United States v. Cienfuegos

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10201
Plaintiff-Appellant,
v.  D.C. No.
CR-03-00662-FJM
THEODORE ANTHONY CIENFUEGOS,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted May 16, 2006*
San Francisco, California
Filed September 8, 2006
Before: Pamela Ann Rymer and Kim McLane Wardlaw,
Circuit Judges, and James V. Selna,** District Judge.
Opinion by Judge Wardlaw
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
10909
10912 UNITED STATES v. CIENFUEGOS
COUNSEL
Linda C. Boone, Assistant United States Attorney, Phoenix,
Arizona, for the plaintiff-appellant.
Martin Lieberman, Phoenix, Arizona, for the defendant-
appellee.
OPINION
WARDLAW, Circuit Judge:
The Government appeals the district court’s denial of its
motion to order restitution for future lost income to a man-
UNITED STATES v. CIENFUEGOS 10913
slaughter victim’s estate pursuant to the Mandatory Victims
Restitution Act of 1996 (“MVRA”), 18 U.S.C.
§ 3663A(b)(2)(C). Because restitution for future lost income
may be ordered under the MVRA so long as it is not based
upon speculation, but is reasonably calculable, we reverse and
remand to the district court to redetermine the amount of resti-
tution to be awarded.
I
On May 24, 2003, Theodore Anthony Cienfuegos drove to
an area on the San Carlos Apache Indian Reservation known
as the Windmill, an open circular area where a number of
local residents had gathered to socialize. Shortly after he
arrived at the Windmill, Cienfuegos engaged in an altercation
with several individuals. He then got into his car and drove
into six vehicles parked around the Windmill, causing the
nearby crowd to rapidly disperse. Billie Jean Noline, a regis-
tered member of the San Carlos Apache Indian tribe, tripped
and fell as she ran to avoid the path of Cienfuegos’ vehicle.
Cienfuegos ran over Noline with his car, hit a tree, and then
backed up and did it again. Noline was taken to the San Car-
los Hospital, where she died as a result of the injuries inflicted
by Cienfuegos.
A federal grand jury returned a three-count superseding
indictment on August 19, 2004, which charged: (1) second
degree murder in violation of 18 U.S.C. §§ 1152, 1111; (2)
assault with a dangerous weapon in violation of 18 U.S.C.
§§ 1152, 113(a)(3); and (3) assault resulting in serious bodily
injury in violation of 18 U.S.C. §§ 1152, 113(a)(6). Cienfue-
gos pleaded guilty on September 22, 2004 to Count Three of
the indictment and to involuntary manslaughter, a lesser
included offense of Count One. Cienfuegos’ plea agreement
required him to make restitution, with the total amount to be
determined by the court at the time of sentencing.
Before sentencing, on February 2, 2005, the Government
moved for restitution for Noline’s future lost income pursuant
10914 UNITED STATES v. CIENFUEGOS
to the MVRA. It submitted a report from a certified public
accountant on February 18, 2005, calculating Noline’s life-
time future lost income to be $1,851,134.00. The district court
denied restitution for future lost income, reasoning that the
complexities associated with determining future lost income
belong in a civil action brought by the survivors and not as an
adjunct to a federal criminal case. The district court further
advised the victim’s family to file a civil suit, as the statute
of limitations had not yet expired. The district court sentenced
Cienfuegos to a term of imprisonment of fifty-one months on
each count, to be served concurrently, followed by three years
of supervised release. It also ordered Cienfuegos to pay a spe-
cial assessment of $200.00 and restitution to the victims for
funeral and related expenses in the amount of $11,629.87.
II
We review a restitution order for an abuse of discretion,
provided that it is within the bounds of the statutory frame-
work. See United States v. Phillips, 367 F.3d 846, 854 (9th
Cir. 2004) (as amended). Factual findings supporting a restitu-
tion order are reviewed for clear error, United States v. De La
Fuente, 353 F.3d 766, 772 (9th Cir. 2003), and the legality of
a restitution order is reviewed de novo, Phillips, 367 F.3d at
854.
