*1 1213 Summary Code Because CaLPenal E. probable had cause to arrest Gar- Officers Taylor did Cardwood and John Alfredo cia, deny motion for it was error their rights. Garcia’s constitutional not violate summary judgment Garcia’s state law infor- carefully evaluated Plunkett’s They claim. false arrest facts, mation, against it known checked permission a judge applied then and REMANDED with REVERSED contin- a controlled substance to use judgment to enter on behalf of instructions before Even investigation. of their uation the Defendants. sting, the Officers conducting reverse attor- deputy two district consulted they procedure
neys approved who They not take Garcia to use.
planned informa- on the custody informant’s
into alone, Plunk- waited see what produce. with Garcia would contact
ett’s to arrest developing probable cause
After Garcia, they forthrightly applied America, UNITED STATES of acting magistrate, judge, a neutral same Plaintiff-Appellee, They warrant. executed for a search v. of a court- supervision under the warrant (selected ap- from an master appointed TSOSIE, Defendant-Appellant. Michael list) Bar to ensure California State proved No. 10-10030. his law office and integrity of Garcia’s files. client’s Appeals, case officers disre- rogue This is not a Ninth Circuit. rights. plaintiffs constitutional
garding 16, 2011. Argued and Submitted March “knowing- in this did not The officers case law,” 10, ly May violate Filed Briggs, incompetent.” Malley “plainly 1092,
475 U.S. S.Ct. (1986). they are Accordingly,
L.Ed.2d “ample protection”
plainly entitled quali- them doctrine of
afforded to immunity. Id.
fied Imprisonment False Law
F. State of the Offi-
The district court’s denial judgment on summary motion for
cers’ imprisonment state law false
Garcia’s appealable because resolution
claim interlocutory properly raised on
the issues law necessarily the state resolves Smith, Batzel v.
issue. Cir.2003). state law California arrest liability civil for false
prohibits reasonable arresting an officer had
where was lawful. to believe the arrest
cause *2 making
she incurred series her home the victim’s board- between school, ing away. 150 miles The District *3 ordered the restitution. Court order, ar- appeals the restitution Tsosie (1) expenses mother’s travel guing not “incurred the victim” were subject therefore not to restitution statute, and, in the applicable under the (2) alternative, award in procedural issued violation of the evidentiary requirements of 18 U.S.C. Elizabeth Kaplan Daniel L. & Sarah but not agree 3664. We with the second Public (argued), Assistant Federal Stone arguments. hold the first of these We also Phoenix, Defenders, AZ, Mi- appellant for that Tsosie has waived his chael Tsosie. appeal the restitution order. Bade, & S. Randall M. Howe Bridget (argued), Ruffennach Assistant Joan G. I. BACKGROUND Phoenix, AZ, for Attorneys, States United Navajo a 62-year-old Michael Tsosie is America. appellee United States of October, of Northern Arizona. resident fourteen-year girl reported old guidance that Tsosie
her school counselor sexually abused when she was five had years old. The with- or six abuse occurred Navajo in Indian Reservation. PAEZ, Before: RICHARD A. February, filed an government BERZON, T. S. and CARLOS MARSHA charging in U.S. Court indictment District BEA, Judges. Circuit aggravated with three of Tsosie counts abuse of a minor in violation of 18 sexual BERZON; by Judge Partial Opinion 2241(c), abu- and two counts of by Judge and Partial Dissent Concurrence sexual contact violation of 18 U.S.C. sive BEA. 1153(a) 2244(a)(1). See committing certain that Indians (providing OPINION country within Indian “shall be offenses BERZON, Judge: Circuit subject penalties” to the same as law plea Tsosie into Michael entered ... persons “committing ... other government plead- agreement with jurisdiction within the offense[ ] exclusive to one count of abusive sexual guilty ed States”). of the United contact in violation of 18 U.S.C. agreed guilty to one plead Tsosie 2244(a)(1). agree- plea Pursuant sexual contact violation count of abusive ment, the District Court sentenced 2244(a)(1) exchange of 18 U.S.C. imprisonment, months eighteen promise government’s to dismiss range sentence well below the Guidelines agreement, plea four counts. In the other 97 to 121 months. Fed.R.Crim.P. See appropriate “an parties stipulated 11(c)(1)(C). hearing, the sentencing At the for Tso- would be disposition th[e] case” urged victim’s counsel the District more than 18 $31,994 to “be sentenced to no in restitu- sie to order Tsosie imprisonment, have no contact cover costs months” of tion to the victim’s mother to victim, eluding gallstones. no contact with the The mother approval probation minor without the travel expenses $200 restitution for re- officer, offender, a sex register hearing lated to a court that she and the undergo par- attended, $1,800 treatment. The sex offender for the treatment stipulate $31,994 ties did not as to whether an gallstones, the victim’s “for order for should issue. traveling Flag- related to her state, however, plea agreement did under staff to visit the victim each weekend.” Penalties,” the heading “Maximum that Although the record is unclear as to the “the court ... shall order defendant to details, apparently the victim attended make restitution victim of the of- boarding *4 Flagstaff, school in but she oth- fense, unless, pursuant 18 U.S.C. Kaibeto, erwise lived with her mother in 3663, the court determines that restitu- Arizona, approximately 150 away. miles tion appropriate would not be in the The author of PSR recommended case.”1 restitution, awarding only the stat- $200 ing that she “was unable to determine that
At
change
hearing,
of plea
the Dis-
$33,794
additional
for medi-
explained
penalties
trict Court
for a
2244(a)(1).
