Restitution in Federal Criminal Cases

Congressional research reportOct 15, 2019

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Charles Doyle

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Updated October 15, 2019

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RL34138

Restitution in Federal Criminal Cases

Summary

Restitution endeavors to restore victims to the place where they stood when they became victims

of crime. It seeks to make them whole and no more. In the case of a corporate or affluent

defendant, victim restitution can be substantial; in some cases its value may be largely symbolic;

in yet other cases it is irrelevant. Federal prosecutors collect roughly $1 billion a year for the

victims of federal crimes. Yet prosecutors will likely never secure more than $1 out every $10

owed, and federal courts rarely, if ever, order restitution from the defendants convicted of the

most commonly prosecuted federal crimes.

Restitution in federal criminal cases is a matter of statute. A handful of statutes identify the

victims who are eligible to receive restitution; what criminal convictions may trigger an

obligation to pay restitution; the losses for which victims may be compensated; and the procedure

by which restitution is ordered and enforced.

As a general rule, a victim is a person who is physically injured, or who suffers a property loss, as

the proximate result of a qualifying offense. A victim may also be someone named as a

beneficiary in a plea bargain or in a condition of probation or supervised release.

Federal crimes of violence, fraud, or property loss will usually require a sentencing court to order

restitution. A court also may order restitution following a conviction for any other crime in the

federal criminal code, in accordance with a plea bargain, or as a condition of probation or

supervised release.

Restitution orders ordinarily must cover the full extent of a victim’s losses that are the proximate

result of the defendant’s qualifying crime of conviction, no more and no less, even though the

defendant may never be able to make full restitution.

Restitution in federal criminal cases is part of the sentencing process. The Probation Service

prepares a presentencing report that includes a preliminary assessment of what restitution, if any,

is appropriate. The parties are free to challenge and supplement the report. The government must

establish the existence and extent of any right to victim restitution by a preponderance of the

evidence. Both the government and the defendant may appeal the court’s restitution

determinations. A victim may appeal such determinations using mandamus.

The Department of Justice, acting on behalf of a victim, may enforce a restitution order in the

manner it uses to collect fines or by “all other available and reasonable means.” Victims may

secure a lien in their own names against the defendant’s property in order to secure restitution,

and they may bring other civil actions in their own names against the defendant.

The courts do not agree on whether the abatement doctrine cuts off unfulfilled obligations under a

restitution order. The abatement doctrine provides that when a defendant dies while his or her

appeal is still pending the law treats the defendant’s indictment and conviction as though they had

never happened. The conviction is vacated and the indictment dismissed.

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Contents

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

Background ..................................................................................................................................... 2

Victims............................................................................................................................................. 4

Crimes ............................................................................................................................................. 8

Section 3663A (Mandatory Restitution) ................................................................................... 8

Other Restitution Statutes ....................................................................................................... 10

Discretionary Restitution ......................................................................................................... 11

Losses ............................................................................................................................................. 11

But-For and Proximate Cause .................................................................................................. 11

Property Loss or Damage ........................................................................................................ 13

Sections 3663 and 3663A ................................................................................................. 13

Individual Restitution Sections ......................................................................................... 15

Personal Injuries ...................................................................................................................... 17

Sections 3663 and 3663A ................................................................................................. 17

Other Restitution Statutes ................................................................................................. 18

Procedure ....................................................................................................................................... 19

Abatement ............................................................................................................................... 26

Constitutional Considerations ....................................................................................................... 27

Statutory Text ................................................................................................................................ 29

18 U.S.C. 3663. Order of restitution ....................................................................................... 29

18 U.S.C. 3663A. Mandatory restitution ................................................................................ 31

18 U.S.C. 3664. Procedure ...................................................................................................... 32

Contacts

Author Contact Information .......................................................................................................... 35

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Introduction

Criminal restitution is the “full or partial compensation paid by a criminal defendant to a victim,

not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a condition of

probation.”1 Federal prosecutors recover roughly $1 billion a year for the victims of federal

crimes.2 Yet less than a tenth of the restitution awarded in federal criminal cases will ever be

collected because of the defendants’ inability to pay.3 In addition, federal courts rarely order

restitution in immigration and drug cases, the most commonly prosecuted federal crimes, because

of the nature of the offenses.4

Federal courts may not order a defendant to pay restitution to the victims of his or her crimes

unless empowered to do so by statute.5 Two general statutes vest the courts with authority to order

restitution. One, 18 U.S.C. § 3663, permits it for certain crimes.6 The second, 18 U.S.C. § 3663A,

requires it for other crimes.7 In addition, several individual restitution statutes authorize awards

for particular offenses, i.e.:



animal enterprise terrorism;8

failure to provide child support;9

human trafficking;10

sexual abuse;11

sexual exploitation of children;12

1 Restitution, BLACK’S LAW DICTIONARY (10th ed. 2014).

2 U.S. Government Accountability Office, Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of

Collections Could Be Improved, GAO-18-203, at 22 (Feb. 2018).

3 The Department of Justice estimates that only $10 billion of the $110 billion in uncollected restitution will ever be

recovered due to the offenders’ inability to pay. Id. at 25.

4 Defendants in immigration and drug offenses make up 62.5% of those convicted in a given year. U.S. Sentencing

Commission, 2018 Sourcebook: 2018 Primary Offense and Offender Characteristics - Figure 2, available at

https://www.ussc.gov/research/sourcebook-2018. Yet the courts order less than 2% of the defendants in such cases to

pay restitution. U.S. Government Accountability Office, Federal Criminal Restitution: Most Debt Is Outstanding and

Oversight of Collections Could Be Improved, App. I, GAO-18-203, at 44 (Feb. 2018).

5 United States v. Rankin, 929 F.3d 399, 410 (6th Cir. 2019); United States v. Steele, 897 F.3d 606, 609 (4th Cir. 2018);

United States v. Polukhin, 896 F.3d 848, 851 (8th Cir. 2018); United States v. Sexton, 894 F.3d 787, 799 (6th Cir.

2018); United States v. Brooks, 872 F.3d 78, 88 (2d Cir. 2017); United States v. Collins, 854 F.3d 1324, 1329 (11th

Cir. 2017); United States v. Wright, 848 F.3d 1274, 1284 (10th Cir. 2017).

This report is available in an abridged form—without footnotes, citations to most authorities, or appendices—as CRS

Report RS22708, Restitution in Federal Criminal Cases: A Sketch. Related reports include CRS Report RL33679,

Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. §3771, by Charles Doyle, available in abridged

form as CRS Report RS22518, Crime Victims’ Rights Act: A Sketch of 18 U.S.C. §3771, by Charles Doyle.

6 Section 3663 is sometimes referred to as the Victim and Witness Protection Act or VWPA. The text of Sections 3663,

3663A, and 3664 is appended.

7 Section 3663A is sometimes referred to as the Mandatory Victim Restitution Act or MVRA.

8 Id. § 43(c).

9 Id. § 228(d) (the court must order restitution for misdemeanor child support offenses as well); e.g., United States v.

Hanna, 630 F.3d 505, 512 (7th Cir. 2010).

10 18 U.S.C. § 1593; e.g., United States v. Charles, 895 F.3d 560, 562 (8th Cir. 2018); United States v. Baston, 818 F.3d

651, 671 (11th Cir. 2016).

11 18 U.S.C. § 2248; e.g., United States v. Thunderhawk, 860 F.3d 633, 635 (8th Cir. 2017).

12 18 U.S.C. § 2259 (the court must order restitution for misdemeanor child sexual exploitation offenses as well); e.g.,

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

stalking or domestic violence;13

telemarketing fraud;15

amphetamine or methamphetamine offenses;16

reckless disregard of sex trafficking;17 or

transportation or travel for unlawful sexual purposes.18

Federal courts also may order restitution pursuant to a plea bargain or as a condition of probation

or supervised release, even where it is not otherwise authorized.19 Section 3664 supplies the

procedure under which the restitution order is ordinarily imposed.

Background

Restitution has a diverse pedigree. Grounded in fairness20 and often thought of as an equitable

remedy,21 its antecedents can as easily be found in law as in equity.22 As its name implies,

restitution restores the victim to the status quo ante, that is, making the crime-depleted victim

whole again.23 Restitution has been a feature of the federal system of criminal justice for over a

century. In its earliest form, some federal judges claimed it as a component of their inherent

United States v. Romero-Medrano, 899 F.3d 356, 358 (5th Cir. 2018); United States v. Dillard, 891 F.3d 151, 154-55

(4th Cir. 2018).

13 18 U.S.C. § 2264 (the court must order restitution for misdemeanor stalking/domestic violence offenses as well);

e.g., United States v. Hobgood, 868 F.3d 744, 748 (8th Cir. 2017).

14 18 U.S.C. § 2323.

15 Id. § 2327.

16 21 U.S.C. § 853(q).

17 18 U.S.C. § 2421A, enacted as Section 3(a) of the Allow States and Victims to Fight Online Sex Trafficking Act of

2017, P.L. 115-164, 132 Stat. 1253 (2018).

18 18 U.S.C. 2429, enacted as Section 3(a) of the Abolish Human Trafficking Act of 2017, P.L. 115-392, 132 Stat. 5251

(2018).

19 18 U.S.C. §§ 3663(a)(3), 3663A(a)(3), 3563(b)(2), 3583(d); United States v. Rankin, 929 F.3d 399, 410 (6th Cir.

2019) (The obligation to pay restitution, ordered solely as a condition of supervised release, begins to run only after the

defendant is released from prison.).

20 Rankin v. Emigh, 218 U.S. 27, 35 (1910). (“[A]lthough restitution of property obtained under a contract which was

illegal, because ultra vires, cannot be adjudged by force of the illegal contract, yet, as the obligation to do justice rests

upon all persons, natural and artificial, if one obtains the money or property of others without authority, the law,

independently of express contract, will compel restitution or compensation.”).

21 Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993) (emphasis added) (“‘Equitable relief’ can also refer to those

categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not

compensatory damages.”); see also Warren A. Seavey, Problems in Restitution, 7 OKLA. L. REV. 257, 257 (1954)

(“Restitution is the equitable principle by which one who has been enriched at the expense of another, whether by

mistake, or otherwise, is under a duty to return what he has received or its value to the other.”).

22 Collen P. Murphy, Misclassifying Monetary Restitution, 55 SMU L. REV. 1577, 1598-1607 (2002); IV BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND 356 (1769) (“[I]f any person be convicted of larciny by the evidence of the

party robbed, he shall have full restitution of his money, goods, and chattels, or the value of them out of the offender’s

goods, if [he] has any, by the writ to be granted by the justices. And this writ of restitution shall reach the goods so

stolen, notwithstanding the property of them is endeavoured to be altered by sale in market overt.”) (transliteration

supplied).

23 Firefighters v. Stotts, 467 U.S. 561, 582 n.l5 (1984) (“[F]ederal courts are empowered to fashion such relief as the

particular circumstances of a case may require to effect restitution, making whole insofar as possible the victim ...”).

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authority to grant probation and suspended sentences.24 Then in 1916, the Supreme Court held

that the lower federal courts had no inherent power to suspend sentences.25 Congress responded

by granting the courts explicit authority to suspend sentences and to place defendants on

probation.26 In doing so, the courts were permitted to require probationers “to pay in one or

several sums a fine imposed at the time of being placed on probation and ... to make restitution or

reparation to the aggrieved party or parties for actual damages or loss caused by the offense for

which conviction was had, and ... to provide for the support of any person or persons for whose

support” they were “legally responsible.”27 This authority continued essentially unchanged for

more than 50 years.28 Even though the federal courts enjoyed no other power to order restitution

in a criminal case,29 the authority was “infrequently used and indifferently enforced.”30

Congress found this situation unsatisfactory.31 Thus, in the Victim and Witness Protection Act of

1982 (VWPA), it vested federal courts with the general discretion to order restitution in any

criminal case arising out of a crime proscribed in Title 18 of the United States Code or in air

piracy cases.32 In the Violent Crime Control and Law Enforcement Act of 1994, Congress

established mandatory restitution as a consequence of conviction for the federal crimes of sexual

abuse, sexual exploitation of children, and domestic violence.33 Then, in the Mandatory Victim

Restitution Act (MVRA) portion of the Antiterrorism and Effective Death Penalty Act of 1996,

Congress made mandatory restitution a consequence of conviction for most of the serious federal

crimes (i.e., crimes of violence and, when proscribed in Title 18 of the United States Code, crimes

against property, including fraud).34

24 H.R. Rep. No. 68-1377 at 3 (1925) (“[T]he United States district courts suspended sentence in many instances, and

certain courts used a form of probation, though without legislative authority, placing defendant under the supervision of

state probation officers or volunteers.” State probation officers worked under systems in which “greatly increased sums

[were] collected for fines, restitution, and especially family support.”).

25 Ex parte United States, 242 U.S. 27, 51-2 (1916).

26 P.L. 68-596, 43 Stat. 1259 (1925).

27 Id., at 1260.

28 18 U.S.C. § 3651 (1976 ed.) (“While on probation and among the conditions thereof, the defendant—May be

required to pay a fine in one or several sums; and May be required to make restitution or reparation to the aggrieved

party or parties for actual damages or loss caused by the offense for which conviction was had, and May be required to

provide for the support of any persons for whose support he is legally responsible.”).

29 United States v. Elkins, 731 F.2d 1005, 1010-11 (2d Cir. 1984) (holding that a federal court has no inherent power to

order restitution; the authority must be conveyed by statute); cf. United States v. Jimenez, 600 F.2d 1172, 1174 (5th

Cir. 1979) (“The government suggests no other basis for the reimbursement imposed as a condition of probation and

we know of none. 18 U.S.C. § 3651 lists three monetary payments on which probation may be conditioned fines,

restitution to aggrieved parties, and support payments to dependents. Repayments of court-appointed counsel is not

listed among these conditions.”); see also S. Rep. No. 97-532, at 30 (1982) (“Current law does not contain a provision

covering an order of restitution as a part of any sentence other than probation.”).

30 Id.

31 “Crime victims and their advocates have called on state legislators to restore restitution to its proper place in criminal

law. They point out that the average dollar losses victims suffer total hundreds of dollars, not thousands, and that most

ex-offenders, not just those on probation, have some means to undo the financial harm they have done. There is no

reason to believe that victims of federal crimes do not have the same grievances,” id.

32 P.L. 97-291, 96 Stat. 1253 (1982); now found as amended at 18 U.S.C. § 3663.

33 P.L. 103-322, 108 Stat. 1904, 1906, 1928 (1994), 18 U.S.C. §§ 2248, 2259, and 2264, respectively.

34 P.L. 104-132, 110 Stat. 1227 (1996), 18 U.S.C. § 3663A.

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Victims

The various federal restitution statutes address three questions: Who qualifies as a victim? What

crimes trigger restitution authority? What type of injuries or losses does restitution cover? As

general rule, a victim is:



“A person directly and proximately harmed as a result of the commission of an

offense for which restitution may be ordered …”;35

“… [I]n the case of an offense that involves as an element a scheme, conspiracy,

or pattern of criminal activity, any person directly harmed by the defendant’s

criminal conduct in the course of the scheme, conspiracy, or pattern…”;36

“… 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 victim’s rights under this section, but in no

event shall the defendant be named as such representative or guardian.”;37 or

A person specified in the defendant’s plea agreement.38

Under several specific sex offense and domestic violence restitution statutes, a victim is:



“The individual harmed as a result of a commission of a crime under this chapter

…”;39

“…[I]n 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, but in no event shall the defendant be named as such

representative or guardian”;40 or

A person specified in the defendant’s plea agreement.41

Sections 3663 and 3663A, and the statutes that incorporate their provisions understand “person”

to include individuals, corporations and other legal entities.42 Moreover, although a victim must

35 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2).

36 Id.

37 Id.

38 Id. §§ 3663(a)(3), 3663A(a)(3); United States v. Polukhin, 896 F.3d 848, 851 (8th Cir. 2018); United States v.

Kieffer, 794 F.3d 850, 853 (7th Cir. 2015); cf. United States v. Mathew, 916 F.3d 510, 516 (5th Cir. 2019) (emphasis

added) (“An award of restitution cannot compensate a victim for losses caused by conduct not charged in the

indictment or specified in a guilty plea.”).

39 18 U.S.C. §§ 1593(c) [18 U.S.C. ch. 77 (human trafficking)], 2248(c) [(18 U.S.C. ch. 109A (sexual abuse)],

2259(c)(4) [18 U.S.C. ch. 110 (sexual exploitation of children)], 2264(c) [18 U.S.C. ch. 110A (domestic violence)],

2429(d) [18 U.S.C. ch. 117 (travel or transportation for unlawful sexual purposes)].

