolve the

question. Petitioner preserved this argument at every

stage of the proceedings, and the Fifth Circuit squarely

3

addressed the issue, holding that it was bound by prior

circuit precedent holding that the Apprendi rule does not

apply to criminal restitution. App. 83a. And the record is

clear that the jury never made any of the factual findings

underlying the restitution order here.

Indeed, the judicial factfinding in this case illustrates

the problems with the lower courts’ approach. Adopting

the facts set forth in the presentence report, the district

court issued a restitution order irreconcilable with the

facts found by the jury. The jury convicted petitioner only

of charges related to the federal Anti-Kickback Statute,

which prohibits physicians from paying or receiving any

remuneration for arranging services payable by a federal

health care program. But the jury rejected charges that

petitioner engaged in a conspiracy to make unlawful

referrals payable by private insurers, which fall outside

the Anti-Kickback Statute’s reach. The sentencing court,

however, ordered petitioner to pay restitution to private

insurers as the purported “victims.” App. 81a-82a. And it

did so despite the presentence report’s recognition that

the only victim of an Anti-Kickback Statute violation—the

federal government—suffered no loss as a result of

petitioner’s conduct. Presentence Investigation Report

(PSR) ¶ 111, D. Ct. Dkt. 1194.

Given lower courts’ refusal to reengage on this

question after Southern Union, further percolation is

unlikely to result in course correction. This Court should

thus grant review to ensure that the right to a jury does

not “mean less to people today than it did to those at the

time of the Sixth and Seventh Amendment’s adoption.”

Hester, 139 S. Ct. at 511 (Gorsuch, J., joined by

Sotomayor, J., dissenting from denial of certiorari).

4

STATEMENT

1. Petitioner was a Dallas-area physician who

primarily worked out of his self-owned clinic. From 2011

to 2012, petitioner also intermittently provided medical

services at Forest Park Medical Center Dallas.

In 2016, the government charged numerous

defendants, including the owners and operators of Forest

Park, with what it characterized as a scheme to “enrich

themselves through out-of-network billing and

reimbursement.” App. 100a. The government charged

that Forest Park’s owners, operators, and numerous

doctors used bribes and kickbacks to steer privately

insured patients to the clinic, for whom they could recoup

higher out-of-network reimbursement rates. App. 98a100a.

Though the indictment and trial centered on the

owners of Forest Park and other defendant-physicians—

who made millions from billing private insurers at out-ofnetwork rates—petitioner was swept into the case even

though nearly all his referrals involved patients who were

not privately insured but rather had medical coverage

under the Federal Employees’ Compensation Act

(FECA) or similar state workers’ compensation

programs. App. 105a. Because the government pays

medical costs for FECA beneficiaries on a fixed-fee basis

(with no co-pay), the costs it incurred for those patients

were the same as they would have been had petitioner

performed the procedures at his own clinic rather than

refer them to Forest Park. PSR ¶ 111.

The operative indictment included counts under the

Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, the Travel

Act, 18 U.S.C. § 1952, and a conspiracy to violate those

statutes. App. 100a-126a. The Anti-Kickback Statute

prohibits paying or receiving any remuneration for

arranging services payable by a federal health care

program. 42 U.S.C. § 1320a-7b(b). It does not cover

5

privately insured patients. Id. The Travel Act prohibits

interstate travel with intent to further certain criminal

activity; here, an alleged violation of Texas’s commercial

bribery statute related to kickbacks for privately insured

patients. 18 U.S.C. § 1952(a); see App. 101a-102a.

2. The jury returned a partial guilty verdict against

all defendants. App. 148a-172a. It found that petitioner

did not conspire to violate the Travel Act by seeking

kickbacks for privately insured patients in violation of

Texas’s commercial bribery law. App. 150a. But the jury

convicted him of violations of the Anti-Kickback Statute

and conspiracy to violate the AKS for paying or receiving

remuneration for arranging services payable by a federal

health care program (FECA). App. 150a-151a, 153a, 156a.

Those Anti-Kickback Statute violations consisted of

receiving three payments, totaling $5,000, for referring

FECA beneficiaries to Forest Park. App. 151a, 153a,

156a. The remuneration that petitioner received for these

referrals was substantially less than what he would have

earned had he performed the procedures at his own clinic,

because he would not have had to share the FECA

payment. See Sent. Tr. 12, D. Ct. Dkt. 1775. As the

district court observed at sentencing, petitioner did not

“profit[] like some of the other defendants,” who earned

millions of dollars from out-of-network reimbursements

for privately insured patients. Sent. Tr. 36. Probation

and Pretrial Services acknowledged in petitioner’s

presentence report that referring fixed-fee workers’

compensation beneficiaries to Forest Park rather than

performing the procedures himself cost the federal

government nothing. PSR ¶ 111.