cal
directly
and travel
was
violation of 18
relat-
The
stated,
ed to
part,
that:
the instant offense.”
any
victim
[I]f
sustained
economic
Appended to the PSR was an eleven-
crime,
your
loss as a
you’ll
result of
be page spreadsheet
listing approximately
required
pay
restitution
the victim
trips,
most of them between Kaibeto
loss,
you
for that
willfully
fail to
and Flagstaff
occurring
within a three-
pay
yet
have the ability year period.
trip entry
Next to each
was
pay
you
some or all
it or if
fail to
a calculation of
the costs
ac-
make bona fide
efforts
find work or
cording to the Internal Revenue Service
money, your probation
borrow
super-
or
rates in effect at
time of
trip.
The
vised
you
released could
revoked and
$31,994 in
expenses,
travel
which the Dis-
could be
prison
sent back to
aas
sanc-
ultimately awarded,
trict Court
are the
tion to
enforce collection
the restitu-
subject of
appeal.2
One working day
you
tion. Do
understand that?
before
hearing,
the sentencing
the victim’s
“yes.”
answered
counsel filed a declaration from Martha
(“PSR”)
Scranton,
presentence report
The
the Behavioral Health Program
calcu-
lated
Director for
range
Tsosie’s Guideline
as 97
Native Americans for
to 121
Com-
Action,
munity
stating
months. The
also
in February,
PSR
stated that
reported
she
prescribed
plan
the victim
had
treatment
victim,
had
of depression, stress,
suffered bouts
for the
plan
and that the
required
anxiety,
which the mother believed “the
travel
daugh-
minor’s mother
to her
had
physical problems,
dorm,
contributed to
in-
ter’s
pick up
her
[and]
or
plea agreement’s
issue,
1. The
reference
only
to the
Dis-
raised this
observe that this
trict Court’s discretion under 18 U.S.C.
reference to the District Court’s discretion
appears
§ 3663
erroneous. Tsosie was con-
buttresses our conclusion that Tsosie's waiver
2244(a)(1).
victed under 18 U.S.C.
His
appeal
knowing
regard
was not
governed by
mandatory
case restitu-
restitution order.
provision
codified at 18 U.S.C.
2248(a)
See
("Notwithstanding
2. The District Court did not discuss the other
3663A,
§ 3663 or
...
the court shall order
requests,
implicitly
denied
restitution for
chapter”
offense under this
separate expenses.
them as
added)).
(emphasis
parties
Because
have
“
appeal
explained
‘[a]n
week- We
the dorm each
daughter at
visit
(1)
if:
pro-
apply
“in
will not
defendant’s
waiver
[her]
averred
Scranton
end.”
comply
minor crime
with Fed.
guilty plea
failed
opinion,
fessional
(2)
of a
11;
sentencing judge
emotional
the added
needed
R.Crim.P.
in the recov-
family member to assist
retains the
loved
a defendant that she
informs
was the
(3)
This affidavit
ery process.”
the sentence does
appeal;
in the record.
statement
sworn
plea agree-
with the terms
comport
(4)
ment;
violates the
the sentence
the victim’s
sentencing hearing,
At the
”
Watson, 582 F.3d
States v.
law.’ United
accept
District Court
asked the
counsel
Cir.2009)
(9th
(quoting United
plea agreement,”
“very lenient
Bibler,
v.