III
Cienfuegos first argues that because the Government failed
to provide the probation officer with a list of the amounts sub-
ject to restitution not later than sixty days prior to sentencing,
as was required by 18 U.S.C. § 3664(d)(1), the district court
was not compelled to consider the Government’s motion to
include future lost earnings in the restitution amount. Cienfue-
gos also points out that, under 18 U.S.C. § 3664(d)(5), if the
victim’s losses are not ascertainable ten days prior to sentenc-
ing, then the prosecution is required to notify the court so that
the court can set a date for determining the victim’s losses
UNITED STATES v. CIENFUEGOS 10915
within ninety days after sentencing. The Government
responds that any failure to follow the procedural require-
ments of section 3664 was harmless error.
[1] The Government undisputedly failed to comply with the
section 3664 procedures. It submitted its motion for future
lost income on February 2, 2005, twenty-one days before the
sentencing hearing, and submitted the CPA’s calculation of
the amount of future lost income on February 18, 2005, five
days before sentencing. Because Cienfuegos timely objected
to the Government’s failure to follow the requirements and
procedures of section 3664, we review for harmless error.
However, because Cienfuegos fails to demonstrate actual
prejudice from the Government’s failure to comply with the
procedural requirements of section 3664, the only entity to
suffer prejudice here was Noline’s estate. Therefore, we hold
that any error the district court may have made in considering
the Government’s untimely future lost income motion was
harmless. This accords with decisions of the Second, Fourth,
Sixth, and Seventh Circuits, which have held that because the
procedural requirements of section 3664 were designed to
protect victims, not defendants, the failure to comply with
them is harmless error absent actual prejudice to the defen-
dant. As the Second Circuit held in United States v. Zakhary,
357 F.3d 186, 191 (2d Cir. 2004):
[T]he purpose behind the statutory ninety-day limit
on the determination of victims’ losses is not to pro-
tect defendants from drawn-out sentencing proceed-
ings or to establish finality; rather, it is to protect
crime victims from the willful dissipation of defen-
dants’ assets. . . . Mindful of these goals, we have
ruled that a district court’s failure to determine iden-
tifiable victims’ losses within ninety days after sen-
tencing, as prescribed by § 3664(d)(5), will be
deemed harmless error to the defendant unless he
can show actual prejudice from the omission.
10916 UNITED STATES v. CIENFUEGOS
See also United States v. Johnson, 400 F.3d 187, 198-99 (4th
Cir. 2005) (failure to comply with the ten-day limit in section
3664(d)(5) is harmless error absent a showing of prejudice);
United States v. Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000)
(failure to afford defendant an opportunity to be heard as to
the proposed amount of restitution within the ninety days pre-
scribed by § 3664(d)(5) is harmless error because “the court
provided him ample opportunity to object to the amount
thereafter”); United States v. Grimes, 173 F.3d 634, 638-39
(7th Cir. 1999) (because intended beneficiaries of section
3664(f)(1)(A) are victims, defendants have no rights under
section 3664 and trial court’s failure to name all of the victims
in the restitution order is not error).
[2] Moreover, Cienfuegos was provided the functional
equivalent of the notice required under section 3664(d)(5) by
the terms of his plea agreement. See United States v. Dando,
287 F.3d 1007, 1010 (10th Cir. 2002) (“Defendant . . .
received the functional equivalent of the notice required by
the statute. Defendant signed a plea agreement in which he
acknowledged restitution was mandatory. Although the dis-
trict court . . . did not establish a date to finalize the restitution
amount, the sentence hearing transcript clearly indicates the
court recognized restitution was mandatory . . . .”). Therefore,
we will not uphold the district court’s refusal to order restitu-
tion on account of the government’s failure to comply with
section 3664. See United States v. Catoggio, 326 F.3d 323,
329-30 (2d Cir. 2003) (rejecting defendant’s argument that
because an order of restitution under the MVRA must be
entered within 90 days of sentencing, the court should vacate
the restitution order without remanding for further proceed-
ings).