Notwithstanding the jury’s determination that

petitioner’s conviction concerned only referral fees for

federally insured patients, the presentence report

recommended that the court order petitioner to pay more

than $40,000 in restitution to two private insurers under

6

the Mandatory Victims Restitution Act, 18 U.S.C.

§ 3663A. PSR ¶ 110; see also App. 173a. Probation’s

restitution calculation was not based on any facts found by

the jury; indeed, the jury did not convict petitioner of

accepting kickbacks for any privately insured patient.

Instead, Probation relied on its own assessment of billings

for privately insured patients and an analysis by unnamed

Probation “agents” who purported to have calculated,

without providing any backup, “what the [private]

insurance companies would have paid for in-network

procedures.” PSR ¶ 110.

Petitioner objected to Probation’s restitution

calculation on the grounds that private insurers cannot be

victims of an Anti-Kickback Statute violation and that, in

any case, the Sixth Amendment requires the jury to find

all facts underlying a restitution order. Sent. Mem. 27-28,

D. Ct. Dkt. 1541. At sentencing, the district court adopted

Probation’s factual findings and calculation without

comment, and petitioner timely appealed. Sent. Tr. 37-38.

3. The court of appeals affirmed. App. 1a-85a. It

concluded that although the Anti-Kickback Statute does

not apply to private insurers, private insurers were

“victims” here because they were “within the scope of the

conspiracy” and “the MVRA’s definition of ‘victim’ is quite

broad.” App. 81a. It also rejected petitioner’s argument

that the Sixth Amendment requires a jury to find facts

supporting the allowable amount of restitution as

foreclosed by circuit precedent. App. 83a (citing United

States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014)).

The court of appeals denied rehearing en banc.

App. 86a.

7

REASONS FOR GRANTING THE PETITION

I.

The Decision Below Conflicts With This Court’s Sixth

Amendment Jurisprudence

A.

Like Criminal Fines, A Jury Must Find The Facts

Underlying Criminal Restitution

1. In Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), this Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable

doubt.”

Since then, the Court has applied this “bright-line

rule” to a “variety of sentencing schemes that allowed

judges to find facts that increased a defendant’s maximum

authorized sentence.” Southern Union Co. v. United

States, 567 U.S. 343, 348 (2012). The Court has thus held

that a jury must find any fact necessary to increase the

sentencing range under mandatory sentencing

guidelines, Blakely v. Washington, 542 U.S. 296, 303-04

(2004); that a jury must find any fact necessary to

establish a statutory minimum, Alleyne v. United States,

570 U.S. 99, 116 (2013); that a jury must find any fact

necessary to impose a death sentence, Ring v. Arizona,

536 U.S. 584, 609 (2002); and, most recently, that a jury

must find any fact necessary to increase the statutory

maximum and minimum sentences. Erlinger v. United

States, No. 23-370 (U.S. June 21, 2024), slip op. 11. And,

critically, the Court has held that a jury must find any fact

necessary to determine the allowable amount of a criminal

fine. Southern Union, 567 U.S. at 348.

Southern Union controls the question here. In

holding that the Apprendi rule “applies to sentences of

criminal fines,” the Court clarified that the Sixth

Amendment governs both custodial and monetary

punishments. Id. at 346, 348. It explained that it has

8

“never distinguished one form of punishment from

another.” Id. at 350. Instead, Apprendi and subsequent

cases “broadly prohibit judicial factfinding that increases

maximum

criminal

sentences,

penalties,

or

punishments—terms that each undeniably embrace

fines.” Id. (cleaned up). The Court thus held that facts

that increase the allowable amount of monetary penalties

must be found by the jury, because “the amount of a fine,

like the maximum term of imprisonment * * * is often

calculated by reference to particular facts.” Id. at 349.

A criminal restitution order is no different. Like a

criminal fine, “[t]he purpose of awarding restitution * * *

is to mete out appropriate criminal punishment.”

Pasquantino v. United States, 544 U.S. 349, 365 (2005).

And restitution, like a fine, is “calculated by reference to

particular facts,” such as “the amount of the defendant’s

gain or the victim’s loss.” Southern Union, 567 U.S. at

349-50. Under the Mandatory Victims Restitution Act, a

sentencing court must impose criminal restitution in the

full amount of losses by each victim who was “directly and

proximately” harmed by the offense. See 18 U.S.C.

