Jane Doe v. Usdc-Nvl

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JANE DOE, No. 22-70098
______________________________
D.C. No. 2:17-
JANE DOE, cr-00072-RFB
Petitioner,
v. ORDER AND
AMENDED
UNITED STATES DISTRICT OPINION
COURT FOR THE DISTRICT OF
NEVADA, LAS VEGAS,
Respondent,
VONTEAK ALEXANDER;
UNITED STATES OF AMERICA,
Real Parties in Interest.
Petition for Writ of Mandamus
Argued and Submitted September 19, 2022
San Francisco, California
Filed October 25, 2022
Amended January 18, 2023
Before: Susan P. Graber, Michelle T. Friedland, and Lucy
H. Koh, Circuit Judges.
2 DOE V. USDC-NVL
Order;
Opinion by Judge Graber
SUMMARY *
Mandamus / Crime Victims’ Rights Act
The panel filed (1) an order amending its opinion,
denying a petition for panel rehearing, and denying on behalf
of the court a petition for rehearing en banc; and (2) an
amended opinion granting Jane Doe’s petition for a writ of
mandamus pursuant to 18 U.S.C. § 3771(d)(3), a provision
of the Crime Victims’ Rights Act.
The defendant kidnapped Doe, then age twelve, and
drove her from California to Nevada knowing that she would
engage in prostitution. The defendant entered into a written
plea agreement pursuant to which, in exchange for the
government’s promise to drop five serious criminal charges,
he would plead guilty to two lesser crimes (interstate travel
in aid of unlawful activity, in violation of 18 U.S.C.
§ 1952(a)(3)(A)) and would pay Doe restitution. The
district court nonetheless concluded that it lacked statutory
authority to order the defendant to pay restitution to Doe.
Applying ordinary standards of review, rather than the
mandamus standard set forth in Bauman v. United States
District Court, 557 F.2d 650 (9th Cir. 1977), the panel
reviewed de novo the questions of law raised by the parties.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOE V. USDC-NVL 3
The panel published the opinion to reiterate what this
court held in two cases decided three decades ago: 18 U.S.C.
§ 3663(a)(3) grants statutory authority to district courts to
award restitution whenever a defendant agrees in a plea
agreement to pay restitution.
The defendant did not dispute that § 3663(a)(3)
authorizes district courts to award restitution as agreed to by
the parties in a plea agreement. Rather, he argued that the
district court lacked authority to award restitution under the
plea agreement in this case. The defendant first argued that
the restitution provision in the plea agreement
unambiguously limited the district court’s authority such
that the court could award restitution only for those crimes
that trigger mandatory restitution under 18 U.S.C. § 2259;
and that because none of the defendant’s conduct amounted
to a crime that fell within that category, the district court
lacked authority to award Doe restitution under the plain
terms of the plea agreement. The defendant then argued that
even if the plea agreement was ambiguous, this court should
interpret that ambiguity in his favor and hold that the district
court lacked authority to award restitution under the plea
agreement. Rejecting both arguments, the panel wrote that
the extrinsic evidence unambiguously demonstrated that the
defendant agreed to pay restitution for Doe’s loss, as defined
in 18 U.S.C. § 2259(b)(3); and, accordingly, the rule that
ambiguities are construed against the government did not
apply.
The panel held that the district court’s holding that it
lacked statutory authority to order restitution was legal
error. The panel granted the mandamus petition and
instructed the district court to address, in the first instance,
the defendant’s evidentiary challenges and other arguments
concerning the appropriate amount of restitution.
4 DOE V. USDC-NVL
COUNSEL
Paul G. Cassell, Utah Appellate Project, S.J. Quinney
College of Law at the University of Utah, Salt Lake City,
Utah; Rose M. Mukhar and Norah C. Cunningham I, Justice
at Last Inc, San Carlos, California; for Petitioner.
Christopher F. Burton and Robert L. Ellman; Assistant
United States Attorneys; Elizabeth O. White, Assistant
United States Attorney, Appellate Chief; Jason M. Frierson,
United States Attorney; Office of the United States Attorney,
Reno, Nevada; for Real Party in Interest United States of
America.