IV
The parties do not dispute that the MVRA applies to this
case and that it makes victim restitution mandatory for Cien-
fuegos. The only issue in contention is whether the MVRA
UNITED STATES v. CIENFUEGOS 10917
permits or requires restitution for future lost income. The
Government argues that the district court had a mandatory
obligation to order restitution for future lost income. Cienfue-
gos, on the other hand, argues that restitution for future lost
income is neither required nor permitted under the MVRA.
Because the plain language of the statute, congressional
intent, and federal legal authorities support the conclusion that
the MVRA does not per se exclude restitution for lost future
income to homicide victims, the district court erred in denying
the Government’s motion outright.
[3] The plain language of the MVRA contemplates an
award of restitution to the victim’s estate for future lost
income and certainly does not expressly exclude such an
award. The MVRA provides:
(a)(1) Notwithstanding any other provision of law,
when sentencing a defendant convicted of an offense
described in subsection (c), the court shall order . . .
that the defendant make restitution to the victim of
the offense or, if the victim is deceased, to the vic-
tim’s estate.
(b) The order of restitution shall require that such
defendant—
...
(2) in the case of an offense resulting in bodily
injury to a victim—
...
(C) reimburse the victim for income lost by such
victim as a result of such offense . . . .
18 U.S.C. § 3663A. Cienfuegos argues that Congress’s use of
the term “reimburse” necessarily imputes a backward-looking
10918 UNITED STATES v. CIENFUEGOS
approach to a restitution award because the term “reimburse”
is generally understood to mean “paying back” someone for
losses already incurred. However, Congress also used the
phrase “income lost by such victim as a result of such
offense.” 18 U.S.C. § 3663A(b)(2)(C) (emphasis added). The
word “result” is forward-looking. The New Shorter Oxford
English Dictionary 2570 (1993) defines “result” as “[t]he
effect, consequence, issue, or outcome of some action, pro-
cess, or design.” Any victim suffering bodily injury or death
necessarily incurs the income lost only after the injury, i.e. in
the future, as a consequence of the defendant’s violent act.
Moreover, the term “lost earnings,” which is analogous to “in-
come lost,” is defined by Black’s Law Dictionary to include
future lost earnings:
lost earnings. Wages, salary, or other income that a
person could have earned if he or she had not lost a
job, suffered a disabling injury, or died. Lost earn-
ings are typically awarded as damages in personal-
injury and wrongful-termination cases. There can be
past lost earnings and future lost earnings. Both are
subsets of this category, though legal writers some-
times loosely use future earnings as a synonym for
lost earnings. Cf. LOST EARNING CAPACITY.
Black’s Law Dictionary 526 (7th ed. 1999).
[4] Furthermore, the MVRA requires lost income to be paid
to victims who suffer bodily injury, 18 U.S.C. § 3663A(b)
(2)(C), or, in the case of victims who suffer death, to the vic-
tim’s estate, 18 U.S.C. § 3663A(a)(1). “In the case of a victim
who is . . . deceased, the legal guardian of the victim or repre-
sentative of the victim’s estate, another family member, or
any other person appointed as suitable by the court, may
assume the victim’s rights under this section . . . .” Id.
§ 3663A(a)(2). It would be illogical to assume that the ulti-
mate death of a person who suffered bodily injury eliminates
restitution for lost income. To not award restitution for future
UNITED STATES v. CIENFUEGOS 10919
lost income would lead to a perverse result where murderers
would be liable for markedly less in restitution than criminals
who merely assault and injure their victims. Thus, it is plain
that the statute allows a representative of the victim’s estate
or another family member to assume the victim’s rights to
collect restitution for future lost income; however, under sec-
tion 3663A(a)(1), the restitution is to be paid to the victim’s
estate.
