United States v. Carey Breshers, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1364
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C AREY L. B RESHERS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 10-CR-30212-MJR—Michael J. Reagan, Judge.
A RGUED M AY 29, 2012—D ECIDED JULY 5, 2012
Before W OOD , S YKES, and T INDER, Circuit Judges.
W OOD , Circuit Judge. Following his convictions for
kidnapping and interference with commerce by robbery,
in violation of 18 U.S.C. §§ 1201(a)(1) and 1951, Carey
Breshers received a sentence that included a restitution
order of $44,618.50 pursuant to the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. § 3663A. On appeal,
Breshers argues that the restitution was unauthorized
because his victims did not suffer physical injury.
2 No. 12-1364
Breshers failed to object to the order before the district
court, however, and this omission leaves us with a
record that was never properly developed on the ques-
tion of the nature of the victims’ injuries and associated
expenses. Finding no plain error in the district court’s
order, we affirm.
I
On October 26, 2010, armed with a firearm, Breshers
walked into World Finance, Inc., a consumer installment
loan business in O’Fallon, Illinois. He instructed two
World Finance employees, M.L. and T.A., to enter a back
room in the building and asked them about their
personal finances. The two employees told him they had
no money. Breshers then asked them where the bank
for World Finance is located, and they said South
Carolina. He directed M.L. and T.A. to leave their cell
phones, lock up the office, and get into T.A.’s Pontiac
Grand Prix. T.A. was instructed to drive while he and
M.L. sat in the backseat. Breshers told M.L. and T.A. that
he needed money. T.A. suggested that they could get
money from World Finance. He told her to drive back
to the company’s office and, once there, she wrote a
check for $3,000 at his direction. They made two
attempts to cash the check at a nearby bank, both unsuc-
cessful.
At that point, M.L. and T.A. told Breshers that
they had about $1,000 available at World Finance. Appar-
ently willing to settle for this lower amount, Breshers
ordered them to return to the office, where they gave him
No. 12-1364 3
$1,104. After that, Breshers instructed them to get back
into T.A.’s car and directed T.A. to drive to St. Louis,
Missouri (a little less than 20 miles away). During the
ride, he commented that he had committed a similar
offense in Oklahoma and that his hostage had been
freed unharmed. He did the same with T.A. and M.L.,
releasing them behind an abandoned building off the
highway. He was arrested on October 31, 2010, for a
separate offense and later admitted to the World
Finance crimes.
A grand jury returned a four-count indictment
against Breshers on November 17, 2010: two counts of
kidnapping, one count of interference with interstate
commerce by robbery, and one count of use or carrying
a firearm during a crime of violence. He entered a plea
of guilty on all four counts without a plea agreement.
Breshers later filed a motion to withdraw his guilty plea
on Count 3 because he had not been informed that it
carried a 25-year minimum sentence. He then filed an
amended motion to withdraw his guilty pleas on all
counts because there was significant evidentiary over-
lap on the four counts. The district court dismissed
Count 3, but it denied his motion with respect to the
other counts.
The district court then proceeded to sentencing. T.A.
provided a victim statement in which she requested the
maximum sentence for Breshers. She testified that the
crime had caused her marital problems, loss of employ-
ment, strain on friends and family, and the destruction
of her sense of security. She further testified that she
4 No. 12-1364
now suffers from anxiety, insomnia, panic attacks, and
memory problems. She is under psychiatric care and
takes antidepressant medication. Since the offense, T.A.
has been on temporary disability, which pays 66% of
her normal salary. She requested restitution for $105 in
gas from October 29, 2010, through June 15, 2011, for
transportation to and from the facility where she
receives medical treatment. She estimated additional
transportation costs for the following year at about $200.
T.A. stated that she had lost eight months of wages and
that worker’s compensation pays only $1,600; she repre-
sented that she would be compensated $2,400 if she
was unable to return to work in the following year.
Marilyn Messer, World Acceptance Corporation
Senior Vice President of Human Resources, submitted a
statement describing the impact of the offense on the
business. She reported that World Acceptance, which
does business as World Finance, has paid $11,947.40 for
M.L. and $14,695.34 for T.A. through insurance and its
worker’s compensation carrier, The Hartford. It has
reserved $55,654 and $65,908 for the care and support
of M.L. and T.A., respectively. World Acceptance was
not sure whether M.L. or T.A. would return to work. It
also lost the $1,104 that was taken during the course
of the robbery.
The district court sentenced Breshers to 293 months
each for Counts 1 and 2, and 240 months for
Count 4, running concurrently. It added three years’
supervised release for each count, also to run concur-
rently. The district court also ordered a $300 special
No. 12-1364 5
assessment, no fine, and restitution of $40,289.50 to The
Hartford, $1,104 to World Acceptance, and $3,225 to
T.A. Breshers appeals only the restitution orders for The
Hartford and T.A., arguing that neither is authorized
under the MVRA because the victims did not suffer
physical injury.