Amy B. Cleary and Wendi L. Overmyer, Assistant Federal
Public Defenders; Rene L. Valladares, Federal Public
Defender; Federal Public Defender’s Office, Las Vegas
Nevada; Christopher Oram, Law Office of Christopher R.
Oram LTD, Las Vegas, Nevada; for Real Party in Interest
Vonteak Alexander.
ORDER
The opinion filed on October 25, 2022, and published at
51 F.4th 1023, is hereby amended by the opinion filed
concurrently with this order. With the opinion so amended,
the panel has voted to deny the petition for panel rehearing.
Judges Friedland and Koh have voted to deny the petition for
rehearing en banc, and Judge Graber has so recommended.
The full court has been advised of the petition for
rehearing en banc and no judge of the court has requested a
vote on it.
DOE V. USDC-NVL 5
The petition for panel rehearing and petition for
rehearing en banc, Docket No. 33, are DENIED. No further
petitions for rehearing will be accepted.
OPINION
GRABER, Circuit Judge:
When Jane Doe was twelve years old, Defendant
Vonteak Alexander drove her from California to Las Vegas,
Nevada, knowing that she would engage in prostitution.
Jane Doe eventually alerted authorities that she was a
missing juvenile, and police officers arrested Defendant.
Facing five serious criminal charges, Defendant entered into
a written plea agreement. Pursuant to that agreement, in
exchange for the government’s promise to drop the five
charges, Defendant would plead guilty to two lesser crimes
and would pay restitution to Jane Doe. The district court
presided over several hearings aimed at determining the
proper amount of restitution. After a new lawyer took over
Defendant’s representation, Defendant argued for the first
time that the district court lacked statutory authority to order
any restitution whatsoever. The district court reluctantly
agreed with Defendant’s legal argument. Accordingly, the
court issued an order denying Jane Doe’s request for
restitution on the sole ground that the court lacked statutory
authority to award it.
Jane Doe then filed this petition for a writ of mandamus
pursuant to 18 U.S.C. § 3771(d)(3), a provision of the Crime
Victims’ Rights Act. We publish this opinion to reiterate
what we held in two cases decided three decades ago: that
18 U.S.C. § 3663(a)(3) grants statutory authority to district
6 DOE V. USDC-NVL
courts to award restitution whenever a defendant agrees in a
plea agreement to pay restitution. United States v.
McAninch, 994 F.2d 1380, 1384 n.4 (9th Cir. 1993); United
States v. Soderling, 970 F.2d 529, 534 n.9 (9th Cir. 1992)
(per curiam). Because the district court has statutory
authority to carry out the parties’ intent that Defendant pay
Jane Doe restitution, we grant the petition and instruct the
district court to address, in the first instance, Defendant’s
evidentiary challenges and other arguments concerning the
appropriate amount of restitution.
FACTUAL AND PROCEDURAL HISTORY
The government originally indicted Defendant on five
counts that pertained to sex trafficking: (1) conspiracy to
commit sex trafficking, in violation of 18 U.S.C. § 1594; (2)
sex trafficking, in violation of 18 U.S.C. § 1591; (3)
conspiracy to transport for prostitution or other sexual
activity, in violation of 18 U.S.C. § 2423; (4) transportation
for prostitution or other criminal activity, in violation of 18
U.S.C. § 2423; and (5) coercion and enticement, in violation
of 18 U.S.C. § 2422. The parties entered into plea
negotiations, and the government later filed a criminal
information charging Defendant with only two counts of
interstate travel in aid of unlawful activity, in violation of 18
U.S.C. § 1952(a)(3)(A). The criminal information does not
specify the nature of the unlawful activity.
The government and Defendant then negotiated a
binding plea agreement pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(A), (C). Defendant agreed to plead
guilty to the two counts in the criminal information and to
pay restitution. In exchange, the government agreed to
dismiss the indictment and to forgo bringing any additional
charges stemming from the investigation. Defendant
DOE V. USDC-NVL 7
admitted that he drove Jane Doe from California to Las
Vegas, Nevada, with the intent that Jane Doe engage in
unlawful activity and that he then attempted to facilitate Jane
Doe’s engaging in unspecified unlawful activity. The parties
agreed to be bound by any sentence within the range of 60
months to 96 months of imprisonment.
