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August 15, 2005

Eighth Circuit join chorus saying Blakely does not apply to restitution

The Eighth Circuit today in US v. Carruth, No. 04-3568 (8th Cir. Aug. 15, 2005) (available here) issued an interesting opinion holding, as have all the other circuits to speak to the issue, that the Apprendi-Blakely-Booker line of cases do not prohibit judicial fact finding for restitution orders.  Here is the heart of the court's analysis (with some cites omitted):

We agree [with other circuits] that neither Apprendi nor Blakely prohibit judicial fact finding for restitution orders.  Under the MVRA there is no specific or set upper limit for the amount of restitution in contrast to criminal statutes which provide maximum terms of imprisonment and fine amounts. Instead, restitution is to be ordered "in the full amount" of victim losses as found by the court. 18 U.S.C. ยง 3664(f)(1)(A).  Its amount will therefore vary depending on the value of the property lost.  As we recognized in Ross, "there isn't really a 'prescribed' maximum."  Thus, Apprendi's rule is not implicated.  Neither does Blakely affect restitution orders; it dealt with a determinate sentencing scheme rather than a restitution statute without a set maximum limit.

At oral argument Carruth also cited United States v. Booker in support of his position.  Booker had nothing to say about the MVRA, however, which provides an independent statutory basis for the district court's restitution order.  As the Seventh Circuit has pointed out, Booker does not affect restitution orders since they are not subject to any prescribed statutory maximum and they are not in the nature of a criminal penalty.  Restitution is designed to make victims whole, not to punish perpetrators; it is essentially a civil remedy created by Congress and incorporated into criminal proceedings for reasons of economy and practicality.

Notably, Judge Bye dissents, claiming that "the strictures of Apprendi ... apply to an order of restitution."  Here is the heart of his analysis:

Once we recognize restitution as being a "criminal penalty" the proverbial Apprendi dominoes begin to fall.  While many in the pre-Blakely world understandably subscribed to the notion Apprendi does not apply to restitution because restitution statutes do not prescribe a maximum amount, this notion is no longer viable in the post-Blakely world which operates under a completely different understanding of the term prescribed statutory maximum.  To this end, Blakely's definition of "statutory maximum" bears repeating again, "the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S. Ct. at 2537 (emphasis added).  Applying this definition to the present case, it dictates a conclusion that the district court's order imposing a $26,400 restitution amount violates the Sixth Amendment's jury guarantee because all but $8,000 of said amount was based upon facts not admitted to by Carruth or found by a jury beyond a reasonable doubt.  Therefore, in contrast to the majority, I would vacate the district court's restitution order and remand to the district court with instructions to impose a restitution amount consistent with the Sixth Amendment.

As I commented after a recent Sixth Circuit decision on this issue, I find the Carruth majority's approach suspect in light of Justice Scalia's forceful and broad assertion for the Court in Blakely that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."  In other words, I think Judge Bye has the better of this debate if we really take Blakely at face value.  And, in the end, Carruth reinforces my view that Blakely's applicability to restitution and other non-prison sentences is an issue that merits Supreme Court attention sooner rather than later.

August 15, 2005 at 12:53 PM | Permalink


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