495 F.3d
States
to order Tsosie
urged the Court
Cir.2007)).
that we
have also stated
$31,944
traveling expenses.
some
if it
part, expressed
for its
to an
waiver
give
will not
effect
government,
the appropriateness
voluntarily.”
as to
knowingly
hesitation
“made
is not
$31,994
but ul-
awarding
States
United
the mat-
position on
timately
omitted).3
took no clear
(9th Cir.2004) (quotation
*5
opposed the victim’s
counsel
ter. Tsosie’s
why
two reasons
the
Tsosie advances
that, “if
asked
request and also
restitution
to
challenge
does not
his
appeal waiver
bar
that
impose
inclined to
the Court’s
First, he contends
the restitution order.
hearing
... a
be
of
amount
knowing
appeal
the
waiver was not
provid-
documentation
and further
set
of the
he was not afforded notice
because
agree-
accepted
plea
the
The Court
ed.”
restitution to be ordered. Sec-
amount of
ment,
eighteen
to
sentenced Tsosie
ond,
that the award of the vic-
argues
he
and, without
imprisonment,
months of
the Dis-
tim’s mother’s
exceeded
explaining
hearing any further evidence
authority under 18 U.S.C.
trict Court’s
$31,944 in
pay
ordered him to
ruling,
constitutes an unlawful sen-
2248 and so
restitution.
agree with Tsosie’s first con-
tence. We
tention,
regard
and so address
it
APPEAL
II. WAIVER OF
(although we later
appeal
the waiver of
to
contained
plea agreement
Tsosie’s
legality
to the
challenge
Tsosie’s
consider
waiver,
part,
providing,
appeal
an
merits).
on the
of the sentence
right
appeal
to
“any
waived
that a defendant
establishes
Gordon
un
upon defendant
imposition of sentence
appeal
to
a
validly
right
waive his
cannot
Code,
Section
Title
der
if,
agrees
at the time he
restitution
(sentence
party
Neither
appeals).”
given
he is not
a
appeal,
to waive
is a “sen
that a restitution order
disputes
of
reasonably
accurate
estimate
plea
meaning
within
tence”
he
the restitution order to which
amount of
asks us to
government
The
agreement.
the defendant had
exposed.4
this
appeal
light of
dismiss Tsosie’s
right
appeal
his
to waive “his
agreed
waiver.
provided
plea agreement
requires a court
4. Because Tsosie’s
Although
Fed.R.Crim.P.
amount of restitution to be
no estimate of the
"determine that
a defendant of and
to inform
whether,
awarded,
need not determine
...
the terms of
defendant understands
plea agreement that
precedents, a
waiving
right to
under our
provision
plea-agreement
fairly
and
circum-
an accurate
"knowing
voluntary”
contained
appeal,”
and
Gordon's
is,
range
amounts
of the
estimate of
as will
scribed
requirement
appellate
for
waiver
would
be ordered
by compli-
of the restitution
necessarily
appear,
satisfied
not
defendant for
provide
notice to the
sufficient
with Rule 11 alone.
ance
‘convictions,
judgment
and orders of
involved restitution orders issued
3663A,
Court,’
pursuant
right
ap-
in addition to the
to 18 U.S.C. 3663 and
peal
at 1049. In
not
provision appli-
his sentence.” 393 F.3d
agreed
view,
plea agreement,
pay
government’s
his
“Gordon
cable here.
$14,114,372.38
totaling
explained
restitution
in those
[the
outcomes
eases are
not
$343,173.40
govern-
general
principles
victim]
when
defendant
ment,” id.,
government
“[t]he
but
reserved
can
knowingly
appeal
waive
a restitution
plea agreement
argue
order,
in the
instead
specific provisions
for
restitution
[the
additional
3663A
requiring
defendant
corporation’s] ‘lost opportunity’ costs for
to have notice as to the amount of restitu-
shares,
investigation
embezzled]
[certain
tion to
be ordered
non-victims under
costs,
prejudgment
interest.” Id. De-
those
for the
statutes
defendant
waive
spite
of rights
gov-
reservation
appeal
his
order.