40 Id. §§ 1593(c) (18 U.S.C. ch. 77 (human trafficking)), 2248(c) (18 U.S.C. ch. 109A (sexual abuse)), 2259(c)(4) (18

U.S.C. ch. 110 (sexual exploitation of children)), 2264(c) (18 U.S.C. ch. 110A (domestic violence)), 2429(d) (18

U.S.C. ch. 117 (travel or transportation for unlawful sexual purposes).

41 Id. §§ 3663(a)(3), 3663A(a)(3). In the absence of a conflict, the statutes, that call for restitution in domestic violence

and sex offenses cases, incorporate the provisions of Sections 3663A and 3664, §§ 1593(b)(2), 2248(b)(2), 2259(b)(3),

2264(b)(2), 2429(b)(2).

42 Under the Dictionary Act, “[i]n determining the meaning of any Act of Congress, unless the context indicates

otherwise ... the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships,

associations, and joint stock companies, as well as individuals.” 1 U.S.C. § 1; United States v. Benedict, 855 F.3d 880,

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be a “person” and governmental entities are ordinarily not considered persons,43 state, local,

federal, and foreign governmental entities have been awarded restitution orders when they

otherwise qualify as victims of a crime under §§3663 and 3663A.44 The human trafficking, sex,

and domestic violence mandatory restitution sections define victims as “individuals” rather than

“persons,” suggesting that only human victims and their representatives may claim restitution

under those provisions.45

The two sets of statutes also use different language to describe the nature of the harm that

qualified victims must experience. Sections 3663 and 3663A speak of victims harmed directly

and proximately.46 The sex-related statutes simply refer to victims as those harmed,47 but until

recently, they defined recoverable losses to include “any other losses suffered by the victim as a

proximate result of the offense.”48 Under both sets of restitution statutes, victim qualification and

loss qualification are two sides of the same coin. “Victims” are only those harmed by the

defendant’s crime; “losses” are only those harms caused by the defendant’s crime. The courts

frequently address the question as an issue of qualifying losses.

Most often under Sections 3663 and 3663A, a victim is a person or individual who suffers harm

as the direct and proximate result of the defendant’s crime of conviction or who receives

886-87 (8th Cir. 2017); cf. United States v. Ritchie, 858 F.3d 201, 212 (4th Cir. 2017) (concluding that Bank of

America was a victim for purposes of the MVRA); United States v. Martin, 803 F.3d 581, 592-93 (11th Cir. 2015)

(holding that three banks were victims within the meaning of the statute).

43 United States v. United Mine Workers, 330 U.S. 258, 275 (1947) (“The Act does not define ‘persons.’ In common

usage that term does not include the sovereign, and statutes employing it will ordinarily not be construed to do so.”). Of

course, human beings are persons even when victimized while acting in an official capacity, see, e.g., United States v.

Holthaus, 486 F.3d 451, 458 (8th Cir. 2007) (finding that “bankruptcy trustees qualify as victims under the statute if

their compensation is negatively impacted by a debtor’s misrepresentation,” after the defendant argued that trustees

could not be considered “persons” for restitution purposes).

44 United States v. Ng Lap Seng, 934 F.3d 110, 116, 146 (2d Cir. 2019) (United Nations); United States v. Sawyer, 825

F.3d 287, 292-94 (6th Cir. 2016) (U.S. Environmental Protection Agency); United States v. Mei Juan Zhang, 789 F.3d

214, 216-17 (1st Cir. 2015) (U.S. Internal Revenue Service); United States v. Butler, 694 F.3d 1177, 1184 (10th Cir.

2012) (Kansas); United States v. Bryant, 655 F.3d 232, 253 (3d Cir. 2011) (state medical school); United States v.

Bengis, 631 F.3d 33, 40-1 (2d Cir. 2011) (South Africa); United States v. Leahy, 464 F.3d 773, 793 (7th Cir. 2007)

(Chicago); United States v. Washington, 434 F.3d 1265, 1268-270 (11th Cir. 2006) (Ormond Beach police

department); United States v. Ekanem, 383 F.3d 40, 42-3 (2d Cir. 2004) (U.S. Department of Agriculture); see also

United States v. Petruk, 484 F.3d 1035, 1038 (8th Cir. 2007) (In a fraud case, restitution to the government should be

set at the amount the government “paid minus the amount that would have been paid in the absence of fraud.”); Leahy,

464 F.3d at 794.

45 Id. §§ 1593(c) (18 U.S.C. ch. 77 (human trafficking), 2248(c) (18 U.S.C. ch. 109A (sexual abuse)), 2259(c)(4) (18

U.S.C. ch. 110 (sexual exploitation of children)), 2264(c) (18 U.S.C. ch. 110A (domestic violence)), 2429(d) (18

U.S.C. ch. 117 (travel or transportation for unlawful sexual purposes).

46 18 U.S.C. § 3663(a)(2) (…“‘victim’ means a person directly and proximately harmed…”); id. § 3663A(a)(2).

47 Id. §§ 1593(c) (…“‘victim’ means the individual harmed…”), 2248(c), 2259(c)(4), 2264(c), 2429(d).

48 Id. §§ 2259(c)(2)(F) (…“‘full amount of the victim’s losses’ includes … (F) any other relevant losses suffered by the

victim as a proximate result of the offense.”); 1593(b)(3) (…“‘full amount of the victim’s losses’ has the same meaning

as provided in section 2259(c)(2)…”); 2429(b)(3) (…“‘full amount of the victim’s losses’ has the same meaning as

provided in section 2259(b)(3).”). In Paroline v. United States, the Supreme Court pointed to the “proximate result”

language and held that the language required a finding of proximate cause before a court could award restitution for

losses under the child-pornography restitution statute. 572 U.S. 434, 448 (2014) (“Restitution is therefore proper under

§ 2259 only to the extent the defendant’s offense proximately caused a victim’s loss.”). After the Court’s Paroline

decision, Congress in late 2018 enacted Public Law 115-299, the Amy Vicky, and Andy Child Pornography Victim

Assistance Act, that changed the definition of “full amount of the victim’s losses” in the child pornography restitution

statute (18 U.S.C. § 2259(c)(2)(F)) to “any other relevant losses incurred by the victim” from “any other relevant losses

suffered by the victim as a proximate result of the offense.”

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restitution under the defendant’s plea bargain.49 The definition of a victim for purposes of

restitution under Sections 3663 and 3663A expands when the crime of conviction has as an

element a conspiracy or a scheme or pattern of misconduct.50 The expansion either requires or

makes possible restitution for victims and offenses not mentioned specifically in the indictment,

not covered by the crime of conviction, and consequently not otherwise reimbursable.51

In the case of conspiracy, the court may compel a defendant to make restitution both to the

victims of the harm caused by his or her own misconduct and to the victims of the harm caused

by the foreseeable misconduct of co-conspirators.52

As for the scheme and pattern exception, most federal crimes do not list schemes or patterns

among their elements, although the mail fraud, wire fraud, health care fraud, and racketeering

statutes do.53 In such cases, restitution may include the losses incurred from a different episode of

the scheme than the one mentioned in the indictment.54 Yet the scheme must be the same; victims

49 18 U.S.C. §§ 3663(a)(2), (a)(3); 3663A(a)(2), (a)(3). United States v. Mathew, 916 F.3d 510, 516 (5th Cir. 2019)

(internal citations omitted) (Section 3663A “limits restitution to the actual loss directly and proximately caused by the

defendant’s offense of conviction. An award of restitution cannot compensate a victim for losses caused by conduct not

charged in the indictment or specified in a guilty plea.”); United States v. Olson, 867 F.3d 224, 229 n.2 (1st Cir. 2017);

United States v. Yijun Zhou, 838 F.3d 1007, 1012 & 1012 n.3 (9th Cir. 2016); United States v. Gushlak, 728 F.3d 19495 & 195 n.7 (2d Cir. 2013).

50 18 U.S.C. §§ 3663(a)(2) (“… the term ‘victim’ means … in the case of an offense that involves as an element a

scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in

the course of the scheme, conspiracy, or pattern…”), 3663A(a)(2) (same).

51 United States v. Pena, 910 F.3d 591, 603 (1st Cir. 2018) (internal citations and quotation marks omitted) (“Pursuant

to the MVRA, where the defendant’s criminal conduct includes an offense that involves as an element a scheme,

conspiracy, or pattern of criminal activity, a victim is defined as any person directly harmed by the defendant’s criminal

conduct in the course of the scheme, conspiracy, or pattern, and the district court may order restitution without regard

to whether the conduct that harmed the victim was conduct underlying the offense of conviction.”); United States v.

Thompson, 830 F.3d 1049, 1065-66 (9th Cir. 2016) (internal citations and italics omitted) (“More specifically, in the

case of a conviction for a crime or crimes that require proof of a scheme, conspiracy, or pattern of criminal activity,

such as mail fraud, restitution may be ordered for all persons directly harmed by the entire scheme. Such restitution is

not limited to harm caused by the particular counts of the conviction (as it would be absent the scheme element).”);

United States v. Jones, 641 F.3d 706, 714 (6th Cir. 2011) (“In the context of mail fraud convictions, we have read this

statutory definition of ‘victim’ to allow for restitution for the loss attributable to all the victims of a defendant’s scheme

to defraud, even when the defendant was not indicted or convicted of fraud with respect to each victim.”); see also

United States v. Benedict, 855 F.3d 880, 887 (8th Cir. 2017); United States v. Foley, 783 F.3d 7, 29 (1st Cir. 2015).

52 Pena, 910 F.3d at 603; United States v. Sawyer, 825 F.3d 287, 295-96 (6th Cir. 2016); United States v. Battista, 575

F.3d 226, 232 (2d Cir. 2009); United States v. Rand, 403 F.3d 489, 495 (7th Cir. 2005); United States v. Riley, 335

F.3d 919, 931-32 (9th Cir. 2003); United States v. Osborne, 332 F.3d 1307, 1314 (10th Cir. 2003) (“[T]he losses

caused by the entire conspiracy, not just the losses caused by those acts committed by the defendant, can be attributed

to the defendant when the district court orders restitution.”).

53 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1347, 1962 (racketeer influenced and corrupt organization

(RICO) offenses).

54 United States v. Sanjar, 876 F.3d 725, 748 (5th Cir. 2017) (internal citations omitted) (“When the offense of

conviction involves a ‘scheme’, the restitution statute broadens the definition of victim to include any person directly

harmed by the defendant’s criminal conduct in the course of the scheme. In such a situation, restitution may include

losses suffered by victims not named in the indictment so long as they are victims of the scheme described therein.

Conspiracy to commit health care fraud requires a scheme.”); United States v. Wirth, 719 F.3d 911, 917 (8th Cir. 2013)

(“[V]ictim restitution may be ordered for criminal conduct that is part of a broad scheme to defraud, without regard to

whether the defendant is convicted for each fraudulent act in the scheme.”); United States v. Johnson, 440 F.3d 832,

850 (6th Cir. 2006) (“Stone does not dispute that one element of a RICO offense and a RICO conspiracy is a pattern of

criminal activity ... The district court could therefore award restitution to any victim harmed by the defendant’s

criminal conduct in the course of the RICO activity.”); United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006) (“The

crime covered by §1341 is the scheme to defraud, not (just) the mailings that occur in the course of the scheme. This

indictment laid out, and the jury convicted Belk of, a multi-year scheme to defraud Rogge’s brokerage. The eight

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entitled to restitution do not include those harmed by an otherwise identical scheme but different

in time or place than the crime of conviction.55

The restitution definitions of “victim” usually mention family members as permissible

representatives of a child or deceased victim. Nevertheless, although the courts enjoy authority to

award family members restitution on behalf of the victims of crime,56 it is unclear whether the

victimization of one member of a family constitutes victimization of its other members sufficient

to warrant a restitution order for the benefit of a victim’s family members in their own name.57

Finally, under Sections 3663 and 3663A, a “victim” is anyone the defendant and the government

agree is a victim.58

mailings [listed in the indictment] were just overt acts. Restitution for the whole scheme is in order.”); United States v.

Dickerson, 370 F.3d 1330, 1342 (11th Cir. 2004) (“Therefore, we hold that where a defendant is convicted of a crime

of which a scheme is an element the district court must under 18 U.S.C. 3663A, order the defendant to pay restitution

to all victims for the losses they suffered from the defendant’s conduct in the course of the scheme even where such

losses were caused by conduct outside of the statute of limitations.”); United States v. Grice, 319 F.3d 1174, 1177 (9th

Cir. 2003) (“When a charged crime involves a scheme to defraud, the court can base restitution under the VWPA on

related conduct for which the defendant was not convicted.”).

55 United States v. Thomsen, 830 F.3d 1049, 1067 (9th Cir. 2016) (internal citations omitted) (“To prove the necessary

close relationship to the scheme of conviction, it is not enough to show another fraud against the victim that had aspects

in common with the scheme of conviction, or even show that both frauds were built upon the same central falsity.

Rather, there must be a causal link between the two, and that link may be lacking where the fraud against the victim

and the fraud scheme of conviction were accomplished by different means, had different victims, and took place

primarily in different locations. To put it another way, the fraud against the victim must not be linked too tangentially

to be part of the same scheme, conspiracy, or patter of criminal activity.”); United States v. Lozano, 791 F.3d 535, 538

(5th Cir. 2015) (internal citations omitted) (“As previously stated, because this case involved a fraudulent scheme, the

district court was authorized to award restitution for actions pursuant to that scheme. ‘However, the restitution for the

underlying scheme to defraud is limited to the specific temporal scope to the indictment.’”); United States v.

Flaschberger, 408 F.3d 941, 943 (7th Cir. 2005) (“Losses from the years preceding the scheme alleged in the

indictment must be subtracted from the [restitution] award.”).

56 18 U.S.C. 3663(a)(2); 3663A(a)(2).

57 United States v. Villalobos, 879 F.3d 169, 171 (5th Cir. 2018) (“[T]he ‘victim’ includes a minor’s guardians.”);

United States v. Nossan, 647 F.3d 822, 828 (8th Cir. 2011) (“The district court did not focus on the potential victims in

Gunderson’s family who purportedly paid the costs of Gunderson’s funeral and burial, and who requested the

restitution [in the amount of $22,626.40], We focus on the issues addressed by the district court.”).United States v.

Wilcox, 487 F.3d 1163, 1176-178 (8th Cir. 2007) (holding restitution may not include income lost by the mother of a

rape victim under the theory that the child’s mother was likewise a victim of the crime, but may include reimbursement

to the mother for the cost of transporting the child to receive crime-necessitated medical treatment); United States v.

Hayward, 359 F.3d 631, 642 (3d Cir. 2004) (upholding a restitution order for parents whose children had been

transported to London for illicit sexual purposes with the terse observation that the parents “incurred reasonable costs

in obtaining the return of their victimized children from London and in making their children available to participate in

the investigation and trial. The restitution order will therefore be affirmed.”); see also United States v. Douglas, 525

F.3d 225, 254 (2d Cir. 2008) (affirming a restitution order to compensate the father of a murdered victim for the annual

leave the father used to assist in the investigation and attend court proceedings. Before rejecting the defendant’s

contention that annual leave could not be considered lost income, the court observed without further comment that the

defendant had “conceded that Morgan Sr. clearly is a victim within the meaning of the MVRA.”).

58 18 U.S.C. 3663(a)(3) (“The court may also order restitution in any criminal case to the extent agreed to by the parties

in a plea agreement.”); 3663A(a)(3) (same). The language suggests that the parties may agree to restitution for the

benefit of persons not otherwise qualified as victims or in amounts that otherwise qualified victims would not be

entitled to, or both. United States v. Mathew, 916 F.3d 510, 516 (5th Cir. 2019) (internal citations omitted) (emphasis

added) (Section 3663A “‘limits restitution to the actual loss directly and proximately caused by the defendant’s offense

of conviction. An award of restitution cannot compensate a victim for losses caused by conduct not charged in the

indictment or specified in a guilty plea.’”); United States v. Polukhin, 896 F.3d 848, 851 (8th Cir. 2018) (“The Victim

and Witness Protection Act, however, provides that the court may order, if agreed to by the parties in a plea agreement,

restitution to persons other than the victim of the offense.”); United States v. Olson, 867 F.3d 224, 229 n.2 (1st Cir.

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Crimes

Although Sections 3663 and 3663A employ the same definition of victim, they do not authorize

restitution for the same crimes. The list of crimes for which Section 3663 permits restitution

supplements the list for which Section 3663A demands restitution.

Section 3663A (Mandatory Restitution)

The mandatory restitution of §3663A applies upon conviction for a felony or misdemeanor that is:



a crime of violence, as defined in Section 16(a);

an offense against property under 18 U.S.C., or under Section 416(a) of the

Controlled Substances Act (21 U.S.C. § 856(a)), including any offense

committed by fraud or deceit;

an offense described in Section 1365 (relating to tampering with consumer

products); or

an offense under Section §670 (relating to theft of medical products).59

Section 16 describes a crime of violence as either “(a) an offense that has as an element the use,

attempted use, or threatened use of physical force against the person or property of another, or (b)

any other offense that is a felony and that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used in the course of committing the

offense.”

