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November 29, 2012

Fourth Circuit rejects argument that Southern Union limits judicial fact-finding for restitution awards

Immediately following the Supreme Court's opinion in Southern Union (basics here and here) this past June that the Apprendi doctrine applies to the imposition of criminal fines, I asked in the title to this post "Doesn't Southern Union suggest the Sixth Amendment limits judicial factfinding for restitution punishments?".  I also went on to explain why my answer to that question was "yes."

Today, at the end of a long opinion dealing with a lot of issues in US v. Day, No. 11-5218 (4th Cir. Nov. 29, 2012) (available here), a Fourth Circuit panel considers and rejects a claim that the Sixth Amendment limits judicial fact-finding in support of a criminal restitution punishment. Here is the heart of the panel's discussion:

Prior to Southern Union, every circuit to consider whether Apprendi applies to restitution held that it did not.  See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir. 2006) ("[L]ike all of the other circuits to consider this question, we conclude that [Apprendi does] not bar judges from finding the facts necessary to impose a restitution order."). Day argues that we should break ranks with these prior deci- sions in light of Southern Union and apply Apprendi to restitution because it is "similar" to a criminal fine.

We decline to take Day’s suggested course.  As an initial matter, we note that Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it.  Instead, far from demanding a change in tack, the logic of Southern Union actually reinforces the correctness of the uniform rule adopted in the federal courts to date.  That is, Southern Union makes clear that Apprendi requires a jury determination regarding any fact that "increases the penalty for a crime beyond the prescribed statutory maximum." 132 S. Ct. at 2350 (quoting Apprendi, 530 U.S. at 490).  Thus, in Southern Union itself, the Apprendi issue was triggered by the fact that the district court imposed a fine in excess of the statutory maximum that applied in that case.  Id. at 2349.

Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on the amount of damage and injury caused by the offense.  See 18 U.S.C. §§ 3663(b), 3663A(b).  As a consequence, the rule of Apprendi is simply not implicated to begin with by a trial court’s entry of restitution.  As the Sixth Circuit aptly explained in United States v. Sosebee, "restitution is not subject to [Apprendi] because the statutes authorizing restitution, unlike ordinary penalty statutes, do not provide a determinate statutory maximum." 419 F.3d 451, 454 (6th Cir.), cert. denied, 546 U.S. 1082 (2005). That logic was sound when written before Southern Union, and it remains so today.

Even before Southern Union, I never found compelling the "logic" used here to distinguish restitution fact-finding by judges from other forms of penalty fact-finding limited by the Sixth Amendment.  But ever since Apprendi, I am never surprised by the arguments lower courts are eager to create in order to affirm sentences enhanced by judicial fact-finding.  In other words, this ruling hardly represents a new Day in Apprendi-land.

November 29, 2012 at 03:53 PM | Permalink


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But of course restitution is not indeterminate; it is determined by the amount of harm suffered by someone entitled to restitution. In fact, restitution is 100% determinate: it can be no more nor less than the amount to which the victim is entitled.

Posted by: C.E. | Nov 29, 2012 11:22:59 PM


I agree here with the 4th. Isn't the question of whether Apprendi applies to restitution quickly resolved by the fact restitution is NOT a criminal penalty? Rather, restitution simply is a civil component of an otherwise criminal action and is merely meant to compensate a victim. In contrast, a fine clearly and by definition is a penalty. As Apprendi applies only to penalties, because restitution is not a penalty, Apprendi does not apply. Isn't that the logic? Seems so to me.

Posted by: Mark Allenbaugh | Nov 30, 2012 10:43:51 AM

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