The plea agreement also required Defendant to pay
restitution:
The Defendant acknowledges that the
conduct to which he is entering a plea is gives
[sic] rise to mandatory restitution to the
victim(s). See 18 U.S.C. § 2259. The
Defendant agrees that for the purpose of
assessing such restitution, the Court may
consider losses derived from the counts of
conviction as well as losses caused from
dismissed counts and uncharged conduct in
which the Defendant has been involved. The
Defendant agrees to pay the victim(s) the
“full amount of the victim’s losses” as
defined in 18 U.S.C. § 2259(b)(3).
Section 2259(b)(3) 1 defines the “full amount of the victim’s
losses” to include six categories of loss, including some costs
of medical care and reasonable attorneys’ fees.
1
Since Defendant committed his crimes in 2016, Congress has relabeled
§ 2259(b)(3) as subsection (c)(2), and Congress made a conforming
change to § 1593(b)(3), which formerly cited § 2259(b)(3) and now cites
§ 2259(c)(2). Unless otherwise noted, we refer to the versions of
§§ 1593 and 2259 that were in effect in 2016.
8 DOE V. USDC-NVL
The district court then presided over a plea colloquy.
The government’s lawyer summarized the terms of the plea
agreement and stated, with respect to restitution, that
Defendant “agrees to pay the victim the full amount of
victim’s losses as defined in 18 U.S.C. § 2259(b)(3).”
Defendant and his lawyer agreed with the summary. The
court accepted Defendant’s guilty plea and scheduled
sentencing.
The district court later presided over a sentencing
hearing. Defendant sought the low end of the plea
agreement’s range, 60 months; Jane Doe and the government
sought the high end, 96 months; and the court sentenced
Defendant to 96 months in prison. Consistent with a
victim’s statement that she had filed before sentencing, Jane
Doe requested $15,000 in restitution. Defendant’s lawyer
requested that restitution be considered later, during a
separate hearing. He elaborated that the government bore
the burden of proof as to restitution and that, in his view, the
government failed to provide sufficient evidence to support
the restitution amount. The court agreed to defer a decision
on restitution and later scheduled a hearing on restitution.2
On the day before the scheduled hearing, Defendant filed
a motion pertaining to restitution. Defendant argued that
Jane Doe had used the wrong legal formula when calculating
restitution. In particular, 18 U.S.C. § 1593(b)(3) defines the
full amount of the victim’s losses as having “the same
meaning as provided in section 2259(b)(3) and shall in
2
Although restitution remained undecided, the district court entered a
judgment of conviction, and Defendant timely appealed. A motions
panel of this court granted Defendant’s unopposed motion to stay the
direct appeal pending final resolution of this mandamus petition. Case
No. 21-10164, Docket No. 19.
DOE V. USDC-NVL 9
addition include the greater of the gross income or value to
the defendant of the victim’s services or labor or the value
of the victim’s labor as guaranteed under the minimum wage
and overtime guarantees of the Fair Labor Standards Act.”
(Emphasis added.) In calculating loss, Jane Doe used the
formula supplied by § 1593(b)(3) but not found expressly in
§ 2259(b)(3). In his motion, Defendant asserted that
§ 1593(b)(3) “employs a unique restitution calculation that
differs significantly from Sections 2259 and 3663.”
According to Defendant, the “unique loss provisions” of
§ 1593(b)(3) should not apply here. Defendant argued,
instead, that “the Court should reject Jane Doe’s proposed
restitution calculation[] of $15,000 . . . in favor of a
restitution calculation consistent with 18 U.S.C.
§§ 2259(c)(2) or 3663A(b)(2).” 3 In short, Defendant asked
the court to calculate loss pursuant to § 2259’s definition, as
the parties had agreed, and not pursuant to § 1593’s
definition.