The
defendant,
ernment
the waiver
government
that,
maintains
because those
plea agreement
we held that Gordon’s
did provisions
§in
analog
have no
portions
bar his
requirements
notice
discussed
Gordon
requiring
restitution order
Gordon
do
Phillips
apply
here.
plea agree-
amounts not set forth in the
government
misreads
stat
ment.
explained
Id. at 1050. We
utes
our
precedents.
Section
plea agreement
“Gordon’s
was unclear
3663(a)(1)(A) provides, in
part,
“[t]he
what
exactly
about
amount
actual
order,
court may also
agreed
by the
damages
be for
such contested is-
parties in plea agreement,
restitution to
*6
shares,
as
...
sues
the embezzled
prejudg-
persons
than
other
the victim of the of
ment
and investigation
interest
costs ...
3663(a)(1)(A).
§
fense.” 18 U.S.C.
Sec
Gordon
right
[so]
... did not waive his
to
3663A(a)(3)provides,
tion
part,
that
appeal these contested amounts.” Id. at
order, if agreed
“[t]he court shall also
to
omitted);
(quotation
1050
see also United
parties
in a plea agreement, restitu
(9th
v.
174
Phillips,
States
F.3d
1076
persons
to
other than
Cir.1999) (holding an appeal waiver inef-
3663A(a)(3).
§
offense.” Id.
provi
These
fective
plea agreement
because “the
[was]
sions deal with a sentencing
power
court’s
ambiguous regarding the amount of resti-
and
to
discretion
order restitution to non-
tution”).
victims,
not
notice
whether
plea agreement
Tsosie’s
not
did
set forth
amount
provided
of restitution
must
to
any specific amount of restitution that Tso-
of
appeal
waive
a
order.
restitution
As a
required
sie could be
to
or
pay,
even
result,
provisions may
these
be relevant to
of
estimate
that amount.
plea
Because the
determining whether a restitution order is
agreement
did
set forth the amount of
an illegal
appeal
sentence as to which an
restitution
pay,
Tsosie would be ordered to
effective,
waiver is not
United States v.
cf.
fairly
or
reasonable and
accurate esti- Broughton-Jones,
71 F.3d
1147-48
thereof,
mate
Tsosie “lacked sufficient no-
(4th Cir.1995),
they
but
not helpful
are
tice to waive his
appeal
to
the resti-
determining whether the waiver itself was
tution award.”
1219 the amount of restitution to which a difference between forth textual no relevant provi- two restitution is for the exposed and the other defendant defendant sions, reasoning Phillips appeal waive knowingly be able his controls, though restitution even Gordon the restitution order. §to pursuant was ordered
here sum, we waiver conclude Tsosie’s no lend cases also Our is as to appeal ineffective Neither Gordon argument. government’s challenges and so will his order consider 3663(a)(1) or Phillips cites nor order on merits. their 3663A(a)(3).6 Indeed, portions appealed Gordon THE III. WHETHER COSTS WERE a non- even restitution to did not involve THE INCURRED BY VICTIM victim, possibility which excludes have inherent “Federal courts no 3663(a)(1) §of or portion relevant do so power award 3663A(a)(3) silentio somehow lurks sub statutory only pursuant authority.” holding, as would be that case’s behind Follet, States v. F.3d United accept govern to believe required Cir.2001). Title 18 case. reading of the ment’s empowers requires a court to both Phillips Although Gordon full order certain sex offenders “the precision plea in the explain why some losses.” amount of necessary knowing have agreement “The full amount of the vic waiver, illustrates one rea this case as “any tim’s losses” are defined costs Unlike terms of requirement. for the son for, among incurred the victim” other statutory máxi imprisonment, which things, “necessary transportation,” “medi by judges out aided mums and are meted physical, relating psychiat cal services Guidelines, nei there is Sentencing ric, care,” “any other psychological nor statutory any guidelines limit ther proxi victim a losses suffered as orders, covering the amount of restitution result Id. mate offense.” here, depend on a re may, *7 § A by a party. or submission third quest Follet, § held that this Court attorney frequently defendant and his will not a court to order a defen- authorize be predict unable to whether there will be pay counseling restitution to a dant and, so, in request amount. such a what to his facility provided that had free care result, cases, a will many a in defendant As 1000. explained victim. 