United States v. Donaby, Antonio A. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3144
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONIO DONABY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 CR 30103—William D. Stiehl, Judge.
____________
ARGUED SEPTEMBER 8, 2003—NOVEMBER 21, 2003
____________
Before KANNE, ROVNER, and DIANE P. WOOD, Circuit
Judges.
KANNE, Circuit Judge. On January 28, 2002, Antonio
Donaby was found guilty of bank robbery, in violation of 18
U.S.C. § 2113, and use of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924. Donaby does not
challenge the convictions.1 Rather, he raises two issues
concerning his sentence. First, Donaby asserts that it was
improper for the district court to include the repair cost of
the stolen getaway vehicle used in the robbery to increase
the loss assessed under the Sentencing Guidelines, thereby
increasing his relevant offense level. Second, Donaby argues
1
A direct appeal claiming ineffective assistance of counsel was
withdrawn by Donaby at oral argument.
2 No. 02-3144
that the lower court erred in awarding 18 U.S.C. § 3663A
restitution for damage to a police car involved in the chase
that followed the robbery. We affirm the district court on
both rulings.
I. History
Antonio Donaby participated in the planning and execu-
tion of a bank robbery. Donaby and a friend, Joe Wingate,
visited the First Federal Savings Bank of Mascoutah
(Illinois), New Baden branch, on June 12, 2001. Each took
a turn inspecting the interior of the bank. While returning
to their homes in East St. Louis, Wingate agreed to take
part in the robbery as a driver. Donaby and Wingate re-
cruited two more friends to participate, Matthew Thomas
and Freddie Bledsoe.
The first attempt to rob the bank was aborted as the
group of men arrived too late in the morning to avoid cus-
tomers. Donaby and the rest agreed to postpone the robbery
for one week. In the interim, they took several steps to
improve their chances of success. On June 20, the men stole
a white mini-van from Westport Dodge in St. Louis, Mis-
souri (“Westport”). This van was used as the primary
getaway vehicle during the robbery. On the evening of June
24, the men gathered at the residence of Joe Wingate to
review the plan and to make final arrangements. They also
recruited Joe’s brother, Tyrone Wingate, to serve as a third
driver so that several vehicle transfers could be used to
throw a potential police pursuit off course.
Donaby and his friends arrived at the bank on June 25, at
8:50 a.m. Only two men entered the bank. Donaby, dressed
as a masked construction worker, and Thomas, dressed in
women’s clothing, brandished weapons and screamed vul-
garities at the bank employees. The frightened employees
cooperated. By 9:00 a.m., Donaby and Thomas exited the
bank with $47,965.
No. 02-3144 3
The duo jumped into the stolen white van that was
parked in front of the bank. Off-duty Police Chief Jim
Arrington, who happened to enter the bank as the robbery
was ending, immediately pursued the white van in what
quickly became a high-speed chase. Arrington lost sight of
the van when Tyrone Wingate, driving one of the getaway
cars, ran interference for the van by cutting Arrington off
and slowing down on a narrow two-lane road. Officer
Joshua Donovan, of the Village of Shiloh Police Department
(“Shiloh”), responded to an emergency broadcast identifying
the white van and spotted the fleeing van within minutes.
The speed of the pursuit exceeded one hundred miles
per hour, eventually reaching approximately one hundred
and twenty miles per hour on Interstate 64. Through traffic
and construction zones in southern Illinois cities, the van
maintained speeds in excess of sixty miles per hour. While
Officer Donovan and other police officers continued the
chase, the Illinois State Police deployed “stop sticks”2 to
bring the chase to an end. This tactic proved successful, and
the van came to a halt; the police apprehended Donaby as
he fled on foot.
The authorities returned the damaged white van to
Westport. Westport submitted an itemized list of necessary
repairs in the amount of $4689.85 to their insurer, that, in
addition to the $500 deductible, represented the extent of
damage to the van. The van itself was valued at $34,445.
Shiloh suffered $526.14 in damages to the vehicle driven by
Officer Donovan in his pursuit of the white van.