In Sessions v. Dimaya, the Supreme Court held that Section 16(b), as incorporated into the

Immigration and Nationality Act, is unconstitutionally vague.60 The lower federal appellate courts

have held that for purposes of Section 3663A the term “crimes of violence,” as defined in Section

16(a), includes Hobbs Act robbery,61 threats,62 assault,63 and arson,64 but not a false statement

offense,65 interfering with a flight attendant,66 or second degree murder.67 Elsewhere, the Supreme

Court has explained that “crime of violence as defined by §16” does not encompass crimes

committed negligently or accidently, such as driving under the influence.68 The controlled

2017).

59 18 U.S.C. §§ 3663A(a)(1), (c)(1)(A). e.g., United States v. Wells, 873 F.3d 1241, 1247-48 (10th Cir. 2017). In the

case of misdemeanors, the district court has the discretion to impose only restitution or to order restitution in addition to

any other penalties that attend conviction.

60 138 S. Ct. 1204, 1210 (2018).

61 United States v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018) (18 U.S.C. § 1951).

62 United States v. Haileselassie, 668 F.3d 1033, 1034-35 (8th Cir. 2012) 18 U.S.C. § 876(c) (anthrax threat) United

States v. DeLaFuente, 353 F.3d 766, 770-71 (9th Cir. 2003) (same).

63 United States v. Cowden, 882 F.3d 464, 476 n. 3 (4th Cir. 2018) (18 U.S.C. § 242) (use of excessive force under

color of law); United States v. Schmidt, 675 F.3d 1164, 1167 (8th Cir. 2012) (18 U.S.C. § 113(a) (assault with a

dangerous weapon); United States v. Martinez, 486 F.3d 1239, 1248 (11th Cir. 2007) (18 U.S.C. § 111(a) (forcibly

assaulting a corrections officer).

64 United States v. Patrick V., 359 F.3d 3, 9 (1st Cir. 2004) (18 U.S.C. § 844(i)) (arson).

65 United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006) (18 U.S.C. § 1001).

66 United States v. Diaz, 865 F.3d 168, 178-79 (4th Cir. 2017) (49 U.S.C. § 46504).

67 United States v. Begay, 934 F.3d 1033, 1038 (9 th Cir. 2019) (“Second-degree murder does not constitute a crime of

violence under the elements clause – 18 U.S.C. § 924(d)(3)(A) – because it can be committed recklessly.”).

68 Leocal v. Ashcroft, 543 U.S. 1, 11 (2004); see also United States v. Daye, 571 F.3d 225, 232 (2d Cir. 2009) (noting

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substance offense that carries with it a restitution requirement under Section 3663A (21 U.S.C. §

856) consists of maintaining a place where controlled substances are manufactured, stored, or

used.69

The property damage/fraud predicate in Section 3663A must involve a violation proscribed under

title 18 of the United States Code rather than an offense found in another title.70 Yet the general

conspiracy provision in title 18 can provide the necessary basis for a mandatory restitution order

when the defendant is convicted of conspiracy to commit property damage or fraud in violation of

a federal law found outside of title 18.71

The court need not order restitution following conviction for an otherwise qualified property

damage or fraud offense when the number of identifiable victims or complexity of the issues

makes the effort impractical.72 The complexity exception under which the court may decline to

order mandatory restitution seems fairly narrow for a number of reasons. First, all else being

equal, the section seems to favor restitution: reimbursing the victims of crime outweighs

conforming to a sentencing time table.73 Second, balancing requires only a reasonable assessment

of the amount of the defendant’s restitution obligations, not an assessment with “exact

precision.”74 Third, and perhaps most compelling, after the Supreme Court’s decision in Dolan v.

for the same reason that reckless manslaughter and driving while intoxicated are not crimes of violence as defined in

Section 16).

69 E.g., United States v. Kaplan, 839 F.3d 795, 799-800 (9th Cir. 2016). Most other controlled substance offenses come

within the purview of Section 3663.

70 18 U.S.C. § 3663A(c)(1)(A)(ii); United States v. Chalupnik, 514 F.3d 748, 755 (8th Cir. 2008).

71 United States v. Quarrell, 310 F.3d 664, 677 (10th Cir. 2002) (“The Quarrells also argue the MVRA is inapplicable

because a violation of ARPA, 16 U.S.C. 470ee, is not an offense ‘under this title,’ referring to Title 18. However, the

Quarrells were also convicted of conspiracy under 18 U.S.C. 371, which is an offense under Title 18. The Quarrells’

conspiracy conviction satisfied the ‘under this title’ requirement of the MVRA.”); see also United States v. Sawyer,

825 F.3d 287, 292 (6th Cir. 2016) (conspiracy to violate the Clean Air Act); United States v. Butler, 694 F.3d 1177,

1183 (10th Cir. 2012) (conspiracy to violate the Lacey Act).

72 18 U.S.C. § 3663A(c)(3) (“This section shall not apply in the case of an offense described in paragraph (1)(A)(ii) if

the court finds, from facts on the record, that- (A) the number of identifiable victims is so large as to make restitution

impracticable; or (B) determining complex issues of fact related to the cause or amount of the victim's losses would

complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is

outweighed by the burden on the sentencing process.”). This does not necessarily mean that restitution is barred for

identifiable victims simply because other victims may be unidentifiable, United States v. Grimes, 173 F.3d 634, 639

(7th Cir. 1999). The number-of-victims and complexity-of-restitution limitations are only available to defendants

convicted of property damage/fraud predicate offenses; they are not available to other defendants subject to mandatory

restitution under § 3663A. United States v. Cienfuegos, 462 F.3d 1160, 1168 (9th Cir. 2006); United States v. Murray,

700 F.3d 241, 243 (5th Cir. 2012).

73 18 U.S.C. § 3663A(c)(3) (“This section shall not apply in the case of an offense described in paragraph (1)(A)(ii) if

the court finds, from facts on the record, that … (B) . . . the need to provide restitution to any victim is outweighed by

the burden on the sentencing process.”).

74 United States v. Carpenter, 841 F.3d 1057, 1060 (8th Cir. 2016) (internal citation omitted) (“In cases where the

amount of loss (and by extension the amount of restitution) caused by fraud is difficult to calculate, a district court is

charged only with making a reasonable estimate of the loss.”); United States v. Ferdman, 779 F.3d 1129, 1133 (10th

Cir. 2015) (internal citations and emphasis omitted) (“A district court may resolve restitution uncertainties with a view

towards achieving fairness to the victim so long as it still makes a reasonable determination of appropriate restitution

rooted in a calculation of actual loss. True, the MVRA does not require a court to calculate a victim’s actual loss with

‘exact’ precision.”); United States v. Anderson, 741 F.3d 938, 954 (9th Cir. 2013) (“Nonetheless, exact precision is not

required and district courts do have a degree of flexibility in accounting for a victim’s complete losses; thus, a

‘reasonable estimate’ will suffice.”); but see United States v. Flete-Garcia, 925 F.3d 17, 37 (1st Cir. 2019) (internal

citations omitted) (“And whereas loss calculations require only a reasonable estimate of the range of loss, the entire

amount of restitution must be supported – albeit only by a ‘modicum of reliable evidence.’”).

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United States,75 the restitution time table is no longer as consequential. In Dolan, the Court held

that the 90-day deadline for issuance of a restitution order applies to the determination that some

restitution is due, nor the amount due.76

Beyond the general description of crimes covered, Section 3663A lists two specific offenses for

which restitution is mandatory. The product tampering offense consists of tampering with a

product or its labeling that affects interstate or foreign commerce or spreading false rumors that

such a product is contaminated.77 The medical products offense consists of the theft of, or

unlawful trafficking in, pre-retail medical products.78

Other Restitution Statutes

A few other federal statutes require restitution orders. Most apply the procedures that govern

Sections 3663 and 3663A to a narrower range of crimes but a wider range of losses than Sections

3663 and 3663A and their attendant enforcement procedures might otherwise permit. Numbered

among these provisions are



18 U.S.C. § 43 (animal enterprise);

18 U.S.C. § 228(d) (restitution child support cases);79

18 U.S.C. § 1593 (restitution in cases under chapter 77 relating to peonage,

slavery, and trafficking in persons);80

18 U.S.C. § 2248 (restitution in cases under chapter 109A relating to sexual

abuse);81

18 U.S.C. § 2259 (restitution in cases under chapter 110 relating to sexual

exploitation of children);82

18 U.S.C. § 2264 (restitution in cases under chapter 110A relating to domestic

violence and stalking);83

18 U.S.C. § 2323(c) (restitution in copyright infringement cases);

18 U.S.C. § 2327 (restitution in telemarketing fraud cases);

75 560 U.S. 605 (2010).

76 Id. at 607-8 (“The statute in question focuses upon mandatory restitution for victims of crimes. It provides that ‘the

court shall set a date for the final determination of the victim’s losses not to exceed 90 days after sentencing.’ 18 U.S.C.

§ 3664(d)(5). We hold that a sentencing court that misses the 90-day deadline nonetheless retains the power to order

restitution – at least where, as here, the sentencing court made clear prior to the deadline’s expiration that it would

order restitution, leaving open (for more than 90 days) only the amount.”).

77 18 U.S.C. §§ 1365, 3663A(c)(1)(A)(iii).

78 Id. §§ 670, 3663A(c)(1)(A)(iv).

79 E.g., United States v. Hanna, 630 F.3d 505, 507 (7th Cir. 2010).

80 E.g., United States v. Charles, 895 F.3d 560, 562 (8th Cir. 2018); United States v. Baston, 818 F.3d 651, 665-66

(11th Cir. 2016).

81 E.g., United States v. Thunderhawk, 860 F.3d 633, 635 (8th Cir. 2017).

82 E.g., United States v. Romero-Medrano, 899 F.3d 356, 358 (5th Cir. 2018); United States v. Dillard, 891 F.3d 151,

155 (4th Cir. 2018).

83 E.g., United States v. Hobgood, 868 F.3d 744, 746 (8th Cir. 2017).

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

21 U.S.C. § 853(q) (restitution in controlled substances cases involving

amphetamine and methamphetamine offenses);84

18 U.S.C. § 2421A (reckless disregard of sex trafficking);85 and

18 U.S.C. § 2429 (transportation or travel for unlawful sexual purposes).86

Discretionary Restitution

Section 3663 permits restitution when the defendant has been convicted of a crime proscribed

under title 18 of the United States Code for which restitution is not mandatory.87 It also

authorizes, but does not require, restitution when the defendant is convicted of any of several

drug trafficking offenses under the Controlled Substances Act or of any of a few air safety

offenses.88 Elsewhere, the court may order restitution following conviction pursuant to a plea

bargain89 or as a condition of either probation90 or supervised release.91

Losses

But-For and Proximate Cause

As a general rule, restitution requires that the defendant’s offense be both the actual (or but-for)

cause of the victim’s loss and the proximate cause of that loss.92 “Proximate cause asks ‘whether

the harm alleged has a sufficiently close connection to the conduct at issue.’ In other words, was

the harm foreseeable”?93 Proximate cause “preclude[s] liability in situations where the causal link

84 21 U.S.C. § 853(q).

85 18 U.S.C. § 2421A, enacted as Section 3(a) of the Allow States and Victims to Fight Online Sex Trafficking Act of

2017, P.L. 115-164, 132 Stat. 1253 (2018).

86 18 U.S.C. 2429, enacted as Section 3(a) of the Abolish Human Trafficking Act of 2017, P.L. 115-392, 132 Stat. 5251

(2018).

87 18 U.S.C. § 3663(a).

88 The Controlled Substance Act offenses consist of violations of 21 U.S.C. §§ 841 (manufacture, distribution, or

possession with intent to distribute), 848(a) (drug kingpin), 849 (tracking at truck stops), 856 (maintain a place where

controlled substances are manufactured, stored, or used), 861 (using a child to traffic), 863 (trafficking in drug

paraphernalia). The aircraft safety offenses consist of violations of 49 U.S.C. §§ 5124 (tampering with the labels on

hazardous cargo), 46312 (unlawful transportation of hazardous cargo), 46502 (air piracy), and 46504 (interfering with a

flight crew).

89 18 U.S.C. § 3663(a)(3); United States v. Sizemore, 850 F.3d 821, 824-25 (6th Cir. 2017); United States v. Lo, 839

F.3d 777, 785-86 n.2 (9th Cir. 2016).

90 18 U.S.C. § 3563(b)(2); United States v. Alvarez, 835 F.3d 1180, 1184-85 (9th Cir. 2016); United States v. Udo, 795

F.3d 24, 34 n.5 (D.C. Cir. 2015).

91 18 U.S.C. § 3583(d); Alvarez, 835 F.3d at 1185; United States v. Kilpatrick, 798 F.3d 365, 391 (6th Cir. 2015).

Cf. Burrage v. United States, 571 U.S. 204, 210 (2014) (internal citations omitted) (“When a crime requires ‘not

merely conduct but also a specified result of conduct,’ a defendant generally may not be convicted unless his conduct is

both (1) the actual cause, and (2) the ‘legal’ cause (often called the proximate cause) of the result.”); United States v.

Wells, 873 F.3d 1241, 1266 (10th Cir. 2017) (quoting 3 Charles Alan Wright et al., FEDERAL PRACTICE AND

PROCEDURE: FEDERAL RULES OF CRIMINAL PROCEDURE § 546 (4th ed. 2011) (“Generally, the government must show

[under the federal restitution statute] both that the defendant is the but-for cause of the person’s harm and that the

defendant was the proximate cause of the person’s harm.”).

93 United States v. Stein, 846 F.3d 1135, 1155 (11th Cir. 2017); United States v. Soto, 799 F.3d 68, 98 (1st Cir. 2015)

(quoting Robers v. United States, 572 U.S. 639, 645 (2014) and citing Paroline v. United States, 572 U.S. 434, 445

(2014)); United States v. Clark, 787 F.3d 451, 463 (7th Cir. 2015) (“Direct and proximate harm means that the loss

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between the conduct and result is so attenuated that the consequence is more aptly described as

mere fortuity.”94

The child pornography restitution statute, Section 2259, presents the courts with one of the few

instances in which restitution was required in spite of the absence of but-for cause. In Paroline v.

United States, a man videoed his 9-year old niece in sexually abusive poses.95 He was convicted,

imprisoned, ordered to pay $6,000 in restitution.96 Years later, the victim discovered the video had

gone viral on the internet further traumatizing and humiliating her.97 Paroline pleaded guilty to

possession of a downloaded copy of the video and the victim sought restitution in the amount of a

little less than $3.4 million from him of the accumulated harm of years of wide-spread

distribution.98 There was no question that Paroline’s offenses had harmed the victim.

Nevertheless, his offense was not the but-for cause of the total harm the victim suffered and

unraveling his contribution from the thousands of other unidentified past and future possessors of

the pornographic material would be “incredibly difficult.”99 And so the Court declared:

In this special context, where it can be shown both that a defendant possessed a victim’s

images and that a victim has outstanding losses caused by the continuing traffic in those

images but where it is impossible to trace [particular amount of those losses to the

individual defendant by recourse to a more traditional causal inquiry, a court applying §

2259 should order restitution in an amount that comports with the defendant’s relative role

in the causal process that underlies the victim’s general losses.100

Subsequent lower federal appellate courts have emphasized that the government must prove that

the defendant’s conduct caused some of the victim’s harm,101 but have granted district courts

some latitude in assessing the defendant’s portion of the victim’s total losses.102

would not have occurred ‘but for’ the offense and that it was ‘foreseeable.’”).

94 Paroline, 572 U.S. at 445.

In re Amy, 591 F.3d 792, 794 (5th Cir. 2009), vac’d en banc sub nom., In re Amy Unknown, 701 F.3d 749 (5th Cir.

2012); vac’d and remanded, Paroline v. United States, 572 U.S. 434 (2014).

96 Paroline, 572 U.S. at 440.

97 Id. at 440-41.

98 In re Amy Unknown, 701 F.3d at 752-53.

99 Paroline, 572 U.S. at 450 (“In this case, however, a showing of but-for causation cannot be made. The District Court

found that the Government failed to prove specific losses caused by Paroline in a but-for sense and recognized that it

would be ‘incredibly difficult’ to do so in a case like this.”).

100 Id. at 458.

101 United States v. Winchel, 896 F.3d 387, 390 (5th Cir. 2018) (trial court erred in ordering the defendant to pay $1.5

million in restitution without determining whether the defendant’s conduct proximately caused the victim’s losses);

United States v. Villalobos, 879 F.3d 169, 171-72 (5th Cir. 2018) (district court could not award $10,000 in restitution

when it found that the total losses to the defendant were $0).