269 F.3d at appears to have plead guilty, as Tsosie cost which the victim will “[a] for here, owe believing that he will not done will never have because services restitution, when, fact, sky in any is governmental or provided directly by a be only potential exposure. limit to his organization by not charitable is ‘incurred’ why possibility explains This Gordon victim, organization will require plea agreement a to set even if that Phillips provision, deciding appeal Phillips a consider the does discuss similar it would 3663(a)(3), light "illegal exception to the provides sentence” a "court which knowing and general rule that courts enforce may also restitution in criminal voluntary plea Id. For waivers. at 1146-47. by agreed parties in a case to the extent reason, government’s sug- contrary 3663(a)(3), agreement,” plea but argument, Broughton-Jones is gestion at oral deciding appeal rely does not on it in that the help interpreting Phil- of no Gordon 's and knowing. was See 174 F.3d waiver not lips waivers in 's conclusions that 1076-77. knowing. those cases were not counseling subject incur for the benefit of the victim.” be costs restitution. Id.; 2248(b)(3) (defining other, narrower, see 18 U.S.C. On the reading, provi- subject as losses restitution those permits sion of those costs victim”). by “costs incurred by legal guardian incurred acting a her argues driving that the victim’s mother’s capacity legal guardian as other —in expenses by were likewise not “incurred words, costs she incurred on behalf of the victim,” permit- and therefore are not Thus, minor. example, legal guard- agree. ted the statute. We cannot paid ian who for her son’s medical treat- ment would be entitled to restitution of 2248(c)
Section defines “victim” as: costs, but expect those she could harmed a result of individual as recover income she lost when she took commission a crime under this chap day off work because she too dis- ter, including, in the of a case victim who traught by her son’s victimization to show years age, incompetent, is under 18 up at deceased, the office. incapacitated, or the legal guardian the victim representative or While common sense favors the latter estate, of the victim’s another family reading, not, not, we need do decide member, person appointed or other whether the statute is limited. thus On court, as suitable in no but event possible either of the two readings of shall the defendant be named as such 2248(c), expenses mother’s travel representative guardian. may subject to restitution. 2248(c). This definition is not is, reading, On the blunt there unsur- legislative drafting. model of Nonethe- prisingly, little need for finesse: The less, it apparent enough seems legal guardian victim, is the purpose of the definition’s reference to therefore she recover travel “legal guardians” is permit restitution of long as proximately guardians victims, costs that legal of minor caused the offense.7 If the narrower acting capacity legal guardian, their as one, reading is the correct a more tortuous incurred as a result of an offense. path followed, must be it leads us to course, text, statutory judicial Of the same place: The mother maintains she statutory intuitions of purpose, is the made Flagstaff because the starting point analysis. of statutory victim’s behavioral health counselor or- 2248(c) text of open to at least one of part dered them of a treatment plan readings. two On reading, urged the first that, according to the affidavit of the vic- government, the definition is some- *8 counselor, required tim’s “the minor crime thing of a blunt instrument: The statute victim [to the] have added sup- emotional legal a guardian “includ[es]” within the port family of a loved member to assist in “victim”; definition of therefore loss recovery the process.” The mother there- by legal guardian incurred the of a minor fore to Flagstaff traveled in her capacity as a subject result of an offense is as a family “loved A member.” “loved restitution. reading, On the victim’s is, family course, legal member” not the guardian same depressed upon became learning thing “legal guardian.” so as a offense and had to at- But if the sessions, counseling tend the cost of paid that mother had a loved family different issue, parties 7. As the have not sufficiently raised we er’s residence was a foreseeable expense do not regu- consider whether the result of crime been Tsosie’s to have incurred larly traveling proximate the 150-mile distance between as "a result of the offense.” 18 2248(b)(3). daughter’s boarding and the school moth- demonstrating the “burden (say, the vic- and that trips make member entitled by she of the loss a victim as amount sustained grandfather), tim’s made the She would have on the to restitution: result of the offense shall be a in her daughter’s behalf payments on her Id. attorney Government.” guardian, daughter’s legal her capacity 3664(e). as In Gamma on paid had medical bills as if she much Industries, Inc., F.3d 917 Tech capacity. behalf in that daughter’s her Cir.2001), language we read burden trips that the made the fact literally, that explaining than “[s]o less family paying rather than another herself the district orders defen- long as court not dis- trips to make should member only after