USA v. Joshua Sizemore

Filing

OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. Eugene E. Siler, Jr., Karen Nelson Moore (AUTHORING), and Richard Allen Griffin, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0052p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

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v.
JOSHUA MICHAEL SIZEMORE,
Defendant-Appellant.

No. 16-5700

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Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:15-cr-00146—Thomas W. Phillips, District Judge.
Decided and Filed: March 8, 2017
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
INC., Chattanooga, Tennessee, for Appellant.
Brooklyn Sawyers, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Joshua Sizemore

appeals the restitution order entered as part of his sentence for involuntary manslaughter. In this
appeal, Sizemore raises two issues concerning the district court’s order of full restitution and the
district court’s refusal to reduce the restitution by settlement amounts paid to certain victims by
Sizemore’s automobile insurance company. For the reasons stated below, we AFFIRM.

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I. BACKGROUND
During the early morning hours of October 4, 2014, Joshua Sizemore was driving his car
at a high rate of speed through Great Smoky Mountains National Park. R. 2 (Plea Agreement)
(Page ID #4). In addition to Sizemore, the car had three passengers: Sherice Mathes, Brent
Clapper, and Ashley Trent. Id. All of the car’s occupants, including Sizemore, had been
drinking alcohol. Id. At approximately 1:35 a.m., Sizemore crashed the vehicle, killing Trent,
and seriously injuring Mathes and Clapper. Id. The Tennessee Highway Patrol later determined
that the Defendant “was driving approximately 96 miles per hour five seconds prior to the crash
and approximately 97 miles per hour two seconds prior to the crash.” Id. The speed limit on that
particular stretch of road was 45 miles per hour. Id.
On November 2, 2015, the United States Attorney for the Eastern District of Tennessee at
Knoxville filed an information charging Sizemore with involuntary manslaughter in violation of
18 U.S.C. §§ 1112 and 7(3). R. 1 (Information) (Page ID #1–2). Sizemore waived indictment
and pleaded guilty to the one-count information. R. 9 (Waiver of Indictment) (Page ID #19);
R. 39 (Plea Hr’g Tr. at 12) (Page ID #539). As a condition of his plea, Sizemore agreed that the
district court would order restitution “for any loss caused to: (1) the victims of any offense
charged in this case (including dismissed counts); and (2) the victims of any criminal activity
that was part of the same course of conduct or common scheme or plan as the defendant’s
charged offenses.” R. 2 (Plea Agreement at 4) (Page ID #6). The parties later agreed in an
addendum to the plea agreement that Sizemore would not appeal the award of $173,451.43 in
restitution to be paid to Ashley Trent’s minor daughter, A.H., for Trent’s lost wages. R. 27 (Plea
Agreement Addendum) (Page ID #376).
The probation office prepared a Presentence Investigation Report (“PSR”), R. 26 (PSR)
(Page ID #362), and the district court held a sentencing hearing on May 4, 2016, R. 40 (Sent.
H’rg Tr. at 1) (Page ID #547).

The only contested issue at Sizemore’s sentencing was

restitution. Id. at Page ID #550. The probation office assessed restitution, pursuant to 18 U.S.C.
§ 3663, in the amount of $230,839.37. R. 26 (PSR at 13) (Page ID #374). Restitution was
calculated in the following allotments:

$9,000 to Paul Mahan for Ashley Trent’s funeral

expenses; $29,808.27 to Blue Cross Blue Shield Insurance as to Brent Clapper; $3,990.74 to