Reading the MVRA to exclude restitution for future lost
income for homicide victims would conflict with Congress’s
stated intent to force offenders to “pay full restitution to the
identifiable victims of their crimes.” S. Rep. No. 104-179, at
12 (1996), as reprinted in 1996 U.S.C.C.A.N. 924, 925. The
Senate Report states that the purpose of the MVRA is “to
ensure that the loss to crime victims is recognized, and that
they receive the restitution that they are due” because “[i]t is
[ ] necessary to ensure that the offender realizes the damage
caused by the offense and pays the debt owed to the victim
as well as to society.” Id. In addition, the statute itself man-
dates that “[i]n each order of restitution, the court shall order
restitution to each victim in the full amount of each victim’s
losses as determined by the court and without consideration
of the economic circumstances of the defendant.” 18 U.S.C.
§ 3664(f)(1)(A) (emphasis added). Only by making restitution
for future lost income can the perpetrator of a homicide fully
pay the debt owed to the victim and to society. See, e.g., R.
Posner, Economic Analysis of Law 176-181 (3d ed. 1986)
(recovery of future lost income provides efficient incentives
to take care by ensuring that the tortfeasor will have to bear
the total cost of the victim’s injury or death).
Moreover, the legislative history of a recent victims’ rights
bill, the Scott Campbell, Stephanie Roper, Wendy Preston,
Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act
(“CVRA”), Public Law No. 108-405, 118 Stat. 2260, 18
U.S.C. § 3771, evidences congressional understanding that
the MVRA provides for future lost income. The CVRA,
10920 UNITED STATES v. CIENFUEGOS
which was signed into law by President Bush on October 30,
2004, recites a comprehensive list of crime victims’ rights,
including “the right to full and timely restitution as provided
in law.” 18 U.S.C. § 3771(a)(6). During floor debate on the
CVRA, Senator Kyl, one of its primary sponsors, spoke
regarding the “broad bipartisan consensus” underlying the
CVRA. 150 Cong. Rec. S10910 (daily ed. Oct. 9, 2004).
Describing the effects of the bill, Senator Kyl specifically
endorsed a decision in the District of Utah in which that court
found that the MVRA required restitution for future lost
income in homicide cases:
I would like to turn now to restitution . . . . This sec-
tion provides the right to full and timely restitution
as provided in law. We specifically intend to endorse
the expansive definition of restitution given by Judge
Cassell in U.S. v. Bedonie and U.S. v. Serawop in
May 2004. This right, together with the other rights
in the act to be heard and confer with the govern-
ment’s attorney in this act, means that existing resti-
tution laws will be more effective.
Id. at S10911 (citing United States v. Bedonie, 317 F. Supp.
2d 1285 (D. Utah 2004), rev’d on other grounds, 413 F.3d
1126 (10th Cir. 2005); United States v. Serawop, 317 F. Supp.
2d 1285 (D. Utah 2004), verdict rev’d and case remanded on
other grounds, 410 F.3d 656 (10th Cir. 2005), restitution
award aff’d on remand in later proceeding, 409 F. Supp. 2d
1356, 1357-58 (D. Utah 2006)).
When it passed the MVRA, Congress presumably was
aware of the background of the term “lost income,” which is
frequently interpreted under wrongful death and survival stat-
utes and state criminal restitution statutes to allow compensa-
tion for both past and future lost income. State wrongful death
and survival actions generally allow compensation to the vic-
tim’s estate or the victim’s decedents for future lost income,
UNITED STATES v. CIENFUEGOS 10921
although the methods of calculating the lost income differ.1
1
See, e.g., Hern v. Safeco Ins. Co. of Ill., 125 P.3d 597, 604-05 (Mont.
2005) (“[t]he damages that may be recovered in a survival action include
lost earnings from the time of injury to death, the present value of reason-
able earnings during the decedent’s remaining life expectancy”; “damages
under a wrongful death claim will include . . . the reasonable value of the
contributions in money that the decedent would reasonably have made for
. . . the heirs had she lived”); Classic Coach, Inc. v. Johnson, 823 So. 2d
517, 528 (Miss. 2002) (average salary of college graduate was best aver-
age to use when calculating future income of decedents in wrongful death
action, even though decedents had not yet graduated from college); Elmer
Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942-43 (Ind. 2001)
(pecuniary loss can be determined based on assistance that decedent would
have provided to beneficiaries through money, services, or other material
benefits minus the cost of decedent’s personal maintenance); Kiser v.