II
We review the district court’s order of restitution for
plain error because Breshers failed to object to it in the
district court. United States v. Danser, 270 F.3d 451, 454
(7th Cir. 2001). Under plain error review, “an appellate
court may, in its discretion, correct an error not raised
at trial only where the appellant demonstrates that
(1) there is an ‘error’; (2) the error is ‘clear or obvious,
rather than subject to reasonable dispute’; (3) the error
‘affected the appellant’s substantial rights, which in the
ordinary case means’ it ‘affected the outcome of the
district court proceedings’; and (4) ‘the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.’ ” United States v. Marcus, 130
S. Ct. 2159, 2164 (2010), quoting Puckett v. United States,
129 S. Ct. 1423, 1429 (2009). This case provides an im-
portant reminder of the valuable principle justifying
this higher hurdle for the party challenging the district
court’s ruling. By failing to raise this issue, Breshers
deprived the district court and the government of the
opportunity to explore T.A.’s injuries and to develop a
record on that subject. We are unable to determine
from the stipulated facts whether T.A. may have
6 No. 12-1364
suffered some form of physical injury; if a more fully
developed record showed that she had, then this appeal
would probably never have reached oral argument.
A
Bearing in mind the limited information before us,
we turn to Breshers’s argument. He contends that the
district court plainly erred in ordering restitution for
The Hartford and T.A. because, in his view, the MVRA,
18 U.S.C. § 3663A, authorizes payment based only on
the victim’s physical—as contrasted with mental—
injuries. A plain reading of the statute does not clearly
support Breshers’s position. Section 3663A(b)(2) states
that “in the case of an offense resulting in bodily injury
to a victim” the defendant may be responsible for “the
cost of necessary medical and related professional
services and devices relating to physical, psychiatric, and
psychological care” and “income lost by such victim as
a result of such offense.” The statute does not include
a definition of “bodily injury.” On the one hand, it may
be argued that the term “bodily injury” would be re-
dundant if it included “physical, psychiatric, and psycho-
logical care.” This argument is reinforced by Black’s
Law Dictionary’s definition of the term: “Physical
damage to a person’s body.” Black’s Law Dictionary
(9th ed. 2009). On the other hand, one might argue that
“bodily injury” is an umbrella term that includes
“physical, psychiatric, and psychological care.” United
States v. Dotson, 242 F.3d 391, *5 (Table) (10th Cir. 2000)
(suggesting that “perhaps ‘bodily injury’ is a holistic
No. 12-1364 7
phrase referring to all aspects of the body, physical and
psychological”). These alternate plausible readings of
the statute reveal its ambiguity.
Further undermining Breshers’s position is the fact
that other federal statutes include mental injury in the
definition of bodily injury. 18 U.S.C. § 1365(g)(1)(B)(3)
(defining “bodily injury” as including “impairment of the
function of a bodily member, organ, or mental faculty”);
U.S.S.G. § 1B1.1, comment (j) (defining “serious bodily
injury” as including impairment of a “function of a
bodily member, organ, or mental faculty”). The Hate
Crimes Act, 18 U.S.C. § 249, adopts the definition of
“bodily injury” found in 18 U.S.C. § 1365(g)(1)(B)(3), but
specifies that it “does not include solely emotional or
psychological harm to the victim.” These statutes sug-
gest that the MVRA’s use of the undefined term
“bodily injury” is at best unclear on the question
whether it includes mental injury.
Breshers is correct to point out that the other circuits
have held that physical injuries are required before the
court may order restitution for mental treatment. United
States v. Reichow, 416 F.3d 802, 805 (8th Cir. 2005) (“[W]e
hold that the MVRA requires evidence of bodily injury
to victims before restitution can be ordered for their
psychological treatment expenses.”); United States v.
Hicks, 997 F.2d 594, 601 (9th Cir. 1993) (“The cost of psych-
ological counseling can be included in a restitution
order only when the victim has suffered physical in-
jury.”). Neither of these cases, however, was decided on
plain error review. We conclude that the district court
8 No. 12-1364
in the case before us did not plainly err in ordering resti-
tution for T.A. and The Hartford.
B
The government argues in the alternative that the
MVRA authorizes reimbursement for lost income and
“other expenses” under subsection (b)(4). This subsec-
tion authorizes reimbursement where the expenses are
“incurred during participation in the investigation or
prosecution of the offense or attendance at proceedings
related to the offense.” 18 U.S.C. § 3663A(b)(4). Breshers
counters that there are no facts in the record sup-
porting the claim that the income losses and mental
health treatment costs were incurred because of the vic-
tims’ participation in the investigation or prosecution.
Breshers’s response underscores our previous comment
on the reason for plain error review. We need not reach
this issue because we affirm on § 3663A(b)(2) grounds.
III
We A FFIRM the district court’s restitution order
awarding T.A. $3,225 and The Hartford $40,289.50.
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