102 United States v. Rothenberg, 923 F.3d 1309, 1333 (11th Cir. 2019) (after reviewing decisions in other circuits)

(internal citations omitted) (“Paroline directed district courts to hold a defendant accountable only for his own

individual conduct and set a restitution amount that comports with the defendant’s relative role in causing the victim’s

general losses. How a district court arrives at that figure is largely up to the district court, so long as the number is a

reasonable and circumscribed award that is suited to the relative size of the defendant’s causal role in the entire chain of

events that caused the victim’s loss.”); United States v. Halverson, 897 F.3d 645, 654-55 (5th Cir. 2018) (upholding a

restitution order consisting of a base amount of $5,000 plus an amount based on the number of images of the victim the

defendant possessed);); United States v. Bordman, 895 F.3d 1048, 1057-59 (8th Cir. 2018) (upholding a district court

restitution order that divided the victim’s losses by the number of offenders whose conduct caused the victim’s losses

among other factors); United States v. Dillard, 891 F.3d 151, 162 (4th Cir. 2018) (rejecting the contention that mere

possessors of child pornography are immune from restitution orders) (“[C]ourts of appeals have approved of various

methods of determining a restitution award that is not token or nominal … District courts have great discretion in

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Property Loss or Damage

Sections 3663 and 3663A

Sections 3663 and 3663A have essentially identical restitution provisions: both call for the return

of the property, if that provides full victim restitution.103 If not, restitution takes the form of

compensatory payments, in whole or in part.104 As a general rule, victims are entitled only to be

made whole; unlike the sentencing guidelines which calculate sentence enhancements based on

both actual and intended losses,105 the restitution statutes permit awards only for actual losses.106

It is often not the fact of a reimbursable loss, but its measure, that challenges the courts.

Nevertheless, the types of reimbursable property losses contemplated by Sections 3663(b)(1) and

3663A(b)(1) include things like the salary of a faithless employee,107 or the insurance

selecting a an appropriate methodology …”); United States v. Sainz, 827 F.3d 602, 605-607 (7th Cir. 2016).

103 18 U.S.C. § 3663(b)(1) (“The order may require that such defendant—(1) in the case of an offense resulting in

damage to or loss or destruction of property of a victim of the offense—(A) return the property to the owner of the

property or someone designated by the owner; or (B) if return of the property under subparagraph (A) is impossible,

impractical, or inadequate, pay an amount equal to the greater of—(i) the value of the property on the date of the

damage, loss, or destruction, or (ii) the value of the property on the date of sentencing, less the value (as of the date the

property is returned) of any part of the property that is returned.”); see id. § 3663A(b)(1) below.

104 Id. (“The order of restitution shall require that such defendant—(1) in the case of an offense resulting in damage to

or loss or destruction of property of a victim of the offense—(A) return the property to the owner of the property or

someone designated by the owner; or (B) if return of the property under subparagraph (A) is impossible, impracticable,

or inadequate, pay an amount equal to—(i) the greater of—(I) the value of the property on the date of the damage, loss,

or destruction; or (II) the value of the property on the date of sentencing, less (ii) the value (as of the date the property

is returned) of any part of the property that is returned.”); see id. § 3663(b)(1) above; e.g., United States v. Ritchie, 858

F.3d 201, 215 (4th Cir. 2017) (internal citations omitted) (“The ‘owner of the property’ that was lost (i.e., money lent),

… is entitled to a restitution award that is equivalent to the outstanding amount of the money that remains due under

the fraudulently obtained loan. And because the money that was lent to the borrower is ‘property’ under MVRA, that

amount necessarily takes into account any portion of the money that was ‘returned’ to the owner … when the collateral

that secured the loan was sold.”).

105 U.S.S.G. §2B1.1 and accompanying Application Note 3.

106 United States v. Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018) (internal citations omitted) (“In a fraud case resulting

in financial loss the defendant’s guideline sentencing range is determined in part by calculating the greater of either the

intended loss or the actual loss. … So viewed, intended loss serves a punitive purpose, punishing the defendant for the

harm that he sought to inflict. In contract, restitution is designed to compensate the victim, not to punish the offender.

To this end, the MVRA mandates that a defendant convicted of certain federal crimes … make restitution to victims

commensurate with the victims’ actual losses.”); United States v. Lacey, 699 F.3d 710, 721 (2d Cir. 2012) (“We note

that unlike the loss calculation for the purposes of sentencing, which may incorporate a merely intended loss in order to

punish a culpable defendant, restitution is designed to make the victim whole, and must therefore be based only on the

actual loss caused by the scheme.”); United States v. Harvey, 532 F.3d 326, 339 (4th Cir. 2008) (“We and other circuits

have interpreted this language [18 U.S.C. 3664(f)(1))A)] to require that an order of restitution be based on ‘actual loss,’

rather than ‘intended loss’.”) (citing cases from the First, Second, Third, Fourth, Fifth, Seventh, and Tenth Circuits).

The Identity Theft Enforcement and Restitution Act, however, recognizes restitution awards for either the actual or

intended harm caused by certain identity theft offenses (violations of either 18 U.S.C. §§ 1027(a)(7) or 1028A(a)), 18

U.S.C. 3663(b)(6). Moreover, a plea agreement may call for restitution that §§ 3663 and 3663A would not otherwise

allow. Id. §§ 3663(a)(3), 3663A(a)(3).

107 United States v. Bahel, 662 F.3d 610, 648-49, 650 (2d Cir. 2011) (“[T]he money the U.N. paid in the form of his

salary was plainly ‘property’ that belonged to the U.N., at least some of which the U.N lost as a result of Bahel’s

offense [receiving kickbacks from U.N. contractors], since the U.N. paid him for his honest services, which is what he

failed to provide.... [We] find that requiring Bahel to repay less than 10% of his total salary was a conservative estimate

of the costs of the fraud with respect to his salary.”) (citing, United States v. Crawley, 533 F.3d 349 (5th Cir. 2008),

and United States v. Sapoznik, 161 F.3d 1117 (7th Cir. 1998)); see also United States v. Hunter, 618 F.3d 1062, 1066

(9th Cir. 2010) (holding restitution in amounts paid by former employers as salary and benefits to the defendant

convicted for stealing the identity of a registered nurse and using to gain employment).

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replacement costs of a stolen car,108 or the losses visited upon a loan guarantor by a mortgage

fraud scheme.109

Both Sections 3663 and 3663A, nevertheless, permit restitution for losses other than those caused

by the crime of conviction when the offense “involves as an element a scheme, conspiracy, or

pattern of criminal activity.”110

The Supreme Court resolved uncertainty when it held in United States v. Lagos on May 29, 2018,

that restitution under Section 3663A for a victim’s attorneys’ fees and other expenses incurred

during an investigation and proceeding relating to the offense of conviction applies only to

government investigations and proceedings and not to private investigations or civil

proceedings.111 The Court left unresolved whether private investigations conducted or private

judicial proceedings initiated at the government’s request might be covered.112

Section 3663(b), unlike its counterpart, permits the court to order those convicted of crimeassisting identity theft or aggravated identity theft to pay for the costs incurred by their victims to

remedy the actual or intended harm associated with the offense.113

Again unlike Section 3663A, Section 3663(c) authorizes community restitution in the form of

awards apportioned between state victim assistance agencies and state agencies dedicated to the

108 United States v. Burks, 678 F.3d 1190, 1198-99 (10th Cir. 2012).

109 Robers v. United States, 572 U.S. 639, 640-41 (2014) (“A provision in the statute says that, when return of the

property lost by the victim is ‘impossible, impracticable, or inadequate,’ the offender must pay the victim ‘an amount

equal to ... the value of the property’ less ‘the value (as of the date the property is returned) of any part of the property

that is returned.’ §3663A(b)(1)(B). The question before us is whether ‘any part of the property’ is ‘returned’ when a

victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim. We hold that it is

not. In our view, the statutory phrase ‘any part of the property’ refers only to the specific property lost by a victim,

which, in the case of a fraudulently obtained loan, is the money lent. Therefore, no ‘part of the property’ is ‘returned’ to

the victim until the collateral is sold and the victim receives money from the sale. The import of our holding is that a

sentencing court must reduce the restitution amount by the amount of money the victim received in selling the

collateral, not the value of the collateral when the victim received it.”).

110 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2); United States v. Anieze-Smith, 923 F.3d 565, 572 (9th Cir. 2019) (internal

citation omitted) (“Because an element of health care fraud is a scheme or pattern of criminal conduct, the MVRA

permits the district court to base restitution on related but uncharged conduct that was part of Anieze-Smith’s fraud

scheme”); United States v. Cornelsen, 893 F.3d 1086, 1090-91 (8th Cir. 2018); United States v. Sanjar, 876 F.3d 725,

748 (5th Cir. 2017).

111 Lagos v. United States, 138 S. Ct. 1684, 1687 (2018) (“The Mandatory Victims Restitution Act of 1996 requires

defendants convicted of a listed range of offenses to ‘reimburse the victim for lost income and necessary child care,

transportation, and other expenses including during participation in the investigation or prosecution of the offense or

attendance at proceedings relating to the offense.’ 18 U.S.C. § 3663A(b)(4) (emphasis added.). We must decide

whether the words ‘investigation’ and ‘proceedings’ are limited to government investigations and criminal proceedings,

or whether they include private investigations and civil proceedings. In our view, they are limited to government

investigations and proceedings.”); see also Cornelsen, 893 F.3d at 1091. The same language appears in 18 U.S.C. §

3663(b)(4).

112 Lagos, 138 S. Ct. at 1690.

113 18 U.S.C. § 3663(b)(6). (“(b) The order may require that such defendant ... (6) in the case of an offense under

§§ 1028(a)(7) or 1028A(a) of this title, pay an amount equal to the value of the time reasonably spent by the victim

in an attempt to remediate the intended or actual harm incurred by the victim from the offense.”).

Section 1028(a)(7) condemns whoever “knowingly transfers, possesses, or uses, without lawful authority, a means of

identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity

that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.” Section

1028A condemns similar misconduct committed during and in relation to a number of other designated federal

offenses.

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reduction of substance abuse.114 The authority is limited to certain drug trafficking cases where

there are no identifiable victims; may not exceed the amount of the fine that might be imposes;

and may not take priority over any fines imposed, forfeitures ordered, or penalties assessed.115

Individual Restitution Sections

Several individual restitution sections follow the same general pattern as Section 3663A but add

at least one unique feature of their own.116 For example, the child support restitution section, 18

U.S.C. § 228(d), adopts the procedures of Section 3663A in cases of interstate evasion of child

support orders.117 Yet the amount of restitution that must be awarded is determined by reference

to a state court support order or by other governing state law118 and, as such, may include the

interest on overdue support payments119 and support owed after children have reached their

majority.120

The peonage restitution section, 18 U.S.C. §1593, uses the common definition of “victim”121 and

affords victims of human trafficking offenses122 a wide range of compensation that, unlike

114 18 U.S.C. § 3663(c) (“(1) Notwithstanding any other provision of law ... when sentencing a defendant convicted of

an offense described in ... 21 U.S.C. 841, 848(a), 849, 856, 861, 863), in which there is no identifiable victim, the court

may order that the defendant make restitution in accordance with this subsection. (2)(A) An order of restitution under

this subsection shall be based on the amount of public harm caused by the offense, as determined by the court in

accordance with guidelines promulgated by the United States Sentencing Commission.... (3) Restitution under this

subsection shall be distributed as follows: (A) 65 percent of the total amount of restitution shall be paid to the State

entity designated to administer crime victim assistance in the State in which the crime occurred. (B) 35 percent of the

total amount of restitution shall be paid to the State entity designated to receive Federal substance abuse block grant

funds ...”).

115 Id.; id. § 3663(c)(2)(B); id. § 3663(c)(4) (“The court shall not make an award under this subsection if it appears

likely that such award would interfere with a forfeiture under chapter 46 or chapter 96 of this title or under the

Controlled Substances Act.”); id. § 3663(c)(5) (“Notwithstanding section 3612(c) or any other provision of law, a

penalty assessment under section 3013 or a fine under subchapter C of chapter 227 [relating to fines for federal

offenses] shall take precedence over any order of restitution under this subsection.”).

116 The copyright restitution statute is an exception to this general rule; it adopts Sections 3663A and 3664 by cross

reference with no additional features other than the offenses that trigger the mandatory restitution requirement. Id. §

2323(c) (“When a person is convicted of an offense under §506 of Title 17 or §2318, 2319, 2319A, 2319B, or 2320, or

chapter 90 of this title, the court, pursuant to §§3556, 3663A, and 3664 of this title, shall order the person to pay

restitution to any victim of the offense as an offense against property referred to in §3663A(c)(1)(A)(ii) of this title.”).

117 Id. § 228(d) (“Upon a conviction under this section, the court shall order restitution under Section 3663A in an

amount equal to the total unpaid support obligation as it exists at the time of sentencing.”); United States v. Hanna, 630

F.3d 505, 512 (7th Cir. 2010).

118 18 U.S.C. § 228(f)(3) (“[T]he term ‘support obligation’ means any amount determined under a court order or an

order of an administrative process pursuant to the law of a State or of an Indian tribe to be due from a person for the

support and maintenance of a child or of a child and the parent with whom the child is living.”).

119 United States v. Gill, 264 F.3d 929, 931-33 (9th Cir. 2001).

120 United States v. Molak, 276 F.3d 45, 51 (1st Cir. 2002).

121 18 U.S.C. § 1593(c) (“As used in this section, the term ‘victim’ means the individual harmed as a result of a crime

under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or

deceased, the legal guardian of the victim or a representative of the victim’s estate, or another family member, or any

other person appointed as suitable by the court, but in no event shall the defendant be named such representative or

guardian.”).

122 Chapter 77 of Title 18 of the United States Code houses the following criminal prohibitions: id. §§ 1581 (peonage),

1582 (vessels in the slave trade), 1582 (enticement into slavery), 1584 (sale into involuntary servitude), 1585

(transportation or sale of slaves), 1586 (service on vessels in the slave trade), 1587 (possession of slaves aboard a

vessel), 1588 (transportation of slaves from the United States), 1589 (forced labor), 1590 (human trafficking), 1591

(sex trafficking), 1592 (documentation in aid of trafficking).

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§§3663 and 3663A, includes the economic benefits derived from the victim’s services and a

catch-all clause ensuring compensation for predicate crime-related injuries and losses.123

The telemarketing fraud restitution statute, 18 U.S.C. § 2327, originally enacted two years before

the passage of the mandatory restitution provisions of Section 3663A, once had highly

individualistic features.124 Congress has since been amended it so that its provisions more closely

track those of the general restitution provisions for losses caused by predicate crimes.125

The methamphetamine statute, 21 U.S.C. § 853(q), covers the cleanup cost of closing down illicit

amphetamine and methamphetamine production sites.126 At one time, the section applied only to

those convicted of manufacturing offenses and consequently reached convictions for attempted

manufacture but not for possession with intent to distribute.127 The USA PATRIOT Improvement

and Reauthorization Act amended the section so that it now authorizes restitution upon conviction

123 Id. § 1593(b)(3) (emphasis added) (“As used in this subsection, the term ‘full amount of the victim’s losses’ has the

same meaning as provided in §2259(b)(3) and shall in addition include the greater of the gross income or value to the

defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage

and overtime guarantees of the Fair Labor Standards Act (29 U.S.C. 201 et seq.).”). Section 2259(b)(3) (emphasis

added) defines “full amount of the victim’s losses” to include “any costs incurred by the victim for—(A) medical

services relating to physical, psychiatric, or psychological care; (B) physical and occupational therapy or rehabilitation;

costs incurred in obtaining a civil protection order; and (F) any other losses suffered by the victim as a proximate result

of the offense.”); United States v. Baston, 818 F.3d 651, 660 (11th Cir. 2016) (“The district court ordered Baston to pay

$99,270 in restitution … The district court calculated these amounts based on worksheets provided by the government,

which multiplied the hours that the victims prostituted for Baston by the amounts that they charged and then subtracted

their estimated living expenses.”). The court in Baston also held that the district court should have ordered restitution

covering the $400,000 Baston received for prostituting the victims in Australia. Id. 818 F.3d at 665-68. See also, In re

Sealed Case, 702 F.3d 59, 66 (D.C. Cir. 2012) (“Section 1593 requires that the defendant pay the victim ‘the full

amount of the victim’s losses,’ id. §1593(b)(1) defined as the sum of two components: (1) ill-gotten gains plus (2) the

‘full amount of the victim’s losses’...”).

124 18 U.S.C. § 2327 (1994 ed.).