Schulte, 648 A.2d 1, 4 (Pa. 1994) (measure of damages awarded in sur-
vival action include loss of his earning power less personal maintenance
expenses from time of death through his estimated working life span);
Mackey v. Irisari, 445 S.E.2d 742, 751-52 (W. Va. 1994) (parents or sib-
lings of deceased in wrongful death action are not required to be finan-
cially dependent upon decedent in order to receive compensation for
reasonably expected loss of income of decedent); Wash. Metro. Area
Transit Auth. v. Davis, 606 A.2d 165, 177-78 (D.C. 1992) (lost earnings
may be awarded for death of child, but must be “grounded upon facts spe-
cific to the individual whose loss is being calculated”); Wilcox v.
Leverock, 548 So. 2d 1116, 1118 (Fla. 1989) (monies which would have
accumulated as result of skill or efforts of decedent are irretrievably lost
upon death and are properly recoverable by the estate under Wrongful
Death Act, whereas passive income received investments is excluded);
Bryant v. Silverman, 703 P.2d 1190, 1196 (Ariz. 1985) (“Arizona has a
strong policy interest in fully compensating injured plaintiffs to make
them whole. Thus, Arizona allows unlimited recovery for . . . lost earn-
ings, and diminished earning capacity.”); Goheen v. Gen. Motors, 502
P.2d 223, 236-37 (Or. 1972) (evidence of earning capacity is relevant to
the jury’s determination of economic damages, including claims of loss to
an estate in a wrongful death case, but net accumulation of substantial net
savings during remainder of life expectancy need not be demonstrated);
Estate of Hendrickson v. Genesis Health Venture, Inc., 565 S.E.2d 254,
263 (N.C. Ct. App. 2002) (in order to recover damages for loss of net
income of a decedent, plaintiff must offer evidence demonstrating that the
decedent was potentially capable of earning money in excess of that which
would be required for her support); see also Restatement (Second) of Torts
10922 UNITED STATES v. CIENFUEGOS
Similarly, wrongful death suits under maritime law and the
Federal Tort Claims Act (“FTCA”) have permitted recovery
for future lost income.2 State courts also frequently interpret
the term “lost income” under criminal restitution statutes to
permit restitution for future lost income to be paid to the vic-
tim’s estate.3 The words Congress chose should be construed
in the light of those prior decisions.
§ 924 (1979) (“One whose interests of personality have been tortiously
invaded is entitled to recover damages for past or prospective . . . (b) loss
or impairment of earning capacity . . . .”); Stuart Speiser & James E.
Rooks, Jr., Recovery for Wrongful Death § 6:53 (4th ed. 2005) (“The first,
and most prevalent, theory used in loss-to-estate statutes is that the dam-
ages should represent the present value of the decedent’s probable future
net earnings.”).
2
See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 584-85 (1974)
(“Recovery for loss of support has been universally recognized, and
includes all the financial contributions that the decedent would have made
to his dependents had he lived. Similarly, the overwhelming majority of
state wrongful-death acts . . . have permitted recovery for the monetary
value of services the decedent provided and would have continued to pro-
vide but for his wrongful death.”), abrogation by statute on other grounds
recognized by Miles v. Apex Marine Corp., 498 U.S. 19 (1990); In re Air
Crash Disaster Near Cerritos, 982 F.2d 1271, 1277-78 (9th Cir. 1992)
(under FTCA, wrongful death damages are computed under state law;
under California law, wrongful death plaintiff may recover lost present
and future economic support).