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Brent Clapper; $11,787.76 to Blue Cross Blue Shield Insurance as to Sherice Mathes; $2,801.17
to Farm Bureau Insurance as to Sherice Mathes; and $173,451.43 to A.H., Ashley Trent’s minor
child. Sizemore agreed to the full restitution amount as to A.H., but did not agree to any of the
other allotments. R. 40 (Sent. Hr’g Tr. at 7–8) (Page ID #553–554). Specifically, Sizemore
argued that the court should not order him to pay $9,000 to Paul Mahan for funeral expenses
because Mr. Mahan did not seek any restitution from Sizemore. R. 16 (Def. Sent. Mem. at 12)
(Page ID #157). Sizemore further argued that because Farm Bureau Insurance paid $12,500 each
to Clapper and to Mathes for their losses, those payments should be credited to any restitution
ordered. Id. at 13 (Page ID #158). The United States opposed any offset to the restitution
amounts, arguing that “[t]he burden is on the defendant to provide evidence that an offset is
warranted and the defendant has not provided this Court with any evidence of what the insurance
settlement covered, i.e., pain and suffering, medical expenses or some other loss.” R. 17 (Gov.
Sent. Mem. at 6) (Page ID #180) (citing United States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir.
1998)). The district court agreed with the government and ordered restitution in the total amount
of $230,839.37. R. 35 (Order at 9) (Page ID #508). Sizemore’s request for credits for payments
made by his insurance provider was denied. Id. at 11 (Page ID #510) (“the Court finds that the
defendant is not entitled to an offset for any of the amounts of restitution.”).
At sentencing, Sizemore was found to have a total offense level of 19 and a criminal
history category of I, with an advisory sentencing guideline range of 30–37 months of
imprisonment. R. 40 (Sent. Hr’g Tr. at 33) (Page ID #579). The district court sentenced
Sizemore to 36 months of imprisonment followed by three years of supervised release. R. 36
(Judgment at 2–3) (Page ID #516–17). Sizemore filed a timely notice of appeal. R. 38 (Not. of
Appeal) (Page ID #526).
II. ANALYSIS
A. Standard of Review
“We review the propriety of a restitution order de novo.” United States v. Church,
731 F.3d 530, 535 (6th Cir. 2013). The specific amount of restitution awarded by the district
court is reviewed for abuse of discretion. Id. (citing United States v. Elson, 577 F.3d 713, 733

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(6th Cir. 2009)). See also United States v. Bearden, 274 F.3d 1031, 1040 (6th Cir. 2001) (“We
review the propriety of ordering restitution de novo and the amount of restitution ordered for
abuse of discretion.”).
B. The District Court Had Authority to Order Restitution
The first question raised on appeal is whether the district court misunderstood the extent
of its discretion to determine the amount of loss subject to restitution under 18 U.S.C. §§ 3663
and 3664. Here the district court “finds that an order of restitution is appropriate pursuant to
[18 U.S.C.] § 3663(a)(3).” R. 35 (Order at 8) (Page ID #507). Sizemore agrees with the district
court that 18 U.S.C. § 3663 is the operative statute, but argues that the district court mistakenly
concluded that it was required to order restitution. Appellant Br. at 15. The United States
responds that “the totality of the record shows that the district court had correctly found that
‘restitution is . . . discretionary.’” Appellee Br. at 11.
The parties agree with the district court’s conclusion that this case is governed by the
Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663.1

Appellant Br. at 15;

Appellee Br. at 11; R. 35 (Order at 5) (Page ID #504). Pursuant to the VWPA, “[t]he court,
when sentencing a defendant convicted of an offense under this title . . . may order . . . that the
defendant make restitution to any victim of such offense . . . .” 18 U.S.C § 3663(a)(1)(A). “[I]n
determining whether to order restitution under this section” the court “shall consider . . . the
amount of the loss sustained by each victim as a result of the offense” along with “the financial
resources of the defendant, the financial needs and earning ability of the defendant and the
defendant’s dependents, and such other factors as the court deems appropriate.” 18 U.S.C.
§ 3663(a)(1)(B)(i). The district court “may also order restitution in any criminal case to the
extent agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3). The VWPA
describes numerous types of restitution that may be ordered.

See 18 U.S.C. § 3663(b).

As relevant to this case, the court may order that a defendant “in the case of an offense resulting
1

Our cases routinely refer to 18 U.S.C. § 3663 as the Victim and Witness Protection Act (referring to the
Victim and Witness Protection Act of 1982). See United States v. Sawyer, 825 F.3d 287, 292 (6th Cir. 2016); Elson,
577 F.3d at 721. We have also referred to 18 U.S.C. § 3664 as a component of the VWPA. United States v.
Sosebee, 419 F.3d 451, 457 (6th Cir. 2005) (“The district court ordered restitution pursuant to the Victim and
Witness Protection Act, 18 U.S.C. §§ 3663–3664.”).