someone dants expenses entitle her restitution of by preponderance the amount a proves trips. with the associated evidence, there reason a non- is no carry if the ... can’t the burden.” Id. party that even therefore conclude We original). a in trips capacity (emphasis as mother made the her member, family incurred loved she have to im understood legal capacity in her as costs of the obligations number of on pose a related is, on she incurred them guardian —that issuing court district a restitution award. daughter. the narrower behalf of On one, we have 3664 as “con For viewed then, up place we end in the same reading, that will templating] the district court set as on the blunt one. We therefore we did reasoning, sup explanation forth an of its conclude select between them to need not record, dispute ported when mother’s travel proper as to the amount of restitu arises “incurred victim” within been have Waknine, 543 tion.” United States v. F.3d meaning of 18 U.S.C. (9th Cir.2008). AND EVIDENTIARY TSOSIE’S IV. addition, In understood PROCEDURAL CHALLENGES 3664(e)’s “[a]ny dispute mandate that proper type amount of restitution challenge to to the mounts an additional pre resolved the court us to vacate shall be order: He asks the restitution ground requiring it lacked an of the evidence” as ponderance on the the order evidentiary basis and evidence district adequate supporting explained its insufficiently District Court restitution order meet threshold court’s agree, issuing reason, the order. We reasons adequacy. For that level of the order and remand for and so vacate Waknine, we a restitution order reversed permit the introduc- District Court “one-page based loss that was evidence, to reassess tion of additional in affida provided by victims summaries” award the light of that evidence whether to vits, though the defendant had not even explain the affida challenging introduced making reasoning in that assessment. ruling, at 557. we ex vits. Id. government “the plained [had] offered order, the issuing *9 it prove evidence that [was] insufficient to comply with obliged to District Court victims likely than not that the lost more set forth in 18 U.S.C. procedures the summar the[ ] amounts listed in ... the Sec 18 U.S.C. 3664. See 557; (explaining id. Id. at see also ies.” 3664(e) “[a]ny that provides, part, may only utilize evi that “a district court type of proper to the amount or dispute as indicia of possesses sufficient court dence by shall be resolved the evidence,” accura- reliability support probable to by preponderance the omitted)); cy” States v. to award restitution or in (quotation calculating United the Andrews, Cir. size of the award. 2010) (holding that restitution order vio True, the amount of restitution ordered 3664(e) it lated because was corresponds to precisely the amount the in exclusive reliance on the
issued
spread-
victim’s mother claimed on the
causation,
the
evidence
and
defen
costs,
easy
sheet for travel
so it is
expert
dant’s
witness was not allowed to reconstruct how the District Court arrived
precedents
clear,
testify). As these
make
Thus,
at that figure.
there is some merit
3664(e)’s
to a “preponderance
reference
government’s
contention
it
that,
requires
evidence”
when
the
there
require
would be artificial to
the District
restitution,
dispute
is a
as to
a restitution
Court expressly to state that it relied on
supported
must
be
evidence in
spreadsheet.
the
showing that it
likely
the record
is more
spreadsheet
But the
alone
enough
is not
prox
than not that the defendant’s offense
restitution award. As an
imately caused the losses for which restitu
matter,
initial
no sworn
statement
tion was awarded and that it
so in
did
supports
spreadsheet.
record
Aside
amounts awarded.
spreadsheet itself,
from
only perti-
sum,
requires
In
both
nent
evidence
the record is an unsworn
that a district court set forth its reasons in
letter from the victim’s mother containing
resolving
dispute over restitution and
vague
statement
that she had
award,
issues,
that a restitution
if one
“had
travel
Flagstaff
or bring
visit
adequately supported by
daughter
home my
every
weekend
record. We conclude that
the District
request
doctors,”
counselors
Court’s restitution order violated both
the affidavit from the victim’s mental
requirements.
these
counselor,
health
stating that she instruct-
First,
parties disputed
the proper
ed the
mother
visit her
on a
amount of
but
the District
basis,
weekly
reporting
Court set forth
explanation
no
of its rea-
actually
trips
made the
or indicat-
soning. At the sentencing hearing, Tsosie
ing
trips
the distance of
the mode of
questioned whether “sufficient evidence
transportation used. The PSR offers no
provided”
has been
to order restitution of
support either. To
contrary,
it states
expenses.
