Petition for Writ of Certiorari — Karl Patrick Kluge, Petitioner v. United States
Supreme Court briefOct 29, 2025
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No. __________
IN THE
SUPREME COURT OF THE UNITED STATES
____________
KARL KLUGE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
____________
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
____________
PETITION FOR A WRIT OF CERTIORARI
____________
A. Fitzgerald Hall, Esq.
Acting Federal Defender
Jonas Cummings, Esq.
Counsel of Record
Research and Writing Attorney
200 W. Forsyth Street, Suite 1240
Jacksonville, Florida 32202
Telephone: (904) 232-3039
Email: jonas_cummings@fd.org
QUESTION PRESENTED
In 2018, Congress enacted the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act, which established a mandatory
minimum restitution amount of $3,000 per victim for certain child
exploitation offenses. See 18 U.S.C. § 2259(b)(2)(B).
As this Court has repeatedly held, the Sixth Amendment
guarantees a right to have a jury find all the facts necessary to criminal
punishment. Thus, a jury must find any fact that increases the statutory
maximum penalty, Apprendi v. New Jersey, 530 U.S. 466 (2000), as well
as any fact that increases the mandatory minimum, Alleyne v. United
States, 570 U.S. 99, 103 (2013). This bedrock constitutional rule applies
“broadly” to all forms of criminal punishment, including monetary
penalties like fines. Southern Union Co. v. United States, 567 U.S. 343,
350 (2012).
The question presented is: Does the Sixth Amendment require a
jury to find the facts needed to justify a restitution order meeting or
exceeding § 2259(b)(2)(B)’s $3,000 mandatory minimum?
i
RELATED PROCEEDINGS
United States District Court (M.D. Fla.)
United States v. Kluge, Case No. 2:22-cr-23-SPC-NPM
United States Court of Appeals (11th Cir.)
United States v. Kluge, No. 23-10697
ii
TABLE OF CONTENTS
Question Presented .................................................................................... i
Related Proceedings ..................................................................................ii
Table of Authorities ................................................................................... v
Petition for a Writ of Certiorari ................................................................ 1
Order and Opinion Below ......................................................................... 1
Jurisdiction ................................................................................................ 1
Relevant Constitutional and Statutory Provisions .................................. 1
Introduction ............................................................................................... 5
Statement of the Case ............................................................................... 7
Reasons for Granting the Writ................................................................ 11
I. The decision below contravenes this Court’s Sixth
Amendment precedent. ................................................................. 11
A. Under the Sixth Amendment, facts triggering a
mandatory minimum restitution order must be proved
to a jury beyond a reasonable doubt. ...................................... 11
B. The Eleventh Circuit’s decision that a jury need not find
the facts necessary to trigger § 2259(b)(2)(B)’s $3,000
mandatory minimum is wrong ................................................ 15
II. The question presented is important, recurring, and unlikely
to be resolved without this Court’s intervention. ......................... 17
III. This case is an excellent vehicle. ................................................... 27
Conclusion ............................................................................................... 28
iii
Appendices
Appendix A: Eleventh Circuit’s Opinion .......................................... 1a
Appendix B: District Court’s Restitution Order ............................ 23a
Appendix C: Amended Judgment................................................... 30a
iv
TABLE OF AUTHORITIES
Cases
Alleyne v. United States, 570 U.S. 99 (2013) ... i, 6-8, 10-12, 19, 21, 22, 24
Apprendi v. New Jersey, 530 U.S. 466 (2000) ..... i, 6-11, 15, 20, 21, 24, 26
Blakely v. Washington, 542 U.S. 296 (2004) ............................... 11, 20, 24
Dohrmann v. United States, 442 F.3d 1279 (11th Cir. 2006) .............. 8-10
Ellinburg v. United States, No. 24-482 .............................................. 27-28
Erlinger v. United States, 602 U.S. 821 (2024) ........................... 12, 18, 28
Hester v. United States, 139 S. Ct. 509 (2019) ................. 14, 16-18, 20, 26
Kelly v. Robinson, 479 U.S. 36 (1986) ................................................. 6, 16
Manrique v. United States, 581 U.S. 116 (2017) .................................... 15
Oregon v. Ice, 555 U.S. 160 (2009) .......................................................... 13
Paroline v. United States, 572 U.S. 434 (2014)........................ 6, 15-16, 25
Pasquantino v. United States, 544 U.S. 349 (2005) .......................... 13, 16
Southern Union Co. v. United States, 567 U.S. 343 (2012) ........................
