USA v. Michael Tsosie

Filing

FILED OPINION (RICHARD A. PAEZ, MARSHA S. BERZON and CARLOS T. BEA) VACATED; REMANDED. Judge: MSB Authoring, Judge: CTB Concurring & Dissenting. FILED AND ENTERED JUDGMENT. [7746081]

Case: 10-10030 05/10/2011 Page: 1 of 22

ID: 7746081 DktEntry: 41-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL TSOSIE,
Defendant-Appellant.





No. 10-10030
D.C. No.
3:09-cr-08022JAT-1
OPINION

Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
March 16, 2011—San Francisco, California
Filed May 10, 2011
Before: Richard A. Paez, Marsha S. Berzon, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Bea

6199

Case: 10-10030 05/10/2011 Page: 2 of 22

6202

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

COUNSEL
Daniel L. Kaplan & Sarah Elizabeth Stone (argued), Assistant
Federal Public Defenders, Phoenix, Arizona, for appellant
Michael Tsosie.
Bridget S. Bade, Randall M. Howe & Joan G. Ruffennach
(argued), Assistant United States Attorneys, Phoenix, Arizona, for appellee United States of America.

Case: 10-10030 05/10/2011 Page: 3 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

6203

OPINION
BERZON, Circuit Judge:
Michael Tsosie entered into a plea agreement with the government and pleaded guilty to one count of abusive sexual
contact in violation of 18 U.S.C. § 2244(a)(1). Pursuant to the
plea agreement, the District Court sentenced Tsosie to eighteen months of imprisonment, a sentence well below the
Guidelines range of 97 to 121 months. See Fed. R. Crim. P.
11(c)(1)(C). At the sentencing hearing, the victim’s counsel
urged the District Court to order Tsosie to pay $31,994 in restitution to the victim’s mother to cover costs she incurred in
making a series of trips between her home and the victim’s
boarding school, 150 miles away. The District Court ordered
the restitution.
Tsosie appeals the restitution order, arguing (1) that the
mother’s travel expenses were not “incurred by the victim”
and were therefore not subject to restitution under the applicable statute, and, in the alternative, (2) that the restitution
award was issued in violation of the procedural and evidentiary requirements of 18 U.S.C. § 3664. We agree with the second but not the first of these arguments. We also hold that
Tsosie has not waived his right to appeal the restitution order.
I.

BACKGROUND

Michael Tsosie is a 62-year-old Navajo resident of Northern Arizona. In October, 2006, a fourteen-year old girl
reported to her school guidance counselor that Tsosie had sexually abused her when she was five or six years old. The
abuse occurred within the Navajo Indian Reservation. In February, 2009, the government filed an indictment in U.S. District Court charging Tsosie with three counts of aggravated
sexual abuse of a minor in violation of 18 U.S.C. § 2241(c),
and two counts of abusive sexual contact in violation of 18
U.S.C. § 2244(a)(1). See 18 U.S.C. § 1153(a) (providing that

Case: 10-10030 05/10/2011 Page: 4 of 22

6204

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

Indians committing certain offenses within Indian country
“shall be subject to the same law and penalties” as other persons “committing . . . the. . . offense[ ] within the exclusive
jurisdiction of the United States”).
Tsosie agreed to plead guilty to one count of abusive sexual
contact in violation of 18 U.S.C. § 2244(a)(1) in exchange for
the government’s promise to dismiss the other four counts. In
the plea agreement, the parties stipulated that “an appropriate
disposition of th[e] case” would be for Tsosie to “be sentenced to no more than 18 months” of imprisonment, have no
contact with the victim, have no contact with any minor without the approval of a probation officer, register as a sex
offender, and undergo sex offender treatment. The parties did
not stipulate as to whether an order for restitution should
issue. The plea agreement did state, however, under the heading “Maximum Penalties,” that “the court . . . shall order the
defendant to make restitution to any victim of the offense,
unless, pursuant to 18 U.S.C. § 3663, the court determines
that restitution would not be appropriate in the case.”1
At the change of plea hearing, the District Court explained
the penalties for a violation of 18 U.S.C. § 2244(a)(1). The
Court stated, in part, that:
[I]f any victim sustained any economic loss as a
result of your crime, you’ll be required to pay restitution to the victim for that loss, and if you willfully
fail to pay the restitution yet have the ability to pay
1