the travel
argued
He
that many
probation
office “was unable to
trips
listed
the spreadsheet may
[that
determine
the travel
were]
pursuant
have been made
to the coun-
directly
offense,”
related to the instant
plan
selor’s treatment
or been otherwise
recommended that
not be awarded.
express-
caused
Tsosie’s offense. After
concerns,
ing these
res-
addition to being unsupported
hearing
titution
and that
affidavit,
“further docu-
sworn
spreadsheet
contained
provided.”
mentation be
number
oddities
the District
one,
not acknowledge.
did
For
al-
The District
respond
Court did not
most all
the trips
are listed as “RT”
objections
of these
or requests.
In-
(presumably meaning “round trip”), but
stead,
asking
after
spread-
view the
approximately half are listed as 300 miles
sheet, the District
only.
Court stated
“All
half
the other
are listed as
right.
I’ll
600 miles.
objections
overrule the
grant
The 600 mile
requested.”
accompanied
amount of restitution
are
short,
it.
cryptic
(2),”
That’s
the District Court
annotation “600 Miles RT
*10
nothing to
its
in
explain
reasoning
deciding
reading
note
go
“Victim checked out to
(Kaibeto)
[adequate]
to “set
an
(Flag-
failed
forth
go
[sic]
bac
Court
home
staff)”.
likely
to under-
supposed
reasoning, supported by
explanation
One is
of
two round
mother made
the
temper
stand
at
We
our
the record.” Id
556.
Flagstaff on the
Kaibeto and
trips between
that,
holding with the observation
because
why such dou-
day,
it is unclear
same
degree
“a
of flexibil-
possess
courts
district
of the vic-
trips
part
would be
ble round
complete
ity
accounting
in
for a victim’s
frequent.
let alone so
plan,
treatment
tim’s
losses,”
question
at
a different
id
day
a single
on
would
Driving 600 miles
judge
had the district
presented
any
at
hardly
victim
time
have allowed the
the
deficien-
acknowledged
spreadsheet’s
to
home,
way
provide
a strange
and seems
why he
and then set forth
nonetheless
cies
family
a loved
support”
the
“emotional
thought
spreadsheet
adequate
was an
the
Further,
driving
the
some of
member.
evidentiary
support
basis
the
nothing
spreadsheet
on
the
award.
plan.”
the “treatment
Most
to do with
by an
followed
expense
the
entries are
CONCLUSION
V.
asterisk,
expense
indicating that
the
was
reasons,
foregoing
For the
the restitu-
“Per Northern Arizona Health-
incurred
order is VACATED. We REMAND
tion
in
conjunction
Plan
care Treatment
case
allow the District
this
But a number
psychologist.”
school
Tsosie must
restitu-
reassess whether
asterisk,
followed
are not
entries
and,
so,
if
the amount of
restitu-
such
trips
hospital
including various
so,
gallbladder
doing
for the
treat-
(quite possibly
tion.
it should consider Tso-
underwent),
as well
ment
objections
sie’s
the restitution
victim back to school”
such
as “drove
items
evidence,
permit
contrary
him enter
year.
beginning
at
school
holding
evidentiary hearing
an
one
addition,
trip
entry
for one
states
necessary
documentary
proves
after
sub-
Bus,”
yet
mileage
trip
for the
“Took
The District Court should also
missions.
pri-
rate for a
still calculated at
IRS
reasoning
of its
in
provide
statement
Finally,
counselor’s affi-
vate vehicle.
whether to order restitution
determining
instructed
davit states that she
calculating
the amount of
resti-
weekend,” yet
“each
to visit her
tution ordered.
trips
includes
occur-
some
spreadsheet
and REMANDED.
VACATED
one
ring
same week as
another.
within the
supported
it was not
Because
BEA,
part
concurring
Judge,
Circuit
explaining
affidavit
how
part:
dissenting
prescribed
treat
charges
part
majori-
III of
join
through
I
Parts I
many of
ex
plan,
ment
and because
requires
case law
ty opinion. This circuit’s
seem
penses
interpret
are difficult
not waive his
that we hold
in
spreadsheet
an
inappropriate,
was
he
because
evidentiary
adequate
basis
amount at
of the restitution
was
aware
was
spreadsheet
restitution award.
plea agreement
the time he entered
“insufficient
it is
prove
charges. United
the child molestation
lost
likely
]
than not that the victim[
more
393 F.3d
States
for which restitution
amounts”
Cir.2004). Further,
mother in
the victim’s
as a
result
Tsosie’s
proximate
ordered
under
case
receive restitution
Waknine,
offense.