……………………………………………………………...i, 6, 12-14, 24, 26, 28
United States v. Bajakajian, 524 U.S. 321 (1998) .................................. 15
United States v. Bengis, 783 F.3d 407 (2d Cir. 2015) ....................... 18, 20
United States v. Burns, 800 F.3d 1258 (10th Cir. 2015) ................... 19-20
v
United States v. Carruth, 418 F.3d 900 (8th Cir. 2005) ......................... 26
United States v. Caudillo, 110 F.4th 808 (5th Cir. 2024). ................ 19, 22
United States v. Churn, 800 F.3d 768 (6th Cir. 2015) ....................... 19-20
United States v. Day, 700 F.3d 713 (4th Cir. 2012) .......................... 18, 20
United States v. Edwards, 728 F.3d 1286 (11th Cir. 2013) ...................... 9
United States v. Gatlin, 90 F.4th 1050 (11th Cir. 2024) ..................... 9-10
United States v. Green, 722 F.3d 1146 (9th Cir. 2013) ................ 19-20, 26
United States v. Hairston, 888 F.2d 1349 (11th Cir. 1989) ................. 9-10
United States v. Haymond, 139 S. Ct. 2369 (2019) ................................ 12
United States v. Johnson, 983 F.2d 216 (11th Cir. 1993) .................... 9-10
United States v. Leahy, 438 F.3d 328 (3d Cir. 2006) .................. 18, 23, 26
United States v. Milkiewicz, 470 F.3d 390 (1st Cir. 2006) ......... 18, 20, 23
United States v. Millot, 433 F.3d 1057 (8th Cir. 2006)................ 15, 19-20
United States v. Rosbottom, 763 F.3d 408 (5th Cir. 2014) ................ 18-20
United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984) ................ 9-10
United States v. Serawop, 505 F.3d 1112 (10th Cir. 2007 ) ............. 15, 19
United States v. Siegel, 153 F.3d 1256 (11th Cir. 1998) ......................... 10
United States v. Twitty, 107 F.3d 1482 (11th Cir. 1997); .................... 9-10
United States v. Wolfe, 701 F.3d 1206 (7th Cir. 2012) ..................... 15, 19
vi
Statutes
18 U.S.C.§ 2259(b)(2)(B)....................... i, 5, 7, 10, 13-16, 18, 19, 21-25, 27
18 U.S.C. § 3553(f). .................................................................................. 22
18 U.S.C. § 3583(d), ................................................................................. 16
18 U.S.C. § 3663 ................................................................................ 21, 24
18 U.S.C. § 3663A .............................................................................. 21, 24
18 U.S.C. § 3664(m)(1)(A)(i) .............................................................. 16, 18
18 U.S.C. § 924(e) .................................................................................... 12
28 U.S.C. § 1254(1) .................................................................................... 1
Other Authorities
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) ....................................... 13
Wayne LaFave, Criminal Procedure § 26.6(c) (2024) ............................. 17
Resource Conservation and Recovery Act of 1976 (“RCRA”) ................. 24
U.S. Sentencing Comm’n, 2024 Sourcebook of Federal Sentencing
Statistics .................................................................................................. 17
Constitutional Provisions
U.S. Const., amend. VI. ....................................................................... 1, 15
vii
PETITION FOR A WRIT OF CERTIORARI
Karl Kluge respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for the Eleventh
Circuit.
ORDER AND OPINION BELOW
The Eleventh Circuit’s opinion affirming Mr. Kluge’s sentence is
provided in Appendix A and is published at 147 F.4th 1291.
JURISDICTION
The Eleventh Circuit affirmed Mr. Kluge’s sentence on July 31,
2025. This Court has jurisdiction under 28 U.S.C. § 1254(1).
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The Sixth Amendment to the United States Constitution states in
relevant part: “In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which district shall
have been previously ascertained by law . . . .” U.S. Const. amend. VI.
1
Section 2259 of Title 18 of the United States Code states in relevant
part:
(a) In General.—Notwithstanding section 3663 or 3663A,
and in addition to any other civil or criminal penalty
authorized by law, the court shall order restitution for any
offense under this chapter.
(b) Scope and Nature of Order.—
....
(2)
Restitution
for
trafficking
in
child
pornography.—If the defendant was convicted of
trafficking in child pornography, the court shall order
restitution under this section in an amount to be
determined by the court as follows:
(A) Determining the full amount of a victim’s
losses.— The court shall determine the full
amount of the victim’s losses that were incurred or
are reasonably projected to be incurred by the
victim as a result of the trafficking in child
pornography depicting the victim.
(B) Determining a restitution amount.— After
completing the determination required under
subparagraph (A), the court shall order restitution
in an amount that reflects the defendant’s relative
role in the causal process that underlies the
victim’s losses, but which is no less than $3,000.
(C) Termination of payment.— A victim’s total
aggregate recovery pursuant to this section shall
not exceed the full amount of the victim’s
demonstrated losses. After the victim has received
2
restitution in the full amount of the victim’s losses
as measured by the greatest amount of such losses
found in any case involving that victim that has
resulted in a final restitution order under this
section, the liability of each defendant who is or
has been ordered to pay restitution for such losses
to that victim shall be terminated. The court may
require the victim to provide information
concerning the amount of restitution the victim
has been paid in other cases for the same losses.
(3) Enforcement.— An order of restitution under this
section shall be issued and enforced in accordance with
section 3664 in the same manner as an order under
section 3663A.
(4) Order mandatory.—
(A) The issuance of a restitution order under this
section is mandatory.
(B) A court may not decline to issue an order under
this section because of—
(i) the economic circumstances of the defendant; or
(ii) the fact that a victim has, or is entitled
to, receive compensation for his or her
injuries from the proceeds of insurance or
any other source.