2
A “stop stick” is a device stretching nine feet across a standard
twelve foot traffic lane that employs hollow nails embedded in
styrofoam. As a car crosses the “stick,” the nails puncture the tires
in such a way that a slow leak develops. Flat tires result, but
without the dangerous effects of a sudden blowout. (Tr. Vol. 3 at
16-18, 30.)
4 No. 02-3144
At trial, the government presented testimony from the
bank employees, the law enforcement agents involved in the
pursuit and investigation, and several of the men involved
in the robbery. Based on this evidence, a jury convicted
Donaby of bank robbery and use of a firearm during a crime
of violence.
At sentencing, the district court relied on the presentence
investigation report (“PSR”) for the findings that the cost to
repair the van was $5189.85 and the amount of money
stolen from the bank was $47,965. The lower court added
these two figures in a calculation made under the Sentenc-
ing Guidelines to reach a total loss exceeding the threshold
mark of $50,000, thereby affecting Donaby’s sentencing
offense level. The lower court again relied on the PSR to
award 18 U.S.C. § 3663A restitution payments to the bank,
the bank’s insurer, the bank’s manager, and Shiloh in the
amount of $526.14 for the damage to their vehicle.
II. Analysis
Two issues of law are before this Court. First, Donaby
asserts that it is improper under the Sentencing Guidelines
to include the stolen vehicle damage in calculating “loss” to
increase his sentencing level. Donaby asks for a reversal of
his sentencing level determination, and a remand to the
district court for a reassessment of the appropriate sen-
tence.3 Second, Donaby argues that it is beyond the statu-
tory authority of the federal courts to award restitution for
3
Donaby raises this issue despite his recognition that even if we
reduced his offense level through reversal on this issue, his ul-
timate sentence of 144 months would still be within the acceptable
range for his adjusted offense level and criminal history. Thus, the
district court could reimpose precisely the same sentence on
remand.
No. 02-3144 5
damage that occurred after the completion of the required
elements of the crime for which he was convicted. He asks
for a reversal of the restitution award to Shiloh.
Questions of law are reviewed de novo. United States v.
Martinez-Carillo, 250 F.3d 1101, 1103 (7th Cir. 2001). Since
these issues were not raised at the sentencing hearing,
however, the plain error standard applies. United States v.
McIntosh, 198 F.3d 995, 1003 (7th Cir. 2000); United States
v. Maggi, 44 F.3d 478, 484 (7th Cir. 1995). Under this
standard, we must determine “(1) whether there was error
at all, (2) if so, whether it was plain, (3) whether the error
affected [Donaby’s] substantial rights, and (4) whether it
seriously affected the fairness, integrity, or public reputa-
tion of the proceedings.” United States v. Robinson, 250
F.3d 527, 529 (7th Cir. 2001). Because the trial court
properly applied the law on both issues, there was no error,
and it is only necessary to pursue the first inquiry of the
plain error test.
A. The Sentencing Offense Level Enhancement
In conjunction with a criminal history assessment, the
offense level sets the acceptable range of punishment for
any particular federal crime under the United States
Sentencing Guidelines. As the offense level rises, so too
does the range of appropriate punishment for a convicted
defendant. A robbery conviction entails the assignment of
a “Base Offense Level” of twenty under the Guidelines.
U.S.S.G. § 2B3.1(a). For robbery, there are seven “Specific
Offense Characteristics,” each of which adds offense levels
to the base number of twenty. U.S.S.G. § 2B3.1. Although
Donaby’s base offense level was increased because of se-
veral offense characteristics, Donaby only challenges the
application of the specific offense characteristic involving
the amount of “loss” attributed to the robbery. That offense
characteristic reads:
6 No. 02-3144
(7) If the loss exceeded $10,000, increase the offense
level as follows:
Loss (Apply the Greatest): Increase in Level
(A) $10,000 or less . . . . . . . . . . . . . . . . no increase
(B) More than $10,000 . . . . . . . . . . . . . . . . Add 1
(C) More than $50,000 . . . . . . . . . . . . . . . . Add 2
U.S.S.G. § 2B3.1(b)(7) (emphasis in original). In the
“Application Notes” to U.S.S.G. § 2B3.1, “loss” is defined as
“the value of the property taken, damaged, or destroyed.”