At the scheduled hearing the next day, Defendant’s
lawyer reiterated that § 2259, not § 1593, provides the
correct method for calculating restitution. The district court
“agree[d] with [Defendant’s lawyer] that 2259 is the statute
that applies.” Turning to Jane Doe’s request for restitution,
the district court specifically found that Defendant did not
force Jane Doe into acts of prostitution; Defendant was not
“her pimp.” The court therefore denied restitution to the
extent that it depended on that theory.
3
The passage contains two typographical errors, which we have
corrected here and on page 18. Defendant cited “§ 2559,” a statute that
does not exist. From context, it is clear that he meant § 2259. The
passage also contains an extra open-parens, which we have omitted.
10 DOE V. USDC-NVL
But the court was clear that other categories of
restitution, as defined by § 2259, such as current and future
medical and psychological expenses, were potentially
available to Jane Doe. Because Defendant’s motion was
filed late on the day before the hearing, the district court
allowed Jane Doe time to file a supplemental request for
restitution. On a separate topic, Defendant’s lawyer
informed the court and the parties that he was moving out of
state but that another lawyer from his office would represent
Defendant going forward.
Jane Doe timely filed a supplemental request for
restitution. Instead of the original $15,000, Jane Doe now
requested approximately $1.5 million. Tracking the
categories in § 2259(b)(3), she sought lost future earnings,
future medical expenses, attorney’s fees, transportation
costs, and past lost wages.
About six months later, Defendant—now represented by
a new lawyer—filed an opposition to restitution. Defendant
argued for the first time that the district court “lacks
authority to order restitution.” According to Defendant,
because he did not commit a crime under any statute that
permits or mandates an order of restitution, the court lacked
authority to order restitution.
The parties then appeared for a final hearing on
restitution. Defendant’s lawyer stated that “I recognize that
[Defendant] in his plea agreement agreed to pay restitution.”
But, Defendant’s lawyer continued, § 2259 does not “allow
the Court to order restitution.” In response to the court’s
questions about how Defendant could renounce his
agreement to pay restitution, Defendant’s lawyer responded
candidly: “I was not a party to this plea agreement, Your
DOE V. USDC-NVL 11
Honor. I came aboard this case I think after four to five years
of litigation and have tried my very best to get up to speed.”
The government took the “same lockstep” position as
Jane Doe’s and “st[ood] by th[e] plea agreement,” asking the
court to order restitution to Jane Doe. With respect to the
court’s authority to order restitution, Jane Doe’s lawyer
stated that, “if there is this plea agreement which articulates
and calls out that restitution, the Court has the authority” to
order restitution.
Defendant’s lawyer conferred with him and stated that
“he is requesting that the Court impose restitution of
$1,000.” His lawyer continued that Defendant “is
understanding that his plea agreement – in his plea
agreement he agreed to pay restitution.” Defendant also
raised, in the alternative, several arguments against the
specific requests for restitution, such as a lack of evidentiary
support and a lack of proximate cause.
In May 2022, the district court issued a short order
denying restitution. “The Court finds that despite the
egregious conduct admitted by Defendant in this case it
cannot order restitution to Jane Doe.” The court held that
§ 2259 was not directly applicable because Defendant “did
not commit any of the enumerated offenses under the
relevant chapter.” The court rejected the argument that the
plea agreement itself “could provide a basis for restitution”
because a “consent to application does not itself expand the
Court’s legal authority.” The court concluded that “while
the Court finds that [Defendant] committed egregious acts
by which Jane Doe suffered and will continue to suffer, the
Court simply does not find that it has the authority to order
restitution to Jane Doe in this case.”
12 DOE V. USDC-NVL
Jane Doe timely filed this petition. Title 18 U.S.C.
§ 3771(d)(3) requires us to issue a decision within 72 hours
unless the parties stipulate to an alternative schedule. The
parties stipulated to a longer time frame, and a motions panel
issued an opinion adopting the parties’ stipulated schedule.
