United States v. Yijun Zhou, 838 F.3d 1007

Background

Zhou was indicted on one count under 18 U.S.C. §§ 2 and 1029(a)(2) for using unauthorized access devices during a multi-month period; Count One alleged fraud in the Central District of California "and elsewhere."
At plea colloquy Zhou pleaded guilty to Count One (no plea agreement); the government expressly proffered Nordstrom (California) transactions and did not mention Target (Colorado) transactions. Zhou acknowledged guilt and that restitution could be up to $160,000.
The presentence report and probation office calculated $146,725.02 restitution to ~30 victims, comprising losses from Nordstrom (California) and Target (Colorado) purchases.
Neither party objected to restitution at sentencing; the district court ordered $146,725.02 restitution in accordance with the PSR and imposed a 30‑month prison term.
On appeal Zhou challenged—for the first time—the restitution as exceeding the MVRA authority because Target victims were not victims of the offense of conviction; the Ninth Circuit reviewed for plain error and affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether restitution under the MVRA may include victims of Target (Colorado) transactions not mentioned in the plea colloquy	Government: Count One’s text (covering Central District of CA “and elsewhere” and the charged time period) and Zhou’s guilty plea encompass the Target transactions, so those victims are restitution-eligible	Zhou: Plea colloquy and the parties’ focus on Nordstrom made clear the offense of conviction was limited to California Nordstrom transactions; MVRA permits restitution only for victims of the offense of conviction	Court: Affirmed — no plain error. Count One’s broad language and guilty plea encompass the Target losses; any error was not obvious on this record, so plain-error review is not satisfied
Standard of review for an unpreserved restitution challenge	Government: Plain-error review applies to new criminal appellate arguments	Zhou: Argued for a different standard in cited cases (but did not prevail)	Court: Applied plain-error standard, treating the issue as a mixed question of law and fact and declined to exercise discretion to apply a different standard
Whether §1029(a)(2) is a scheme/conspiracy offense expanding MVRA victims	Government: Even if not a scheme offense, victims directly harmed by conduct within the charged count are eligible	Zhou: N/A on this subpoint (focus on scope of conviction)	Court: §1029(a)(2) does not have scheme/conspiracy as an element; MVRA victims limited to those directly harmed by conduct that forms the basis of the conviction, but here the indictment and plea support including Target victims
Effect of plea colloquy factual basis on restitution scope	Government: Plea to Count One admits factual allegations of the indictment; the government was not required to list every transaction at colloquy	Zhou: The government’s factual proffer focused only on Nordstrom; the court and parties reasonably understood conviction limited to those transactions	Court: A guilty plea admits the indictment’s allegations and provides sufficient basis for restitution as to victims within the scope of the charged count; given the record the inclusion of Target victims was not plainly erroneous

Key Cases Cited

United States v. Olano, 507 U.S. 725 (plain‑error framework for unpreserved criminal errors)
United States v. Kubick, 205 F.3d 1117 (guilty plea admits the factual allegations of the indictment)
United States v. Acosta, 303 F.3d 78 (no plain error in using suppressed or un‑litigated transactions to calculate restitution where plea covered the charged period)
United States v. Bailey, 975 F.2d 1028 (broadly‑defined indictment and guilty plea support restitution for all victims encompassed by the count)
United States v. May, 706 F.3d 1209 (MVRA limits restitution to losses that flow directly from the conduct forming the basis of the offense of conviction)