U.S.S.G. § 2B3.1, cmt. n.3 (2003).
The question presented by Donaby is whether the damage
suffered by a stolen getaway car is properly considered
“loss” under § 2B3.1(b)(7). If the damage to the white van is
included as “loss,” Donaby’s offense level was properly
increased by two under § 2B3.1(b)(7) because the sum of the
cash stolen from the bank and the damage to the stolen van
exceeded $50,000. If the damage to the van should not be
included, then the lower court should only have increased
the offense level by one under § 2B3.1(b)(7).
Although this is a question of first impression in the
Seventh Circuit, an apparent circuit split has arisen. The
Eighth Circuit allows the value of a stolen vehicle used
during a robbery to be included as “loss.” United States v.
Powell, 283 F.3d 946 (8th Cir. 2002). The First Circuit
maintains a distinction between carjackings that occur
during the robbery itself and vehicles stolen in preparation
for a robbery; it is acceptable to include the value of car-
jacked vehicles as “loss,” United States v. Cruz-Santiago, 12
F.3d 1 (1st Cir. 1993), but not vehicles stolen in preparation
for and used during the robbery. United States v. Austin,
239 F.3d 1 (1st Cir. 2001).
In Powell, the defendant and an accomplice fled the scene
of a bank robbery in a stolen sports utility vehicle. 283 F.3d
at 947. In their haste, the bank robbers “ran a red light at
No. 02-3144 7
high-speed, collided with an occupied van, and continued on
down the wrong side of the road before crashing into a
telephone pole.” Id. Relying on the text of § 2B3.1(b)(7) and
the accompanying Application Notes (quoted above), the
Eighth Circuit reasoned that the vehicle had been “taken”
and “damaged” in the plain sense of those terms. Id. The
Powell court also noted that specific offense characteristics
are given general explanation in the “Relevant Conduct”
guideline. Id. at 948. Since explicit instructions are not ap-
parent in the robbery guideline as to the scope of “loss,” the
Eighth Circuit included the Relevant Conduct guideline in
its determination of what constitutes “loss:”
(a) . . . Unless otherwise specified, . . . (ii) specific of-
fense characteristics . . . shall be determined on the
basis of the following:
(1) (A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced,
procured, or willfully caused by the defen-
dant; and
(B) in the case of a jointly undertaken criminal
activity . . . all reasonably foreseeable acts
and omissions of others in furtherance of
the jointly undertaken criminal activity,
that occurred during the commission of the of-
fense of conviction, in preparation for that of-
fense, or in the course of attempting to avoid
detection or responsibility for that offense;
***
(3) all harm that resulted from the acts and omis-
sions specified in subsections (a)(1) and (a)(2)
above, and all harm that was the object of such
acts and omissions . . . .
U.S.S.G. § 1B1.3 (emphasis added); Powell, 283 F.3d at 948.
In citing this guideline, Powell emphasized the portion spe-
8 No. 02-3144
cifically including acts taken “in the course of attempting to
avoid detection.” Id. at 948 (quoting U.S.S.G. § 1B1.3).
Hence, Powell concluded that in light of the plain meaning
of the robbery guideline and the Relevant Conduct guide-
line, the value of the vehicle was rightfully considered
“loss.” Id. at 948.
The First Circuit, in two cases with strikingly similar
facts to Powell, created a distinction between cases in which
robbers steal the car as the robbery is being carried out, and
cases in which they steal vehicles in preparation for a rob-
bery. In Cruz-Santiago, the defendants seized a vehicle at
gunpoint as they exited the bank in search of transportation
to their hidden getaway car. 12 F.3d at 1-2. The court
concluded that the full value of the vehicle should be in-
cluded as “loss.” Id. at 3.
