United States v. Shamar BettsUnited States v. Shamar Betts
Betts raises several issues on appeal. First, Betts asks us to reconsider our court‘s decision in United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), upholding the Anti-Riot Act as constitutional under the First Amendment. Absent a compelling reason to do so however, we decline to overrule the case. Betts‘s challenge to the Anti-Riot Act for overbreadth is therefore foreclosed.
Second, Betts argues that the district court erred in choosing what sentencing guideline to apply by way of analogy to his conviction under the Anti-Riot Act, which does not have its own guideline. We join our sister circuits in holding that the decision to apply a sufficiently analogous guideline requires an elements-based, flexible approach, and we see no error in the district court‘s application of the property offense guideline to the Anti-Riot Act.
Finally, Betts raises several challenges to the district court‘s order of restitution, including whether the Anti-Riot Act is a covered offense under the MVRA, which is an issue of first impression. We conclude, as our sister circuits have, that the plain language of the MVRA supports that courts may look to the underlying facts of an offense to determine whether a crime is an “offense against property” as required by statute. Based on this, Betts‘s conviction under the Anti-Riot Act qualifies. But we agree with Betts‘s other argument concerning restitution—that the government failed to meet its burden showing that he directly and proximately caused damages to all businesses included in the restitution order. We therefore vacate the sentence with regard to the amount of restitution ordered and remand for the limited purpose of reconsidering the amount of restitution consistent with this opinion.
I
On May 30, 2020, Shamar Betts posted a flyer on Facebook that read: “RIOT @ MarketPlace Mall Time: 3 ... Bring friends& [sic] family, posters, bricks, bookbags etc. After the mall we hitting the whole PROSPECT & NEIL.” The flyer, which was posted during a weekend of George Floyd protests, included an image of a burning car flanked by people. Along with the flyer, Betts wrote: “I‘m just the messenger. We‘re literally sitting on our ass watching the whole country and even others fight for our black rights ... We gotta put Champaign/Urbana on the map mfs gone hear and fear us too.”
The next day, Betts and a group of 50 to 75 people gathered at Market Place Mall. At approximately 3:12 p.m., they began damaging property and looting stores. Betts captured the riot on Facebook Live telling his viewers “[l]ook what a n**** just started ... look what a n**** just started. We out here ....” In another video, Betts is seen looting two stores: Macy‘s and Old Navy. The riot moved to
At sentencing, Betts asked the court to sentence him, as the court must, according to the sentencing factors outlined in
Also at sentencing, Betts objected to any award of restitution under
Over Betts‘s objection, the district court chose to apply a sentencing guideline that it deemed analogous to the Anti-Riot Act: Section 2B1.1, which covers property damage and theft. With this guideline, Betts‘s advisory guidelines range was 70–80 months although, again, the statute imposed a maximum of 60 months. The district court then sentenced Betts to 48 months’ imprisonment, reduced to 36 months to include credit for time served in state custody.
The district court also determined that a violation of the Anti-Riot Act qualified as an “offense against property” under the MVRA. In calculating restitution, the district court concluded that the government met its burden as to causation, rejecting Betts‘s position that the government had to prove, at minimum, who caused the damage and whether those individuals did so because of Betts‘s Facebook post. The government presented a spreadsheet listing 73 businesses that were affected during the riot, along with amounts for property damage and stolen merchandise. The total was $2,172,074.90. However, only forty-three of those businesses could or were willing to substantiate their losses.
The district court declined to apply the MVRA‘s complexity exception but acknowledged that there was an issue as to scope, and that Betts could not be held responsible for all the businesses listed on the government‘s spreadsheet. The district court noted that “[t]here is a valid question [] about whether the people who showed up at the mall are the same people that [Betts] reached out to or learned about his communications.” The district court then decided that, based on Betts‘s flyer, of the forty-three claimants who could or would substantiate their losses, the district court would order restitution only to those businesses “located at the mall or on Prospect or Neil.” The district court ordered the
The parties later submitted a joint restitution agreement identifying twenty-six businesses that fell within the geographic scope, for a total of $1,374,729.57. But they disagreed on the remaining twelve businesses, totaling $357,433.43 in restitution. Betts argued that the remaining twelve businesses were not “on Neil Street or Prospect Avenue,” whereas the government argued that the district court‘s order included all businesses located in “the commercial district at Prospect Avenue and Neil Street.” After a hearing on the matter, the district court mostly agreed with the government and, using Interstate 74 as a boundary line, ruled that nine of the twelve disputed businesses were to be included in restitution. After this ruling, Betts sought to withdraw the parties’ earlier joint agreement on the basis that the businesses that he initially agreed to no longer fell within the geographic scope of the court‘s order, but the court denied his request. The district court ordered Betts to pay $1,686,170.30 in restitution to 35 businesses. Betts appealed.