(c) Definitions.—
....
(2) Full amount of the victim’s losses.—For
purposes of this subsection, the term “full amount of the
3
victim’s losses” includes any costs incurred, or that are
reasonably projected to be incurred in the future, by
the victim, as a proximate result of the offenses
involving the victim, and in the case of trafficking in
child pornography offenses, as a proximate result of all
trafficking in child pornography offenses involving the
same victim, including—
(A) medical services relating to
psychiatric, or psychological care;
(B) physical and
rehabilitation;
occupational
physical,
therapy
or
(C) necessary transportation, temporary housing,
and child care expenses;
(D) lost income;
(E) reasonable attorneys’ fees, as well as other
costs incurred; and
(F) any other relevant losses incurred by the victim.
....
(4) Victim.—For purposes of this section, the term
“victim” means the individual harmed as a result of a
commission of a crime under this chapter. In the case of
a victim who is under 18 years of age, incompetent,
incapacitated, or deceased, the legal guardian of the
victim or representative of the victim’s estate, another
family member, or any other person appointed as
suitable by the court, may assume the crime victim’s
rights under this section, but in no event shall the
defendant be named as such representative or guardian.
4
INTRODUCTION
Section 2259 of Title 18 of the United States Code creates a
mandatory restitution scheme for child exploitation offenses. When a
defendant is convicted of trafficking in child pornography, the court “shall
order restitution” for any victim in an amount that is “no less than
$3,000.” 18 U.S.C. § 2259(b)(2)(B). That restitution order, however, does
not flow automatically from the facts needed to convict the defendant.
Rather, the district court must find additional facts—not reflected
in the jury verdict or admission of guilt—before it can order restitution.
First, a victim or victims must be identified. See id. § 2259(b)(2)(A); id.
§ 2259(c)(4) (defining “victim”). Second, the full amount of the victim’s
losses caused by the trafficking must be determined. Id. § 2259(b)(2)(A);
see id. § 2259(c)(2) (defining “full amount of the victim’s losses”). Third,
if there is an identified victim with losses, the restitution order must
reflect the defendant’s relative role in causing the losses.
Id.
§ 2259(b)(2)(B). And regardless of a victim’s losses or the defendant’s
causal role, the restitution order must be for no less than $3,000. Id.
This Court’s precedent makes clear that relying on judicial
factfinding to impose restitution under § 2259(b)(2)(B) violates the Sixth
5
Amendment. A jury must find the facts necessary to impose an increased
mandatory minimum penalty. Alleyne v. United States, 570 U.S. 99
(2013); see also Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that
jury must find facts that increase statutory maximum). That principle
applies not only to increased statutory ranges of imprisonment but also
to any form of criminal punishment, including monetary penalties.
Southern Union Co. v. United States, 567 U.S. 343 (2012). And this Court
has recognized that criminal restitution is part of the criminal penalty.
See, e.g., Paroline v. United States, 572 U.S. 434, 456 (2014); Kelly v.
Robinson, 479 U.S. 36, 49 n.10, 53 (1986).
Yet, in the decision below, the Eleventh Circuit exempted
restitution from the Sixth Amendment right to a jury trial. Its reasoning
contradicts this Court’s precedent and is incompatible with the original
understanding of the Sixth Amendment. Other courts of appeal that
have considered whether a restitution order based on judge-found facts
violates the Sixth Amendment have similarly misapplied this Court’s
precedent.
At the same time, the imposition of onerous restitution
awards is increasing nationwide. This Court’s intervention is urgently
needed to protect the fundamental right to a criminal jury trial.
6
STATEMENT OF THE CASE
1.
Following a bench trial on stipulated facts, the district court
found Karl Kluge guilty of one count of possession of child pornography,
in violation of 18 U.S.C. § 2252(a)(4)(B) and 2252(b)(2), and imposed a
97-month term of imprisonment followed by 15 years of supervised
release. Doc. 70.1 The district court deferred with respect to restitution
and scheduled a separate hearing for a later date. Id. at 6.
Before the restitution hearing, Mr. Kluge moved the district court
to “either empanel a jury to determine the amount of restitution or limit
the restitution to the amount authorized by the facts found by the Court
during Mr. Kluge’s bench trial—here, nothing beyond his guilty of the
offense.” Doc. 84 at 1. He explained that Apprendi and Alleyne required
a jury to determine each restitution-related fact beyond a reasonable
doubt, noting that the restitution statute, 18 U.S.C. § 2259(b)(2),
established a mandatory minimum of $3,000 per victim. Id. at 2–11.2
1 “Doc.” references the district court docket entries in this case.
Section 2259(b)(2) applies when a defendant is convicted of
“trafficking in child pornography,” a defined term that includes
possession of child pornography under 18 U.S.C. § 2252(a)(4)(B). See 18
U.S.C. § 2259(c)(3).
2
7
The government opposed Mr. Kluge’s motion and stated its intention to
seek $39,000 in restitution, representing $3,000 each for 13 victims. Doc.
86 at 4.