Jane Doe v. U.S. Dist. Ct. (In re Doe), No. 22-70098, 2022
WL 6901080, at *5 (9th Cir. Oct. 12, 2022). We now issue
this opinion on the merits of the petition.
STANDARD OF REVIEW
In most cases in which a petitioner seeks a writ of
mandamus, we apply the stringent standard of review
described in Bauman v. United States District Court, 557
F.2d 650, 654–55 (9th Cir. 1977). Here, though, Jane Doe
seeks mandamus through 18 U.S.C. § 3771(d)(3), the Crime
Victims’ Rights Act’s provision aimed at protecting victims’
rights. We held in Kenna v. United States District Court for
the Central District of California, 435 F.3d 1011 (9th Cir.
2006), that the Bauman factors do not apply in this
circumstance; instead, we review for “an abuse of discretion
or legal error.” Id. at 1017. Some other circuits disagreed
but, in 2015, Congress amended the statute in a way that
clarifies that Kenna got it right: “In deciding such
application, the court of appeals shall apply ordinary
standards of appellate review.” 18 U.S.C. § 3771(d)(3).
Accordingly, we apply the ordinary standards of appellate
review, such as de novo review for legal conclusions, clear-
error review for factual findings, and abuse-of-discretion
review for discretionary judgments. See In re Wild, 994
F.3d 1244, 1254 n.10 (11th Cir. 2021) (en banc) (holding
that “the [statute] (as amended in 2015 to resolve a then-
existing circuit split) directs us to ‘apply ordinary standards
of appellate review’ in deciding the mandamus petition, see
18 U.S.C. § 3771(d)(3)—rather than the heightened ‘clear
DOE V. USDC-NVL 13
usurpation of power or abuse of discretion’ standard that
typically applies in the mandamus context” (second citation
omitted)), cert. denied, 142 S. Ct. 1188 (2022). We therefore
review de novo the questions of law raised by the parties
here. Balla v. Idaho, 29 F.4th 1019, 1024 (9th Cir. 2022).
DISCUSSION
Jane Doe asserts a single legal argument: the district
court erred in concluding that it lacked statutory authority to
order restitution. We agree. In enacting 18 U.S.C.
§ 3663(a)(3), Congress expressly granted district courts
authority to order restitution whenever a defendant has
agreed in a plea agreement to pay restitution. Defendant did
so. Therefore, pursuant to the plain meaning of the statutory
text and consistent with binding precedent, the district court
had statutory authority to order restitution.
We begin with the statutory text. Section 3663(a)(3)
provides: “The court may also order restitution in any
criminal case to the extent agreed to by the parties in a plea
agreement.” Congressional intent is clear. If a defendant
has agreed to pay restitution in a plea agreement, then the
plain meaning of the statutory text grants the district court
statutory authority to order the agreed-upon restitution.
Our cases, decided shortly after Congress enacted the
provision, confirm that straightforward reading. “[S]ection
3663(a)(3) clearly provides that plea agreements allowing
for restitution greater than the losses caused by the offenses
of conviction are authorized by law.” Soderling, 970 F.2d at534 n.9. “Under 18 U.S.C. § 3663(a)(3), . . . a court can
order restitution in any criminal case to the extent agreed to
by the parties to a plea agreement.” McAninch, 994 F.2d at1384 n.4. Decisions by our sister circuits are in accord. E.g.,
United States v. Maturin, 488 F.3d 657, 661 (5th Cir. 2007);
14 DOE V. USDC-NVL
United States v. Blake, 81 F.3d 498, 507 (4th Cir. 1996);
United States v. Guthrie, 64 F.3d 1510, 1514 (10th Cir.
1995); United States v. Silkowski, 32 F.3d 682, 688–89 (2d
Cir. 1994).
The statutory text and our cases are thus clear: in “any”
criminal case, regardless of the crimes of conviction, and
regardless of the defendant’s conduct, a defendant may agree
in a plea agreement to pay restitution to a victim. See, e.g.,
Olympic Forest Coal. v. Coast Seafoods Co., 884 F.3d 901,
906 (9th Cir. 2018) (“[T]he term ‘any’ [is] broad and all-
encompassing.”). Section 3663(a)(3) authorizes the district
court to order restitution in that circumstance. In other
words, even if the defendant’s conduct, or the crimes to
which a defendant pleads guilty, would not otherwise give
rise to mandatory restitution, a defendant may agree to pay
restitution, and the district court has authority to enforce that
agreement by ordering restitution.