II
Betts presents several arguments on appeal. First, he argues that the district court‘s order denying his motion to dismiss must be reversed because the Anti-Riot Act is unconstitutionally overbroad in violation of the First Amendment. Second, he argues, in the alternative, that the case should be remanded with instructions for the district court to resentence him without an analogous offense guideline. Third, he raises several challenges to the district court‘s order of restitution under the MVRA, including the MVRA‘s application to his conviction in the first place. We review each of Betts‘s arguments in turn.
A. The Constitutionality of the Anti-Riot Act
1. Overbreadth Doctrine
We review a constitutional challenge to a statute de novo. United States v. Fredrickson, 996 F.3d 821, 823 (7th Cir. 2021). Under the First Amendment overbreadth doctrine, “a statute is facially invalid if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008). But “the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). For a facial overbreadth challenge to be successful, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court. Id.; see also New York v. Ferber, 458 U.S. 747, 769 (1982) (a claimant may attack an overly broad statute even though the conduct of the person making the attack is unprotected). If, however, a law captures only a narrow band of speech unprotected by the First Amendment, an overbreadth challenge is unlikely to succeed. United States v. Hansen, 143 S. Ct. 1932, 1940 (2023).
Application of the overbreadth doctrine is “strong medicine” and, therefore, it should be employed sparingly and only as a last resort. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). We will not rely on the overbreadth doctrine if we can instead construe the challenged statute in a way that avoids any constitutional problems. Id. at 616; Ferber, 458 U.S. at 769. If the statute is not subject
i. The Anti-Riot Act
The Anti-Riot Act provides:
(a) Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent--
- to incite a riot; or
- to organize, promote, encourage, participate in, or carry on a riot; or
- to commit any act of violence in furtherance of a riot; or
- to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D)1 of this paragraph --- [s]hall be fined under this title, or imprisoned not more than five years, or both.
(1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual ....
(b) As used in this chapter, the term “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.
Notably, Betts raises arguments that we considered and rejected in United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972). In Dellinger, we construed the Anti-Riot Act narrowly, and concluded that the acts referred to in subsections
which refers to “one or more of the overt acts described in subparagraph (A), (B), (C), or (D) of paragraph (1) of subsection (a) ....” Id. at 362. Based on this narrow reading of the statute, we saw no violation of Brandenburg‘s imminence requirement as far as this portion of the statute was concerned. Id.; see also United States v. Rundo, 990 F.3d 709, 716 (9th Cir. 2021) (adopting Dellinger‘s conclusion that the overt act requirement refers to acts that fulfill the elements themselves, and not mere steps towards, or related to, one or more of those elements).
We also concluded that the verbs “organize, promote, encourage” and “urging” required a close relationship to imminent action. Dellinger, 472 F.2d at 361–62. And while we acknowledged that the double negative in the statute created a serious problem, we explained that the drafters could have included this language to forestall a First Amendment defense in the case of a truly inciting, action-propelling speech. Id. at 363. Based on our narrow construction, we rejected an overbreadth challenge to the Anti-Riot Act.