The district court overruled Mr. Kluge’s request to empanel a jury.
Doc. 87. It determined that “[t]he Eleventh Circuit has already held that
‘Apprendi does not apply to a restitution order.’” Id. at 4 (quoting
Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006)). So,
the court concluded, “it is well-settled in this circuit that jury findings
are not needed for a court’s restitution order.” Id.
At the ensuing restitution hearing, Mr. Kluge maintained his
request that a jury be empaneled while the government maintained its
request for $39,000 in restitution. Doc. 103 at 3–5. The district court
found that the offense involved thirteen victims and therefore ordered
Mr. Kluge to pay restitution in the amount of $39,000. See id. at 8.
2.
On appeal, Mr. Kluge renewed his challenge to the restitution
order, arguing that it violated his constitutional rights under Apprendi
and Alleyne. The Eleventh Circuit rejected his argument, asserting that
restitution is not a criminal penalty for purposes of the Sixth
Amendment. See App. 16a–19a. The court explained that “Alleyne’s
8
protections ‘only come into consideration if we first conclude restitution
is a criminal penalty,’” but that a previous panel of the court had
“explicitly ‘declined to reach such a conclusion’” in United States v.
Gatlin, 90 F.4th 1050 (11th Cir. 2024). App. 17a (quoting Gatlin, 90 F.4th
at 1074). “Moreover,” the court added, “in broadly holding that Apprendi
does not apply to a restitution order” in Dohrmann, “Dohrmann adopted
the view of our sister circuits that ‘restitution is a civil penalty, not a
criminal one.’” App. 17a (quoting Dohrmann, 442 F.3d at 1281).
The court distinguished its many precedents finding that
restitution is a criminal penalty in other contexts. Id. 18a; see, e.g.,
United States v. Twitty, 107 F.3d 1482, 1492 n.12 (11th Cir. 1997); United
States v. Johnson, 983 F.2d 216, 220 (11th Cir. 1993); United States v.
Hairston, 888 F.2d 1349, 1355 (11th Cir. 1989); United States v.
Satterfield, 743 F.2d 827, 836 (11th Cir. 1984), superseded by statute as
stated in United States v. Edwards, 728 F.3d 1286, 1292 n.2 (11th Cir.
2013). The reason: none of those cases specifically “consider[ed] whether
restitution is the type of punishment that falls within ‘the historical role
of the jury at common law,’ and thus, whether it is the type of penalty
that triggers the Sixth Amendment right to a jury trial under Apprendi.”
9
App. 18a (internal citation omitted). So in the Eleventh Circuit’s eyes,
non-mandatory restitution under the Victim and Witness Protection Act
is a criminal penalty for purposes of claim preclusion, Twitty, 107 F.3d at
1493 n.12; Hairston, 888 F.2d at 1355, third-party standing, Johnson,
983 F.2d at 219–21, and the Seventh Amendment, Satterfield, 743 F.2d
at 836–39, and restitution under the Mandatory Victims Restitution Act
(MVRA) is a criminal penalty for purposes of the Ex Post Facto Clause,
United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998).
But
mandatory restitution under § 2259(b) is not a criminal penalty for
purposes of the Sixth Amendment. App. 17a.
The court concluded it was bound by its holdings in Gatlin and
Dohrmann that Apprendi does not apply to restitution, and it “extend[ed]
that holding to restitution orders pursuant to § 2259(b)(2)(B).” Id. 19a.
Thus, the court rejected Mr. Kluge’s constitutional challenge under
Apprendi and Alleyne and affirmed the restitution order. Id.
10
REASONS FOR GRANTING THE WRIT
I.
The decision below contravenes
Amendment precedent.
A.
this
Court’s
Sixth
Under the Sixth Amendment, facts triggering a
mandatory minimum restitution order must be proved
to a jury beyond a reasonable doubt.
In Apprendi, this Court held that, except for the fact of a prior
conviction, the Sixth Amendment requires that any fact that would
increase the punishment for a crime beyond the prescribed statutory
maximum must be presented to the factfinder and proven beyond a
reasonable doubt. 530 U.S. at 490.
“[T]he ‘statutory maximum’ for
Apprendi purposes 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.” Blakely v. Washington, 542 U.S. 296, 303 (2004).
The Court later extended Apprendi’s rule to mandatory minimums.
Alleyne, 570 U.S. at 103, 116. The Court clarified that although Apprendi
had been limited to facts increasing the statutory maximum, Apprendi’s
underlying principle carries the same weight when it comes to facts that
elevate the mandatory minimum. See id. at 111–12. Alleyne’s reasoning
was based on the recognition that a fact triggering a mandatory
minimum alters the prescribed sentencing range for a criminal
11
defendant. Id. at 112. Because the legally prescribed range represents
the penalty associated with the offense, it follows that a fact affecting
either end of the range results in a new penalty and constitutes an
essential element of the offense. See id.
In the years since, this Court “has not hesitated to strike down”
sentencing procedures “that fail to respect the jury’s supervisory
function.”