In Austin, the defendant stole a vehicle early in the
morning and used that vehicle to flee from a bank robbery
later that same morning. 239 F.3d at 2. The court held that
including the total value of the car as “loss” was inappropri-
ate. It distinguished Cruz-Santiago as being dependent on
the offense being a “continuous event” with the actual
robbery. Id. at 7. Austin also relied on the fact that the theft
of the car was not a “carjacking,” which is itself one of the
seven specific offense characteristics capable of enhancing
the robbery sentencing level. Id.; see U.S.S.G. § 2B3.1(b)(5)
(increases the level by two);U.S.S.G. § 2B3.1, cmt. n.1
(2003) (“ ‘Carjacking’ means the taking or attempted taking
of a motor vehicle from the person or presence of another by
force and violence or by intimidation.”). Donaby urges us to
adopt the reasoning of Austin and refuse to add the value of
the repairs to the van to the “loss” total from the robbery.
Since Donaby’s group of robbers stole the van five days
before the bank robbery, he reasons that this acquisition
was in preparation for the robbery, and not a “continuous
event.” Austin, 239 F.3d at 7.
No. 02-3144 9
We are convinced that the Eighth Circuit properly inter-
preted the Sentencing Guidelines in Powell. “Loss” should
include “the value of the property taken, damaged, or de-
stroyed,” U.S.S.G. § 2B3.1, cmt. n.3 (2003); this amount is
calculated by adding the “loss” caused by the underlying
crime, and the “loss” caused “in preparation for that offense,
or in the course of attempting to avoid detection or responsi-
bility for that offense.” U.S.S.G. § 1B1.3(a)(1). The “Author’s
Comments” to U.S.S.G. § 1B1.3 cite Donaby’s precise fact
pattern as being an appropriate use of § 1B1.3 to increase
a “loss” determination. This commentary reads:
[I]f a defendant (or an individual for whose conduct the
defendant is accountable) steals a car in preparation for
a bank robbery, the theft of the vehicle is relevant
conduct to the robbery under subsection (a)(1), and the
loss attributable to the theft of the car will be aggre-
gated with the loss from the robbery (in applying
§ 2B3.1(b)(7)).
U.S.S.G. § 1B1.3, cmt. author’s n.4(c)(i) (2003). Donaby
and his fellow bank robbers stole the van in preparation for
the robbery, and damaged the van in an attempt to avoid
detection. The van damage was therefore “loss,” and
Donaby’s offense level was properly increased by two.
Donaby’s reliance on the Austin case is misplaced. Nar-
rowly read, Austin only prevents the use of the total value
of a getaway car stolen in preparation for the offense as
“loss,” regardless of damages incurred during the getaway.
Nothing in Austin explicitly disallows the use of the amount
of damage caused during a getaway from a robbery in the
“loss” calculation under U.S.S.G. § 2B3.1(b)(7). Although
the facts recited in Austin indicate there was substantial
damage to the getaway car caused by a post-robbery police
chase, it does not appear that the issue arose whether such
damage incurred during the getaway could be used as
10 No. 02-3144
“loss.” Austin, 239 F.3d at 3, 7-8. In the instant case, the
district court appropriately adjusted Donaby’s sentence
based on the repair cost to Westport ($5189.85), not on the
full value of the van ($34,445).
Moreover, the distinction between Austin and Cruz-
Santiago by the First Circuit is not persuasive. The expla-
nation that the theft of the car in relation to the robbery is
not “continuous” and is “somewhat attenuated” ignores the
“Relevant Conduct” guideline. Austin, 239 F.3d at 7-8.
“Preparation for the offense,” as well as attempts to “avoid
detection” should be included in the determination of
specific offense characteristics, including loss. See, gen-
erally, U.S.S.G. § 1B1.3. The Austin court also relied on the
fact that there is a separate specific offense characteristic
for carjacking. Austin, 239 F.3d at 7. The fact that the
guideline allows a separate sentencing enhancement for
“carjacking,” however, does not equate to limiting the “loss”
specific characteristic category to contemporaneous,
carjacking-only thefts. In other words, “loss” in U.S.S.G.
§ 2B3.1(b)(7) is broader than the specific, separate offense
characteristic of “carjacking” in U.S.S.G. § 2B3.1(b)(5).
B. The Restitution Order
Donaby claims that the district court improperly awarded
restitution to Shiloh based on the damage inflicted to a
police vehicle during the getaway. He argues that this
award goes beyond the statutory authority granted to the
federal courts because: (1) the flight from the robbery is not
an element of Donaby’s conviction for either bank robbery
or use of a firearm during a crime of violence, and (2) the
damage to the police car occurred during the getaway and
not during the robbery itself.