3
See, e.g., Koile v. State, 2006 WL 1838565 at *4-5 (Fla. July 6, 2006)
(interpreting the phrase “[r]eimburse the victim for income lost by the vic-
tim as a result of the offense” in a Florida restitution statute to authorize
restitution for lost future income to a murder victim’s estate); Richardson
v. State, 957 S.W.2d 854, 859 (Tex. Ct. App. 1997) (awarding restitution
for future lost income to child of manslaughter victim under Texas statute
allowing for reimbursement for “income lost by the victim as a result of
the offense”); State v. Blanton, 844 P.2d 1167, 1170 (Ariz. Ct. App. 1992)
(future lost earnings of homicide victim are economic losses covered by
Arizona restitution statute); State v. Mayberry, 415 N.W.2d 644, 645-46
(Iowa 1987) (en banc) (restitution permitted to parents of a murder victim
for the present value of the projected estate of the victim); State v. Mor-
iarty, 742 P.2d 704, 707 (Or. Ct. App. 1986) (holding that restitution in
the amount of the homicide victim’s projected income is a valid award);
UNITED STATES v. CIENFUEGOS 10923
Our holding accords with decisions of the Fifth Circuit,
under the MVRA’s predecessor, the Victim and Witness Pro-
tection Act of 1982 (“VWPA”), 18 U.S.C. § 3663, and the
Tenth Circuit. See United States v. Checora, 175 F.3d 782,
795-96 (10th Cir. 1999) (finding that victim’s sons were vic-
tims under the MVRA and had suffered a compensable loss
of support, but reversing and remanding decision to order that
restitution be paid to Utah Child and Family Services because
the court made no finding under section 3663A(a)(2) that the
agency served as legal guardian of the two boys or had been
appointed as a suitable proxy); United States v. Razo-Leora,
961 F.2d 1140, 1146 (5th Cir. 1992) (affirming order that
defendant pay $100,000 in lost income to victim’s widow
under VWPA); United States v. Jackson, 978 F.2d 903, 915
(5th Cir. 1992) (holding that the district court has the author-
ity to award future lost income under VWPA, but remanding
for further factual findings on victim’s losses).4
[5] We reject Cienfuegos’ argument that the district court
cf. Jerome v. Crime Victims Comp. Bd., 350 N.W.2d 239, 241-42 (Mich.
1984) (the phrase “loss of support,” as utilized in Michigan statute,
encompasses, for purposes of restitution, the child care and housekeeping
costs claimed by the widower of a murder victim); Lambert v. Neb. Crime
Victim’s Reparations Bd., 336 N.W.2d 320, 323-24 (Neb. 1983) (holding
that the loss of future financial support is a pecuniary loss which is com-
pensable under this Nebraska Crime Victim’s Reparations Act).
4
Several federal district courts also have awarded restitution for future
lost income. United States v. Serawop, 409 F. Supp. 2d 1356, 1357-58 (D.
Utah 2006) (affirming on remand restitution for future lost income to
estate of three-month-old homicide victim under MVRA); United States
v. Visinaiz, 344 F. Supp. 2d 1310, 1313-14 (D. Utah 2004) (“[L]ost
income restitution is mandatory for homicide no less than for other violent
crimes. To reach any other conclusion would flout the plain language of
the MVRA.”), aff’d on other grounds, 428 F.3d 1300 (10th Cir. 2005);
United States v. Ferranti, 928 F. Supp. 206, 224 (E.D.N.Y. 1996) (as
amended) (awarding future lost income under VWPA to fire department
in arson homicide case), aff’d without discussion of restitution issue sub
nom., United States v. Tocco, 135 F.3d 116 (2d Cir. 1998).
10924 UNITED STATES v. CIENFUEGOS
acted within its discretion when, relying on the complexity
involved in calculating future lost income, it denied the Gov-
ernment’s motion for such restitution. Cienfuegos argues that
because the Seventh Circuit in United States v. Fountain, 768
F.2d 790, 800-04 (7th Cir. 1985), held that the calculation of
future earnings is a difficult problem that “unduly complicates
the sentencing process” and is not suitable for resolution in a
summary proceeding ancillary to sentencing for a criminal
offense, the district court did not abuse its discretion by rea-
soning similarly. However, Cienfuegos’ reliance on Fountain
is misplaced. First, Fountain, id. at 802, construed a different
statute, the VWPA. That statute set forth a provision, 18
U.S.C. § 3579(d), recodified as 18 U.S.C. § 3663(a)(1)(B)(ii),
which specifically authorized the court to decline to order res-
titution if “the complication and prolongation of the sentenc-
ing process resulting from the fashioning of an order of
restitution . . . outweighs the need to provide restitution.” The
Fountain court explicitly relied on this provision in reaching
its decision. 768 F.2d at 802. Second, the MVRA made the
“complexity exception” inapplicable to crimes of violence.