United States v. Haymond, 139 S. Ct. 2369, 2377 (2019)
(plurality opinion). Just last year, for example, the Court held that to
impose an enhanced statutory range under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e), the statute’s “different occasions”
requirement must be proved to a unanimous jury beyond a reasonable
doubt. Erlinger v. United States, 602 U.S. 821 (2024).
The Court has also explained that this bedrock constitutional rule
is not limited to facts that increase terms of imprisonment—it applies
“broadly” to “prohibit judicial factfinding that increases maximum
criminal sentences, penalties, or punishments.” Southern Union, 567
U.S. at 350 (cleaned up). Indeed, this Court “ha[s] never distinguished
one form of punishment from another” for purposes of Apprendi. Id.
12
Thus, in Southern Union, the Court held that a jury must find the facts
necessary to impose criminal fines. Id.
Like fines, restitution ordered in criminal cases is a monetary
criminal penalty whose “purpose” is “to mete out appropriate criminal
punishment.” Pasquantino v. United States, 544 U.S. 349, 365 (2005).
And like the fine in Southern Union, restitution orders under 18 U.S.C.
§ 2259(b) require additional factfinding. See supra at 5. Because those
facts increase the statutory minimum (and maximum) penalty a
defendant faces, the Sixth Amendment demands that the government
prove them to a jury.
This result is not only compelled by the Court’s precedent, it is
consistent with 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)).
A review of the historical record supports that facts affecting the
statutory maximum or minimum amount of restitution must be admitted
by the defendant or submitted to a jury and proven beyond a reasonable
doubt. See 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).
13
Indeed, “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 v. United States, 139 S. Ct. 509, 511 (2019)
(Gorsuch, J., joined by Sotomayor, J., dissenting from denial of
certiorari); see Southern Union, 567 U.S. at 354 (discussing authority
suggesting English juries had to find value of property taken to authorize
pecuniary punishment).
“In America, too, courts held 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). As two Justices of this Court opined, “it’s hard to
see why the right to a jury trial should mean less to the people today than
it did to those at the time of the Sixth . . . Amendment’s adoption.” Id.
In short, a historical understanding of the Sixth Amendment
confirms what this Court’s precedent compels: a jury must find the facts
necessary to order restitution. This result is especially clear as applied
to an order under § 2259(b)(2), where the factfinding triggers a $3,000
mandatory minimum restitution order.
14
B. The Eleventh Circuit’s decision that a jury need not find
the facts necessary to trigger § 2259(b)(2)(B)’s $3,000
mandatory minimum is wrong.
In holding that Apprendi and Alleyne do not apply to mandatory
minimum restitution orders under § 2259(b)(2), the Eleventh Circuit
relied on the faulty premise that restitution is not a criminal penalty and
therefore does not implicate the right to a jury trial. App. 17a. Some
other circuits have reached a similar conclusion. See United States v.
Wolfe, 701 F.3d 1206, 1206 (7th Cir. 2012); United States v. Millot, 433
F.3d 1057, 1062 (8th Cir. 2006); see also United States v. Serawop, 505
F.3d 1112, 1122 (10th Cir. 2007) (holding that the rule of lenity does not
apply to MVRA because restitution does not inflict criminal punishment).
That is wrong.
The jury trial right applies “[i]n all criminal
prosecutions.” U.S. Const., amend. VI. And restitution is “imposed by
the Government ‘at the culmination of a criminal proceeding and requires
conviction of an underlying’ crime.” Paroline, 572 U.S. at 456 (quoting
United States v. Bajakajian, 524 U.S. 321, 328 (1998)); see Manrique v.
United States, 581 U.S. 116, 118 (2017) (“Sentencing courts are required
to impose restitution as part of the sentence for specified crimes.”).
15
This Court has repeatedly recognized that restitution is a criminal
penalty with “punitive purposes.” See, e.g., Paroline, 572 U.S. at 456;
Pasquantino, 544 U.S. at 365 (“The purpose of awarding restitution” is
“to mete out appropriate criminal punishment for that conduct.”). As the
Court observed in Kelly, restitution is an “effective rehabilitative
penalty” that “[has] a more precise deterrent effect than a traditional
fine.” 479 U.S. at 49 n.10; see id. at 50–53.
The statutory scheme confirms that the restitution ordered in Mr.
Kluge’s case is a criminal penalty. Section 2259 classifies restitution as
a “penalty” for the “offense” that is triggered when a defendant is
“convicted” of certain crimes. 18 U.S.C. § 2259(a), (b)(2); see Hester, 139
S. Ct. at 511 (Gorsuch, J. joined by Sotomayor, J., dissenting from denial
of certiorari) (“Federal statues, too, describe restitution as a penalty’
imposed on the defendant as part of his criminal sentence . . . .”). That
§ 2259(b) imposes a $3,000 minimum—regardless of the victim’s actual
losses or the defendant’s causal contribution to them—reflects the
statute’s penal goals.
And because paying restitution is both a
mandatory condition of supervised release, 18 U.S.C. § 3583(d), and
enforceable like a fine, § 3664(m)(1)(A)(i), restitution can be enforced
16
through reimprisonment. Thus, the statutory scheme lays bare that
restitution is part of the criminal penalty.