Betts asks us to revisit Dellinger and the Anti-Riot Act in light of two out-of-circuit cases determining that the Anti-Riot Act is unconstitutionally overbroad: United States v. Miselis, 972 F.3d 518, 537 (4th Cir. 2020), and United States v. Rundo, 990 F.3d 709, 716 (9th Cir. 2021). In Miselis, the Fourth Circuit held that the words “encourage,” “promote,” and “urge” were overbroad, and failed to bear the requisite relationship between speech and lawlessness. 972 F.3d at 537–38. In Rundo, the Ninth Circuit agreed with the Fourth Circuit‘s analysis and held that the word “organize” also punishes protected speech. 990 F.3d at 717. Additionally, both courts held that the use of the double negative in
But we will not overturn circuit precedent “absent a compelling reason.” Wilson v. Cook County, 937 F.3d 1028, 1035 (7th Cir. 2019). “[P]rinciples of stare decisis require that we give considerable
Nor do the decisions in the Fourth and Ninth Circuits provide a compelling reason to overrule Dellinger. Even if we were inclined to revisit Dellinger, both sister circuits that Betts wishes us to follow concluded that the overbroad portions of the Anti-Riot Act could be severed. See Miselis, 972 F.3d at 537; Rundo, 990 F.3d at 720; see also Ayotte, 546 U.S. at 329 (sever “problematic portions while leaving the remainder intact“). In severing the overbroad portions, both courts left the remainder of the statute intact, which includes the parts of the statute relevant to Betts‘s conduct. The indictment in this case, after all, alleged that Betts violated all the subparts of
We acknowledge, as we did in Dellinger nearly 50 years ago, that the Anti-Riot Act presents some First Amendment problems. See 472 F.2d at 362 (“We do not pretend to minimize the first amendment problems presented on the face of this statute.”). And had it come before this court today, Dellinger may have been decided differently, and potentially more in line with the Fourth and Ninth Circuits. We may one day revisit Dellinger, but today is not the day because Betts‘s conduct falls within the Anti-Riot Act no matter what mechanism we use to remedy constitutional problems with the statute. Dellinger remains good law, and Betts has not supplied a compelling reason for us to overrule the decision. Dellinger therefore forecloses Betts‘s overbreadth argument.
B. Analogous Guideline for the Anti-Riot Act
We now turn to Betts‘s sentencing arguments. We begin with his challenge to the district court‘s application of an analogous guideline to the Anti-Riot Act, which is a matter of first impression for our court.
There is no sentencing guideline for the Anti-Riot Act. Section 2X5.1 provides that if a felony offense has no guideline, then a court applies the guideline for the most analogous offense. If there is no sufficiently analogous guideline, courts turn to
Many offenses ... are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline. Nonetheless, the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe. The court is required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous.
U.S.S.G. § 2X5.1 comment.
To comply with § 2X5.1, a district court must first determine whether any guideline is sufficiently analogous to the defendant‘s crime of conviction. See United States v. Clark, 981 F.3d 1154, 1162 (10th Cir. 2020). To determine whether there is a sufficiently analogous guideline provision, courts have typically considered three approaches. See United States v. Jackson, 862 F.3d 365, 372 (3d Cir. 2017) (identifying the three approaches). The first approach is the elements-based approach. See id. Under an elements-based approach,
Betts and the government agree that the elements-based approach is the most appropriate for his case. The majority of circuits that have decided the issue have also adopted this approach. See Clark, 981 F.3d at 1162; Jackson, 862 F.3d at 374-5; United States v. Calbat, 266 F.3d 358, 363 (5th Cir. 2001); United States v. Osborne, 164 F.3d 434, 437–38 (8th Cir. 1999). We now join those circuits in holding that courts should apply the elements-based approach to decide whether a guideline is sufficiently analogous to the defendant‘s crime of conviction. This inquiry, however, should be “conducted in a flexible and open-ended fashion.” Jackson, 862 F.3d at 375. “While the inquiry may still be ‘bounded by the elements of the offense of conviction,’ ... a perfect match of elements is not necessary (or even expected).” Id. at 376. “Instead, the proffered guideline need only be within the same proverbial ‘ballpark’ as the offense of conviction.” Id. Because the elements-based approach is a purely legal approach, and the district court need not consider the underlying facts, see United States v. Nichols, 169 F.3d 1255, 1270 (10th Cir. 1999), we will review a district court‘s determination as to whether there is a “sufficiently analogous” guideline to the defendant‘s crime de novo. See Osborne, 164 F.3d at 437–38.3
The district court concluded that § 2B1.1 was an analogous guideline. Section 2B1.1 covers larceny, embezzlement, and other forms of theft; offenses involving stolen property; property damage or destruction; fraud and deceit, forgery; and offenses involving altered or counterfeit instruments other than counterfeit bearer obligations of the United States. Id. Betts takes issue with the district court‘s application of § 2B1.1 as an analogous guideline because, as he sees it, the Anti-Riot Act does not have “property damage” as an element. Betts is correct; the elements of an Anti-Riot Act offense are:
- Using a facility of interstate commerce to;
- Organize, promote, encourage, participate in or carry on a riot; and
-
Performing or attempting to perform an overt act in furtherance of that riot.
approach must be “conducted in a flexible and open-ended fashion.” Jackson, 862 F.3d at 375. Here, the property damage guideline is sufficiently analogous to the Anti-Riot Act, which does not include as an exact element property damage, but does contemplate, or can involve, property damage. We therefore take no issue with the court‘s application of § 2B1.1 as an analogous guideline. As we see it, the guideline is in the same “proverbial ‘ballpark‘” as the Anti-Riot Act. Id. at 376.