Indeed, the exception currently only applies to offenses
against property, offenses violating the Controlled Substances
Act, and offenses committed by fraud or deceit. 18 U.S.C.
§ 3663A(c)(3)(B) (allowing exception only for offenses listed
under 18 U.S.C. § 3663A(c)(1)(A)(ii)). The MVRA contem-
plates that some calculations may be complex, and, accord-
ingly, authorizes the district court to “require additional
documentation or hear testimony,” id. § 3664(d)(4), or to
“refer any issue arising in connection with a proposed order
of restitution to a magistrate judge or a special master for pro-
posed findings of fact,” id. § 3664(d)(6).
[6] In addition, under the MVRA the availability of a civil
suit can no longer be considered by the district court in decid-
ing the amount of restitution. It provides that “[i]n no case
shall the fact that a victim has received or is entitled to receive
compensation with respect to a loss from insurance or any
other source be considered in determining the amount of resti-
UNITED STATES v. CIENFUEGOS 10925
tution.” Id. § 3664(f)(1)(B). The MVRA also precludes dupli-
cative awards by reducing restitution by any amount later
recovered as compensatory damages for the same loss by the
victim in any federal or state civil proceeding: “Any amount
paid to a victim under an order of restitution shall be reduced
by any amount later recovered as compensatory damages for
the same loss by the victim in—(A) any Federal civil proceed-
ing; and (B) any State civil proceeding, to the extent provided
by the law of the State.” Id. § 3664(j)(2). Thus, the district
court abused its discretion by relying on the perceived com-
plexity of the restitution determination and the availability of
a more suitable forum to decline to order restitution for future
lost income.
[7] Any award of future lost income must not be predicated
on speculation or conduct unrelated to the offense of convic-
tion, as such an award would be inconsistent with congressio-
nal intent. The accompanying Senate Report stated that “[t]he
committee believes that losses in which the amount of the vic-
tim’s losses are speculative, or in which the victim’s loss is
not clearly causally linked to the offense, should not be sub-
ject to mandatory restitution.” S. Rep. No. 104-179, at 19,
1996 U.S.C.C.A.N. at 932. Accordingly, the MVRA provides
that the presentence report (“PSR”) should contain all of the
“information sufficient for the court to exercise its discretion
in fashioning a restitution order.” 18 U.S.C. § 3664(a). The
PSR “shall include, to the extent practicable, a complete
accounting of the losses to each victim.” Id. “After reviewing
the [PSR], the [sentencing] court may require additional docu-
mentation or hear testimony.” Id. § 3664(d)(4). In addition,
the district court must ensure that the Government has met its
“burden of demonstrating the amount of the loss sustained by
a victim” and “[a]ny dispute as to the proper amount . . . of
restitution shall be resolved by the court by the preponderance
of the evidence.” Id. § 3664(e). Speculative losses are incom-
patible with the MVRA’s statutory scheme because “[o]ne
cannot bear the burden of proving the amount of a loss by a
preponderance of the evidence when it is no more than possi-
10926 UNITED STATES v. CIENFUEGOS
ble that the loss will occur at all.” United States v. Follet, 269
F.3d 996, 1002 (9th Cir. 2001).
[8] While calculation of future lost income must be based
upon certain economic assumptions, the concepts and analysis
involved are well-developed in federal law, and thus the dis-
trict court is not without persuasive analogy for guidance. See,
e.g., Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523,
533-53 (1983) (outlining method for estimating stream of
future earnings and choosing discount rate); Sutton v. Earles,
26 F.3d 903, 918-19 (9th Cir. 1994). We therefore reverse the
district court’s order of restitution and remand to the district
court for further proceedings consistent with this opinion.
REVERSED AND REMANDED FOR PROCEEDINGS
CONSISTENT HEREWITH.