II.
The question presented is important, recurring, and
unlikely to be resolved without this Court’s intervention.
“Restitution plays an increasing role in federal criminal sentencing
today.” Hester, 139 S. Ct. at 510 (Gorsuch, J., joined by Sotomayor, J.,
dissenting from the denial of certiorari). Before enactment of the MVRA
in 1996, “restitution orders were comparatively rare.” Id. But “between
1996 and 2016, the amount of unpaid federal criminal restitution rose
from less than $6 billion to more than $110 billion.” Id. And “from 2014
to 2016 alone, federal courts sentenced 33,158 defendants to pay $33.9
billion in restitution.” Id. Criminal restitution continues to shape our
justice system. In 2024, federal courts ordered over 8,000 defendants to
pay nearly $13.5 billion in restitution, with a mean award of more than
$1.65 million. U.S. Sentencing Comm’n, 2024 Sourcebook of Federal
Sentencing Statistics tbl. 17.
And when defendants do not comply with their restitution orders—
a common occurrence, see Wayne LaFave, Criminal Procedure § 26.6(c)
(2024)—they face severe consequences.
17
“Failure or inability to pay
restitution can result in suspension of the right to vote, continued court
supervision, or even reincarceration.” Hester, 139 S. Ct. at 510 (Gorsuch,
J., joined by Sotomayor, J., dissenting from the denial of certiorari); see
18 U.S.C. § 3664(m)(1)(A)(i) (providing that restitution may be enforced
in same manner as fines). The consequences are particularly troubling
for indigent defendants, as restitution is often imposed without regard
for the individual’s ability to pay. See, e.g., 18 U.S.C. § 2259(b)(4)(B).
These penalties are not just onerous; under the Sixth Amendment,
they are unconstitutional. As this Court recently explained, it’s not “too
much to ask the government to prove its case . . . with reliable evidence”
before exposing criminal defendants to enhanced
punishments,
especially considering the “practical reality” that defendants face as a
result. Erlinger, 602 U.S. at 835 n.1 (alteration adopted).
Despite that, the appellate courts that have considered whether the
Sixth Amendment’s jury trial right applies to restitution have answered
“no.” See United States v. Milkiewicz, 470 F.3d 390, 403–04 (1st Cir.
2006); United States v. Bengis, 783 F.3d 407, 412–13 (2d Cir. 2015);
United States v. Leahy, 438 F.3d 328, 335–38 (3d Cir. 2006) (en banc);
United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012); United States v.
18
Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014); United States v. Churn, 800
F.3d 768, 782 (6th Cir. 2015); Wolfe, 701 F.3d at 1206 (7th Cir.); Millot,
433 F.3d at 1062 (8th Cir.); United States v. Green, 722 F.3d 1146, 1149–
51 (9th Cir. 2013); United States v. Burns, 800 F.3d 1258, 1261–62 (10th
Cir. 2015).3 These courts have relied on one or more of three faulty
reasons to conclude that using judicial factfinding to impose criminal
restitution comports with the Sixth Amendment:
1. First, a minority of circuits have concluded, like the Eleventh
Circuit, that restitution does not implicate the right to a jury trial
because restitution is not a criminal penalty. App. 17a; see Wolfe, 701
F.3d at 1206 (7th Cir.); Millot, 433 F.3d at 1062 (8th Cir.); see also
Serawop, 505 F.3d at 1122 (holding that the rule of lenity does not apply
to the MVRA because restitution does not inflict criminal punishment).
This is wrong because it conflicts both with this Court’s precedents
and with the statutory scheme for restitution. Supra at 16–17.
The Eleventh Circuit seems to be the only circuit to have
addressed whether § 2259(b)(2)(B)’s $3,000 mandatory minimum
violates Alleyne. The Fifth Circuit was recently presented with this
specific issue but did not address it. See United States v. Caudillo, 110
F.4th 808, 811–12 (5th Cir. 2024).
3
19
2. Second, at least seven circuits have held that criminal restitution
orders are exempt from Apprendi because restitution statutes prescribe
no statutory maximum. See, e.g., Bengis, 783 F.3d at 412–13 (2d Cir.);
Day, 700 F.3d at 732 (4th Cir.); Rosbottom, 763 F.3d at 420 (5th Cir.);
Churn, 800 F.3d at 782 (6th Cir.); Millot, 433 F.3d at 1062 (8th Cir.);
Green, 722 F.3d at 1150 (9th Cir.); Burns, 800 F.3d at 1261–62 (10th Cir.).
This reasoning is wrong because it misunderstands the concept of
a statutory maximum. “The ‘statutory maximum’ for Apprendi purposes
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.” Blakely,
542 U.S. at 303–04. That is, “the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but
the maximum he may impose without any additional findings.” Id.
Applying the correct understanding, the “statutory maximum”
amount of restitution is 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 the
denial of certiorari); see Milkiewicz, 470 F.3d at 403 (“If the question is
whether the verdict ‘alone’ allows the judges to impose restitution with
20
no additional finding of fact, obviously it doesn’t.”). That § 2259 itself
contains no “prescribed statutory maximum” is thus irrelevant for Sixth
Amendment purposes; what matters is that imposing restitution under
that statute requires a district court to find additional facts beyond those
established by the conviction itself.