C. Restitution under the Anti-Riot Act
Finally, we address Betts‘s arguments regarding restitution. We begin with the question of whether the MVRA covers the Anti-Riot Act. Whether the MVRA covers the Anti-Riot Act is a matter of statutory interpretation that we review de novo. See United States v. Miller, 883 F.3d 998, 1003 (7th Cir. 2018).
1. Application of the MVRA
Courts lack inherent authority to order restitution and may do so only when authorized or required by statute. See United States v. Burns, 843 F.3d 679, 689 (7th Cir. 2016). The MVRA requires a court to order restitution in “all sentencing proceedings for convictions of ... any offense ... that is ... an offense against property under [Title 18] ... including any offense committed by fraud or deceit ... [and] in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.”
Betts, however, argues for the categorical approach which, if it applies, does not bring the Anti-Riot Act within the MVRA‘s purview. Betts argues that the MVRA uses the word “offense” which indicates that it is to be defined by law and the elements. He also argues that the relationship between the MVRA and its discretionary counterpart, the Victim Witness Protection Act (VWPA),
For this, Betts points to the statute‘s use of the word “offense” and, specifically, that the MVRA “shall apply in all sentencing proceedings for convictions of ... any offense ...”
The MVRA‘s other subsections illustrate this point. For example, the MVRA also applies to crimes of violence. A “crime of violence” is defined as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,”
The text of the MVRA further supports this broad interpretation. The MVRA specifically states that an “offense against property” includes “any offense committed by fraud or deceit.”
damage could be estimated and payment of restitution ordered.“); Ritchie, 858 F.3d at 210 (“Congress could not have intended to exclude from the broad, mandatory reach of the MVRA those unfortunate victims who suffer property loss as a result of an offense that doesn‘t contain as an element a reference to ‘property.‘“). We therefore join our sister circuits in concluding that, based on the plain language of the MVRA, courts may consider the facts and circumstances of the underlying conviction to determine whether an offense is one against property.
Other circuits that have applied the facts and circumstances-based approach have found that an offense against property may include a range of different offenses that involve property. An offense against property may include crimes where the defendant had an intent to destroy property. See, e.g., Quarrell, 310 F.3d at 678 (conspiracy to violate Archaeological Resources Protection Act qualified because while not every conspiracy involved an offense against property, the defendants in the case knowingly and voluntarily damaged the land). It may also include offenses where the crime results in physical harm to property. See, e.g., Sawyer, 825 F.3d at 292 (defendant‘s conviction for conspiracy to violate the Clean Air Act was an offense against property because it resulted in asbestos contamination to nearly 300 acres of land); United States v. Brock-Davis, 504 F.3d 991, 993, 996-98 (9th Cir. 2007) (ordering defendant convicted of conspiracy to manufacture meth to pay restitution to motel owner forced to remediate a motel room in which defendant cooked meth). And it may even include crimes involving no property damage at all. See, e.g., United States v. Luis, 765 F.3d 1061, 1066 (9th Cir. 2014) (noting that “offense against property” means infringing on a victim‘s property interest).
Here, Betts incited a riot for the purpose of looting and damaging property. Indeed, the flyer he posted on Facebook told people to bring “bricks” and “bookbags,” and pictured a burning car. In sum, Betts‘s incitement of property damage and looting qualifies as an offense against property.
2. Victims, Causation, and Complexity Exception under the MVRA
Betts next argues that the 35 businesses he was ordered to pay restitution to were not victims under the MVRA because the government failed to prove that he directly and proximately caused them damage. Betts also argues that the issue of causation involves complex issues of fact that would prolong sentencing, so the district court erred in not applying the MVRA‘s complexity exception. We review the district court‘s restitution decisions for abuse of discretion. See United States v. Wyatt, 9 F.4th 440, 452 (7th Cir. 2021).
The purpose of the MVRA is to ensure victims are compensated for the
directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant‘s criminal conduct in the course of the scheme, conspiracy, or pattern.
