United States v. Deanna Benally

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 18 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10501
Plaintiff - Appellee, D.C. No. 3:11-cr-08211-FJM-2
v.
MEMORANDUM*
DEANNA DORA BENALLY,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10502
Plaintiff - Appellee, D.C. No. 3:11-cr-08211-FJM-4
v.
JERRISON WILLIE JAMES, AKA
Jerrison James,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10505
Plaintiff - Appellee, D.C. No. 3:11-cr-08211-FJM-3
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
GARRISON WILLIE JAMES, AKA
Garrison James,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-10073
Plaintiff - Appellee, D.C. No. 3:11-cr-08211-HBM-1
v.
REED LITTLESKY BIA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
Submitted December 4, 2013**
San Francisco, California
Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.
Pursuant to plea agreements, Defendants Deanna Benally, Jerrison James,
Garrison James, and Reed Bia each pleaded guilty to one count of Robbery by
Force, Violence, and Intimidation within the Navajo Indian Reservation, in
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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violation of 18 U.S.C. §§ 1153, 2111, and 2112. Defendants’ plea agreements
provided for restitution under 18 U.S.C. § 3663A. Defendants appeal the district
court’s restitution order directing them to pay $1,215.32 for costs associated with
the robbery victim’s psychological counseling.1 We have jurisdiction under
28 U.S.C. § 1291, and we vacate the restitution order in part corresponding to the
costs of the victim’s psychological counseling, affirm in part,2 and remand for
resentencing on an open record.
Defendants contend that the district court erred when it awarded restitution
for psychological counseling in the absence of evidence that the victim suffered
physical injury. Defendants further contend that the district court erred in
determining that the restitution amount was sufficiently documented to show the
victim’s psychological counseling was related to the robbery.
At sentencing, the district court was convinced that the victim’s
psychological injury was legitimate, but did not make a specific finding of the
1
Defendants were ordered to pay restitution to the Arizona Health Care Cost
Containment System (Arizona’s Medicaid agency), which paid for the victim’s
psychological counseling.
2
We affirm the order of restitution with respect to $45.00 for the victim’s
cell phone.
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nature of the victim’s physical injury.3 The district court determined the amount of
the restitution award from a summary medical billing statement that did not
describe the victim’s diagnosis or treatment.
We have previously held that the cost of psychological counseling can only
be included in a restitution order when the victim has suffered physical injury. See
United States v. Hicks, 997 F.2d 594, 601 (9th Cir. 1993); see also United States v.
Follet, 269 F.3d 996, 1001 (9th Cir. 2001) (following Hicks); United States v.
Dayea, 73 F.3d 229, 231-32 (9th Cir. 1995) (same). The district court clearly erred
by ordering Defendants to pay restitution for costs of the victim’s psychological
treatment in the absence of a finding that the victim suffered physical injury from
the robbery.
We vacate in part and remand for resentencing on an open record so that the
district court can determine whether the victim suffered a physical injury from the
robbery, and if so, whether sufficient documentation exists to support restitution
for the costs of the victim’s psychological counseling. See United States v.
Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc).
3
The issue of restitution was primarily discussed at the sentencing of
Defendants Benally, Garrison James, and Jerrison James before District Judge
Martone in September 2012. Defendant Bia was sentenced before visiting District
Judge McKibben in February 2013. All four sentences included restitution for the
cost of the victim’s psychological counseling.
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VACATED in part, AFFIRMED in part, and REMANDED.
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