“We begin by noting that ‘[f]ederal courts possess no in-
herent authority to order restitution, and may do so only as
No. 02-3144 11
explicitly empowered by statute.’ ” United States v. Randle,
324 F.3d 550, 555 (7th Cir. 2003) (quoting United States v.
Hensley, 91 F.3d 274, 276 (1st Cir. 1996)). By enacting the
Mandatory Victims Restitution Act (“MVRA”), Congress
explicitly required that “the court shall order” restitution to
the victims of certain specified offenses. 18 U.S.C.
§ 3663A(a)(1). Bank robbery is such an offense. 18 U.S.C.
§ 3663A(c)(1).
The sole issue,4 then, is whether Shiloh satisfies the stat-
utory definition of “victim.” Under the MVRA, “the term
‘victim’ means a person directly and proximately harmed as
a result of the commission of an offense for which restitu-
tion may be ordered . . . .” 18 U.S.C. § 3663A(a)(2). Thus, if
Shiloh was “directly and proximately harmed” by the bank
robbery, an “offense for which restitution may be ordered,”
the district court is required to order restitution without
regard to the defendant’s financial status. Id.; McIntosh,
198 F.3d at 1003-04.
4
The factual issue of whether the United States proved a definite
amount of damage to the police car caused by this particular chase
was not raised at the sentencing hearing or on appeal. “[D]iffuse
estimates of loss may be appropriate for purposes of relevant
conduct under the Sentencing Guidelines, but restitution tracks
the recovery to which [the victim] would have been entitled in a
civil suit against the criminal.” United States v. Behrman, 235
F.3d 1049, 1052 (7th Cir. 2000) (quotations omitted) (alteration in
original); see also United States v. Menza, 137 F.3d 533 (7th Cir.
1998) (vacating a restitution order under the similar Victim and
Witness Protection Act and remanding for a hearing to determine
whether the amounts cited by the Drug Enforcement Agency and
a landlord were in fact caused by the crimes of which the defen-
dant was ultimately convicted, as opposed to routine investigation
costs and non-crime related cleaning costs). Since Donaby failed
to raise or argue this issue, however, we can only assume that the
district court acted properly in relying on the PSR. McIntosh, 198
F.3d at 1003.
12 No. 02-3144
Interpreting the statutory language set forth above, and
other portions of § 3663A not relevant to this case, the
Seventh Circuit has identified three situations in which
restitution is authorized under the MVRA: (1) “to a victim
directly harmed by the offender’s specific conduct that is the
basis of the offense of conviction,” (2) to “a victim who is
directly harmed by the offender’s conduct in the course of
committing an offense that involves as an element a scheme,
conspiracy, or pattern,” or (3) “if the parties so agreed in a
plea agreement.” Randle, 324 F.3d at 556 (emphasis in
original) (quotations omitted). Donaby’s convictions did not
involve a scheme, conspiracy, or pattern as an element, and
he was convicted by jury trial, so there was no plea agree-
ment. In the instant case, then, the first scenario contem-
plated by Randle is the relevant inquiry.
In describing the first situation in which restitution is
appropriate, the Seventh Circuit incorporates language
from Hughey v. United States, a case interpreting the
Victim and Witness Protection Act (“VWPA”), 18 U.S.C.
§ 3663. Hughey v. United States, 495 U.S. 411, 413 (1990)
(holding that the VWPA limits restitution to “the loss
caused by the specific conduct that is the basis of the
offense of conviction.”). Due to the similarities between the
MVRA and VWPA, courts apply the dictates of Hughey to
MVRA cases. See, e.g., Randle, 324 F.3d at 555-56. Thus, to
be “directly and proximately harmed” by the commission of
the robbery, the loss to Shiloh must have been “caused by
the specific conduct that is the basis of conviction,” a phrase
given meaning by the Hughey case.
