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April 13, 2006

Eleventh Circuit declares Booker inapplicable to restitution

Getting in line with other circuits that have considered the issue, the Eleventh Circuit today in US v. Williams, No. 04-15117 (11th Cir. Apr. 13, 2006) (available here), declares that "Booker does not apply to restitution orders."  Here's the court's reasoning:

We do so because restitution orders are authorized by the MVRA, a statute unaffected by Booker. Additionally, the MVRA does not set an upper limit on the amount of restitution.  Therefore, a restitution order cannot be said to exceed the maximum provided by the penalty statutes, and it cannot violate the rule announced in Booker.... 

The Williams court drops a footnote to make this point: "In holding that Booker does not apply to restitution orders, we join the Third, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits."

A few related posts:

UPDATE: Thanks to law.com, you can access here an article in the Daily Business Review by Carl Jones about this Williams case.

April 13, 2006 at 04:45 PM | Permalink


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For those Circuits that hold restitution is criminal (e.g., Fifth and Third), I cannot understand how restitution orders pass Sixth Amendment muster. It seems to me that these Circuits are (wilfully?) ignoring the Blakely's definition of statutory maximum. That the statute doesn't technically set a maximum is irrelevant under Blakely/Booker since restitution is mandatory and requires additional factfinding (i.e., the amount of victim loss). Also, multiple Circuits have said that restitution is authorized by statute and is not part of the Guidelines. What difference does that make? Do Circuits have the power to limit Supreme Court holdings to their facts?

Posted by: anonymouse | Apr 13, 2006 7:47:22 PM

every circuit but the seventh and the tenth hold that restitution serves as criminal punishment, .
and the seventh changed its mind from criminal to civil without ever addressing its precedent that specifically held that restitution was crimnal punishment.
Top that off with Scalia's words in Apprendi, Blakely and Booker that it is the facts put to a jury, not the statutory language, that limits the amount of punishment for a defendant, and one starts to suspect that federall appellate judges are being slightly dishonest.

Posted by: Brian | Apr 14, 2006 1:09:12 PM

Agreed. But why? Do they just diagree with Blakely?

Posted by: anonymouse | Apr 14, 2006 1:53:05 PM

because judges don't want to give up any more power than they have to in the sentencing arena

Posted by: brian | Apr 14, 2006 4:28:07 PM

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