United States v. Tsosie, 2011 U.S. App. LEXIS 9547

Tsosie pled guilty to one count of abusive sexual contact under 18 U.S.C. § 2244(a)(1) under a plea agreement that limited prison exposure to 18 months; the Guidelines range was 97–121 months.
At sentencing, the court ordered restitution of $31,944 for the victim’s mother’s travel expenses, based on the victim’s counselor's plan and a detailed spreadsheet.
The plea agreement did not specify restitution amount, but stated the court shall order restitution unless otherwise determined under § 3663; Tsosie’s counsel opposed the travel restitution.
Tsosie challenged the restitution order on two grounds: (i) the travel costs were not “incurred by the victim” under § 2248, and (ii) the order violated procedural/evidentiary requirements; the district judge made no explicit restitution reasoning.
Tsosie moved to appeal the restitution order; the government asserted the waiver barred the challenge; the district court did not hold a restitution hearing or provide detailed findings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the restitution appeal waiver valid given lack of notice of the amount?	Tsosie (Gordon) argues waiver ineffective due to no notice of amount.	Tsosie argues waiver should be considered non-binding for restitution.	Waiver ineffective; appeal on merits allowed.
Are the travel costs incurred by the victim's mother recoverable under § 2248?	Tsosie contends costs were not incurred by the victim under § 2248(b)(3).	Government argues guardian costs fall within § 2248(c) as incurred by a legal guardian.	Costs may be recoverable under either reading; Court adopts permissive interpretation supporting recoverability.
Was the restitution award properly supported and explained under § 3664/evidence rules?	Tsosie argues the spreadsheet lacked sworn support and district court failed to explain its reasoning.	Government argues the spreadsheet and accompanying materials suffice.	Restitution order vacated and remanded for evidentiary hearing and explicit reasoning.

United States v. Gordon, 393 F.3d 1044 (9th Cir. 2004) (knowingly waiving appeal requires notice of restitution amount)
United States v. Phillips, 174 F.3d 1074 (9th Cir. 1999) (waiver validity depends on notice and clarity of damages)
United States v. Waknine, 543 F.3d 546 (9th Cir. 2008) (restitution must be supported by adequate evidence and explanation)
United States v. Andrews, 600 F.3d 1167 (9th Cir. 2010) (restoration award must be adequately supported beyond affidavits)
United States v. Gamma Tech Industries, Inc., 265 F.3d 917 (9th Cir. 2001) (assignment of burden in restitution amount disputes clarified)