Seeking restitution on restitution

Because restitution orders are becoming more common in state and federal courts, many have wondered whether and how Blakely might impact such orders. As noted here, the Tenth Circuit previously spoke quickly (perhaps too quickly) to this issue in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004).

Yesterday the Ninth Circuit in US v. DeGeorge, 2004 WL 1920922 (9th Cir. Aug. 30, 2004), contributed a view on the restitution issue in a case applying an older federal law on victim restitution. Here's what the court said:

We first review the restitution order made by the district court pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. §§ 3663-3664, which is unaffected by Blakely. See, e.g., United States v. Baker, 25 F.3d 1452, 1456 (9th Cir. 1994) ("[R]estitution determinations under the VWPA are quite different from sentencing determinations under the Sentencing Guidelines.").

Because I believe that the VWPA, passed by Congress in 1982, made an award of restitution wholly discretionary, the Ninth Circuit may be right that Blakely does not affect its application. However, in 1996, Congress passed the Mandatory Victims Restitution Act (MVRA), which now makes restitution mandatory for particular crimes, and thus the Blakely analysis might be different under that statute. See generally US v. Alalade, 204 F.3d 536, 538-41 (4th Cir. 2000) (discussing changes in sentencing court's discretion after passage of MVRA). And, of course, state restitution provisions will need to be distinctly examined to see if and how their structure and terms could be impacted by Blakely.

In the end, as will be the case with so many post-Blakely issues, a lot of litigation may be needed to sort this all out.