The plea agreement’s reference to the District Court’s discretion under
18 U.S.C. § 3663 appears erroneous. Tsosie was convicted under 18
U.S.C. § 2244(a)(1). His case was governed by the mandatory restitution
provision codified at 18 U.S.C. § 2248. See 18 U.S.C. § 2248(a)
(“Notwithstanding § 3663 or 3663A, . . . the court shall order restitution
for any offense under this chapter” (emphasis added)). Because the parties
have not raised this issue, we only observe that this reference to the District Court’s discretion buttresses our conclusion that Tsosie’s waiver of
appeal was not knowing with regard to the restitution order.

Case: 10-10030 05/10/2011 Page: 5 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

6205

some or all of it or if you fail to make bona fide
efforts to find work or borrow money, your probation or supervised released could be revoked and you
could be sent back to prison as a sanction to enforce
collection of the restitution. Do you understand that?
Tsosie answered “yes.”
The presentence report (“PSR”) calculated Tsosie’s Guideline range as 97 to 121 months. The PSR also stated that the
victim’s mother reported that the victim had suffered bouts of
depression, stress, and anxiety, which the mother believed had
contributed to physical problems, including gallstones. The
mother requested $200 in restitution for travel expenses
related to a court hearing that she and the victim attended,
$1,800 for the treatment of the victim’s gallstones, and
$31,994 “for expenses related to her traveling to Flagstaff to
visit the victim each weekend.” Although the record is unclear
as to the details, the victim apparently attended boarding
school in Flagstaff, but she otherwise lived with her mother
in Kaibeto, Arizona, approximately 150 miles away. The
author of the PSR recommended awarding only the $200 in
restitution, stating that she “was unable to determine that the
additional $33,794 requested for medical and travel expenses
was directly related to the instant offense.”
Appended to the PSR was an eleven-page spreadsheet listing approximately 140 trips, most of them between Kaibeto
and Flagstaff and occurring within a three-year period. Next
to each trip entry was a calculation of the costs of the trips
according to the Internal Revenue Service rates in effect at the
time of the trip. The $31,994 in travel expenses, which the
District Court ultimately awarded, are the subject of this appeal.2
2

The District Court did not discuss the other restitution requests, and so
implicitly denied them as separate expenses.

Case: 10-10030 05/10/2011 Page: 6 of 22

6206

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

One working day before the sentencing hearing, the victim’s counsel filed a declaration from Martha Scranton, the
Behavioral Health Program Director for Native Americans for
Community Action, stating that in February, 2006, she had
prescribed a treatment plan for the victim, and that the plan
required “the minor’s mother travel to her daughter’s dorm,
[and] pick up her daughter or visit her daughter at the dorm
each weekend.” Scranton averred that “in [her] professional
opinion, the minor crime victim needed the added emotional
support of a loved family member to assist in the recovery
process.” This affidavit was the only sworn statement in the
record.
At the sentencing hearing, the victim’s counsel asked the
District Court to accept the “very lenient plea agreement,” but
urged the Court to order Tsosie to pay the $31,944 in traveling expenses. The government, for its part, expressed some
hesitation as to the appropriateness of awarding the $31,994
in restitution, but ultimately took no clear position on the matter. Tsosie’s counsel opposed the victim’s restitution request
and also asked that, “if the Court’s inclined to impose that
amount of restitution, . . . a hearing be set and further documentation be provided.” The Court accepted the plea agreement, sentenced Tsosie to eighteen months of imprisonment,
and, without hearing any further evidence or explaining its
ruling, ordered him to pay $31,944 in restitution.
II.

WAIVER OF APPEAL

Tsosie’s plea agreement contained an appeal waiver, providing, in part, that Tsosie waived “any right to appeal the
imposition of sentence upon defendant under Title 18, United
States Code, Section 3742 (sentence appeals).” Neither party
disputes that a restitution order is a “sentence” within the
meaning of the plea agreement. The government asks us to
dismiss Tsosie’s appeal in light of this waiver.