§ 3663A(a)(2), (c)(1)(B), 3664(f)(1)(A).

“[B]efore [restitution] may be imposed, the court

must identify the ‘victim’ entitled to payment,” which can

“become[] more complicated when the offense relates to

the interests of the public in general, as do many

regulatory offenses.” LaFave, Criminal Procedure

§ 26.6(c). “Once the victim is identified, the court must

determine precisely what losses can be considered in

measuring the amount of restitution.” Id. Those facts

determine the mandatory amount of any criminal

restitution order, and thus have “the effect of increasing

both the maximum and minimum sentences” a criminal

defendant faces. Erlinger, slip op. 11.

In this case, the sentencing court, not the jury,

determined these facts. Despite the jury’s determination

9

that petitioner had obtained improper referral fees only

for federally insured patients, the sentencing court

adopted the presentence report’s finding that the

“victims” were two private insurers. PSR ¶ 110; see also

App. 81a-82a. Relying on an unspecified analysis by

Probation “agents,” the sentencing court then calculated

restitution based on the amount private insurers would

have lost using reimbursement rates for privately insured

patients. PSR ¶ 110. But the jury found no harm to any

private insurer. To the contrary, the jury’s verdict

precludes such a finding because it rejected the only

charges against petitioner related to privately insured

patients and convicted him under the Anti-Kickback

Statute alone. App. 150a. That statute, under the

government’s own characterization in the indictment,

covers only services for which payment may be made

under a “Federal health care program.” App. 100a-101a;

see 42 U.S.C. § 1320a-7b(b). Yet the district court

imposed restitution based on the court’s factfinding about

privately insured patients. And the court of appeals

approved that restitution order under the mistaken view

that because the MVRA is “quite broad,” the district court

had carte blanche to award restitution to private insurers

based on judicial factfinding.

In short, the jury did not find that petitioner

victimized any private insurer—the jury rejected such a

finding—but the sentencing court nevertheless ordered

restitution based on its own finding that private insurers

were victims and that they suffered an amount of loss

never determined by the jury.

Had the sentencing court considered only the loss to

the actual “victim” for Anti-Kickback Statute offenses—

the federal government—the allowable restitution

amount would have been zero.

As Probation

acknowledged in petitioner’s presentence report,

referring fixed-fee workers’ compensation beneficiaries

10

to Forest Park rather than performing the procedures at

his own clinic did not affect what the government (or

beneficiaries) paid. PSR ¶ 111.

These are the precise circumstances where the

Apprendi rule reserves factfinding to the jury. “If a judge

is prohibited from imposing any restitution at all without

first finding some loss, or, if a judge must impose

restitution upon finding loss, a defendant under Apprendi

* * * should have the right to insist that the government

prove that loss beyond a reasonable doubt.” LaFave,

supra, § 26.6(c). Like criminal fines, there is “no

principled basis under Apprendi for treating [criminal

restitution] differently” from other forms of punishment.

Southern Union, 567 U.S. at 349.

2. Any other view is “difficult to reconcile with the

Constitution’s original meaning.” Hester, 139 S. Ct. at 511

(Gorsuch, J., joined by Sotomayor, J., dissenting from

denial of certiorari). “[T]he scope of the constitutional

jury right must be informed by the historical role of the

jury at common law.” Southern Union, 567 U.S. at 353

(quoting Oregon v. Ice, 555 U.S. 160, 170 (2009)). And “as

long ago as the time of Henry VIII, an English statute

entitling victims to the restitution of stolen goods allowed

courts to order the return only of those goods mentioned

in the indictment and found stolen by a jury.” Hester, 139

S. Ct. at 511; see also James Barta, Guarding the Rights

of the Accused and Accuser: The Jury’s Role in Awarding

Criminal Restitution Under the Sixth Amendment, 51

Am. Crim. L. Rev. 463, 473 n.111 (2014).

Practice was no different in America before the

Founding. As Justice Thomas (joined by Justice Scalia)

explained at length in his concurring opinion in Apprendi,

early American larceny statutes required the value of

stolen goods—which set the maximum monetary

penalty—to be alleged in the indictment and proved to the

jury. See Apprendi, 530 U.S. at 502 (Thomas, J.,

11

concurring); see also Hester, 139 S. Ct. at 511 (Gorsuch,

J., joined by Sotomayor, J., dissenting from denial of

certiorari) (same).

