Sixth Circuit finds no problems with judicial factfinding for restitution orders

In this post, I spotlighted Blakely's applicability to restitution and other non-prison sentences as an issue that merits Supreme Court attention sooner rather than later.  And, as detailed in this post, some academic commentators have forcefully argued that Blakely/Booker should be applied to federal restitution.  Today in US v. Sosebee, No. 03-1923 (6th Cir. Aug. 12, 2005) (available here), the Sixth Circuit holds "that restitution is not subject to Booker analysis because the statutes authorizing restitution, unlike ordinary penalty statutes, do not provide a determinate statutory maximum."

The Sosebee decision provides a nice overview and interesting analysis of this issue, which merits a long quote (with cites omitted):

It is true that under Sixth Circuit case law, restitution constitutes punishment.  Although restitution is considered punishment in this context, we have nevertheless held that restitution orders are not affected by the Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the restitution statutes do not specify a statutory maximum.  Several other circuits, including the Third, Seventh, Eighth, and Tenth, have also held that Apprendi does not apply to restitution orders under the Victim and Witness Protection Act or the Mandatory Victim Restitution Act.

In addition, five of our sister circuits have recently addressed the issue of whether Booker affects restitution orders.  Although they rely on different reasoning, all five circuits have uniformly declined to reverse an order of restitution based on the concerns raised in Blakely or Booker.  For several reasons, we consider it appropriate to take the same approach as that taken by the rest of the circuit courts that have addressed this issue and to adopt the same rule.

First, restitution orders are authorized by statute, 18 U.S.C. §§ 3663, 3663A, and 3664, and in this sense are distinct and separate from the United States Sentencing Guidelines.  Although the guidelines mandate imposition of restitution where allowable under the statutes, the restitution statutes function independently from the guidelines and do not rely on the guidelines for their validity.  Thus, the Booker Court's holding that the Sentencing Guidelines are now merely advisory does not affect orders of restitution. Nor does the Booker's analysis of the Sixth Amendment affect restitution, because a restitution order for the amount of loss cannot be said to "exceed the statutory maximum" provided under the penalty statutes.  Finally, the Victim and Witness Restitution Act and the Mandatory Victim Restitution Act specifically state that the amount of restitution should be equal to the "amount of each victim's losses as determined by the court." 18 U.S.C. 3664(f)(1)(A) (emphasis added).  Where, as here, a statute mandates that a judge exercise his or her discretion, Booker provides no impediments to a judicial determination of the necessary underlying facts.

The approach taken to this issue by the Sixth Circuit and other lower courts is quite understandable given their obvious desire to keep Blakely and Booker from disrupting other areas of seemingly settled sentencing law.  But the approach also seem quite debatable given 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." 

I wonder what John Roberts might think about all this.

UPDATE: For those really interested in the federal law of restitution, a Seventh Circuit decision today in US v. Day, No. 04-2663 (7th Cir. Aug. 12, 2005) (accessible here), provides an extended discussion of various (non-Booker) legal issues arising under the federal statutes providing for orders of restitution.