Plain Error to Order Restitution for Loss Associated with Acquitted Counts

United States v. Mason, No. 10-10743 (July 2, 2013) (Jolly, Davis, Prado)

The heading seems to make basic sense, right? If someone is acquitted of some counts but found guilty of other counts, then the restitution amount should only be based on the loss associated with the guilty counts.

Instead, the district court ordered mandatory restitution that included $74,619.12 of loss attributed to the conspiracy count of which the defendant, Andrews, was acquitted. Andrews did not object, so the panel reviewed for plain error. Under United States v. Inman, 411 F.3d 591 (5th Cir. 2005), the Mandatory Victims Reauthorization Act makes a defendant "only responsible for paying restitution for the conduct underlying the offense for which he was convicted." According to United States v. Sharma, 703 F.3d 318 (5th Cir. 2012), a restitution award cannot compensate a victim for losses "caused by conduct that falls outside the temporal scope of the acts of conviction." Thus, the panel concludes that the district court plainly erred by including loss related to an offense of which Andrews was acquitted. This affected his substantial rights because the variance was over $70,000 and because the failure to correct the error would constitute manifest injustice.

The other defendants in this case raised a variety of issues that the panel did not address because they did not find any merit to those arguments.