As punishment, these statutes

typically prescribed criminal restitution to victims rather

than a fine payable to the government. See Barta, supra,

at 474. Massachusetts’s 1785 criminal larceny statute, for

example, required actual restitution or a payment of

treble damages to the victim upon conviction. See Act of

March 15, 1785, 1785 Mass. Sess. Laws 263, 264. Courts

likewise held that no such restitution could be ordered

unless the property’s value was alleged in the indictment

and proved to the jury at trial. See Commonwealth v.

Smith, 1 Mass. 245, 246 (1804).

This well-established understanding of the jury right

endured through the Republic’s early years. The Crimes

Act of 1790, for example—the very first federal criminal

statute—imposed a penalty for certain larceny offenses of

“four-fold value of the property so stolen.” 1 Stat. 112,

116. The practice of the time, as the Court explained in

Southern Union, was consistent with Apprendi and

required that the value of the stolen goods be alleged in

the indictment and proved to the jury. See 567 U.S. at 357.

Today, the monetary penalty that the Crimes Act

prescribed more closely resembles criminal restitution

than a fine: the proceeds were to be divided among “the

owner of the goods” and the private prosecutor who

brought the case. See 1 Stat. 116. Thus, not only Southern

Union’s reasoning, but also the historical examples on

which the Court relied, show that the jury right applies to

criminal restitution just as it does to criminal fines.

Throughout the nineteenth century, courts continued

to hold “that in prosecutions for larceny, the jury usually

had to find the value of the stolen property before

restitution to the victim could be ordered.” Hester, 139 S.

Ct. at 511 (Gorsuch, J., joined by Sotomayor, J.,

dissenting from denial of certiorari). In Schoonover v.

12

State, 17 Ohio St. 294, 298 (1867), for example, the Ohio

Supreme Court explained that when a statute provides for

restitution based on “the value of the property stolen,”

“unless such value be found in the verdict, the judgment

of restitution can not be rendered.” And in State v.

Somerville, 21 Me. 20, 22 (1842), the Supreme Judicial

Court of Maine held that property subject to criminal

restitution “must be ascertained from the allegations in

the indictment and from the finding of the jury.”

Consistent practice from pre-1789 England through

the Civil War thus reflects that the allowable amount of

criminal restitution was reserved to the jury at common

law. No basis exists in this historical tradition to

distinguish criminal restitution from criminal fines for

purposes of the Sixth Amendment’s jury right.

B. The Reasoning Underlying The Court Of Appeals

Decisions Is Inconsistent And Wrong

Despite this Court’s precedents and the historical

treatment of restitution as an issue reserved to the jury,

lower courts “have followed one of two analytical paths”

to conclude that juries need not find facts supporting

restitution. State v. Robison, 314 Kan. 245, 249 (2021);

accord James Bertucci, Apprendi-Land Opens its

Borders: Will the Supreme Court’s Decision in Southern

Union Co. v. United States Extend Apprendi’s Reach to

Restitution?, 58 St. Louis U. L.J. 582 (2014) (discussing

the conflicting rationales employed by lower courts).

First, relying on Apprendi’s statement that judicial

factfinding is prohibited when it increases a penalty

beyond a “statutory maximum,” the Fifth Circuit and

other courts have concluded that the Mandatory Victims

Restitution Act does not set a “statutory maximum”

because it requires restitution only for a specific sum—

the amount of the victim’s loss. See United States v.

Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014) (restitution

13

falls outside Apprendi “because no statutory maximum

applies to restitution.”); App 83a.

Second, other courts have held that restitution falls

outside Apprendi based on the supposition that

restitution is a civil remedy, not a criminal penalty.

Bertucci, supra, at 582 (surveying decisions).

As Members of this Court have observed, both

rationales are “doubtful” under this Court’s decisions and

“difficult to reconcile with the Constitution’s original

meaning.” Hester, 139 S. Ct. at 511 (Gorsuch, J., joined

by Sotomayor, J., dissenting from denial of certiorari).

1. The Fifth Circuit and other lower courts holding

that criminal restitution is exempt from Apprendi

because the Mandatory Victims Restitution Act

prescribes no statutory maximum are incorrect, as a

matter of both precedent and first principles. By its

terms, the statute allows (and indeed, requires)