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in bodily injury [that] also results in the death of a victim, pay an amount equal to the cost of
necessary funeral and related services.” 18 U.S.C. § 3663(b)(3).
Once a district court has determined that restitution under the VWPA is appropriate, the
“order of restitution made pursuant to [the VWPA] shall be issued and enforced in accordance
with section 3664.” 18 U.S.C. § 3663(d). Pursuant to 18 U.S.C. § 3664(f)(1)(A), “[i]n each
order of restitution, the court shall order restitution to each victim in the full amount of each
victim’s losses as determined by the court and without consideration of the economic
circumstances of the defendant.” District courts are “not required to make findings on the
defendant’s financial conditions” when determining whether it is appropriate to order restitution.
Sosebee, 419 F.3d at 460 (quoting United States v. Hall, 71 F.3d 569, 573–74 (6th Cir. 1995)).
Further, “[i]n no case shall the fact that a victim has received or is entitled to receive
compensation with respect to a loss from insurance or any other source be considered in
determining the amount of restitution.” 18 U.S.C. § 3664(f)(1)(B). Once the district court has
determined “the amount of restitution that is owed to each victim, the court shall . . . specify in
the restitution order the manner in which, and the schedule according to which, the restitution is
to be paid.” 18 U.S.C § 3664(f)(2). In setting the restitution payment schedule the district court
must consider “the financial resources and other assets of the defendant[;] . . . projected earnings
and other income of the defendant; and . . . any financial obligations of the defendant.” Id.
Section 3664 also addresses a scenario where, as here, a victim has received or may receive
compensation from some source other than a defendant’s restitution payment:
(j)(1) If a victim has received compensation from insurance or any other source
with respect to a loss, the court shall order that restitution be paid to the person
who provided or is obligated to provide the compensation, but the restitution
order shall provide that all restitution of victims required by the order be paid to
the victims before any restitution is paid to such a provider of compensation.
(2) Any amount paid to a victim under an order of restitution shall be reduced by
any amount later recovered as compensatory damages for the same loss by the
victim in—
(A) any Federal civil proceeding; and
(B) any State civil proceeding, to the extent provided by the law of the
State.
18 U.S.C. § 3664(j) (emphasis added).

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In certain cases, an order of restitution may also be appropriate pursuant to the
Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. “The MVRA, passed as
part of the Antiterrorism and Effective Death Penalty Act of 1996, amended the Victim Witness
Protection Act, 18 U.S.C. § 3663(a)(1)(A) (“VWPA”).” Elson, 577 F. 3d at 721. District courts
ordering restitution pursuant to the MVRA “shall order . . . that the defendant make restitution to
the victim of the offense . . . .” 18 U.S.C. § 3663A(a)(1). The parties have not argued, and the
district court did not conclude, that the MVRA dictates the result of this case. We therefore
conduct our analysis pursuant to 18 U.S.C. §§ 3663 and 3664, but not 18 U.S.C. § 3663A.
The district court concluded that the total restitution sought in this case was $230,839.37.
This amount “includes funeral expenses for Ms. Trent, Ms. Trent’s lost income payable to her
minor child, and the medical expenses of Mr. Clapper and Ms. Mathes.” R. 35 (Order at 6)
(Page ID #505). The district court correctly concluded that the VWPA permits restitution “to
compensate a victim for medical expenses (§ 3663(b)(2)(A)), funeral expenses (§ 3663(b)(3)),
and lost income (§ 3663(b)(2)(C)).” Id. The district court next noted that “the defendant has not
objected to the types or amounts of restitution sought. These facts weigh in favor of an order of
restitution.” Id. at 7 (Page ID #506) (footnote omitted). In considering whether to exercise its
discretion and order restitution, the district court considered the defendant’s background, his high
school and technical school diplomas, his consistent work history, and his profession as an
automobile repairman and painter. Id. at 7 (Page ID #506). The district court acknowledged that
“an order of restitution will undoubtedly put further strain on the defendant’s finances” but
concluded that “the Court does not find that such a strain is so significant as to preclude an order
of restitution.” Id. The district court ordered full restitution in the amount of $230,839.37. Id. at
13 (Page ID #512).
Sizemore disagrees with the district court’s restitution order for three reasons. First,
Sizemore argues that the requirement pursuant to § 3664 that a district court shall order
restitution to each victim in the full amount of each victim’s losses “seems to conflict with
the discretionary nature [of] § 3663.”

Appellant Br. at 17.

Second, Sizemore argues that

“[t]he district court erred by concluding that it was ‘required to order restitution in the full
amounts as set forth above without consideration of the defendant’s economic circumstances.’”