We note that § 3663(a)(3) potentially benefits the
government and victims by allowing them to achieve an
order of restitution through a plea agreement without regard
to the defendant’s crimes of conviction. Importantly,
though, § 3663(a)(3) also potentially benefits defendants.
The statute allows defendants to plead guilty to crimes that
carry less severe penalties overall but that do not, by
themselves, authorize restitution. Here, for example,
Defendant initially faced sex-trafficking charges that carried
mandatory minimum sentences far greater than the 96-
month sentence that he received though the plea deal.
Without § 3663(a)(3)’s allowance of restitution in any plea
deal, victims such as Jane Doe might object to plea deals to
lesser charges, complicating a defendant’s attempt to avoid
more serious charges and longer terms of imprisonment.
DOE V. USDC-NVL 15
Section 3663(a)(3) thus gives the government, victims, and
defendants flexibility to reach a just result for all involved.
Defendant does not dispute that § 3663(a)(3) authorizes
district courts to award restitution as agreed to by the parties
in a plea agreement. Rather, Defendant argues that the
district court lacked authority to award restitution under the
plea agreement in this case. 4 First, Defendant argues that the
restitution provision in the plea agreement unambiguously
limited the district court’s authority such that the court could
award restitution only for those crimes that trigger
mandatory restitution under 18 U.S.C. § 2259. Because
none of Defendant’s conduct amounted to a crime that fell
within that category, Defendant argues, the district court
lacked authority to award Jane Doe restitution under the
plain terms of the plea agreement. Second, Defendant
argues that even if the plea agreement is ambiguous, we
should interpret that ambiguity in his favor and hold that the
district court lacked authority to award restitution under the
plea agreement. We reject both arguments.
Our methodology for interpreting a plea agreement is
settled. United States v. Clark, 218 F.3d 1092, 1095 (9th
Cir. 2000). We begin “with the fundamental rule that plea
agreements are contractual in nature and are measured by
contract law standards.” Id. (brackets, citation, and internal
quotation marks omitted). We review the plea agreement as
4
We reject, as unsupported by the record, Defendant’s alternative
argument that Jane Doe waived reliance on § 3663(a)(3). Nothing in the
record suggests that Jane Doe intentionally relinquished the right to rely
on § 3663(a)(3). See United States v. Depue, 912 F.3d 1227, 1232–33
(9th Cir. 2019) (en banc) (describing the requirements to prove waiver).
To the contrary, Jane Doe expressly argued to the district court that,
because the parties agreed to restitution in the plea agreement, the court
had the authority to order restitution.
16 DOE V. USDC-NVL
a whole and, if the terms of the plea agreement have a clear
meaning, then our analysis is complete. Id. at 1095–96. “If,
however, a term of a plea agreement is not clear on its face,
we look to the facts of the case to determine what the parties
reasonably understood to be the terms of the agreement.” Id.
at 1095. “If, after we have examined the extrinsic evidence,
we still find ambiguity regarding what the parties reasonably
understood to be the terms of the agreement,” we then
interpret any remaining ambiguity in the defendant’s favor.
Id.To reiterate, the restitution provision in the plea
agreement stated:
The Defendant acknowledges that the
conduct to which he is entering a plea is gives
[sic] rise to mandatory restitution to the
victim(s). See 18 U.S.C. § 2259. The
Defendant agrees that for the purpose of
assessing such restitution, the Court may
consider losses derived from the counts of
conviction as well as losses caused from
dismissed counts and uncharged conduct in
which the Defendant has been involved. The
Defendant agrees to pay the victim(s) the
“full amount of the victim’s losses” as
defined in 18 U.S.C. § 2259(b)(3).
We begin with the most natural reading of the paragraph.