Case: 10-10030 05/10/2011 Page: 7 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

6207

[1] We have explained that “ ‘[a]n appeal waiver will not
apply if: (1) a defendant’s guilty plea failed to comply with
Fed. R. Crim. P. 11; (2) the sentencing judge informs a defendant that she retains the right to appeal; (3) the sentence does
not comport with the terms of the plea agreement; or (4) the
sentence violates the law.’ ” United States v. Watson, 582
F.3d 974, 987 (9th Cir. 2009) (quoting United States v. Bibler,
495 F.3d 621, 624 (9th Cir. 2007)). We have also stated that
we will not give effect to an appeal waiver if it is not “made
knowingly and voluntarily.” United States v. Gordon, 393
F.3d 1044, 1050 (9th Cir. 2004) (quotation omitted).3
Tsosie advances two reasons why the appeal waiver does
not bar his challenge to the restitution order. First, he contends that the appeal waiver was not knowing because he was
not afforded notice of the amount of restitution to be ordered.
Second, he argues that the award of the victim’s mother’s
expenses exceeded the District Court’s authority under 18
U.S.C. § 2248 and so constitutes an unlawful sentence. We
agree with Tsosie’s first contention, and so address only it
with regard to the waiver of appeal (although we later consider Tsosie’s challenge to the legality of the sentence on the
merits).
[2] Gordon establishes that a defendant cannot validly
waive his right to appeal a restitution order if, at the time he
agrees to waive the appeal, he is not given a reasonably accurate estimate of the amount of the restitution order to which
he is exposed.4 In Gordon, the defendant had agreed to waive
3

Although Fed. R. Crim. P. 11 requires a court to inform a defendant
of and “determine that a defendant understands . . . the terms of any pleaagreement provision waiving the right to appeal,” Gordon’s “knowing and
voluntary” requirement for appellate waiver is, as will appear, not necessarily satisfied by compliance with Rule 11 alone.
4
Because Tsosie’s plea agreement provided no estimate of the amount
of restitution to be awarded, we need not determine whether, under our
precedents, a plea agreement that contained an accurate and fairly circumscribed estimate of the range of the amounts of the restitution that may be
ordered would provide sufficient notice to the defendant for him knowingly to waive his appeal as to a restitution order.

Case: 10-10030 05/10/2011 Page: 8 of 22

6208

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

“his right to appeal his ‘convictions, the judgment and orders
of the Court,’ in addition to the right to appeal his sentence.”
393 F.3d at 1049. In his plea agreement, “Gordon agreed to
pay restitution totaling $14,114,372.38 to [the victim] and
$343,173.40 to the government,” id., but “[t]he government
reserved the right in the plea agreement to argue for additional
restitution for [the victim corporation’s] ‘lost opportunity’
costs for [certain embezzled] shares, investigation costs, and
prejudgment interest.” Id. Despite this reservation of rights by
the government and the waiver by the defendant, we held that
Gordon’s plea agreement did not bar his appeal of the portions of the restitution order requiring Gordon to pay amounts
not set forth in the plea agreement. Id. at 1050. We explained
that “Gordon’s plea agreement was unclear about exactly
what the amount of actual damages would be for such contested issues as the embezzled . . . shares, prejudgment interest and investigation costs . . . [so] Gordon . . . did not waive
his right to appeal these contested amounts.” Id. at 1050 (quotation omitted); see also United States v. Phillips, 174 F.3d
1074, 1076 (9th Cir. 1999) (holding an appeal waiver ineffective because “the plea agreement [was] ambiguous regarding
the amount of restitution”).
[3] Tsosie’s plea agreement did not set forth any specific
amount of restitution that Tsosie could be required to pay, or
even any estimate of that amount. Because the plea agreement
did not set forth the amount of restitution Tsosie would be
ordered to pay, or a reasonable and fairly accurate estimate
thereof, Tsosie “lacked sufficient notice to waive his right to
appeal the restitution award.” Gordon, 393 F.3d at 1050.
The government maintains that Gordon and Phillips are not
controlling because they involved restitution orders issued
pursuant to 18 U.S.C. § 3663 and § 3663A, not § 2248, the
restitution provision applicable here. In the government’s
view, the outcomes in those cases are explained not by general principles of when a defendant can knowingly waive
appeal of a restitution order, but instead by specific provisions