But even if those circuits were correct that restitution statutes like
18 U.S.C. § 3663 and § 3663A do not implicate Apprendi because they
lack a statutory maximum—such that courts may find the facts
necessary to impose restitution under those statutes—the Sixth
Amendment would still prohibit judicial factfinding under the statute at
issue here, § 2259(b)(2)(B).
That’s because, regardless of whether § 2259(b)(2)(B) has a
separate “statutory maximum,” the statute has a separate mandatory
minimum.
See 18 U.S.C. § 2259(b)(2)(B) (setting $3,000 statutory
minimum). And under Alleyne, the factfinding required to impose that
mandatory minimum must be found by a jury. See supra at 5–6, 11–12.4
4 Section 2259(b)(2)(C), which states that the liability of a defendant
ordered to pay restitution shall be terminated after a victim’s total
aggregate recovery meets the full amount of her losses, doesn’t change
that constitutional command. That liability may later be “terminated” is
21
Indeed, the Fifth Circuit recognized the Alleyne distinction in
Caudillo, 110 F.4th at 811–12.
There, the government argued that
circuit precedent finding Apprendi inapplicable to restitution statutes
without a statutory maximum resolved that § 2259(b)(2)(B) did not
implicate Alleyne. Id. The Fifth Circuit disagreed. Its earlier decisions
concerned a different restitution statute with no mandatory minimum.
Id.
Thus, the court explained, its prior precedents did “not govern
whether factual determinations that increase the statutory minimum
amount of restitution [under § 2259(b)(2)(B)] must be admitted by a
defendant or found beyond a reasonable doubt.” Id. at 812.
The Fifth Circuit ultimately did not resolve the Alleyne issue
because the defendant had waived his Sixth Amendment argument. Id.
But its acknowledgment that § 2259(b)(2)(B)’s mandatory minimum
raises distinct Sixth Amendment concerns is in tension with the decision
below. And it highlights why this Court’s intervention is needed to clarify
distinct from the restitution order itself, which is a criminal penalty
subject to the $3,000 mandatory minimum. And Alleyne requires a jury
find all the facts to support a mandatory minimum penalty, even if that
minimum can be broken through the application of other statutes, such
as substantial assistance under 18 U.S.C. § 3553(e) or the safety valve
under 18 U.S.C. § 3553(f).
22
the Sixth Amendment jury trial right for criminal restitution, especially
for restitution orders under a statute like § 2259(b)(2), which implicates
both a mandatory minimum and a statutory maximum.
3. Third, a couple of circuits have suggested that a restitution order
based on judicial factfinding comports with the Sixth Amendment
because a conviction automatically authorizes restitution for the full
amount of loss. The Third Circuit reached this conclusion over a fivejudge dissent. Leahy, 438 F.3d at 335–38; see id. at 339–48 (McKee, J.,
joined by four other judges, dissenting in part). The First Circuit also
adopted this reasoning. See Milkiewicz, 470 F.3d at 404 (“[I]n every case
in which such punishment is imposed, ‘the jury’s verdict automatically
triggers restitution in the ‘full amount of each victim’s losses.’’” (quoting
Leahy, 438 F.3d at 338 n.11)). But their reasoning misapprehends the
statutory scheme and this Court’s Sixth Amendment precedent.
Imposing restitution under § 2259(b)(2)—even for the $3,000
mandatory minimum—requires additional factfinding beyond the facts
needed to convict the defendant of a child pornography offense. One or
more victims must be identified; the amount of the victim’s losses caused
by the trafficking must be determined; and, if there is an identified victim
23
with losses, the restitution order must reflect the defendant’s relative
role in causing the losses.
Supra at 5.5
The Sixth Amendment’s
command is clear: those facts must be admitted by the defendant or
proven to a jury beyond a reasonable doubt. See Alleyne, 570 U.S. at 103;
see also Apprendi, 530 U.S. at 490; Blakely, 542 U.S. at 303–04; Southern
Union, 567 U.S. at 350.
For the sake of comparison, consider the Resource Conservation
and Recovery Act of 1976 (“RCRA”), the statute at issue in Southern
Union. Violations of RCRA are subject to a fine of $50,000 per day.
Southern Union, 567 U.S. at 347. This Court held that when a jury finds
a defendant violated the RCRA but does not find the number of days the
defendant engaged in a violation, judicial factfinding to determine the
number of days enlarges the punishment beyond what the jury’s verdict
allowed, in violation of the Sixth Amendment. Id. at 352.
The Sixth Amendment compels the same result here. Just as a jury
must find the number of days a defendant violated RCRA, the Sixth
Amendment requires that a jury find the number and identity of the
5 Ordering restitution under other statutes, like § 3663 or § 3663A,
similarly requires additional factfinding.
24
victim(s), their total losses, and the portion of those losses attributable to
the defendant before a court may impose restitution under § 2259(b).