To determine whether a victim‘s actual losses are “directly and proximately” caused by the offense of conviction as set forth in
If determining complex issues of fact related to causation would unduly “complicate or prolong the sentencing process,” the MVRA allows, but does not require, the district court to choose not to award restitution.
We first address Betts‘s argument regarding the geographic scope of the restitution award. Betts claims, and we agree, that the district court impermissibly included businesses far from where Betts had reason to foresee damages being inflicted by the riot he incited.
During a hearing on August 19, 2021, the district court found that there was sufficient evidence that the riot Betts incited directly and proximately caused damages to the businesses at Market Place Mall. We take no issue with that finding. Betts sent out a call for a riot at Market Place Mall at 3 p.m. That is exactly what came to pass.
The court reconvened with the parties on October 15, 2021, for a hearing “to make a final ruling on the issue of restitution.” The district court, addressing the disputed businesses, included those north of I-74 while disallowing those south of the highway. In so doing the district court seemed to agree with the government that any damaged businesses in the vicinity of the commercial district at the intersection of Prospect and Neil, bounded to the east by Market Place Mall and to the south by I-74, should be included in the restitution order. In our view, though it may have been permissible to draw the line elsewhere, the district court‘s approach was reasonable because Betts‘s flyer makes clear that he intended the rioters to move from the mall to the Prospect and Neil area. It is reasonably foreseeable that the rioters would damage stores in the immediate vicinity while doing so.
Upon hearing for the first time that the court would use I-74 as the boundary, Betts sought to reopen consideration of the businesses that he had agreed to because they had an address on one of the two streets—many, after all, were far from the vicinity of the Prospect and Neil intersection. The district court denied the objection noting that “as far as [the court‘s] concerned, it‘s too late for that.” Betts now challenges the district court‘s denial of his objection.
On appeal, the government argues that the district court had no obligation to reconsider businesses that Betts had already agreed should be within the scope of its restitution order. But Betts was right to believe that the district court had changed the parameters of its restitution order between the August 19 and October 15 hearings. At no point during the August 19 hearing did the court indicate that I-74 was a line of demarcation for the prospective restitution order. Had the court done so, Betts likely never would have consented to the inclusion of any businesses to the south of the highway, far from the Prospect and Neil intersection—a position Betts attempted to explain to the district court.
Given the changed landscape, the district court should have allowed Betts to withdraw his consent. Upon doing so, the district court then should have excluded from its final restitution order all businesses south of the highway. When Betts called for rioters to continue from Market Place Mall to the area of Prospect and Neil just to the east, he had reason to believe that the riot he incited would cause
Further, there is little evidence that Betts directly caused damage to businesses scattered throughout the city, far from the mall or the Prospect and Neil intersection. The government argues there is evidence that all businesses damaged that day were “harmed by the riot he incited and participated in.” The government reasons that rioting was unprecedented in Champaign, so the rioting that occurred anywhere in the city must have been prompted by Betts. But it is the unprecedented nature of events that calls for restraint when imposing a restitution order in this case. There were similar scenes throughout the country that weekend, many in areas where riots were equally unprecedented. Indeed, an officer that responded to the looting in Champaign agreed that the nationwide unrest was “a very unique circumstance.” It is possible many people in Champaign intended to join the national unrest regardless of Betts‘s actions. We therefore cannot agree that Betts can be held to have directly caused damage that occurred anywhere in the city, far outside the time and places indicated on his flyer.
In some cases, after our review, we are able to order the district court to enter a specific restitution amount on remand. We are unable to do so here because the documentation that some businesses provided to substantiate their losses during the riot strikes us as insufficient. The government presented the district court with a spreadsheet of 73 businesses that apparently suffered losses. The spreadsheet included the name and address of each business, and the amount of damage each business purportedly sustained in terms of property damage and lost or stolen merchandize. But presenting a spreadsheet is not enough to establish causation on Betts‘s part. See, e.g., United States v. Menza, 137 F.3d 533, 539 (7th Cir. 1998) (“[T]he government must provide the district court with more than just the general invoices submitted by [the purported victims] ostensibly identifying the amount of their losses.“); see also United States v. Ferdman, 779 F.3d 1129, 1133 (10th Cir. 2015) (courts should not “dispense with the necessity of proof [] mandated by the MVRA and simply ‘rubber stamp’ a victim‘s claim of loss“); United States v. Steele, 897 F.3d 606, 614 (4th Cir. 2018) (agent testimony undercut loss estimate where the agent testified that he took victims word for it). The government is required to show that each identified business suffered damages because of Betts‘s incitement of a riot. See, e.g., United States v. White, 883 F.3d 983, 992 (7th Cir. 2018) (“The amount of restitution is ‘limited to the actual losses caused by the specific conduct underlying the offense.‘” (citation omitted)); Ferdman, 779 F.3d at 1133 (“Speculation and rough justice are not permitted.” (citation omitted)).