125 18 U.S.C. § 2327 now provides:

“(a) In general—Notwithstanding §3663 or 3663A, and in addition to any other civil or criminal penalty authorized by

law, the court shall order restitution to all victims of any offense for which an enhanced penalty is provided under

§2326.

“(b) Scope and nature of order.—(1) Directions.—The order of restitution under this section shall direct the defendant

to pay to the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by

the court pursuant to paragraph (2). (2) Enforcement.—An order of restitution under this section shall be issued and

enforced in accordance with §3664 in the same manner as an order under §3663A. (3) Definition.—For purposes of this

subsection, the term ‘full amount of the victim’s losses’ means all losses suffered by the victim as a proximate result of

the offense. (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) Victim defined—In this section, the term ‘victim’ has the meaning given that term in §3663A(a)(2).”

126 21 U.S.C. § 853(q) (“The court, when sentencing a defendant convicted of an offense under this subchapter or

subchapter II of this chapter involving the manufacture, the possession, or the possession with intent to distribute, of

amphetamine or methamphetamine, shall—(1) order restitution as provided in §§3612 and 3664 of Title 18; (2) order

the defendant to reimburse the United States, the State or local government concerned, or both the United States and

the State or local government concerned for the costs incurred by the United States or the State or local government

concerned, as the case may be, for the cleanup associated with the manufacture of amphetamine or methamphetamine

by the defendant or on premises or in property that the defendant owns, resides, or does business in; and (3) order

restitution to any person injured as a result of the offense as provided in §3663A of Title 18.”).

127 United States v. Gramling, 417 F.3d 891, 895-96 (8th Cir. 2005) (attempt); United States v. Lachowski, 405 F.3d

696, 698-700 (8th Cir. 2005) (possession).

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for offenses involving possession, possession with intent to distribute, or manufacture of

amphetamine and methamphetamine.128

The animal enterprise interference section, 18 U.S.C. § 43(c), permits a sentencing court to order

a defendant convicted of violating its proscriptions to pay restitution for specific kinds of damage

(i.e., the cost of repeating disrupted experiments, the loss of farm income, and the costs of

economic disruption).129

Personal Injuries

Sections 3663 and 3663A

Sections 3663 and 3663A have parallel provisions governing the restitution for personal injuries

that permit or, in the case of Section 3663A require, compensation for medical expenses,130 lost

income,131 rehabilitation,132 and, in the event the victim is killed, funeral and related expenses.133

The medical expenses covered by a restitution order may include those paid on the victim’s

behalf by a third party,134 and may include the costs of psychiatric and psychological treatment

128 Section 743, P.L. 109-177, 120 Stat. 272 (2006).

129 18 U.S.C. § 43(c) (“An order of restitution under section 3663 or 3663A of this title with respect to a violation of

this section may also include restitution—(1) for the reasonable cost of repeating any experimentation that was

interrupted or invalidated as a result of the offense; (2) for the loss of food production or farm income reasonably

attributable to the offense; and (3) for any other economic damage, including any losses or costs caused by economic

disruption, resulting from the offense.”). Note that Section 43 outlaws misconduct involving either property damage,

personal injury, or both.

130 Id. §§ 3663(b)(2)(A), 3663A((b)(2)(A) (“[A]n amount equal to the cost of necessary medical and related

professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care

and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment.”); e.g.,

United States v. Keelan, 786 F.3d 865, 872-73 (11th Cir. 2015); United States v. Church, 731 F.3d 530, 536 (6th Cir.

2013); United States v. Schmidt, 675 F.3d 1164, 1169 (8th Cir. 2012).

131 18 U.S.C. §§ 3663(b)(2)(C), 3663A(b)(2)(C); United States v. Messina, 806 F.3d 55, 67-8 (2d Cir. 2015) (noting

that section 3663A(b)(2)(C) requires restitution awards for the lost income of the victims of physical injuries, both

those who survive and those that do not).

132 18 U.S.C. §§ 3663(b)(2)(B), 3663A(b)(2)(B) (“[A]n amount equal to the cost of necessary physical and

occupational therapy and rehabilitation.”).

133 Id. §§ 3663(b)(3), 3663A(b)(3) (“... [A]n amount equal to the cost of necessary funeral and related services.”); e.g.,

United States v. Amador-Huggins, 799 F.3d 124, 133-34(1st Cir. 2015); United States v. Bostick, 791 F.3d 127, 160-61

(D.C. Cir. 2015); United States v. Douglas, 525 F.3d 225, 253-54 (2d Cir. 2008).

134 Church, 731 F.3d at 535; United States v. Johnson, 400 F.3d 187, 199-201(4th Cir. 2005) (“Under the MVRA, a

district court properly orders restitution to be paid to a third party when the party bears the cost of providing necessary

medical care to a victim of a covered offense who suffered bodily injury as a result of the offense.”) (quoting United

States v. Cliatt, 338 F.3d 1089, 1091 (9th Cir. 2003)); Schmidt, 675 F.3d at 1169.

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when the victim has suffered a physical injury.135 Restitution for lost income extends to both past

and future lost income.136

Other Restitution Statutes

Prior to passage of the general mandatory restitution authority in Section 3663A, Congress

authorized restitution for three related sets of offenses. Those authorizations, found in 18 U.S.C.

§§ 2248, 2259 and 2264, require the courts to order restitution following conviction for an

offense proscribed in chapters 109A (sexual abuse), 110 (sexual exploitation of children), and

110A (domestic violence and stalking), respectively.137 Other than their designation of predicate

offenses, the sections are identical. They each:



insist on restitution of the “full amount of the victim’s losses,”138

define “victims” in much the manner of §§3663 and 3663A;139

supply a list of losses for which restitution must be ordered;140

135 Keelan, 786 F.3d at 872 (“The statutory language does not limit restitution only to care necessary to narrowly treat

the physical manifestations of the victim’s injury. The statute explicitly encompasses mental health treatment necessary

to treat the psychological trauma of the victim.”); United States v. Reichow, 416 F.3d 802, 805-6 (8th Cir. 2005);

United States v. Follet, 269 F.3d 996, 1001 (9th Cir. 2001); United States v. Husky, 924 F.2d 223, 226 (11th Cir. 1991).

Physical injury is ordinarily a necessary prerequisite for recovery for psychological harm, United States v. Maynard,

743 F.3d 374, 380 (2d Cir. 2014). No such physical injury is required, however, when restitution is ordered under the

authority of individual sexual abuse restitution statute although the sexual abuse statute may impose greater limits on

payments to third parties. Follet, 269 F.3d at 998-1001 (sexual abuse victim).

136 Messina, 806 F.3d at 67-8; United States v. Cienfuegos, 462 F.3d 1160, 1163-69 (9th Cir. 2006); United States v.

Oslund, 453 F.3d 1048, 1062-63 (8th Cir. 2006) (but explaining that in a given case complications associated with

calculating the value of income lost by a murder victim might justify a refusal to award them). Note, however, that

while the Ninth Circuit held that restitution for future income can be awarded to the estate or representative of a

deceased victim, Cienfuegos, 462 F.3d at 1163-69, it had previously held that the wife of a deceased victim was not

entitled to restitution for the victim’s lost income in her own right unless she also suffered a physical injury as

consequence of the offense. United States v. Dayea, 73 F.3d 229, 231-32 (9th Cir. 1995).

137 The crimes in chapters 109A, 110 and 110A of Title 18 consist of those proscribed in 18 U.S.C. §§ 2241

(aggravated sexual abuse), 2242 (sexual abuse), 2243 (sexual abuse of a minor or ward), 2244 (abusive sexual contact),

2251 (sexual exploitation of children), 2251A (selling or buying children), 2252 (material involving sexual exploitation

of children), 2252A (child pornography), 2252B (misleading internet domain names), 2252C (misleading internet

words or digital images), 2257 (record keeping requirements), 2257A (simulated sexual conduct records), 2258 (failure

to report child abuse), 2260 (overseas production child pornography for the United States), 2260A (sex offender

registration), 2261 (interstate domestic violence), 2262 (interstate stalking), 2261 (violation of protection orders).

138 Id. §§ 2248(b)(1), (b)(4)(A); 2259(b)(1), (b)(4)(A); 2264(b)(1), (b)(4)(A); e.g., United States v. Thunderhawk, 860

F.3d 633, 636-37 (8th Cir. 2017).

139 18 U.S.C. §§ 2248(c), 2259(c), 2264(c) (“For purposes of this section, the term ‘victim’ means the individual

harmed as a result of a commission of a crime under this chapter, including, 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, but in no event shall the

defendant be named as such representative or guardian.”); United States v. Rothenberg, 923 F.3d 1309, 1324 (11th Cir.

2019).

140 18 U.S.C. §§ 2248(b)(3), 2259(b)(3), 2264(b)(3) (“For purposes of this subsection, the term ‘full amount of the

victim’s losses’ includes any costs incurred by the victim for—(A) medical services relating to physical, psychiatric, or

psychological care; (B) physical and occupational therapy or rehabilitation; (C) necessary transportation, temporary

housing, and child care expenses; (D) lost income; (E) attorneys’ fees, plus any costs incurred in obtaining a civil

protection order; and (F) any other losses suffered by the victim as a proximate result of the offense.”); United States v.

Osman, 853 F.3d 1184, 1189 (11th Cir. 2017).

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

make it clear that neither the defendant’s poverty nor victim compensation from

other sources absolves the court of its obligation to order restitution;141 and

otherwise adopt the procedural mechanisms used for restitution under Section

3663A.142

Unlike Sections 3663 and 3663A, the three sections on their face do not require bodily injury of

the victim as a precondition for the award of the cost of psychiatric treatments. They also have a

catch-all clause that has no counterpart in either Section 3663 or 3663A.143 On the other hand,

unlike §§3663 and 3663A, they do not authorize payments to third parties to reimburse them for

treatment of a victim’s crime-related injuries.144

Procedure

Except to the limited extent otherwise provided in the individual authorization statutes, Section

3664 supplies the procedure that governs the issuance of restitution orders.145 Upon conviction of

a defendant, the court directs the probation service to investigate and prepare a report identifying

each victim of the offense and the extent of their injuries, damages, or losses.146 Prosecutors are to

provide the probation officer with pertinent information.147 The officer is also to ask victims to

141 18 U.S.C. §§ 2248(b)(4)(B), 2259(b)(4)(B), 2264(b)(4)(B) (“(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.”); Rothenberg, 923

F.3d at 1324.

142 18 U.S.C. §§ 2248(b)(2), 2259(b)(2), 2264(b)(2) (“An order of restitution under this section shall be issued and

enforced in accordance with §3664 in the same manner as an order under §3663A.”); Osman, 853 F.3d at 1189.

143 18 U.S.C. §§ 2248(b)(3), 2259(b)(3), 2264(b)(3) (“For purposes of this subsection, the term ‘full amount of the

victim’s losses’ includes any costs incurred by the victim for ... (F) any other losses suffered by the victim as a

proximate result of the offense.”).

144 United States v. Johnson, 400 F.3d 187, 199-200 n.5 (4th Cir. 2005) (emphasis of the court) (“… That statute [18

U.S.C. § 2248] required the defendant to pay the victim the ‘full amount of the victim’s losses,’ which it defined to

include ‘any costs incurred by the victim’ for enumerated expenses.”); United States v. Follet, 269 F.3d 996, 998-1001

(9th Cir. 2001) (also noting that §§3663 and 3663A “although broader in these respects than §2248, are narrower in

another. Under §3663(b)(2)(A) and §3663A(b)(2)(A), restitution orders can cover psychological care only when there

has been a bodily injury, while restitution orders under §2248 are subject to no such limitation.”).

145 18 U.S.C. § 3664(a) (“For orders of restitution under this title.... ”); each of the individual provisions also contains a

corresponding cross reference, id. §§ 43(c), 228(d), 1593(b)(2), 2248(b)(2), 2259(b)(2), 2264(b)(2), 2323(c),

2327(b)(2). 21 U.S.C. § 853(q)(1)(“The court ... shall—(1) order restitution as provided in §§ 3612 and 3663 of Title

18.”). Section 3612 provides the procedure for the collection of restitution once it has been ordered.

146 18 U.S.C. § 3664(a) (“For orders of restitution under this title, the court shall order the probation officer to obtain

and include in its presentence report, or in a separate report, as the court may direct, information sufficient for the court

to exercise its discretion in fashioning a restitution order. The report shall include, to the extent practicable, a complete

accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to

the economic circumstances of each defendant. If the number or identity of victims cannot be reasonably ascertained,

or other circumstances exist that make this requirement clearly impracticable, the probation officer shall so inform the

court.”); Dolan v. United States, 560 U.S. 605, 612-13 (2010); United States v. Pleitez, 876 F.3d 150, 158 (5th Cir.

2017); United States v. Scalzo, 764 F.3d 739, 744 (7th Cir. 2014); United States v. Zaic, 744 F.3d 1040, 1042 (8th Cir.

2014).

147 18 U.S.C. § 3664(d)(1) (“Upon the request of the probation officer, but not later than 60 days prior to the date

initially set for sentencing, the attorney for the Government, after consulting, to the extent practicable, with all

identified victims, shall promptly provide the probation officer with a listing of the amounts subject to restitution.”);

United States v. Stone, 866 F.3d 219, 225 (4th Cir. 2017); Zaic, 744 F.3d at 1042.

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detail the extent and specifics of their predicate crime-related losses.148 The defendant is obliged

to give the officer a complete description of his or her financial situation.149

The probation officer’s report is presented to the court, the defendant, and the prosecutor. The

court resolves contested restitution issues by a preponderance of the evidence150 following a

hearing, at which the prosecution bears the burden of establishing the existence and extent of the

victim’s losses,151 and the defendant bears the burden on questions regarding his or her finances

and the extent to which the defendant has already compensated the victim for the losses.152 The

court may conduct a hearing or task the probation officer to secure additional information and

resolve disputes.153

Section 3664 is precise when it describes how the court must frame the restitution order. The

order must envision full compensation for the losses of each victim without regard to the financial

circumstances of the defendant.154 In its calculation of the manner and schedule of payment for

each victim, however, the court is to consider the defendant’s assets, anticipated future income,

and other financial obligations.155 Compensation may be made in a lump sum, in-kind payments,

148 18 U.S.C. § 3664(d)(2) (“The probation officer shall, prior to submitting the presentence report under subsection (a),

to the extent practicable—(A) provide notice to all identified victims of—(i) the offense or offenses of which the

defendant was convicted; (ii) the amounts subject to restitution submitted to the probation officer; (iii) the opportunity

of the victim to submit information to the probation officer concerning the amount of the victim’s losses; (iv) the

scheduled date, time, and place of the sentencing hearing; (v) the availability of a lien in favor of the victim pursuant to

subsection (m)(1)(B); and (vi) the opportunity of the victim to file with the probation officer a separate affidavit

relating to the amount of the victim’s losses subject to restitution; and (B) provide the victim with an affidavit form to

submit pursuant to subparagraph (A)(vi).”). United States v. Stoerr, 695 F.3d 271, 279 (3d Cir. 2012); United States v.

Zangari, 677 F.3d 86, 96 (2d Cir. 2012) (“But the fact that the victims did not claim a loss does not mean that they did

not sustain a loss, and where, as here, restitution is governed by the MVRA, a victim’s decision not to participate in the

sentencing process does not relieve the defendant from having to pay restitution.”).

149 18 U.S.C. § 3664(d)(3) (“Each defendant shall prepare and file with the probation officer an affidavit fully

describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the

defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant

and the defendant’s dependents, and such other information that the court requires relating to such other factors as the

court deems appropriate.”); United States v. Smiley, 553 F.3d 1137, 1145 (8th Cir. 2009); United States v. Manning,

526 F.3d 611, 620 (10th Cir. 2008); United States v. Yousef, 327 F.3d 56, 165 (2d Cir. 2003).

150 18 U.S.C. § 3664(e); United States v. Naphaeng, 906 F.3d 173, (1st Cir. 2018); United States v. Sexton, 894 F.3d

787, 799 (6th Cir. 2018); United States v. Cornelsen, 893 F.3d 1086, 1090 (8th Cir. 2018); United States v. Ritchie, 858

F.3d 201, 211 (4th Cir. 2017).

151 18 U.S.C. § 3664(e); Robers v. United States, 572 U.S. 639, 645 (2014); United States v. Ricard, 922 F.3d 639, 65859 (5th Cir. 2019); United States v. Steele, 897 F.3d 606, 613 (4th Cir. 2018); United States v. Smathers, 879 F.3d 453,

460 (2d Cir. 2018); United States v. Wells, 873 F.3d 1241, 1265 (10th Cir. 2017).