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Id. at 21. Third, Sizemore suggests that the district court committed error “by failing to take into
consideration Mr. Sizemore’s own medical expenses, his ability to pay, and the respective level
of injury of Ms. Trent, Ms. Mathes, and Mr. Clapper when determining which expenses should
be counted as losses subjected to restitution.” Id. at 22.
The United States responds that, “consistent with 18 U.S.C. § 3664(f)(2), the district
court properly considered Defendant’s financial resources when determining whether to order
restitution in the first instance, and when setting the payment schedule.” Appellee Br. at 11. The
government also contends that “Defendant has not cited any legal authority for the proposition
that the court was required to consider his financial situation in determining which losses should
be counted for restitution purposes, especially where Defendant did not dispute the losses set
forth in the presentence report.” Id. at 12.
We disagree with Sizemore that there exists a conflict between § 3663 and § 3664.
Sizemore believes that there is a conflict between 18 U.S.C. § 3663(a)(1)(B)(i), which requires
that a court consider a defendant’s financial circumstances in deciding whether to order
restitution, and 18 U.S.C. § 3664(f)(1)(A), which forbids a court from considering a defendant’s
economic circumstances when setting the amount of restitution. Section 3663 sets forth the
factors that a district court shall consider when determining whether to exercise its discretion and
award restitution under the VWPA. Factors that a district court shall consider when determining
whether to award restitution in the first instance include the losses sustained by a defendant’s
victims and the defendant’s financial circumstances. It is certainly reasonable to require district
courts to analyze both the losses of a defendant’s victims and the defendant’s ability to make
restitution payments before ordering restitution in the first instance—ordering a defendant with
zero earning potential or financial resources to make restitution payments would be a futile
exercise. Only after a district court decides to exercise discretion and order restitution under
§ 3663 does § 3664 become operative. Section 3663(d) explicitly directs the district court to
“issue[ ] and enforce[ ] [its order of restitution] in accordance with section 3664.” Section 3664
sets forth the procedures for setting the amount of restitution and the restitution payment
schedule. This scheme is sensible: Courts consider the financial circumstances of the defendant

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in deciding whether to order restitution and in setting the defendant’s payment schedule, but not
in setting the total amount of restitution due to the victims.
We find no error in the district court’s decisions both to order restitution and to do so at
the full amount as calculated by the probation office. The district court followed precisely the
rigid contours of § 3663 in deciding to exercise its discretion to award restitution in the first
instance, and it did not abuse its discretion when setting the restitution amounts pursuant to
§ 3664. While the restitution order will likely cause Sizemore a financial strain, the district court
was within its discretion in concluding that Sizemore’s education, training, and skillset will
permit him to secure gainful employment and make restitution payments as required. The
district court’s decision to order restitution in this case was therefore within its discretion under
§ 3663(a)(1)(A).
It is clear on the record before us that Sizemore owes restitution in the amount of
$173,451.43 to Ashley Trent’s minor child, A.H. The parties entered into a plea agreement
addendum regarding the restitution to A.H., and Sizemore never contested A.H’s restitution
amount at sentencing. A restitution order made pursuant to a provision in a plea agreement is
expressly permitted by § 3663(a)(3).

We therefore agree with the district court that “the

defendant has agreed to restitution in the amount of $173,451.43 payable to A.H., minor child of
Ashley Trent.” R. 35 (Order) (Page ID #502).
We also conclude that the district court correctly determined that, once it decided to
award restitution, it was required to order restitution to each victim in the full amount of the
victim’s losses. After determining that restitution is appropriate pursuant to § 3663(a)(1)(A), a
district court “shall order restitution to each victim in the full amount of each victim’s losses as
determined by the court and without consideration of the economic circumstances of the
defendant.” 18 U.S.C. § 3664(f)(1)(A). We disagree with Sizemore that the district court
committed reversible error. First, while the district court did not consider Sizemore’s individual
circumstances and ability to pay restitution when determining the amount of restitution, those
factors were considered by the court in deciding whether restitution was appropriate, and in
setting the payment schedule.

Second, Sizemore has not argued that any of the amounts

calculated by the probation office and accepted by the district court were calculated incorrectly.

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We find no evidence in the record that suggests Sizemore objected to the specific final dollar
amounts that were accepted by the district court.2 Additionally, neither party has cited, and we
have not found, any case binding on this court that suggests we must read § 3664(f)(1)(A) as
doing anything other than what it says—requiring a restitution order to state “the full amount of
each victim’s losses . . . without consideration of the economic circumstances of the defendant.”
We therefore conclude that the district court did not commit reversible error in ordering
restitution or in relying on the restitution amounts calculated by the probation office and reported
in the PSR. The district court’s decision to order restitution was appropriate, and it did not abuse
its discretion in setting the amount of restitution.
C. The District Court Did Not Abuse its Discretion in Refusing to Grant Sizemore Credit
For Amounts Paid to Victims by His Auto Insurance Company
Sizemore next argues that the district court abused its discretion when it declined to
reduce his total restitution by the amounts that his automobile insurance company paid to his
victims. Although Sizemore notes that “[i]n no case shall the fact that a victim has received or is
entitled to receive compensation with respect to a loss from insurance or any other source be
considered in determining the amount of restitution,” he argues that under § 3664(j)(2) “[a]ny
amount paid to a victim under an order of restitution shall be reduced by any amount later
recovered as compensatory damages for the same loss by the victim in . . . any State civil
proceeding . . . .” Appellant Br. at 22 (citing 18 U.S.C. § 3664(f)(1)(B) and §3664(j)(2)(B)).
The United States responds that “Defendant has not established that he satisfied [18 U.S.C.
§ 3664(j)(2)(B)], much less that the district court abused its discretion by declining to grant an
offset.” Appellee Br. at 12.
“[T]he burden of proving an offset should lie with the defendant.” Elson, 577 F.3d at 734
(quoting Sheinbaum, 136 F.3d at 449). We have previously held that a defendant is in the best
position to demonstrate that he has already compensated a victim for a specific loss in a civil
2