restitution only in the amount of the victim’s loss. 18

U.S.C. § 3663A(b). The amount of the victim’s loss is thus

the statutory maximum; that is, “the maximum sentence

a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the

defendant.” Southern Union, 567 U.S. at 348 (quoting

Blakely, 542 U.S. at 303). A restitution order that exceeds

the victim’s loss imposes a penalty beyond what the

statute permits. See Lagos v. United States, 584 U.S. 577,

585 (2018) (holding that a defendant was “not obliged to

pay” any amount of restitution exceeding the properly

computed loss). Absent further factfinding, therefore,

“the statutory maximum for restitution is usually zero,

because a court can’t award any restitution without

finding additional facts about the victim’s loss.” Hester,

139 S. Ct. at 510 (Gorsuch, J., joined by Sotomayor, J.,

dissenting from denial of certiorari). And because the

penalty authorized by statute depends on determination

of a fact (the amount of loss), “[t]he Sixth Amendment

14

reserves to juries [that] determination.” Southern Union,

567 U.S. at 346.

That the Mandatory Victims Restitution Act

prescribes a specific restitution amount rather than a

range makes no difference. Tautologically, a statute that

prescribes a specific penalty also prescribes the

maximum penalty. This Court has never limited

Apprendi to sentencing regimes in which trial courts have

sentencing discretion. “To the contrary, Apprendi’s ‘core

concern’ is to reserve to the jury ‘the determination of

facts that warrant punishment for a specific statutory

offense.’ ” Southern Union, 567 U.S. at 349 (quoting Ice,

555 U.S. at 170). It applies to any “ ‘fact that increases’ a

defendant’s exposure to punishment.” Erlinger, slip op.

10 (quoting United States v. Haymond, 588 U.S. 634, 642

(2019)). There is no doubt that if Congress imposed a

similar determinate scheme for custodial sentences (for

example, one requiring one day of imprisonment for each

dollar the victim lost), Apprendi would require the jury to

find the facts supporting the sentence. And under

Southern Union, custodial and monetary penalties are

treated alike.

The Mandatory Victims Restitution Act’s sentencing

regime also closely mirrors those the Court in Southern

Union held would require jury findings. Allowable

criminal fines under numerous federal statutes are “often

calculated by reference to * * * the victim’s loss.” Id. at

349-50 & n.4; see, e.g., 18 U.S.C. §§ 201(b), 645, 3571(d).

Jurors must find the amount of the victim’s loss “[i]n all

such cases.” Southern Union, 567 U.S. at 350. And

decisions applying early American larceny statutes

illustrate that this principle accords with “the historical

role of the jury at common law,” too. Southern Union, 567

U.S. at 353 (quoting Ice, 555 U.S. at 170). Laws like

Massachusetts’s criminal larceny statute provided for

specific criminal restitution amounts—not a discretionary

15

range—yet courts consistently required the amount of the

victim’s loss to be alleged in the indictment and proved to

the jury. See Smith, 1 Mass. at 246. And as the Court

recently recognized, common-law crimes throughout

much of American history typically “carried ‘specific

sanctions, and once the facts of the offense were

determined by the jury, the judge was meant simply to

impose the prescribed sentence.’ ” Erlinger, slip op. 7

(cleaned up) (quoting Haymond, 588 U.S. at 642). These

determinate sentencing regimes have never been

understood to be an exception to the general rule that

juries must find all facts underlying an allowable criminal

sentence.

2. Nor is criminal restitution exempt from Apprendi

because it is civil in nature rather than criminal. For one,

the Sixth Amendment right to a jury applies “[i]n all

criminal prosecutions.” U.S. Const. Amend. VI (emphasis

added). Restitution indisputably is imposed as part of a

criminal prosecution; it is “imposed by the Government ‘at

the culmination of a criminal proceeding and requires

conviction of an underlying’ crime.” Paroline v. United

States, 572 U.S. 434, 456 (2014) (quoting United States v.

Bajakajian, 524 U.S. 321, 328 (1998)).

Beyond that, this Court has repeatedly held that

criminal restitution “serves punitive purposes” in addition

compensatory ones. Id.

“The purpose of awarding

restitution is * * * to mete out appropriate criminal

punishment.” Pasquantino, 544 U.S. at 365. Indeed,

“[t]he victim has no control over the amount of restitution

awarded or over the decision to award restitution.” Kelly

v. Robinson, 479 U.S. 36, 52 (1986).

“Federal statutes, too, describe restitution as a

‘penalty’ imposed on the defendant as part of his criminal

sentence * * * .” Hester, 139 S. Ct. at 511 (Gorsuch, J.,

joined by Sotomayor, J., dissenting from denial of

certiorari). And it is significant that Congress chose to

16

place the Mandatory Victims Restitution Act in Title 18

along with other criminal penalties—a choice this Court

has held is “relevant in determining whether its content is

civil or criminal in nature.” Kellogg Brown & Root Servs.,

Inc. v. United States ex rel. Carter, 575 U.S. 650, 659

(2015). For these reasons, criminal restitution may even

implicate the Eighth Amendment’s Excessive Fines

Clause in extreme cases. Paroline, 572 U.S. at 456. And

even if criminal restitution could plausibly be viewed as a

civil remedy, the Seventh Amendment would guarantee a

jury determination. Hester, 139 S. Ct. at 511 (Gorsuch, J.,

joined by Sotomayor, J., dissenting from denial of

certiorari).