152 18 U.S.C. 3664(e); Ricard, 922 F.3d at 658 (“The MVRA, however, approves burden shifting based on which party

is best able to satisfy those burdens and who has the strongest particular incentive to litigate the particular issues

involved.”); United States v. Smathers, 879 F.3d 453, 460-61 (2d Cir. 2018); United States v. Foster, 878 F.3d 1297,

1307-308 (11th Cir. 2018); cf., United States v. Corrigan, 912 F.3d 422, 431 (7th Cir. 2019).

153 18 U.S.C. 3664(d)(4); United States v. Pleitez, 876 F.3d 150, 158 (5th Cir. 2017); United States v. Finazzo, 850

F.3d 94, 119 n.26 (2d Cir. 2017); United States v. Kilpatrick, 798 F.3d 365, 388 (6th Cir. 2015).

154 18 U.S.C. 3664(f)(1)(A). United States v. Brazier, 933 F.3d 796, 804 ((7th Cir. 2019) (“[T]he district court

considered in depth [the defendants’] financial resources. The court expressly recognized it is unlikely they would pay

the restitution in full. The court chose to order restitution despite their poverty.”). Nevertheless, victims are not entitled

to more than full compensation; restitution may not be ordered for amounts in excess of the victim losses. United States

v. Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018); United States v. Steele, 897 F.3d 606, 610-11 (4th Cir. 2018); United

States v. Ferdman, 779 F/.3d 1129, 1132 (10th Cir. 2015).

155 18 U.S.C. 3664(f)(2); United States v. Hughes, 914 F.3d 947, 949 (5th Cir. 2019); United States v. Sizemore, 850

F.3d 821, 825 (6th Cir. 2017); United States v. Inouye, 821 F.3d 1152, 1156 (9th Cir. 2016).

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installments, or any combination of such methods of payment.156 In-kind payments may take the

form of a return of lost property, replacement in-kind or otherwise, or personal services.157 When

the defendant’s financial condition precludes any alternative, the order may call for nominal

periodic payments.158 Several courts have emphasized the importance of the court’s close

attention to the restitution payment schedule by prohibiting sentencing courts from initially

ordering that restitution be paid immediately when it is readily apparent that the defendant is

unable to do so, thereby effectively leaving the task of establishing a payment schedule to the

probation officer or the Bureau of Prisons.159

When it sets the restitution owed by the defendant, the court may not take into account the fact

that a victim may have been compensated by insurance or any other alternative form of

156 18 U.S.C. 3664(f)(3)(A); United States v. Holden, 908 F.3d 395, 404 (9th Cir. 2018); United States v.

Thunderhawk, 860 F.3d 633, 637-38 (8th Cir. 2017); United States v. Martinez, 812 F.3d 1200, 1205-206 (10th Cir.

2015).

157 18 U.S.C. 3664(f)(4); Martinez, 812 F.3d at 1206; United States v. Simmonds, 235 F.3d 826, 832 (3d Cir. 2000)

(since restitution may take the form of replacement, a district court may validly consider replacement costs in assessing

a victim’s losses); but see, United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 53-6 (1st Cir. 2004) (a defendant

guilty of international parental kidnaping cannot be ordered to make restitution in the form of a return or transfer of the

kidnapped children to their mother either as property or as a service under §3663(f)(4): “Children are not ‘property’ nor

is their transfer a ‘service,’ and we decline the invitation to hold otherwise.”).

158 18 U.S.C. 3664(f)(3)(B); Thunderhawk, 860 F.3d at 638; United States v. Day, 418 F.3d 746, 758 (7th Cir. 2005).

159 Ward v. Chavez, 678 F.3d 1042, 1049-50 (9th Cir. 2012) (“[W]e explicitly oppose[ ] a district court’s attempt to

minimize its responsibility to set a restitution schedule by ordering ‘immediate’ payment. Such an arrangement

effectively transfers the district court’s responsibility for setting a restitution schedule to the probation office, which is

inconsistent with the statute.”). In the same vein, the Ninth Circuit has observed that “The circuits have split over how

to interpret the MVRA and to what extent it permits delegation of restitution scheduling duties. The First, Second,

Third, Sixth, Eighth, Tenth and Eleventh Circuits have all held that a district court must set a restitution repayment

schedule, and those that have reached the issue have concluded ... that court may not simply order immediate payment

and leave to the BOP the task of setting the actual schedule.... In contrast, the Fourth, Fifth, and Seventh Circuits have

held that a judgment of conviction need not contain a schedule of restitution payments to be made during the period of

incarceration.” United States v. Lemoine, 546 F.3d 1042, 1048 n.4 (9th Cir. 2008). The Ninth Circuit permits a district

court to order immediate restitution where the defendant has the resources at hand to comply, but in other instances

holds that, “the district court—not BOP, nor Probation—must set a repayment schedule in the judgment of conviction

in order to discharge its responsibilities under MVRA.” Ward, 678 F.3d at 1050; see also United States v. Ahidley, 486

F.3d 1184, 1191-193 (10th Cir. 2007); United States v. Thigpen, 456 F.3d 766, 771 (7th Cir. 2006). When a trial court

finds a defendant unable to make full payment yet orders restitution both in immediate full payment or pursuant to a

schedule of small installments, an appellate court will instruct the lower court to strike the immediate full payment

portion of its order. Holden, 908 F.3d at 404.

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compensation of his or her injury, loss, or damage.160 The amount of a restitution order may later

be reduced to account for compensatory damages for the same loss recovered in a civil action.161

When the government and the probation officer have been unable to determine the full extent of

victim losses within 10 days of sentencing, they are obligated to inform the court.162 The court is

then to set a date, no later than 90 days after sentencing, for the final determination of victim

losses.163 Thereafter, victims have a limited option to present claims for restitution relating to

undiscovered losses.164 The Supreme Court held in Dolan v. United States that a sentencing court

may determine the extent of a victim’s losses and order restitution after the expiration of the

statutory 90-day deadline, as long as the defendant was aware beforehand that the court intended

to order restitution.165

Victims may assign their right to receive restitution payments to Crime Victims Fund,166 but there

is no consensus over whether the court may order restitution to be paid to the Crime Victims Fund

on its own initiative if the victim refuses to accept it.167

160 18 U.S.C. § 3664(f)(1)(B); United States v. Johnson, 911 F.3d 849, 852 (7th Cir. 2018) (internal citations omitted)

(“It [§ 3664(f)(1)(B)] deals with setting the base amount of restitution, not with how collections from joint wrongdoers

are credited” or how the amount restitution is apportioned among victims); United States v. Ritchie, 858 F.3d 201, 21516 (4th Cir. 2017) (internal citations omitted) (“Initially, the statute requires the district court to calculate the full

amount of each victim’s losses caused by the defendant’s illegal conduct, regardless of the financial resources or

condition of the defendant, or the fact that the victim has received or may receive compensation from another source …

However, the statute also provides for credits against the offender’s restitution obligation to prevent a victim from

obtaining a windfall. For example, if a victim has received compensation from other sources for the same loss, the court

will order that this portion of the restitution be paid to the person or entity that provided the compensation instead of to

the victim. The defendant is also entitled to an offset for any amount that the victim recovered as compensatory

damages for the same loss in federal or state civil proceedings.”); United States v. Thompson, 792 F.3d 273, 279-80 (2d

Cir. 2015). Section 3664(f)(1)(B), however, imposes no limitation on the discretion of the court to §3663A(c)(3)

decline to order restitution because of the impracticality or the complexity of task. United States v. Gallant, 537 F.3d

1202, 1253 (10th Cir. 2008) (emphasis in the original) (“[W]hile the complexity exception in §3663A addresses

whether a court must provide a restitution award to a victim, the prohibition of §3664(f)(1)(B) relates to how much

restitution should be awarded once the sentencing court has determined that an award is required.”).

161 18 U.S.C. § 3664(j)(2); United States v. Smathers, 879 F.3d 453, 459-60 (2d Cir. 2018) United States v. Kovall, 857

F.3d 1060, 1072 (9th Cir. 2017).

162 18 U.S.C. § 3664(d)(5).

163 Id.; Ritchie, 858 F.3d at 211.

164 18 U.S.C. § 3664(d)(5); Ritchie, 858 F.3d at 211; United States v. Oman, 879 F.3d 453, 1192 (11th Cir. 2017).

165 560 U.S. 605, 608 (2010); United States v. Gurrola, 898 F.3d 524, 542 (5th Cir. 2018). United States v.

Thunderhawk, 860 F.3d 633, 635-36 (8th Cir. 2017); United States v. Ferguson, 831 F.3d 850, 853 n.1 (7th Cir. 2016);

see also United States v. Pleitez, 876 F.3d 150, 159 (5th Cir. 2017) (Whenever it occurs, “the final determination of a

mandatory restitution award under § 3664(d)(5) constitutes a critical stage during which a defendant is entitled to the

assistance of counsel.”).

166 18 U.S.C. § 3664(g); United States v. Edwards, 595 F.3d 1004, 1013 (9th Cir. 2010).

167 United States v. Hawkins, 858 F.3d 1273, 1276-81 (9th Cir. 2017) (disagreeing with Speakman and Pawlinski as to

whether the district court might redirect the defendant’s restitution obligation to the benefit of the Crime Victims

Fund); United States v. Speakman, 594 F.3d 1165, 1174-78 (10th Cir. 2010) (holding that the court has no authority to

order restitution paid to Crime Victims Fund when the victim refuses to accept restitution); United States v. Pawlinski,

374 F.3d 536, 539-41 (7th Cir. 2004) (holding that except pursuant to a plea bargain or on assignment by a victim, the

court has no authority to award restitution to the Crime Victims Fund); cf. United States v. McHenry, 849 F.3d 699,

707 (8th Cir. 2017) (noting that a mandatory restitution order had not been issued “because the victim elected to not

participate in any phase of determining the restitution order.”); but see United States v. Johnson, 378 F.3d 230, 245 (2d

Cir. 2004) (“Hunter also urges us to vacate the District Court’s restitution award on the basis that it was error for the

District Court to assign Felix’s interest in restitution, should Felix renounce it, to the Crime Victims Fund. Hunter

argues that §3664(g)(2) provides the statutory authority to assign interest in restitution only to victims, and that the

Court therefore had no authority to do so. We disagree.”).

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Should the court determine that more than one defendant contributed to the victim’s loss, it may

apportion restitution accordingly or it may make the defendants jointly and severally liable.168

When defendants are made jointly and severally liable, each is liable for the entire amount, but

the victim is entitled to no more than what is required to be made whole, regardless of what

portion each of the defendants ultimately contributes.169

There was once a difference of opinion over whether joint and severable liability might be

imposed other than with respect to co-defendants.170 The Supreme Court has recently provided

some clarification as to how courts should deal with restitution when those who are not codefendants are responsible for a substantial portion of the victim’s losses.171 The defendant in the

case viewed child pornography of which the victim was the subject. To hold the defendant liable

for all of the victim’s losses attributable to production, distribution, and viewing of the material

might contravene the proscriptions of the Eighth Amendment’s excessive fines clause, the Court

suggested.172 Rather, it held that the defendant’s restitution order should be calculated to reflect

his relative contribution to the harm caused.173

168 18 U.S.C. § 3664(h) (“If the court finds that more than 1 defendant has contributed to the loss of a victim, the court

may make each defendant liable for payment of the full amount of restitution or may apportion liability among the

defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.”);

United States v. Brazier, 933 F.3d 796, 805 (7th Cir. 2019); United States v. Rodriguez, 915 F.3d 532, 535 (8th Cir.

2019); United States v. Sexton, 894 F.3d 787, 799 (6th Cir. 2018); United States v. Puentes, 803 F.3d 597, 605 (4th Cir.

2015); United States v. Cano-Fores, 796 F.3d 83, 95 (D.C. Cir. 2015).

169 United States v. Sheets, 814 F.3d 256, 261-62 (5th Cir. 2016); United States v. Rozin, 664 F.3d 1052, 1066-67 (6th

Cir. 2012); United States v. Nucci, 364 F.3d 419, 423 (2d Cir. 2004); United States v. Scott, 270 F.3d 30, 52 (1st Cir.

2001); United States v. Adeniji, 221 F.3d 1020, 1029 (7th Cir. 1999).

170 In re Amy Unknown, 701 F.3d 749, 770 (5th Cir. 2012), vac’d and rem’d on other grounds sub nom., Paroline v.

United States, 572 U.S. 434 (2014) (“And although the D.C. Circuit has express that it is ‘unclear ... whether joint and

several liability may be imposed on defendants in separate cases,’ [United States v. Monzel, 641 F.3d 528, 539 (D.C.

Cir. 2011)], nothing in §3664 forbids it, either expressly or through implication; the fact that it conforms well to this

context supports its application.”); United States v. Laraneta, 700 F.3d 983, 992-93 (7th Cir. 2012) (“That section

authorizes the sentencing court to make liability for restitution joint and several ‘if the court finds that more than 1

defendant has contributed to the loss of a victim,’ 18 U.S.C. 3664(h), and there is only one defendant in this case. So

there is no statutory authorization for what the district court did here [when it ordered joint and several restitution]....

On the basis both of practical considerations and the absence of statutory authorization, the Second Circuit in another

case involving Amy held that contribution is not permissible unless the defendants from whom contribution is sought

are defendants in the same case as the defendant seeking contribution. United States v. Aumais, 656 F.3d [147, 155-56

(2d Cir. 2011)].”).

171 Paroline, 572 U.S. 434 (2014). The case arose under one of the special restitution statutes, 18 U.S.C. § 2259, which

but for its individual features is governed by the provisions of. §§ 3663A and 3664. Id. § 2259(b)(2).

172 Paroline, 572 U.S. at 455 (“The reality is that the victim’s suggested approach would amount to holding each

possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors

with no legal or practical avenue for seeking contribution. That approach is so severe it might raise questions under the

Excessive Fines Clause of the Eighth Amendment.”).

173 Id. at 458-59 (“In this special context, where it can be shown both that a defendant possessed a victim’s images and

that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a

particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court

applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal

process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature

of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses

from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a

token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in

recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the

relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all

her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple

possession, affect real victims.”).

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Section 3664(i) declares that when it comes to restitution, the United States is to be served last.174

The provision is cited most often to confirm that under the appropriate circumstances, the

government and its departments and agencies may be considered victims for restitution

purposes.175 When the government is not a victim, the defendant is not entitled to have the

restitution award offset by the value of any forfeited property.176 Although there may be some

doubt, it seems the same thing can be said when the government is both the victim of the offense

and the recipient of the forfeited property.177

Section 3664(j) permits a court to order restitution to paid third parties who, as insurers or

otherwise, have assumed some or all of the victim’s losses, although in such cases, the victim

must be fully compensated first.178 It also permits a court to reduce an earlier restitution order by

any amounts that the victim later receives in the course of related federal or state civil

litigation.179

174 18 U.S.C. § 3664(i) (“... In any case in which the United States is a victim, the court shall ensure that all other

victims receive full restitution before the United States receives any restitution.”); United States v. Mei Juan Zhang,

789 F.3d 214, 216-17 (1st Cir. 2015); United States v. Williams, 612 F.3d 500, 510 (6th Cir. 2010).

175 Mei Juan Zhang, 789 F.3d at 216-17; United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010); United States

v. Senty-Haugen, 449 F.3d 862, 865 (8th Cir. 2006); United States v. Ekanem, 383 F.3d 40, 43 (2d Cir. 2004).

176 United States v. Arnold, 878 F.3d 940, 946 (10th Cir. 2017) (“[T]he statutes mandating restitution and forfeiture do

not allow a defendant’s payments toward one to offset the amount owed to the other.”); United States v. Carter, 742

F.3d 440, 446 (9th Cir. 2014) (“[D]efendants may be required to pay restitution and [to] forfeit the same amounts. And

a defendant has no right to a credit against a restitution order equal to any part of the amount forfeited. However, the

Government may choose to assign forfeited proceeds to victims.”); United States v. Adetiloye, 716 F.3d 1030, 1041

(8th Cir. 2013).

177 United States v. Sanjar, 876 F.3d 725, 750 (5th Cir. 2017) (“The government’s sole issue on appeal concerns the

district court’s decision to offset defendants’ restitution obligations with any amount collected pursuant to the forfeiture

order. The district court thought it proper to do so because there was no private victim, meaning the government would

receive both the restitution amount and any forfeited proceeds. The government contends this was error. We agree.”)