While Sizemore did object to having to pay funeral expenses for Trent and insurance reimbursements to
Blue Cross Insurance and Farm Bureau Insurance, the record does not reflect that he specifically objected to the
amounts calculated by the probation office and ultimately accepted by the district court. As it appears to us,
Sizemore disputed that he was required to pay for Trent’s funeral expenses and for the insurance payments, but
conceded that if he was required to pay, the amounts calculated by the probation office and accepted by the district
court were accurate. See R. 40 (Sent. Hr’g Tr. at 7–11) (Page ID #553–557).

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proceeding, and accordingly “the burden should fall on him to argue for a reduction in his
restitution order.” Id. (internal quotation marks omitted). Where a defendant meets that burden,
the district court “‘must reduce restitution by any amount the victim received as part of a civil
settlement’ to avoid[ ] the undesirable result of restitution effectuating a double recovery.” Id.
(quoting United States v. Gallant, 537 F.3d 1202, 1250 (10th Cir. 2008)).
Farm Bureau Insurance issued settlement payments to Ms. Trent ($25,000), Mr. Clapper
($12,500), and Ms. Mathes ($12,500). R. 16-4 (Settlement Letter) (Page ID #173). The district
court concluded that the Farm Bureau Insurance payments to Clapper and Mathes were issued
before the entry of a restitution order, and “thus, they cannot be amounts ‘later recovered’”
within the meaning of 18 U.S.C. § 3664(j)(2). R. 35 (Order at 11) (Page ID #510). The court
further concluded that “amounts paid to medical providers on behalf of the victims are not
eligible to be offset against the total amount of restitution.” Id. (citing United States v. Bright,
353 F.3d 1114, 1123 (9th Cir. 2004) (“funds the victims have not received cannot reduce or
offset the amount of losses the defendant is required to repay.”)).
In considering the entire record and the district court’s order, we conclude that the district
court did not abuse its discretion when it declined to offset its restitution order by the amounts of
Sizemore’s insurance company’s payments to the victims. The payments made by Farm Bureau
Insurance to Trent, Mathes, and Clapper were general settlements that were never specifically
designated to a particular category of loss. R. 17-3 (Email with Farm Bureau) (Page ID #214).
By contrast, the district court identified the losses that were covered by its restitution order as
follows: Ashley Trent’s funeral expenses; Ashley Trent’s lost wages; Mr. Clapper’s medical
expenses; and Ms. Mathes’s medical expenses. Because we are unable to determine from the
record before us whether the Farm Bureau Insurance payments were intended to cover the same
losses that the restitution order covers, we cannot conclude that the restitution order has “the
undesirable result of effectuating double a recovery.” Elson, 577 F.3d at 734 (quoting Gallant,
537 F.3d at 1250). While Sizemore’s insurance company did settle with his victims, “a private
settlement between a criminal wrongdoer and his victim releasing the wrongdoer from further
liability does not preclude a district court from imposing a restitution order for the same
underlying wrong.” United States v. May, 500 F. App’x 458, 462 (6th Cir. 2012) (quoting

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Bearden, 274 F.3d at 1041). We therefore conclude that the district court did not abuse its
discretion in declining to offset Sizemore’s restitution by the amounts his insurance company
paid to his victims.
III. CONCLUSION
Joshua Sizemore will likely make restitution payments for the rest of his life. Though we
understand this will pose a financial hardship, “[r]estitution ordered as part of a criminal
sentence is punitive.” May, 500 F. App’x at 463 (citing Kelly v. Robinson, 479 U.S. 36, 52
(1986)). Because the district court had the statutory authority to order restitution, because it did
not abuse its discretion in ordering restitution, and because it complied with the statutory
provisions, we AFFIRM the district court’s restitution order.