Case: 10-10030 05/10/2011 Page: 9 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

6209

in § 3663 and § 3663A requiring a defendant to have notice
as to the amount of restitution to be ordered to non-victims
under those statutes for the defendant to waive his appeal of
the restitution order. The government maintains that, because
those provisions have no analog in § 2248, the notice requirements discussed in Gordon and Phillips do not apply here.
The government misreads the statutes and our precedents.
Section 3663(a)(1)(A) provides, in part, that “[t]he court may
also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.” 18
U.S.C. § 3663(a)(1)(A). Section 3663A(a)(3) provides, for its
part, that “[t]he court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the
victim of the offense.” Id. § 3663A(a)(3). These provisions
deal with a sentencing court’s power and discretion to order
restitution to non-victims, not with whether notice of the
amount of restitution must be provided to waive appeal of a
restitution order. As a result, these provisions may be relevant
to determining whether a restitution order is an illegal sentence as to which an appeal waiver is not effective, cf. United
States v. Broughton-Jones, 71 F.3d 1143, 1147-48 (4th Cir.
1995), but they are not helpful in determining whether the
waiver itself was knowing, the issue as to which Phillips and,
in particular, Gordon are dispositive in this case.5 As to that
question, there is no relevant textual difference between
§ 2248 and the other two restitution provisions, so the reasoning of Phillips and Gordon controls, even though restitution
here was ordered pursuant to § 2248.
5

United States v. Broughton-Jones, 71 F.3d 1143 (4th Cir. 1995), held
that the appeal waiver in that case was knowing, before then deciding that
it would consider the appeal in light of the “illegal sentence” exception to
the general rule that courts enforce knowing and voluntary plea waivers.
Id. at 1146-47. For that reason, contrary to the government’s suggestion
at oral argument, Broughton-Jones is of no help in interpreting Gordon’s
and Phillips’s conclusions that the appeal waivers in those cases were not
knowing.

Case: 10-10030 05/10/2011 Page: 10 of 22

6210

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

Our cases also lend no support to the government’s argument. Neither Gordon nor Phillips cites § 3663(a)(1) or
§ 3663A(a)(3).6 Indeed, the portions of the restitution order
appealed in Gordon did not even involve restitution to a nonvictim, which excludes the possibility that the relevant portion
of § 3663(a)(1) or § 3663A(a)(3) somehow lurks sub silentio
behind that case’s holding, as we would be required to believe
to accept the government’s reading of the case.
[4] Although Gordon and Phillips did not explain why
some precision in the plea agreement is necessary to have a
knowing appeal waiver, this case illustrates one reason for the
requirement. Unlike terms of imprisonment, which have statutory maximums and are meted out by judges aided by the
Sentencing Guidelines, there is neither a statutory limit nor
any guidelines covering the amount of restitution orders, and
they may, as here, depend on a request or submission by a
third party. A defendant and his attorney will frequently be
unable to predict whether there will be such a request and, if
so, in what amount. As a result, in many cases, a defendant
will plead guilty, as Tsosie appears to have done here, believing that he will not owe any restitution, when, in fact, the sky
is the only limit to his potential exposure. This possibility
explains why Gordon and Phillips require a plea agreement to
set forth the amount of restitution to which a defendant is
exposed for the defendant to be able knowingly to waive his
appeal of the restitution order.
[5] In sum, we conclude that Tsosie’s waiver of appeal is
ineffective as to the restitution order and so will consider his
challenges to that order on their merits.
6

Phillips does discuss a similar provision, § 3663(a)(3), which provides
that a “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), but
does not rely on it in deciding that the appeal waiver was not knowing. See
174 F.3d at 1076-77.

Case: 10-10030 05/10/2011 Page: 11 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

III.