To the extent the First and Third Circuits suggest that the $3,000
mandatory minimum is a legislative determination of the per se harm a
child pornography victim suffers, it misses that imposing even the
mandatory minimum requires an additional finding—not established by
the fact of conviction—that a particular individual is a “victim” of the
offense. See 18 U.S.C. § 2259(c)(4) (defining “victim”); Paroline, 572 U.S.
at 445 (“[I]f the defendant’s offense conduct did not cause harm to an
individual, that individual is by definition not a ‘victim’ entitled to
restitution under § 2259.”). In Mr. Kluge’s case, the district court found
by a preponderance of the evidence that there were thirteen such
“victim[s].” And based solely on that judicial factfinding, the district
court ordered Mr. Kluge to pay $39,000 in restitution as part of the
penalty for his crime.
***
After years of percolation, the courts of appeals have held tight to
their precedent, despite Justices of this Court and federal circuit judges
highlighting inconsistencies between circuit precedent and this Court’s
25
Sixth Amendment jurisprudence. See, e.g., Hester, 139 S. Ct. at 509–11
(Gorsuch, J., and Sotomayor, J., dissenting from denial of certiorari);
Leahy, 438 F.3d at 339–48 (McKee, J., dissenting, joined by four other
judges) (“A finding of loss necessarily is a condition precedent to an order
of restitution, and . . . it is the judge who makes the finding. As I have
explained, the imposition of this additional criminal penalty based on a
fact not found by a jury violates the Sixth Amendment.”); United States
v. Carruth, 418 F.3d 900, 904–06 (8th Cir. 2005) (Bye, J., dissenting)
(“Once we recognize restitution as being a ‘criminal penalty’ the
proverbial Apprendi dominoes begin to fall.”).
In short, the courts of appeals are stuck. As the Ninth Circuit
explained, “Our precedents are clear that Apprendi doesn’t apply to
restitution, but that doesn’t mean our caselaw’s well-harmonized with
Southern Union. Had Southern Union come down before our cases, those
cases might have come out differently. Nonetheless, our panel can’t base
its decision on what the law might have been.”
Green, 722 F.3d at
1146. What the courts of appeals can’t or won’t fix, this Court must.
26
III. This case is an excellent vehicle.
This case is an ideal vehicle to correct course and uphold the right
to a jury trial. The issue is well preserved and has a material impact for
Mr. Kluge, an indigent defendant now facing an onerous criminal penalty
based solely on judicial factfinding.
Mr. Kluge raised his Sixth Amendment argument—including that
relying on judicial factfinding to trigger § 2259(b)(2)(B)’s mandatory
minimum violates Alleyne—in the district court, where he requested a
jury trial or that the district court impose a restitution order supported
by the facts from his bench trial: zero dollars. Doc. 84. The district court
rejected his request, Doc. 87, and based the $39,000 restitution order (the
$3,000 mandatory minimum for thirteen victims) on its own factfinding
from exhibits tendered by the government, see Doc. 103 at 7–8. Mr. Kluge
renewed the Sixth Amendment Alleyne issue before the Eleventh Circuit,
where the panel rejected it.
This Court recently heard oral argument in Ellinburg v. United
States, No. 24-482, where the issue is “[w]hether criminal restitution
under the Mandatory Victims Restitution Act (MVRA) is penal for
purposes of the Ex Post Facto Clause.” This case presents the related but
27
distinct question of whether the Sixth Amendment’s jury trial right
applies to restitution under 18 U.S.C. § 2259(b) because restitution is
part of the criminal penalty. The Eleventh Circuit has already signaled
that the outcome in Ellinburg would not affect its resolution of the Sixth
Amendment issue here. App. 19 a n.3. Thus, this Court should grant
Mr. Kluge’s petition, which is an ideal vehicle for resolving an issue
Ellinburg will likely leave open: the Sixth Amendment’s role in criminal
restitution orders. At a minimum, however, this Court should hold Mr.
Kluge’s petition pending the disposition of Ellinburg.
CONCLUSION
The right to a trial by jury is “at the heart of our criminal justice
system.” Erlinger, 602 U.S. at 831. Yet judges continue to find for
themselves the facts necessary to trigger criminal penalties in the form
of restitution orders. This practice cannot be squared with the Court’s
precedent or a historical understanding of the Sixth Amendment. But
until this Court clarifies that it meant what it said in Southern Union—
that the Sixth Amendment prohibits judicial factfinding for all forms of
criminal punishment—judges will continue to usurp the jury’s critical
role and impose punishment in the form of onerous restitution orders.
28
The Court should grant the petition for writ of certiorari.
Alternatively, at a minimum, the Court should hold the petition pending
its decision in Ellinburg, No. 24-482.
Respectfully submitted,
A. Fitzgerald Hall, Esq.
Acting Federal Defender, MDFL
/s/ Jonas Cummings
Jonas Cummings, Esq.
Research and Writing Attorney
200 W. Forsyth Street, Ste. 1240
Jacksonville, FL 32202
Telephone 904-232-3039
Email: jonas_cummings@fd.org
Counsel of Record for Petitioner
October 29, 2025
29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.