In Hughey, the Supreme Court ultimately reversed a res-
titution order to repay several credit card companies dam-
aged by the actions of the defendant. The defendant was
indicted for three counts of theft by a Postal employee and
three counts of unauthorized use of credit cards. In ex-
change for a guilty plea to one count of unauthorized use of
No. 02-3144 13
a credit card, Hughey received a dismissal of the other
charges. Hughey, 495 U.S. at 413-14. In addition to a term
of imprisonment, the district court ordered Hughey to repay
those harmed by his misconduct. Because the district court
included restitution for the damage caused by Hughey’s
behavior surrounding all six original counts, rather than
the much smaller amount of damage from the single count
to which he pled guilty, the lower court exceeded its
authority in granting restitution for loss not caused by the
specific conduct that was the basis of the offense of convic-
tion. Id. at 422. The Seventh Circuit has repeatedly fol-
lowed this rationale in case law dealing with plea bargains
and restitution.5
The case before us presents an entirely different issue.
Here the issue is whether Shiloh can, as a matter of law, be
“directly and proximately harmed” by the criminal act at
issue despite the delay between the acts satisfying the
criminal elements of bank robbery and the damage to the
police vehicle. 18 U.S.C. § 3663A(a)(2). This is not an in-
5
See Randle, 324 F.3d at 557-58 (refusing to allow restitution for
victims of fraudulent activity because the defendant pled guilty to
only one of four counts and did not clearly agree in his plea
agreement to pay restitution to specific persons not affected by
that particular count); United States v. Peterson, 268 F.3d 533,
534-35 (7th Cir. 2001) (upholding the restitution order and plea
agreement under 18 U.S.C. § 3663A(a)(3) where the defendant
specifically consented in the agreement to pay for “all losses
covered by the same course of conduct or common scheme,” even
though the precise amounts were to be determined by the judge at
a subsequent sentencing hearing); Behrman, 235 F.3d at 1052-53(vacating restitution award because the district court improperly
found a promise to pay restitution for all economic losses related
to the defendant’s illegal activity in the plea agreement, despite
the lack of specific language that would make clear that the
agreement went beyond the payment of those found to be “victims”
for purposes of the statute).
14 No. 02-3144
quiry, as in Hughey, into whether the restitution awarded
arose out of the “offense of conviction” or from other conduct
for which the defendant was not convicted. The district
court did not improperly include restitution to victims of
other bank robberies (or any other crime) of which Donaby
has not been convicted. Instead, the damage arose out of
the convicted offense of bank robbery.
The district court could properly conclude that robbing
the bank directly and proximately led to the high-speed
chase and the property damage that ensued. Hughey does
not prevent a factual determination of causation. See
United States v. Cutter, 313 F.3d 1, 7 (1st Cir. 2002); United
States v. Vaknin, 112 F.3d 579, 590 (1st Cir. 1997) (“[T]he
government must show not only that a particular loss would
not have occurred but for the conduct underlying the offense
of conviction, but also that the causal nexus between the
conduct and the loss is not too attenuated (either factually
or temporally) . . . . A sentencing court should undertake an
individualized inquiry; what constitutes sufficient causation
can only be determined case by case, in a fact-specific
probe.”). The government bears the burden of proof under
a preponderance of the evidence standard. United States v.
McIntosh, 198 F.3d 995, 1003 (7th Cir. 2000).
Donaby did not challenge the PSR, thus forfeiting the
argument that its findings were not valid. Id. at 1003. Even
if Donaby had challenged this determination, we find that
it was not in error. But for the robbery, it is certain that
this particular chase would not have occurred. Moreover,
the need to elude the police after the robbery is a likely and
foreseeable outcome of the crime. Donaby foresaw this
possibility, and he arranged for three getaway cars, in-
cluding the stolen white van, to reduce the risk of the police
catching him. Courts have often commented on the factual
and temporal interconnectedness of bank robbery and
flight. United States v. Williams, 344 F.3d 365, 372 (3d Cir.
No. 02-3144 15
2003) (“Our case law has consistently treated escape as part
and parcel of a bank robbery, including federal bank
robbery as defined in 18 U.S.C. § 2113 . . . .”); United States
v. Metzger, 233 F.3d 1226, 1228 (10th Cir. 2000) (“Flight
and pursuit are links in the ‘chain of events’ set in motion
by a bank robbery . . . .”) (quotations omitted); United States
v. Muhammad, 948 F.2d 1449, 1456 (6th Cir. 1991) (“As the
crime of robbery cannot be completed without some form of
flight or attempted flight, the crime is more naturally
understood to include the act of fleeing and the immediate
consequences of such flight.”). In sum, Shiloh was a victim
of the bank robbery because Donaby and his friends directly
and proximately caused the damage to the police car by
committing the bank robbery.