Were there any doubt based on recent precedent that

criminal restitution is a criminal penalty, history from the

Founding era would dispel it. Early American larceny

statutes requiring criminal restitution (like the English

laws that preceded them) treated it like any other penalty,

often discussing it in the same provision and with the

same terms. See, e.g., Act of March 15, 1785, 1785 Mass.

Sess. Laws 264 (listing criminal restitution among other

“punishment”); Crimes Act of 1790, 1 Stat. 112, 116

(describing money to be paid to the owner of stolen goods

as a “fine”). Indeed, the Massachusetts Supreme Judicial

Court expressly rejected the argument that restitution

under the State’s 1785 larceny statute was something

other than “what the law contemplates as punishment,”

calling that suggestion “a mere play upon words.”

Commonwealth v. Andrews, 2 Mass. 14, 29-30 (1806). The

cases applying those laws also required that the facts

supporting criminal restitution, like those supporting

other criminal penalties, be alleged in the indictment and

proved to the jury. See Smith, 1 Mass. at 246; Southern

Union, 567 U.S. at 357 (discussing application of the

Crimes Act). Like in many jurisdictions today, those who

failed to pay criminal restitution were subject to custodial

17

penalties without further trial. See 1785 Mass. Sess. Laws

264 (allowing for sentence of three years hard labor if

convicted person failed to pay restitution).

For these reasons, even courts finding restitution

exempt from Apprendi under the “statutory maximum”

theory discussed above have rejected the notion that

restitution is a civil remedy, though there is a split on the

issue. E.g., United States v. Leahy, 438 F.3d 328, 334 (3d

Cir. 2006) (en banc) (“Of the other Courts of Appeals that

have addressed this issue, only the Seventh and Tenth

Circuits have held that restitution is a civil rather than a

criminal penalty.”).

C.

The Question Presented Has Divided Members Of

This Court And Lower Courts

Members of this Court and judges of federal and

state appellate courts have made compelling arguments

that allowing judges to make factual findings supporting

criminal restitution is contrary to Southern Union and

ignores

the

Constitution’s

original

meaning.

Nevertheless, most courts have clung to their preSouthern Union rulings—even after acknowledging that

these decisions are not “well-harmonized with Southern

Union” and “might have come out differently” had

Southern Union been decided first. E.g., United States

v. Green, 722 F.3d 1146, 1151 (9th Cir. 2013).

The powerful dissenting voices confirm that the issue

is important and warrants this Court’s attention. So do

state court decisions that have split on the question in

fractured opinions. At a minimum, the availability of the

critical right to a jury—“the heart of our criminal justice

system,” Erlinger, slip op. 7—merits this Court’s review.

1. As noted, Members of this Court have expressed

serious concerns with decisions holding that the Sixth

Amendment does not apply to criminal restitution.

Hester, 139 S. Ct. at 511 (Gorsuch, J., joined by

18

Sotomayor, J., dissenting from denial of certiorari). A

contrary ruling, they explained is “worthy of [the Court’s]

review” because the two principal bases underlying lower

court decisions “seem[] doubtful” and are “difficult to

reconcile with the Constitution’s original meaning.” Id. at

511-12.

Court of appeals judges, even before Southern

Union, have all but called out for this Court’s review of

decisions finding restitution outside the Sixth

Amendment. In a sharply divided en banc decision of the

Third Circuit, for instance, the majority found restitution

exempt from the Apprendi rule over the vigorous dissent

of five members of the court. Leahy, 438 F.3d at 339-48

(McKee, J., dissenting). Judge McKee persuasively

explained that Apprendi and the historic treatment of

criminal restitution as an issue reserved for juries

undercut the two primary rationales courts have relied on

to the contrary. Joined by four other judges, Judge

McKee concluded that “given the Court’s recent

jurisprudence, we are not at liberty to rationalize a

distinction between punishment in the form of

incarceration on the one hand, and punishment in the

form of restitution on the other * * * . [A]ny such

distinction must be drawn by the Court in the first

instance, and not by us.” Id. at 348.