6211

WHETHER THE COSTS WERE INCURRED BY
THE VICTIM

[6] “Federal courts have no inherent power to award restitution, but may do so only pursuant to statutory authority.”
United States v. Follet, 269 F.3d 996, 998 (9th Cir. 2001).
Title 18 U.S.C. § 2248 both empowers and requires a court to
order certain sex offenders to pay “the full amount of the victim’s losses.” 18 U.S.C. § 2248(b)(1). “The full amount of the
victim’s losses” are defined as “any costs incurred by the victim” for, among other things, “necessary transportation,”
“medical services relating to physical, psychiatric, or psychological care,” and “any other losses suffered by the victim as
a proximate result of the offense.” Id. § 2248(b)(3).
In Follet, this Court held that § 2248 did not authorize a
court to order a defendant to pay restitution to a counseling
facility that had provided free care to his victim. 269 F.3d at
1000. We explained that “[a] cost for which the victim will
never have to pay because the services will be provided
directly by a governmental or charitable organization is not
‘incurred’ by the victim, even if that organization will incur
costs for the benefit of the victim.” Id.; see 18 U.S.C.
§ 2248(b)(3) (defining the losses subject to restitution as those
“costs incurred by the victim”). Tsosie argues that the victim’s mother’s driving expenses were likewise not “incurred
by the victim,” and therefore are not permitted by the statute.
We cannot agree.
[7] Section 2248(c) defines “victim” as:
the individual harmed as a result of a commission of
a crime under this chapter, including, in the case of
a victim who is under 18 years of age, incompetent,
incapacitated, or deceased, the legal guardian of the
victim or representative of the victim’s estate,
another family member, or any other person
appointed as suitable by the court, but in no event

Case: 10-10030 05/10/2011 Page: 12 of 22

6212

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

shall the defendant be named as such representative
or guardian.
18 U.S.C. § 2248(c). This definition is not a model of legislative drafting. Nonetheless, it seems apparent enough that the
purpose of the definition’s reference to “legal guardians” is to
permit restitution of costs that legal guardians of minor victims, acting in their capacity as legal guardian, incurred as a
result of an offense.
[8] Of course, statutory text, not judicial intuitions of statutory purpose, is the starting point of statutory analysis. The
text of § 2248(c) is open to at least one of two readings. On
the first reading, urged by the government, the definition is
something of a blunt instrument: The statute “includ[es]” a
legal guardian within the definition of “victim”; therefore any
loss incurred by the legal guardian of a minor as a result of
an offense is subject to restitution. On this reading, if the victim’s legal guardian became depressed upon learning of the
offense and so had to attend counseling sessions, the cost of
that counseling would be subject to restitution. On the other,
narrower, reading, the provision permits restitution only of
those costs incurred by a legal guardian acting in her capacity
as legal guardian—in other words, costs she incurred on
behalf of the minor. Thus, for example, a legal guardian who
paid for her son’s medical treatment would be entitled to restitution of those costs, but she could not expect to recover the
income she lost when she took a day off work because she
was too distraught by her son’s victimization to show up at
the office.
While common sense favors the latter reading, we need not,
and do not, decide whether the statute is thus limited. On
either of the two possible readings of § 2248(c), the mother’s
travel expenses may be subject to restitution.
[9] On the blunt reading, there is, unsurprisingly, little
need for finesse: The mother is the legal guardian of the vic-

Case: 10-10030 05/10/2011 Page: 13 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

6213

tim, and therefore she may recover her travel expenses so
long as they were proximately caused by the offense.7 If the
narrower reading is the correct one, a more tortuous path must
be followed, but it leads us to the same place: The mother
maintains she made the trips to Flagstaff because the victim’s
behavioral health counselor ordered them as part of a treatment plan that, according to the affidavit of the victim’s counselor, required “the minor crime victim [to have the] added
emotional support of a loved family member to assist in the
recovery process.” The mother therefore traveled to Flagstaff
in her capacity as a “loved family member.” A “loved family
member” is, of course, not the same thing as a “legal guardian.” But if the mother had paid a different loved family member to make the trips (say, the victim’s grandfather), she
would be entitled to restitution: She would have made the
payments on her daughter’s behalf in her capacity as her
daughter’s legal guardian, much as if she had paid medical
bills on her daughter’s behalf in that capacity. The fact that
the mother made the trips herself rather than paying another
family member to make the trips should not disentitle her to
restitution of the expenses associated with the trips.
[10] We therefore conclude that even if the mother made
the trips in her capacity as a loved family member, she
incurred the costs of the trips in her capacity as legal guardian
—that is, she incurred them on behalf of her daughter. On the
narrower reading, then, we end up in the same place as we did
on the blunt one. We therefore need not select between them
to conclude that the mother’s travel expenses may have been
“incurred by the victim” within the meaning of 18 U.S.C.
§ 2248(b)(3).
7

As the parties have not raised the issue, we do not consider whether the
expense of regularly traveling the 150-mile distance between the daughter’s boarding school and the mother’s residence was a sufficiently foreseeable result of Tsosie’s crime to have been incurred as “a proximate
result of the offense.” 18 U.S.C. § 2248(b)(3).