The operative sentence—the agreement to pay—is the final
sentence: Defendant agreed to pay Jane Doe the six
categories of loss defined in § 2259(b)(3). The preceding
sentence describes the conduct that the court may consider
in determining loss: “losses derived from the counts of
DOE V. USDC-NVL 17
conviction as well as losses caused from dismissed counts
and uncharged conduct in which the Defendant has been
involved.” Putting it all together, Defendant agreed to pay
Jane Doe the six categories of loss described in § 2259, and
the court could consider all of Defendant’s conduct in
calculating loss.
Those final two sentences of the restitution provision
thus appear to authorize the district court to order restitution
resulting not only from the counts of conviction but also
from the dismissed counts and uncharged conduct. Unlike
in United States v. Phillips, 174 F.3d 1074, 1077 (9th Cir.
1999), in which the defendant “did not specifically agree to
pay restitution for [specific] counts in exchange for the
government’s promise to drop those charges,” Defendant’s
plea agreement here specified that restitution would
encompass the dismissed counts and uncharged conduct, and
his plea agreement obligated the government to dismiss the
original indictment in exchange for his consent to the plea
deal.
But the first sentence of the restitution provision, when
viewed in isolation, is not a model of clarity. In that
sentence, Defendant “acknowledges” that his conduct gives
rise to “mandatory restitution,” and the sentence ends with a
citation to § 2259. Section 2259 itself mandates restitution
only for crimes defined in Chapter 110 of Title 18. 18 U.S.C.
§ 2259(a). Neither the crimes of conviction nor the
originally charged crimes in the indictment fall within
Chapter 110, so the purpose of the sentence is not entirely
clear. 5 Read in conjunction with the later sentences,
5
As described in text, § 2259 authorizes restitution only for convictions
under Chapter 110. In the same plea agreement, Defendant pleaded
18 DOE V. USDC-NVL
however, we interpret the first sentence as simply
acknowledging Defendant’s obligation to pay restitution.
It is possible to read the restitution paragraph in a more
constrained manner. Specifically, one could interpret the
passage as an agreement to pay restitution only to the extent
that the district court later determined that Defendant’s
conduct resulted in the commission of a crime encompassed
by § 2259, that is, a crime defined in Chapter 110. Because
the district court found (and Jane Doe does not challenge in
the mandamus petition) that Defendant’s conduct did not
violate § 2259, Defendant would owe no restitution. In
particular, one could read the first sentence as providing that
Defendant agrees to pay mandatory restitution only to the
extent that his “conduct,” had it been charged as a crime,
would “give[] rise to mandatory restitution . . . [pursuant to]
§ 2259.” The third sentence’s citation of § 2259 comports
with this interpretation: “Defendant agrees to pay the
victim(s) the ‘full amount of the victim’s losses’ as defined
in 18 U.S.C. § 2259(b)(3).”
But that interpretation contradicts other parts of the plea
agreement. For example, the first sentence, read in its
guilty only to two counts of violating 18 U.S.C. § 1952(a)(3)(A). Those
counts do not fall within Chapter 110, so those counts do not trigger
§ 2259’s mandatory restitution provision. For the restitution paragraph
to have any meaning, then, it must mean more than simply that
Defendant’s convictions trigger § 2259. To the extent that Defendant
advances an interpretation that necessarily renders the restitution
paragraph void on its face, we reject that interpretation. See United
States v. Medina-Carrasco, 815 F.3d 457, 462 (9th Cir. 2015) (rejecting,
as “contrary to basic principles of contract interpretation,” an
interpretation of a plea agreement that “would render meaningless” a
provision of the plea agreement); accord United States v. Schuman, 127
F.3d 815, 817 (9th Cir. 1997) (per curiam); United States v. Michlin, 34
F.3d 896, 901 (9th Cir. 1994).
DOE V. USDC-NVL 19
entirety, does not suggest that, if the district court later found
(as it did here), that Defendant did not commit any crime
under Chapter 110, then he would not have to pay any
restitution. The first sentence states only that “[t]he
Defendant acknowledges that the conduct to which he is
entering a plea is gives [sic] rise to mandatory restitution.”