Likewise, Eighth Circuit judges are divided on the

question. United States v. Carruth, 418 F.3d 900, 904-06

(8th Cir. 2005) (Bye, J., dissenting). Judge Bye aptly

observed, that “[o]nce we recognize restitution as being a

‘criminal penalty’ the proverbial Apprendi dominoes

begin to fall.” Id. at 906. State court judges too have

vigorously dissented in decisions finding criminal

restitution not subject to the Sixth Amendment. See

19

Robison, 314 Kan. at 258-259 (Rosen, J., dissenting and

adopting dissenting opinions from court of appeals). 1

The divergent views—and conflicting rationales

underlying lower court decisions—are reason enough for

this Court to address the question.

2. Review would also resolve a state court split. The

Kansas Supreme Court, in a fractured opinion, has held

that the Constitution does not require juries to find facts

underlying criminal restitution, see Robison, 314 Kan. at

258-259. By contrast, the Iowa Supreme Court, in a

fractured decision, has held that “restitution must be

based on jury findings.” State v. Davison, 973 N.W.2d

276, 279 (Iowa 2022).

3. At a minimum, this Court should grant review

because its previous denials of certiorari on the issue are

being misread as an implicit holding that it views criminal

restitution outside the Sixth Amendment’s protection.

As the Supreme Court of Kansas recently explained,

“[d]espite the nonuniform approach taken by federal

circuits, the Supreme Court has remained silent on

whether criminal restitution triggers the right to a jury as

contemplated in Apprendi, even when presented with

opportunities to take up the question * * * . We see no

reason we should take up that mantle in its place.”

Likewise, the leading criminal law treatise and numerous commentators argue that the Apprendi rule requires the jury to find

facts for restitution, see LaFave, supra; William Acker, The Mandatory Victims Restitution Act is Unconstitutional: Will the Court

Say So After Southern Union, 64 Ala. L. Rev. 803 (2013); Barta,

supra; Cortney Lollar, What is Criminal Restitution, 100 Iowa L.

Rev. 93 (2014); Laura Appleman, Retributive Justice and Hidden

Sentencing, 68 Ohio St. L.F. 1307 (2007); Melanie Wilson, In

Booker’s Shadow: Restitution Forces a Second Debate on Honesty

in Sentencing, 39 Ind. L. Rev. 369 (2006); accord Hester, 139 S. Ct.

at 511 (Gorsuch, J., joined by Sotomayor, J., dissenting from denial

of certiorari) (citing commentary).

1

20

Robison, 314 Kan. at 250; see also United States v. Kluge,

2023 WL 3434035, at *2 (M.D. Fla. May 12, 2023) (“[T]he

Supreme Court (fairly) recently denied a petition for a

writ of certiorari on whether Apprendi applies to the

imposition of criminal restitution. So until either the

Supreme Court or Eleventh Circuit say otherwise,

Dohrman remains binding precedent and forecloses

Defendant’s argument.” (citations omitted)).

But a denial of certiorari, of course, says nothing of

the merits. See Ramos v. Louisiana, 590 U.S. 83, 105 n.56

(2020) (“The significance of a denial of a petition for

certiorari ought no longer require discussion. This Court

has said again and again and again that such a denial has

no legal significance whatever bearing on the merits of the

claim.” (cleaned up)). And the number of decisions

refusing to faithfully apply Apprendi does not mean those

decisions are correct. As Judge McKee observed, “before

Booker was decided, one could have developed an even

more impressive list of the courts that had incorrectly

concluded that Apprendi does not apply to the federal

sentencing guidelines.” Leahy, 438 F.3d at 345 (McKee,

J., concurring in part and dissenting in part). Just this

Term, the Court granted certiorari and reversed in

Erlinger, where, like here, “the courts of appeals ha[d]

uniformly persisted” in refusing to apply Apprendi

consistent with this Court’s precedents. Pet. at 19,

Erlinger v. United States, No. 23-370.

The lower courts’ holdings require review precisely

because of this inertia. Only this Court can correct course

now and bring treatment of criminal restitution back into

alignment with what the Sixth Amendment and

longstanding notions of the jury right require. The right

to a jury—“the heart of our criminal justice system,”

Erlinger, slip op. 7—deserves more than reliance on this

Court’s silence.

21

II. This Case Provides An Ideal Vehicle To Address This

Recurring Question Of Exceptional Importance

A. The question presented is recurring and

exceedingly important.

“Today, every jurisdiction

provides for victim restitution to be included in a criminal

sentence.” LaFave, supra, § 26.6(c). And the federal

statute here, the Mandatory Victims Restitution Act, has

resulted in an extraordinary increase in restitution in

federal criminal sentencing. “Before the passage of * * *

the Mandatory Victims Restitution Act of 1996, 110 Stat.

