United States District Court, D. New Mexico
M. CARSON, III UNITED STATES CIRCUIT JUDGE
February 23, 2018, the United States Probation and Pretrial
Services Office (“Probation”) issued a
presentence report, which, in compliance with 18 U.S.C.
§ 3664(a), included information sufficient for this
Court to exercise its discretion in fashioning this
Restitution Order. On June 20, 2018, Defendant appeared
before this Court for sentencing in the above-styled criminal
action and related criminal action number 1:16-cr-4000. At
the request of the parties, this Court held restitution open
for a period of ninety days pursuant to the Mandatory Victims
Restitution Act (“MVRA”), 18 U.S.C. § 3663A.
On September 14, 2018, this Court held a hearing in order for
the parties and Probation to provide a final determination of
the victims' losses.
United States seeks restitution under the MVRA. Section 3663A
provides that “[n]otwithstanding any other provision of
law, when sentencing a defendant convicted of an offense
described in subsection (c), the court shall order, in
addition to . . . any other penalty authorized by law, that
the defendant make restitution to the victim of the
offense.” Subsection (c) states that § 3663A
“shall apply in all sentencing proceedings for
convictions of [certain enumerated crimes] in which an
identifiable victim or victims has suffered a pecuniary
loss.” Accordingly, this Court must order a defendant
to pay restitution when: (1) a defendant has been convicted
of an offense that falls within § 3663A(c); and (2) the
defendant's offense has caused pecuniary losses to
identifiable victims. Id. In this case, theft or
receipt of stolen mail in violation of 18 U.S.C. § 1708
is an offense against property committed by fraud or deceit.
Because Defendant plead guilty to this offense, restitution
only does the MVRA require the mandatory imposition of
restitution for certain categories of crimes, it also
significantly limits a sentencing court's discretion in
determining the amount of restitution. United States v.
Martinez, 610 F.3d 1216, 1230 (10th Cir. 2010). The
United States must prove “the amount of the loss
sustained by a victim as a result of the [defendant's]
offense.” 18 U.S.C. § 3664(e). A
“victim” under the MVRA is “a person
directly and proximately harmed as a result of the commission
of an offense for which restitution may be ordered.” 18
U.S.C. § 3663A(a)(2).
reported $40, 170.57 has been requested from seventeen
victims. Of this amount, Probation has verified a total of
$510.73 from six victims. Probation notes that some of the
unverified requests appear to be consequential damages not
covered under the MVRA. The remainder remain unverified and
the victims have not provided information to support the
claims. “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.” 18 U.S.C.
§ 3664(e). At the restitution hearing on September 14,
2018, Probation verified that $510.73 remains the verified
amount of victim loss. Both Defendant and the United States
agreed. Accordingly, this Court concludes by a preponderance
of the evidence that the amount of loss sustained by the
victims as a result of the offense is $510.73. Defendant
shall pay restitution in the amount of $510.73 in total for
both this criminal action and criminal action number
1:16-cr-4000. This Court does not order the inclusion of
prejudgment interest. Restitution is not joint and several
with other defendants or with others not named herein.
Because the restitution amount is less than $2, 500, and
because Defendant does not have the ability to pay interest,
this Court will not require Defendant to pay interest
pursuant to 18 U.S.C. § 3621(f).
ordering restitution must specify “the manner in which,
and the schedule according to which, the restitution is to be
paid.” 18 U.S.C. § 3664(f)(2). Defendant shall pay
restitution to the following victims as follows:
(1) J. & P.P. in the amount of $75.00;
(2) D.M. in the amount of $50.00;
(3) T.D. in the amount of $75.00;
(4) Y.S. in the amount of $70.00;
(5) J.F. in the amount of $60.00; and
(6) W.E. in the amount of $180.73.
restitution payment is more than thirty days late, it is
delinquent, and Defendant shall pay, as a penalty, an amount
equal to ten percent of the principal amount that is
delinquent. 18 U.S.C. § 3612(g). If a restitution
payment is delinquent for more than ninety days, it is in
default, and Defendant shall pay, as a penalty, an additional
amount equal to fifteen percent of the principal amount that
is in default. Id. All penalties shall accrue,
unless waived by the Government. 18 U.S.C. § 3612(h).
to 18 U.S.C. § 3664(f)(2), in consideration of the
financial resources and other assets of Defendant, including
whether any of these assets are jointly controlled; projected
earnings and other income of Defendant; and any financial
obligations of Defendant; including obligations to
dependents, Defendant is hereby ordered ...