FBI Agent Andrew Huckstadt, who created the spreadsheet, testified that he and other agents called several businesses affected by looting. Ultimately, many of those businesses provided the FBI with records detailing their losses and can therefore be included in the final restitution order. For example, the evidence presented to the district court included invoices submitted by TJ Maxx for work done to repair damaged property. Likewise, Old Navy provided very specific auditing results from its loss prevention activities detailing what items were stolen
But we are not so certain about the evidence presented by other businesses within the geographic scope of restitution. For example, Macy‘s sent a series of emails to law enforcement in which employees stated that the store lost $408,000 in merchandise. But, unlike TJ Maxx or Old Navy, Macy‘s provided no documentation substantiating or otherwise detailing its claim. The claimed losses by Macy‘s, and those businesses whose documentation likewise proves inadequate, should not be included in a restitution order on remand without the district court sufficiently explaining its reasons for accepting the claimed loss amounts. Menza, 137 F.3d at 538 (asking district court to clarify its reasoning on remand where it provided an “inadequate explanation and insufficient reasoning as to why [it] accepted, on their face” invoices submitted by the prosecution).
We acknowledge, as we have done before, that “[d]etermining who are victims and the amount of loss are often not easy tasks for the district court.” United States v. Randle, 324 F.3d 550, 558 (7th Cir. 2003). From the beginning, the district court recognized that there were difficult issues related to scope and a valid question about whether the people who rioted were the same people who Betts reached out to or who learned about his communications. The district court then ordered restitution because it found that Betts, in inciting, participating in, and carrying on a riot, caused damage to businesses at Market Place Mall and to businesses in the vicinity of Prospect Avenue and Neil Street north of I-74. After all, Betts‘s flyer noted that rioters would meet at the Market Place Mall and after, move to “the whole PROSPECT & NEIL.” While the district court‘s finding was acceptable, it should not have included stores outside of those locations. Further, the government, as we noted above, still had to show that each business was a victim as statutorily required,
III
For the reasons stated above, Betts‘s conviction and sentence of imprisonment
HAMILTON, Circuit Judge, concurring in part and dissenting in part. I concur in all but one part of the majority opinion. I agree that we should affirm Betts’ conviction and prison sentence and that the Mandatory Victims Restitution Act applies to Betts’ conviction under the Anti-Riot Act, all for the reasons explained in the majority opinion. I respectfully dissent, however, from the portion of the opinion and judgment vacating and remanding the district court‘s restitution order.
The general standard is that the defendant should be ordered to pay restitution for losses “directly and proximately” caused by his offense of conviction.
We review the district court‘s factual findings for clear error and its ultimate restitution decision for abuse of discretion. See United States v. Wyatt, 9 F.4th 440, 452 (7th Cir. 2021). Reasonable judges could have held Betts liable for either larger or smaller sums, corresponding to either larger or smaller geographic areas, than the district court found here. I would defer to Judge Mihm‘s discretionary judgments on how and where to draw lines ordering restitution by Betts. I see little value in remanding to seek further refinement of those estimates and judgment calls.
Since a remand is being ordered, though, I would allow the district court to exercise its discretion to decide the scope of further proceedings and in particular whether to allow additional evidence. Contrary to the view expressed in the majority‘s footnote 5, the scope of the government‘s burden to prove loss and causation in a riot case—with its prospects for widespread and uncontrollable damage—was not and still is not well established. Cf. United States v. Fair, 699 F.3d 508, 514 (D.C. Cir. 2012) (cited by majority, addressing government‘s burden to prove loss in “cases involving copyright infringement and fraudulent sales“).
Finally, regarding the “complexity” exception to the Mandatory Victims Restitution Act, see
We and other circuits have previously entertained the merits of defendants’ arguments claiming error based on this exception. See Malone, 747 F.3d at 487-88; accord, e.g., United States v. Gushlak, 728 F.3d 184, 192-93 (2d Cir. 2013); United States v. Wirth, 719 F.3d 911, 918 (8th Cir. 2013). But the complexity exception was