Mei Juan Zhang, 789 F.3d at 217 (“We join the analysis set forth in the Eleventh Circuit’s opinion in Joseph.”); United

States v. Joseph, 743 F.3d 1350, 1353 (11th Cir. 2014) (“[U]nder the plain language of the MVRA and the applicable

forfeiture provisions, the district court had no authority to offset the amount of restitution owed to the IRS by the

amount of the funds Joseph forfeited to the government.”); United States v. Perry, 714 F.3d 570, 578-79 (8th Cir. 2013)

(declining to address the “complex and difficult issues” raised by “the question of whether funds forfeited to the

government should offset a criminal restitution to the government as victim in order to avoid a double recovery by the

United States.”); United States v. Taylor, 582 F.3d 558, 567-68 (5th Cir. 2009) (“Several courts have found that the

plain language of the MVRA does not require that restitution be offset against amounts forfeited to the government....

Generally, courts decline to offset restitution when there is no evidence that doing so would result in double recovery to

the victim.... Courts that permit offset of restitution have done so only after finding that forfeited funds have been

remitted to the victims in lieu of restitution.”).

178 18 U.S.C. 3664(j)(1); United States v. Charles, 895 F.3d 560, 566 (8th Cir. 2018); United States v. Ritchie, 858 F.3d

201, 215 (4th Cir. 2017); United States v. Thompson, 792 F.3d 273, 278 (2d Cir. 2015) (“[W]here a third party has

assumed the victim’s losses by reimbursing the victim, the court must order a defendant to pay restitution directly to

that third party … Any funds still owed to the original victim, however, must be repaid in full before any payments

may be diverted to a third-party provider of compensation.”); see also United States v. Church, 731 F.3d 530, 535 (6th

Cir. 2013) (“[P]erpetrators of crimes of violence must pay the total amount of the cost of their victim’s medical

expenses, not just those the victim personally incurred.”).

179 18 U.S.C. 3664(j)(2). The defendant generally bears the burden of establishing that the civil recovery corresponds to

the injury for which restitution was ordered. United States v. Parker, 927 F.3d 374, 381-82 (5th Cir. 2019); United

States v. Smathers, 879 F.3d 453, 461 (2d Cir. 2018) (“We see no abuse of discretion in the district court’s

determination that justice required that Smathers – who caused injury to AOL and seeks credit for payments to AOL by

other persons – have the burden of proving that recoveries by AOL in civil litigation were for the same loss that he

caused and that AOL has been compensated in full for the loss he caused.”); cf. United States v. Whitbeck, 869 F.3d

618, 620 (8th Cir. 2017); United States v. Sizemore, 850 F.3d 821, 829 (6th Cir. 2017).

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The victim, the defendant, or the government may petition to have a restitution order’s payment

schedule amended to reflect the defendant’s changed economic circumstances.180 The changed

economic circumstances envisioned in Section 3664(k) do not include anticipated future

changes181 or a later, better-informed understanding of the defendant’s financial condition at the

time of sentence.182

There are several means to enforce a restitution order. Section 3664(m) provides that the

Department of Justice may enforce restitution orders in the manner used to collect fines or “by all

other available and reasonable means.”183 Thus, the government may use garnishment and the

other collection mechanisms of the Federal Debt Collection Procedures Act (FDCPA) to enforce a

restitution order.184 A restitution order also operates as a lien in the name of the United States on

the defendant’s property that remains in effect for 20 years.185 In addition, a victim may use a

180 18 U.S.C. § 3664(k) (“A restitution order shall provide that the defendant shall notify the court and the Attorney

General of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to

pay restitution. The court may also accept notification of a material change in the defendant’s economic circumstances

from the United States or from the victim. The Attorney General shall certify to the court that the victim or victims

owed restitution by the defendant have been notified of the change in circumstances. Upon receipt of the notification,

the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or

require immediate payment in full, as the interests of justice require.”); United States v. Simpson-El, 856 F.3d 1295,

1300 (10th Cir. 2017) (finding that receipt of a $200,000 legal settlement constituted a change in circumstances);

United States v. Grant, 715 F.3d 552, 554 (4th Cir. 2013).

Section 3664 deals specifically with one change in the defendant’s financial circumstances by requiring that he apply

any windfall he receives while in prison to his obligation to make restitution, 18 U.S.C. 3664(n) (“If a person obligated

to provide restitution, or pay a fine, receives substantial resources from any source, including inheritance, settlement, or

other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to

any restitution or fine still owed.”) Simpson-El, 856 F.3d at 1300 (“Because Mr. Simpson-El received the settlement

funds when he was no longer a prisoner, § 3664(n) did not apply.”).

181 United States v. Vanhorn, 399 F.3d 884, 886 (8th Cir. 2005) (defendant’s desire to begin saving while in prison for

the future costs of medical treatment provided at government expense pending his release does not constitute a change

in economic circumstances for purposes of §3664(k)).

182 United States v. Wyss, 744 F.3d 1214, 1219 (10th Cir. 2014) (“If the district court determines a material change in

defendant’s financial circumstances has occurred, subsection (k) authorizes the court to ‘adjust the payment schedule as

the interests of justice require.’ Neither subsection (k) nor any other provision of § 3664, however, authorizes a

reduction in the amount of restitution ordered.”); Grant, 235 F.3d at 100 (“[I]t cannot be that a court’s later

understanding that it had sentenced a defendant without full knowledge of his assets alone constitutes a material change

in economic circumstances. A change of the sort contemplated by the statute is identified by an objective comparison

of a defendant’s financial condition before and after a sentence is imposed.”).

183 18 U.S.C. § 3664(m)(1)(A) (“An order of restitution may be enforced by the United States in the manner provided

for in subchapter C of chapter 227 and subchapter B of chapter 229 of this title; or (ii) by all other available and

reasonable means.”); United States v. Rand, 924 F.3d 140, 142-43 (5th Cir. 2019).

184 United States v. Parker, 927 F.3d 374, 380 (5th Cir. 2019) (internal citations largely omitted) (“Under the Federal

Debt Collection Procedures Act of 1990, the Government can collect on judgments in its favor through, among other

things, a writ of execution. The writ of execution allows a United States marshal to ‘levy’ the defendant’s property to

satisfy the judgment. Once levied the property becomes the Government’s to sell to satisfy the defendant’s judgment.

Every writ of execution directs the marshal to not only levy but also to sell the property, subject to a few relevant

exceptions. See 28 U.S.C. § 3203(c)(2)(B). The marshal may continue to use the same writ of execution to levy

property until the judgment is satisfied.”); United States v. Scully, 882 F.3d 549, 554 (5th Cir. 2018) (some internal

citations omitted) (“[T]he government may enforce restitution orders in the same way that it enforces fines and by any

other available means. Moreover, under 18 U.S.C. § 3613(a), the government may collect criminal fines and restitution

according to the practices and procedures for enforcing a civil judgment under federal or state law. In practice, this

means that the government may use the garnishment provisions of the Federal Debt Collection Procedures Act to

collect a restitution obligation imposed by a judgment of conviction.”); United States v. Cohan, 798 F.3d 84, 89 (2d

Cir. 2015); United States v. Carter, 742 F.3d 440, 445 (9th Cir. 2014). United States v. Witham, 648 F.3d 40, 41 (1st

Cir. 2011); United States v. Hosking, 567 F.3d 329, 334-35 (7th Cir. 2009).

185 18 U.S.C. § 3613(c).

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restitution order to secure a lien in his own name against the defendant’s property to ensure the

payment of restitution.186 Moreover, the victims’ rights provisions of 18 U.S.C. 3771 entitle a

victim to “full and timely restitution as provided in law,” a right, enforceable in the face of a

legally insufficient restitution order through a liberalized form of mandamus.187 When restitution

is a condition of probation or supervised release, failure to make restitution may provide the

grounds for revocation.188

In most instances, a victim may also sue the defendant based on the conduct that led to the

conviction and the issuance of the restitution order. During the course of such civil litigation, the

defendant may be precluded from denying the facts that formed the basis of the conviction.189

Section 3664(o) provides that the court’s restitution order constitutes a final order for purposes of

appeal by the government or the defendant, notwithstanding the fact the order may later be

corrected, modified, or appealed under various court rules and statutory provisions.190 This does

not mean that the district court may later reduce a restitution order in the absence of specific

authority.191 Nor does it convey appellate rights upon third parties who claim a right to restitution

for expenses necessarily incurred on behalf of a victim.192

Abatement

In a criminal law context, the lower federal courts have generally taken the view that the death of

a defendant at any time prior to the determination of his or her final direct appeal abates all

underlying proceedings; appeals are dismissed as moot, convictions are overturned, indictments

are dismissed, and abated convictions cannot be used in related civil litigation against the estate—

186 18 U.S.C. § 3664(m)(1)(B) (“At the request of a victim named in a restitution order, the clerk of the court shall issue

an abstract of judgment certifying that a judgment has been entered in favor of such victim in the amount specified in

the restitution order. Upon registering, recording, docketing, or indexing such abstract in accordance with the rules and

requirements relating to judgments of the court of the State where the district court is located, the abstract of judgment

shall be a lien on the property of the defendant located in such State in the same manner and to the same extent and

under the same conditions as a judgment of a court of general jurisdiction in that State.”); United States v. Kovall, 857

F.3d 1060, 1071 (9th Cir. 2017).

187 18 U.S.C. § 3771(a)(6), (d)(3). Federal Insurance Co. v. United States, 882 F.3d 348, 361-62 (2d Cir. 2018); Kovall,

857 F.3d at 1069-70. Congress amended Section 3771(d)(3) in 2015 to provide that “… In deciding such application

[for a writ of mandamus], the court of appeals shall apply ordinary standards of appellate review …”

188 18 U.S.C. §§ 3583(e)(3), 3565(a); United States v. Marino, 833 F.3d 1, 3-4 (1st Cir. 2016); cf. United States v.

Colosuonno, 697 F.3d 164, 183 (2d Cir. 2012).

189 18 U.S.C. § 3664(l); Doe v. Hesketh, 828 F.3d 159, 174 n.19 (3d Cir. 2016).

190 18 U.S.C. § 3664(o) (“A sentence that imposes an order of restitution is a final judgment notwithstanding the fact

that- (1) such a sentence can subsequently be- (A) corrected under Rule 35 of the Federal Rules of Criminal Procedure

and section 3742 of chapter 235 of this title; (B) appealed and modified under section 3742; (C) amended under

subsection (d)(5); or (D) adjusted under section 3664(k), 3572, or 3613A; or (2) the defendant may be resentenced

under section 3565 or 3614.”); Dolan v. United States, 560 U.S. 605, 618 (2010); United States v. Johnson, 875 F.3d

422, 424 (9th Cir. 2017); United States v. Tulsiram, 815 F.3d 114, 117-18 (2d Cir. 2016).

191 United States v. Wyss, 744 F.3d 1214, 1218 (10th Cir. 2014).

192 United States v. Stoerr, 695 F.3d 271, 278 (3d Cir. 2012).

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all as if the defendant was never criminally charged.193 It might seem from this that a restitution

order would abate as well, but there is some authority to the contrary.194

Constitutional Considerations

Restitution’s varied lineage—equitable and legal, civil and criminal—has spurred a number of

constitutional challenges over the years. Some initially saw restitution as an alternative to civil

litigation on behalf of the victims of crime. If this were the case, defendants claimed that they

should enjoy a Seventh Amendment right to have a jury determine the facts upon which a

restitution order rests. Their challenges came to naught. The Supreme Court held that the Seventh

Amendment extends only to civil actions similar to those tried before a jury when the

Amendment was ratified in 1791.195 The lower courts have rejected the Seventh Amendment

challenges either because they have concluded that restitution was a criminal rather than a civil

sanction or because, at common law, restitution was not a matter presented to a jury; in some

cases, the challenges have been rejected for both reasons.196

193 Durham v. United States, 401 U.S. 481, 48-82 (1971) (“The status of abatement caused by death on direct review

has recently been discussed by the Court of Appeals for the Eighth Circuit in Crooker v. United States, 325 F.2d 318.

In reviewing the case that court concluded that the lower federal courts are unanimous on the rule to be applied: death

pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the

prosecution from its inception.... We believe they have adopted the correct rule.”).

The Supreme Court later cryptically called the vitality of Durham into question when it announced that, “The Court is

advised that the petitioner died at New Bern, N.C., on November 14, 1975. The petition for certiorari is therefore

dismissed. To the extent that Durham v. United States, 401 U.S. 481 (1971), may be inconsistent with this ruling,

Durham is overruled.” Dove v. United States, 423 U.S. 325, 325 (1976). The lower federal courts apparently

understand Dove to mean that death during the pendency of a certiorari petition does not abate the underlying

proceedings, but that otherwise the statement from Durham remains in effect, see United States v. Pogue, 19 F.3d 663,

665 (D.C. Cir. 1994) (quoting the statement from Durham and citing post-Dove findings in accord from the Second,

Fourth, Fifth, Seventh, Eighth, Tenth and Eleventh Circuits).

194 United States v. Volpendesto, 755 F.3d 448, 454 (7th Cir. 2014) (internal quotation marks and citations omitted)

(“The rule of abatement terminates criminal proceedings ab initio, vacating the conviction entered against the

defendant. Under the doctrine of abatement ab initio the defendant stands as if he never had been indicted or convicted.

The absence of a conviction precludes imposition of the restitution order against defendant or his estate pursuant to

§3663. The fact that criminal restitution serves a compensatory purpose does not enable it to be imposed in the absence

of a final conviction.”); United States v. Rich, 603 F.3d 722, 729 (9th Cir. 2010) (internal citations and quotation

marks) (“The Restitution Order must be abated because the defendant is no longer a wrongdoer once his conviction has

abated. Just as it is inappropriate to impose restitution on a living individual who was never indicted or convicted, so it

is inappropriate to impose restitution on the estate of a deceased individual who, in the eyes of the law, was never

indicted or convicted.”); Estate of Parsons, 367 F.3d 409, 415 (5th Cir. 2004) (en banc) (“[R]egardless of its purpose,

the order of restitution cannot stand in the wake of Parsons’s death. Because he now is deemed never to have been

convicted or even charged, the order of restitution abates ab initio.”); United States v. Logal, 106 F.3d 1547, 1552

(11th Cir. 1997) (“Under the doctrine of abatement ab initio, however, the defendant stands as if he never had been

convicted. The absence of a conviction precludes imposition of the restitution order against Kuczek or his estate

pursuant to § 3663.”); United States v. Lay, 456 F.Supp.2d 869, 875 (S.D. Tex. 2006); contra United States v.

Christopher, 273 F.3d 294, 299 (3d Cir. 2001) (“We are persuaded that abatement should not apply to the order of

restitution in this case, thus, it survives against the estate of the deceased convict.”); United States v. Dudley, 739 F.2d

175, 178 (4th Cir. 1984); see also United States v. Brooks, 872 F.3d 78, 88-91 (2d Cir. 2017) (holding that, following

the death of the defendant while an appeal was pending, restitution orders relating to the counts of conviction covered

by the appeal would be abated, but restitution orders unrelated to counts on appeal would not).

195 Tull v. United States, 481 U.S. 412, 417-18 (1987).

196 United States v. Palma, 760 F.2d 475, 479 (3d Cir. 1985); United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.

1985); United States v. Watchman, 749 F.2d 616, 617 (10th Cir. 1984); United States v. Brown, 744 F.2d 905, 910-11

(2d Cir. 1984); United States v. Satterfield, 743 F.2d 827, 836-37 (11th Cir. 1984); United States v. Florence, 741 F.2d

1066, 1068 (8th Cir. 1984).

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However, if restitution is a criminal sanction, must a court observe the constitutional restrictions

that attend a criminal sanction—ex post facto, excessive fines, and the right to trial by a jury in a

criminal case? On the question of retroactive application of new laws and the ex post facto clause,

there is no consensus among the lower federal appellate courts, although a majority take the

position that the clause applies and, consequently, exposure to increased restitution liability may

not be applied retroactively.197

“The circuits that have considered challenges to restitution orders under the [Eighth

Amendment’s] Excessive Fines Clause have held that where the restitution order reflects the

amount of the victim’s loss no constitutional violation has occurred.”198 Moreover, “[t]his is not

surprising, as restitution is inherently proportional …”199 The Supreme Court in Paroline v.

United States, however, suggested that the question of Excessive Fines Clause protection may be

unresolved.200

As for the Sixth Amendment right to jury trial and the Fifth Amendment right to conviction only

on proof beyond a reasonable doubt, the Supreme Court held in a series of cases beginning with

Apprendi v. New Jersey201 and culminating in United States v. Booker,202 that the Sixth

Amendment right to a jury trial and the Fifth Amendment right to due process require that “any

fact (other than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.”203

This might seem to pose a problem for federal restitution procedures under which restitution is

determined by the court (not a jury) on the basis of a preponderance of the evidence (not beyond a

197 United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006)(ex post facto clause applies); accord United States v.