Donaby seeks support in Ninth Circuit case law, decided
under the VWPA, for the proposition that only immediate
consequences from acts taken to satisfy the specific ele-
ments of the convicted offense may be included as restitu-
tion. United States v. Reed, 80 F.3d 1419 (9th Cir. 1996). In
Reed, the defendant was convicted of being a felon in pos-
session of a firearm. The police apprehended Reed after he
crashed a stolen van into other vehicles at the end of a
high-speed pursuit. Id. at 1420. The Ninth Circuit reversed
a determination that restitution for damage to the stolen
van and the other vehicles was appropriate. Relying on
Hughey and Ninth Circuit cases decided after Hughey, Reed
determined that the trial court was prohibited from order-
ing restitution “for conduct that is related to the offense of
conviction, but that is not an element of the offense.” Id. at
1422. The result on the facts of Reed may well have been
appropriate; Reed was convicted of possession of a firearm,
but the police chase causing the damage was a consequence
of Reed’s theft of the van he was driving.
Donaby contends that, under Reed, because fleeing is not
an element of his offenses, restitution for damage to the
16 No. 02-3144
police car is inappropriate. The text of the VWPA, the
MVRA, and the Hughey opinion, however, do not limit res-
titution to the elements of the offense. The statutes limit
recovery to victims “directly and proximately harmed as a
result of the commission of an offense . . . .” 18 U.S.C.
§ 3663(a)(2); 18 U.S.C. § 3663A(a)(2). The Hughey case, in
the context of denying restitution for harm directly caused
by thefts of credit cards not included in the count by which
the defendant was convicted, limited restitution to loss
caused by “specific conduct that is the basis of the offense
of conviction.” Hughey, 495 U.S. at 413. Thus, while fleeing
the bank is not an element of bank robbery, the damage to
Shiloh was a direct and proximate consequence of the spe-
cific conduct involved in robbing the bank.
Other case law recognizes that the MVRA is not limited
to conduct fulfilling the elements of the crime. The Eighth
Circuit affirmed the use of § 3663A to compensate a bank
customer who was present during the defendant’s convicted
crime of bank robbery. Moore v. United States, 178 F.3d 994(8th Cir. 1999). The customer did not suffer physical or
financial harm at the moment of the defendant’s actions
that satisfied the elements of bank robbery. Id. at 997.
Nevertheless, acting pursuant to the statute, the court
ordered restitution of $528 to replace the customer’s lost
income while he gave statements to the police, identified
the suspects, and prepared for and testified at trial. Id. at
1001 (quoting 18 U.S.C. § 3663A(b)(4) (“[I]n any case,
reimburse the victim for lost income and necessary child
care, transportation, and other expenses incurred during
participation in the investigation or prosecution . . . .”)).
The participation of witnesses in the judicial process is
not a necessary element of robbery by a defendant, yet the
MVRA expressly provides for such damages as being di-
rectly and proximately caused by the crime committed. This
portion of the statute seeks to explain the proper measure
No. 02-3144 17
of restitution damages; it is not a list of exceptions to the
earlier limitations in the statute. See 18 U.S.C. § 3663A(b)
(establishing the methodology the district court should use
in determining the amount of restitution to award to the
victim in a variety of scenarios). Congress sought to make
clear that the costs to private citizens of testifying in a
criminal case were direct and foreseeable consequences of
crime. Damages from police pursuits following bank
robberies are not specifically listed in the statute as
appropriate damages to award to “victims.” A high-speed
chase, however, is an even more direct and foreseeable
consequence of robbery than many of the expenses provided
for in the statute and should therefore be included within
its scope.
III. Conclusion
The district court’s assessment of the defendant’s sentenc-
ing guideline level and the district court’s determination
that restitution is owed for damage to the police car are
hereby AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-03