1227, restitution orders were comparatively rare. But

from 2014 to 2016 alone, federal courts sentenced 33,158

defendants to pay $33.9 billion in restitution.” Hester, 139

S. Ct. at 510 (Gorsuch, J., joined by Sotomayor, J.,

dissenting from denial of certiorari) (citing Gretta L.

Goodwin, GAO, Federal Criminal Restitution 25 (Feb.

2018)); Bertucci, supra, at 568 (“The authorization and

use of restitution in the United States’ federal criminal

system was infrequent through most of the twentieth

century.”).

In 2023, federal courts sentenced 8,019 criminal

defendants to pay more than $13 billion in restitution. See

United States Sentencing Commission, 2023 Annual

Report and Sourcebook of Federal Sentencing Statistics,

tbl. 17. The average restitution ordered was $1,628,250.

Remarkably, as of 2023, federal defendants owed more

than $111 billion in unpaid criminal restitution to third

parties. See Department of Justice, 2023 U.S. Attorneys’

Annual Statistical Report, tbl. 8B.

“Although frequently ordered as part of a criminal

sentence, restitution often is not paid.” LaFave, supra,

§ 26.6(c). “More than 90% of criminal restitution ordered

in federal court is never collected.” Id. at n.46.70.

The question is thus of significant importance

because “[f]ailure or inability to pay restitution can result

in suspension of the right to vote, continued court

22

supervision, or even reincarceration.” Hester, 139 S. Ct.

at 510 (Gorsuch, J., joined by Sotomayor, J., dissenting

from denial of certiorari); see also Gretta L. Goodwin,

GAO, Federal Criminal Restitution: Department of

Justice Has Ongoing Efforts to Improve Its Oversight of

the Collection of Restitution and Tracking the Use of

Forfeited Assets 3 (Sept. 2020). Those consequences are

particularly troubling in the context of the Mandatory

Victims Restitution Act, where restitution is mandatory

and courts are not permitted to take an offender’s

economic circumstances into account. See 18 U.S.C.

§§ 3663A, 3664(f)(1)(A). The question is thus critically

important to defendants and the administration of the

criminal justice system.

B. This case presents an optimal vehicle to resolve

the question. The Apprendi issue was cleanly raised at

every stage of this case, and the court of appeals rejected

petitioner’s argument based on circuit precedent holding

that restitution need not be proved to a jury. See App.

83a.

Beyond that, this case illustrates the problems with

the status quo. Here, as in most cases, the presentence

report and government’s accompanying sentencing

memorandum are “the sole ‘evidentiary’ source[s] for the

restitution order.” Acker, supra, at 819. Presentence

reports are routinely based on hearsay and facts not found

by a jury at trial. See id. As a result, trial judges regularly

adopt “bureaucratically prepared, hearsay-riddled”

reports to order restitution. Id. (quoting United States v.

Booker, 543 U.S. 220, 304 (2005) (Scalia, J., dissenting in

part)).

Here, by adopting the unarticulated “analysis” in the

presentence report, the sentencing court issued a

restitution order based not only on untested facts, but on

facts that contradicted the jury’s verdict. The court

ordered petitioner to pay “victims” who suffered no loss

23

from the conduct underlying the verdict against him—

private insurance companies—when petitioner was

convicted of charges relating to the Anti-Kickback

Statute, which applies only to federally insured patients.

See App. 150a. And it ordered restitution despite the

presentence report’s recognition that the sole cognizable

victim under the Anti-Kickback Statute—the federal

government—suffered no loss as a result of petitioner’s

conduct. This case thus presents a compelling backdrop

to consider the question.

* * * * *

More than a decade has passed since this Court held

in Southern Union that “[t]he Sixth Amendment reserves

to juries the determination of any fact, other than the fact

of a prior conviction, that increases a criminal defendant's

maximum potential sentence”—including monetary

penalties. 567 U.S. at 346. Yet lower courts continue to

resist applying that straightforward rule to the billions of

dollars in criminal restitution imposed each year without

the protection of the jury trial right. It is time for this

Court to step in and restore the “jury’s historic role as a

bulwark between the State and the accused.” Id. at 350.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

CHRISTOPHER D. MAN

WINSTON & STRAWN LLP

1901 L St., NW.

Washington, DC 20036

CMan@winston.com

(202) 282-5000

JULY 8, 2024

JOHN P. ELWOOD

ANTHONY J. FRANZE

Counsel of Record

DANIEL YABLON

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

(202) 942-5000

anthony.franze@arnoldporter.com