(Emphasis added.) That sentence, read in its entirety,
suggests that Defendant knows that he will have to pay
restitution; only the amount is at issue. Similarly, the limited
interpretation contradicts the second sentence, which
provides that the court may consider losses from all conduct
when “assessing such restitution,” including the counts of
conviction and the dismissed counts. Because neither the
counts of conviction nor the dismissed counts fall within
Chapter 110, it makes little sense to interpret “such
restitution” as encompassing only the conduct that could
have been charged under Chapter 110.
These competing interpretations show that the restitution
provision is ambiguous. Accordingly, our next step is to
“look to the facts of the case to determine what the parties
reasonably understood to be the terms of the agreement.”
Clark, 218 F.3d at 1095. In our view, the record plainly
reflects that the parties all understood that Defendant had
agreed to pay restitution, limited to the categories of loss
described in § 2259(b)(3). Defendant objected to the use of
a definition other than the definition found in § 2259; he
disputed the factual sufficiency of the evidence supporting
the restitution amount; and he disputed whether Jane Doe
had shown proximate cause. But, until Defendant’s new
lawyer took the assignment, the record contains no
suggestion whatsoever that anyone thought that Defendant
could escape paying restitution altogether because of a lack
of statutory authority, if the court later held that Defendant
20 DOE V. USDC-NVL
had not committed an offense triggering the mandatory
restitution provision in § 2259. See id. at 1096 (looking to
the understanding of “those who negotiated the agreement”).
During the plea colloquy, the government’s lawyer
summarized that Defendant “agrees to pay the victim the full
amount of victim’s losses as defined in 18 U.S.C.
§ 2259(b)(3).” Defendant and his lawyer agreed with the
government’s summary. During sentencing, Defendant’s
lawyer objected substantively on the sole ground that the
evidence supporting the restitution amount was insufficient.
Before the first restitution hearing, Defendant objected only
to Jane Doe’s calculation method, which used the criteria
particular to § 1593; indeed, Defendant expressly asked the
court to use “a restitution calculation consistent with 18
U.S.C. §§ 2259(c)(2) or 3663A(b)(2).” During the first
restitution hearing, Defendant’s lawyer argued that § 2259
supplies the right formula for the amount that Defendant
would have to pay, “which is a separate analysis than the
analysis” under § 1593. During the second restitution
hearing, Defendant requested that the district court “impose
restitution” of a lower amount.
All of that conduct is consistent with our interpretation
of the restitution provision; none of the conduct is consistent
with the more limited interpretation of the restitution
provision. Everyone who negotiated the plea agreement
understood that Defendant agreed to pay restitution to Jane
Doe. Defendant objected to the sufficiency of the evidence
supporting particular amounts requested, and he insisted that
restitution be limited to the categories found in § 2259. But
Defendant’s obligation to pay was never in doubt. In sum,
“the extrinsic evidence unambiguously demonstrates” that
Defendant agreed to pay restitution for Jane Doe’s loss, as
defined in § 2259(b)(3). Clark, 218 F.3d at 1096.
DOE V. USDC-NVL 21
Accordingly, the rule that ambiguities are construed against
the government does not apply. See id. (“Only if the
extrinsic evidence regarding the parties’ intent fails to
resolve the term’s ambiguity must the court apply the rule
construing ambiguous terms against the drafting party.”).
CONCLUSION
We grant the petition for a writ of mandamus. Defendant
agreed to pay restitution, limited to the six categories of loss
described in 18 U.S.C. § 2259(b)(3). Title 18 U.S.C.
§ 3663(a)(3) grants district courts authority to award
restitution whenever a defendant agrees in a plea agreement
to pay restitution. Accordingly, the district court has
statutory authority to order restitution, and the court’s
holding to the contrary was legal error. We instruct the
district court to address the parties’ remaining arguments,
including any factual disputes concerning the amount of
loss, any factual disputes as to whether Defendant’s conduct
proximately caused the losses, and any other arguments
raised by the parties.
PETITION GRANTED.