Grice, 319 F.3d 1174, 1177 (9th Cir. 2003); United States v. Schulte, 264 F.3d 656, 662 (6th Cir. 2001); United States

v. Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998); United States v. Bapack, 129 F.3d 1320, 1327 n.13 (D.C. Cir. 1997);

United States v. Williams, 128 F.3d 1239, 1241 (8th Cir. 1997); United States v. Thompson, 113 F.3d 13, 15, n.1 (2d

Cir. 1997); contra United States v. Nichols, 169 F.3d 1255, 1279-280 (10th Cir. 1999); United States v. Newman, 144

F.3d 531, 538 (7th Cir. 1998). See also United States v. Gupta, 572 F.3d 878, 891 (11th Cir. 2009) (“Although the

Mandatory Act ordinarily does not apply to offenses that occurred before it became effective ... the Act applies to

conspiratorial offenses that began before that date but concluded after it.”); United States v. Williams, 612 F.3d 500,

511 (6th Cir. 2010) (“[T]he MVRA applies to crimes that occurred prior to and continued past the effective date of the

MVRA ... this application does not violate Ex Post Facto Clause.”).

198 United States v. Newell, 658 F.3d 1, 35 (1st Cir. 2011) (citing United States v. Lessner, 498 F.3d 185, 205-06 (3d

Cir. 2007); United States v. Newsome, 322 F.3d 328, 342 (4th Cir. 2003); United States v. Dubose, 146 F.3d 1141,

1145 (9th Cir. 1998)).

199 Newell, 658 F.3d at 35.

200 572 U.S. 434, 455-56 (internal citations and quotation marks omitted) (“The reality is that the victim’s suggested

approach would amount to holding each possessor of her images liable for the conduct of thousands of other

independently acting possessors and distributors, with no legal or practical avenue for seeking contribution. That

approach is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment. To be sure,

this Court has said that the Excessive Fines Clause was intended to limit only those fines directly imposed by, and

payable to, the government. But while restitution under § 2259 is paid to a victim, it is imposed by the Government at

the culmination of a criminal proceeding and requires conviction of an underlying crime. Thus, despite the differences

between restitution and a traditional fine, restitution still implicates the prosecutorial powers of government. The

primary goal of restitution is remedial or compensatory, but it also serves punitive purposes. That may be sufficient to

bring it within the purview of the Excessive Fines Clause. And there is a real question whether holding a single

possessor liable for millions of dollars in losses collectively caused by thousands of independent actors might be

excessive and disproportionate in these circumstances.”).

201 530 U.S. 466 (2000).

202 543 U.S. 220 (2005).

203 Id. at 244; see also Apprendi, 530 U.S. at 490.

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reasonable doubt). Nevertheless, the lower federal appellate courts have rejected arguments that

the Apprendi line of cases clouds the validity of a restitution order under such circumstances—

either because they do not consider restitution a criminal sanction and thus see no Fifth or Sixth

Amendment concerns or because they feel the restitution statutes fail to set the “statutory

maximum” necessary to trigger Apprendi concerns.204

None of the other due process or equal protection challenges appear to have survived appellate

scrutiny thus far.205

Statutory Text

18 U.S.C. 3663. Order of restitution

(a)(1)(A) The court, when sentencing a defendant convicted of an offense under this title, Section 401,

408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act (21 U.S.C. 841, 848(a), 849, 856, 861,

863) (but in no case shall a participant in an offense under such sections be considered a victim of such

offense under this section), or Section 5124, 46312, 46502, or 46504 of Title 49, other than an offense

described in Section 3663A(c), may order, in addition to or, in the case of a misdemeanor, in lieu of any

other penalty authorized by law, that the defendant make restitution to any victim of such offense, or if the

victim is deceased, to the victim’s estate. The court may also order, if agreed to by the parties in a plea

agreement, restitution to persons other than the victim of the offense.

(B)(i) The court, in determining whether to order restitution under this section, shall consider—

(I) the amount of the loss sustained by each victim as a result of the offense; and

(II) the financial resources of the defendant, the financial needs and earning ability of the

defendant and the defendant’s dependents, and such other factors as the court deems

appropriate.

(ii) To the extent that the court determines that the complication and prolongation of the

sentencing process resulting from the fashioning of an order of restitution under this section

outweighs the need to provide restitution to any victims, the court may decline to make such an

order.

(2) For the purposes of this section, the term “victim” means a person directly and proximately harmed as

a result of the commission of an offense for which restitution may be ordered including, in the case of an

offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person

directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern. In

204 United States v. Alvarez, 835 F.3d 1180, 1185 (9th Cir. 2016); United States v. Sawyer, 825 F.3d 287, 297 (6th Cir.

2016); United States v. Burns, 800 F.3d 1258, 1261 (10th Cir. 2015); United States v. Bengis, 783 F.3d 407, 411-13

(2d Cir. 2015).

205 E.g., United States v. Kovall, 857 F.3d 1060, 1072-73 (9th Cir. 2017) (holding that due process does not require

affording a nonparty victim a right of appeal); United States v. Yalincak, 853 F.3d 629, 639-40 n.11 (2d Cir. 2017)

(defendant was afforded sufficient opportunity to be heard on reconsideration of restitution order); United States v.

Battles, 745 F.3d 436, 461 (10th Cir. 2014) (the procedure afforded the defendant notice and opportunity to contest

sufficient to satisfy due process); United States v. Pole, 741 F.3d 120, 128 (D.C. Cir. 2013) (same); United States v.

Torres, 703 F.3d 194, 204 (2d Cir. 2012) (“Eight other Circuits to have considered orders of forfeiture and restitution in

the face of ‘double recovery,’ due process-type challenges have affirmed their concurrent imposition.”); United States

v. Veerapol, 312 F.3d 1128, 1134 (9th Cir. 2002) (notice and opportunity to contest sufficient); United States v.

Dubose, 146 F.3d 1141, 1147 (9th Cir. 1998) (no due process or equal protection infirmity); United States v. Craig, 181

F.3d 1124, 1129 (9th Cir. 1999) (notice sufficient to satisfy due process); United States v. Smith, 944 F.2d 618, 622

(9th Cir. 1991) (restitution procedure, which afforded the defendant fewer discovery options than he would have

enjoyed had the victim brought a civil action on the same grounds, did not offend due process); United States v.

Gomer, 764 F.2d 1221, 1229 (7th Cir. 1985) (defendant received adequate notice and opportunity to contest); United

States v. Palma, 760 F.2d 475, 477-79 (3d Cir. 1985) (restitution procedure met the demands of due process and equal

protection); United States v. Keith, 754 F.2d 1388, 1392 (9th Cir. 1985) (no due process violation in light of

defendant’s opportunity to contest); United States v. Florence, 741 F.2d 1066, 1068-69 (8th Cir. 1984) (sentencing

hearing’s evidentiary standards satisfied due process).

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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 victim’s rights under this section, but in no event shall

the defendant be named as such representative or guardian.

(3) The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea

agreement.

(b) The order may require that such defendant—

(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the

offense—

(A) return the property to the owner of the property or someone designated by the owner; or

(B) if return of the property under subparagraph (A) is impossible, impractical, or inadequate, pay an

amount equal to the greater of—

(i) the value of the property on the date of the damage, loss, or destruction, or

(ii) the value of the property on the date of sentencing,

less the value (as of the date the property is returned) of any part of the property that is returned;

(2) in the case of an offense resulting in bodily injury to a victim including an offense under chapter 109A

or chapter 110—

(A) pay an amount equal to the cost of necessary medical and related professional services and

devices relating to physical, psychiatric, and psychological care, including nonmedical care and

treatment rendered in accordance with a method of healing recognized by the law of the place of

treatment;

(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation;

and

(3) in the case of an offense resulting in bodily injury also results in the death of a victim, pay an amount

equal to the cost of necessary funeral and related services;

(4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other

expenses related to participation in the investigation or prosecution of the offense or attendance at

proceedings related to the offense;

(5) in any case, if the victim (or if the victim is deceased, the victim’s estate) consents, make restitution in

services in lieu of money, or make restitution to a person or organization designated by the victim or the

estate; and

(6) in the case of an offense under Sections 1028(a)(7) or 1028A(a) of this title, pay an amount equal to the

value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm

incurred by the victim from the offense.

(c)(1) Notwithstanding any other provision of law (but subject to the provisions of subsections

(a)(1)(B)(i)(II) and (ii), when sentencing a defendant convicted of an offense described in Section 401,

408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act (21 U.S.C. 841, 848(a), 849, 856, 861,

863), in which there is no identifiable victim, the court may order that the defendant make restitution in

accordance with this subsection.

(2)(A) An order of restitution under this subsection shall be based on the amount of public harm caused by

the offense, as determined by the court in accordance with guidelines promulgated by the United States

Sentencing Commission.

(B) In no case shall the amount of restitution ordered under this subsection exceed the amount of the

fine which may be ordered for the offense charged in the case.

(3) Restitution under this subsection shall be distributed as follows:

(A) 65 percent of the total amount of restitution shall be paid to the State entity designated to

administer crime victim assistance in the State in which the crime occurred.

(B) 35 percent of the total amount of restitution shall be paid to the State entity designated to receive

Federal substance abuse block grant funds.

(4) The court shall not make an award under this subsection if it appears likely that such award would

interfere with a forfeiture under chapter 46 or chapter 96 of this title or under the Controlled Substances

Act (21 U.S.C. 801 et seq.).

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(5) Notwithstanding Section 3612(c) or any other provision of law, a penalty assessment under Section

3013 or a fine under subchapter C of chapter 227 shall take precedence over an order of restitution under

this subsection.

(6) Requests for community restitution under this subsection may be considered in all plea agreements

negotiated by the United States.

(7)(A) The United States Sentencing Commission shall promulgate guidelines to assist courts in

determining the amount of restitution that may be ordered under this subsection.

(B) No restitution shall be ordered under this subsection until such time as the Sentencing

Commission promulgates guidelines pursuant to this paragraph.

(d) An order of restitution made pursuant to this section shall be issued and enforced in accordance with

Section 3664.

18 U.S.C. 3663A. Mandatory restitution

(a)(1) Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense

described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition

to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the

offense or, if the victim is deceased, to the victim’s estate.

(2) For the purposes of this section, the term “victim” means a person directly and proximately harmed as

a result of the commission of an offense for which restitution may be ordered including, in the case of an

offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person

directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern. 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 victim’s rights under this section, but in no event shall

the defendant be named as such representative or guardian.

(3) The court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other

than the victim of the offense.

(b) The order of restitution shall require that such defendant—

(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the

offense—

(A) return the property to the owner of the property or someone designated by the owner; or

(B) if return of the property under subparagraph (A) is impossible, impracticable, or inadequate, pay

an amount equal to—

(i) the greater of—

(I) the value of the property on the date of the damage, loss, or destruction; or

(II) the value of the property on the date of sentencing, less

(ii) the value (as of the date the property is returned) of any part of the property that is returned;

(2) in the case of an offense resulting in bodily injury to a victim—

(A) pay an amount equal to the cost of necessary medical and related professional services and

devices relating to physical, psychiatric, and psychological care, including nonmedical care and

treatment rendered in accordance with a method of healing recognized by the law of the place of

treatment;

(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation;

and

(3) in the case of an offense resulting in bodily injury that results in the death of the victim, pay an amount

equal to the cost of necessary funeral and related services; and

(4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other

expenses incurred during participation in the investigation or prosecution of the offense or attendance at

proceedings related to the offense.

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(c)(1) This section shall apply in all sentencing proceedings for convictions of, or plea agreements relating

to charges for, any offense—

(A) that is—

(i) a crime of violence, as defined in section 16;

(ii) an offense against property under this title, or under section 416(a) of the Controlled

Substances Act (21 U.S.C. 856(a)), including any offense committed by fraud or deceit;

(iii) an offense described in section 1365 (relating to tampering with consumer products); or

(iv) an offense under section 670 (relating to theft of medical products); and

(B) in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.

(2) In the case of a plea agreement that does not result in a conviction for an offense described in

paragraph (1), this section shall apply only if the plea specifically states that an offense listed under such

paragraph gave rise to the plea agreement.

(3) This section shall not apply in the case of an offense described in paragraph (1)(A)(ii) if the court finds,

from facts on the record, that—

(A) the number of identifiable victims is so large as to make restitution impracticable; or

(B) determining complex issues of fact related to the cause or amount of the victim’s losses would

complicate or prolong the sentencing process to a degree that the need to provide restitution to any

victim is outweighed by the burden on the sentencing process.

(d) An order of restitution under this section shall be issued and enforced in accordance with Section 3664 .

18 U.S.C. 3664. Procedure

(a) For orders of restitution under this title, the court shall order the probation officer to obtain and include

in its presentence report, or in a separate report, as the court may direct, information sufficient for the court

to exercise its discretion in fashioning a restitution order. The report shall include, to the extent practicable,

a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and

information relating to the economic circumstances of each defendant. If the number or identity of victims

cannot be reasonably ascertained, or other circumstances exist that make this requirement clearly

impracticable, the probation officer shall so inform the court.

(b) The court shall disclose to both the defendant and the attorney for the Government all portions of the

presentence or other report pertaining to the matters described in subsection (a) of this section.

shall be the only rules applicable to proceedings under this section.

(d)(1) Upon the request of the probation officer, but not later than 60 days prior to the date initially set for

sentencing, the attorney for the Government, after consulting, to the extent practicable, with all identified

victims, shall promptly provide the probation officer with a listing of the amounts subject to restitution.

(2) The probation officer shall, prior to submitting the presentence report under subsection (a), to the

extent practicable —

(A) provide notice to all identified victims of—

(i) the offense or offenses of which the defendant was convicted;

(ii) the amounts subject to restitution submitted to the probation officer;

(iii) the opportunity of the victim to submit information to the probation officer concerning the

amount of the victim’s losses;

(iv) the scheduled date, time, and place of the sentencing hearing;

(v) the availability of a lien in favor of the victim pursuant to subsection (m)(1)(B); and

(vi) the opportunity of the victim to file with the probation officer a separate affidavit relating to

the amount of the victim’s losses subject to restitution; and

(B) provide the victim with an affidavit form to submit pursuant to subparagraph (A)(vi).

(3) Each defendant shall prepare and file with the probation officer an affidavit fully describing the

financial resources of the defendant, including a complete listing of all assets owned or controlled by the

defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the

Congressional Research Service

Restitution in Federal Criminal Cases

defendant and the defendant’s dependents, and such other information that the court requires relating to

such other factors as the court deems appropriate.

(4) After reviewing the report of the probation officer, the court may require additional documentation or

hear testimony. The privacy of any records filed, or testimony heard, pursuant to this section shall be

maintained to the greatest extent possible, and such records may be filed or testimony heard in camera.

(5) If the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney

for the Government or the probation officer shall so inform the court, and the court shall set a date for the

final determination of the victim’s losses, not to exceed 90 days after sentencing. If the victim subsequently

discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition

the court for an amended restitution order. Such order may be granted only upon a showing of good cause

for the failure to include such losses in the initial claim for restitutionary relief.

(6) The court may refer any issue arising in connection with a proposed order of restitution to a magistrate

judge or special master for proposed findings of fact and recommendations as to disposition, subject to a de

novo determination of the issue by the court.

(e) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the

preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim

as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the

financial resources of the defendant and the financial needs of the defendant’s dependents, shall be on the

defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the

party designated by the court as justice requires.

(f)(1)(A) In each order of restitution, the court shall order restitution to each victim in the full amount of

each victim’s losses as determined by the court and without consideration of the economic circumstances of

the defendant.

(B) In no case shall the fact that a victim has received or is entitled to receive compensation with

respect to a loss from insurance or any other source be considered in determining the amount of

restitution.

(2) Upon determination of the amount of restitution owed to each victim, the court shall, pursuant to

Section 3572, specify in the restitution order the manner in which, and the schedule according to which, the

restitution is to be paid, in consideration of—

(A) the financial resources and other assets of the defendant, including whether any of these assets are

jointly controlled;

(B) projected earnings and other income of the defendant; and

(3)(A) A restitution order may direct the defendant to make a single, lump-sum payment, partial payments

at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind

payments.

(B) A restitution order may direct the defendant to make nominal periodic payments if the court finds

from facts on the record that the economic circumstances of the defendant do not allow the payment of

any amount of a restitution order, and do not allow for the payment of the full amount of a restitution

order in the foreseeable future under any reasonable schedule of payments.

(4) An in-kind payment described in paragraph (3) may be in the form of—

(A) return of property;

(B) replacement of property; or

victim.

(g)(1) No victim shall be required to participate in any phase of a restitution order.

(2) A victim may at any time assign the victim’s interest in restitution payments to the Crime Victims Fund

in the Treasury without in any way impairing the obligation of the defendant to make such payments.

(h) If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make

each defendant liable for payment of the full amount of restitution or may apportion liability among the

Congressional Research Service

Restitution in Federal Criminal Cases

defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each

defendant.

(i) I

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