Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 CR 670-George W. Lindberg, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge
ARGUED SEPTEMBER 18, 2007
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
For seventeen years, Vernon Bonner and his wife, Maria Magana-Bonner, lied to the federal government and received Social Security benefits for non-existent medical conditions and non-existent children. During this time, Maria Magana-Bonner also lied to obtain federal and state higher-education grants. On August 1, 2002, a jury convicted both defendants on multiple counts of wire fraud and theft of government funds, and convicted Maria of mail fraud and theft of educational funds.*fn1
The defendants do not challenge their convictions on appeal; rather, they challenge various aspects of restitution payments they are required to make under the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A. In particular, the defendants claim that restitution under the MVRA is a criminal punishment and that the facts underlying the restitution amount must be proven beyond a reasonable doubt to a jury. Vernon Bonner also claims the district court improperly calculated his advisory guidelines range by relying on the loss he intended to cause the government rather than the loss actually suffered by the government.
These arguments lack merit. This court has consistently held that restitution under the MVRA is not a criminal punishment and does not need to be proven to a jury. And the district court properly relied on intended loss in calculating Vernon Bonner's advisory guidelines range. Therefore, we affirm the district court's awards of restitution. We also remand both cases so the district court can correct certain clerical errors in the judgments.
This is the third time these cases are before us. Initially, after the defendants were convicted, the district court imposed terms of imprisonment and added a special condition to the defendants' supervised releases making them ineligible to receive certain federal benefits until they paid restitution. On appeal, we vacated this special condition and also ordered a limited remand in accordance with the procedures set forth in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), which requires the sentencing judge to determine whether he would have sentenced the defendants differently had the matter been decided after United States v. Booker, 543 U.S. 220 (2005). See Bonner (7th Cir. May 20, 2005) (unpublished).
After the original sentencing judge recused himself, the cases were reassigned to the present district judge, who found that he could not make the determination required under Paladino, since he was not the one who had previously sentenced the defendants. He merely entered an amended judgment and commitment order for each defendant removing the special conditions that had restricted them from obtaining federal benefits. The defendants then moved for this court to order the district court to carry out the limited remand. We denied that motion, vacated the defendants' sentences, and remanded to the district court for a full resentencing. United States v. Bonner, 440 F.3d 414, 415 (7th Cir. 2006).
On July 26, 2006, the district court re-sentenced Vernon to 78 months' imprisonment and ordered restitution of $434,617.30. A week later, the court re-sentenced Maria to 63 months' imprisonment and ordered restitution of $459,616.30.
A. The Defendants are not Entitled to a Jury Trial on Facts Supporting the Restitution Order
The defendants claim that the district court erred by ordering restitution without accounting for various protections set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and Booker, 543 U.S. 220 (2005). These cases hold that facts underlying certain criminal punishments must be proven beyond a reasonable doubt to a jury. The defendants claim that restitution is in fact a criminal punishment and these protections apply. In making this claim, the defendants rely on Pasquantino v. United States, 544 U.S. 349, 365 (2005), which mentions in passing, "The purpose of awarding restitution [under the MVRA] in this action is not to collect a foreign tax, but to mete out appropriate criminal punishment for that conduct." The defendants also point to restitution awards in other contexts in which courts have suggested restitution is a criminal punishment. See Kelly v. Robinson, 479 U.S. 36, 46-49, 49 n.10 (1986) (describing restitution imposed as part of a state probationary criminal sentence as a "penalty" that could not be discharged in bankruptcy proceedings); United States v. Fountain, 768 F.2d 790, 800-01 (7th Cir. 1985) (describing restitution under the federal Victim and Witness Protection Act as a "traditional criminal remedy").
The problem with the defendants' argument is that we have rejected it many times, even after Pasquantino was decided. See, e.g., United States v. Lagrou Distrib. Sys., 466 F.3d 585, 593 (7th Cir. 2006) ("We reiterate: restitution is not a penalty for a crime for Apprendi purposes since restitution for harm done is a classic civil remedy that is administered for convenience by the courts that have entered criminal convictions." (internal quotation marks omitted)); United States v. Seals, 419 F.3d 600, 610 (7th Cir. 2005); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005). Restitution under the MVRA is not a criminal punishment, at least not in this circuit. But see, e.g., United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006) ...