JANE DOE V. USDC-NVL

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JANE DOE, No. 22-70098
______________________________
D.C. No. 2:17-cr-00072-RFB
JANE DOE,
Petitioner, OPINION
v.
UNITED STATES DISTRICT 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
Before: Susan P. Graber, Michelle T. Friedland, and Lucy H. Koh, Circuit Judges.
Opinion by Judge Graber
SUMMARY *
Mandamus / Crime Victims’ Rights Act
The panel granted 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, in a case in which
the district court concluded that it lacked statutory authority to order the defendant
to pay restitution to Jane Doe.
The defendant kidnapped Jane Doe, then age 12 years old, 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 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 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 Jane Doe
restitution under the plain terms of the plea agreement. The defendant then argued
that even if the plea agreement is 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 demonstrates that the defendant agreed to pay
restitution for Jane Doe’s loss, as defined in 18 U.S.C. § 2259(b)(3); and,
accordingly, the rule that ambiguities are construed against the government does not
apply.
*
This summary constitutes no part of the opinion of the court. It has been
prepared by court staff for the convenience of the reader.
The panel instructed the district court to address, in the first instance, the
defendant’s evidentiary challenges and other arguments concerning the appropriate
amount of restitution.
COUNSEL
Paul G. Cassell (argued), Utah Appellate Project, S.J. Quinney College of Law at
the University of Utah, Salt Lake City, Utah; Rose M. Mukkhar and Norah C.
Cunningham, Justice at Last Inc., San Carlos, California; for Petitioner.
Elizabeth O. White (argued), Appellate Chief and Assistant United States Attorney;
Christopher Floyd Burton, Assistant United States Attorney, Jason M. Frierson,
United States Attorney, United States Attorney’s Office, Reno, Nevada, for Real
Party in Interest United States of America.
Amy B. Cleary (argued), Rene L. Valladares, and Wendi L. Overmyer, Assistant
Federal Public Defenders, 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.
GRABER, Circuit Judge:
Defendant Vonteak Alexander kidnapped Jane Doe, who was then 12 years
old, and 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 courts to award
restitution whenever a defendant agrees in a plea agreement to pay restitution.
2
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
3
restitution. In exchange, the government agreed to dismiss the indictment and to
forgo bringing any additional charges stemming from the investigation. Defendant
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.
4
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
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.
5
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 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.
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.
6
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.
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
7
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 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
8
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.”
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.
9
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
usurpation of power or abuse of discretion’ standard that typically applies in the
mandamus context” (second citation omitted)), cert. denied, 142 S. Ct. 118810
(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 at 534 n.9. “Under 18
U.S.C. § 3663(a)(3), . . . a court can order restitution in any criminal case to the
11
extent agreed to by the parties to a plea agreement.” McAninch, 994 F.2d at 1384
n.4. Decisions by our sister circuits are in accord. E.g., United States v. Maturin,
488 F.3d 657, 661 (5th Cir. 2007); 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
12
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. 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
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.
13
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 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
14
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 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.
15
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, 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
5
As described in text, § 2259 authorizes restitution only for convictions
under Chapter 110. In the same plea agreement, Defendant pleaded 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).
16
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 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
17
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 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
18
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. 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
19
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.
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