557.
IV, however,
In Part
that,
especially
light
also conclude
erred in
deficiencies,
majority holds the district court
the District
spreadsheet’s
*11
spent
majority
on a
awarding restitution based
detailed
of the time at the
spreadsheet from the victim’s mother to
school
she
living
[sic].
objected,
which the defendant never
save
Honor,
Your
if the Court’s inclined to
vague
for a
statement
defense counsel
impose
restitution,
that amount of
ha[d] [not]
“sufficient evidence
been
hearing
would ask that a
be set and
I
provided.”
holding,
respectfully
To this
provided.
further documentation be
dissent.
an objection
spread-
This is not
A district court’s restitution order is re-
authentication, relevancy,
sheet’s
founda-
viewed for abuse of discretion.
tion,
Instead,
specificity.
or
is simply
this
majori-
believe that the least occasion, description and that the go implies home at that —on least for holidays single and other day occasions. mother picked daugh- —the school, home, ter up It from understanding was our drove her from read- ing then discovery returned the to her initially when school. these majority disclosures were made likely that there contends that “[o]ne was very supposed little travel at least on the to understand that the mother part go home she had made two round ... on the same
1225 spreadsheet provided by The the vic way “strange provide day,” which is a detailed, recount family highly a loved mem tim’s mother was support’ ‘emotional daughter The over simpler, ing trips at 1223. visit her Maj. Op. ber.” however, answer, that on expect is likely years. more course of five One weekends, the mother drove to confusing these few inaccuracies or entries. Flagstaff brought daughter’s school object spreadsheet failed begin Kaibeto at home to the victim sentencing, objected sentencing at prior weekend, then drove ning of the only weight, present to the spreadsheet’s at the daughter to school end back to cast countervailing ed no evidence doubt weekend, only entry one but made veracity spreadsheet, on entirely con This conduct spreadsheet. out “oddities” pointed none of the now terms, plan’s treatment sistent with the recognized appeal. United States v. Cf. the minor’s mother to which “ordered (9th Andrews, 1167, F.3d 1172 600 Cir. dorm, daughter’s pick up to her [sic] travel 2010) (holding the district court abused its daughter her at the or visit in ordering discretion restitution when it The court district dorm each weekend.” rejected contrary provided “illogi being found without could have so defendant). this, the district court Given cal, support in in implausible, or without in concluding did not abuse its discretion may be drawn from facts ferences spreadsheet “possesse[d] sufficient in Hinkson, v. record.” reliability probable dicia of (9th Cir.2009) (en accuracy” adequate and was establish - denied, -, banc), U.S. cert. preponder loss mother’s 890, 2096, L.Ed.2d 2011 WL S.Ct. v. ance evidence. United States 2011). (Apr. Waknine, F.3d 556-57 Cir. majority The next notes several (internal 2008) omitted). marks quotation have been included should not entries I would affirm the district court’s restitu award, specifical- part of the restitution order, I dissent. and therefore (1) which were not fol- ly: entries several indicating that lowed an asterisk part of
expense incurred as the treat- was (2) entry which plan;
ment one states bus, trip mileage yet took rate for a private at the IRS
calculated (3) vehicle; trips that occurred PANNU, Petitioner, some Singh Gursharan frequency for weekly more than —the Maj. called. plan Op. which the treatment Jr., Attorney Eric H. HOLDER majority overemphasizes 1222-23. General, Respondent. discrepancies. The of these effect a whole contained 139 en- spreadsheet as No. 07-71988. 62,420 “prob- miles. These covering tries Appeals, United States Court 19 entries lem” entries accounted Ninth Circuit. 6,620 It is no wonder the dis- miles. recognize these “oddi- trict court did not April Argued and Submitted spreadsheet awith presented ties” when 11, 2011. May Filed objected, considering Tso- party which no mention them until his sie did not even court.
appeal to this