Case: 10-10030 05/10/2011 Page: 14 of 22

6214

IV.

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

TSOSIE’S EVIDENTIARY AND PROCEDURAL
CHALLENGES

Tsosie mounts an additional challenge to the restitution
order: He asks us to vacate the order on the ground that it
lacked an adequate evidentiary basis and that the District
Court insufficiently explained its reasons in issuing the order.
We agree, and so vacate the order and remand for the District
Court to permit the introduction of additional evidence, to
reassess in light of that evidence whether to award the
requested restitution, and to explain its reasoning in making
that assessment.
In issuing the restitution order, the District Court was
obliged to comply with the procedures set forth in 18 U.S.C.
§ 3664. See 18 U.S.C. § 2248(b)(2). Section 3664(e) provides,
in part, that “[a]ny dispute as to the proper amount or type of
restitution shall be resolved by the court by the preponderance
of the evidence,” and that the “burden of demonstrating the
amount of the loss sustained by a victim as a result of the
offense shall be on the attorney for the Government.” Id.
§ 3664(e). In United States v. Gamma Tech Industries, Inc.,
265 F.3d 917 (9th Cir. 2001), we read the burden language
less than literally, explaining that “[s]o long as the district
court orders defendants to pay restitution only after someone
proves the amount by a preponderance of the evidence, there
is no reason a non-party . . . can’t carry the burden.” Id. at 924
(emphasis in original).
We have understood § 3664 to impose a number of related
obligations on a district court issuing a restitution award. For
one, we have viewed § 3664 as “contemplat[ing] that the district court will set forth an explanation of its reasoning, supported by the record, when a dispute arises as to the proper
amount of restitution.” United States v. Waknine, 543 F.3d
546, 556 (9th Cir. 2008).
In addition, we have understood § 3664(e)’s mandate that
“[a]ny dispute as to the proper amount or type of restitution

Case: 10-10030 05/10/2011 Page: 15 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

6215

shall be resolved by the court by the preponderance of the evidence” as requiring that the evidence supporting a district
court’s restitution order meet a threshold level of adequacy.
For that reason, in Waknine, we reversed a restitution order
that was based only on “one-page loss summaries” provided
by victims in affidavits, even though the defendant had not
introduced evidence challenging the affidavits. Id. at 557. In
so ruling, we explained that “the government [had] offered
insufficient evidence to prove that it [was] more likely than
not that the victims lost the amounts listed in . . . the[ ] summaries.” Id. at 557; see also id. (explaining that “a district
court may only utilize evidence that possesses sufficient indicia of reliability to support its probable accuracy” (quotation
omitted)); United States v. Andrews, 600 F.3d 1167, 1172
(9th Cir. 2010) (holding that a restitution order violated 18
U.S.C. § 3664(e) because it was issued in exclusive reliance
on the victim’s evidence as to causation, and the defendant’s
expert witness was not allowed to testify). As these precedents make clear, § 3664(e)’s reference to a “preponderance
of the evidence” requires that, when there is a dispute as to
restitution, a restitution order must be supported by evidence
in the record showing that it is more likely than not that the
defendant’s offense proximately caused the losses for which
restitution was awarded and that it did so in the amounts
awarded.
[11] In sum, 18 U.S.C. § 3664 requires both that a district
court set forth its reasons in resolving a dispute over restitution and that a restitution award, if one issues, be adequately
supported by evidence in the record. We conclude that the
District Court’s restitution order violated both these requirements.
[12] First, the parties disputed the proper amount of restitution, but the District Court set forth no explanation of its
reasoning. At the sentencing hearing, Tsosie questioned
whether “sufficient evidence has been provided” to order restitution of the travel expenses. He argued that many of the

Case: 10-10030 05/10/2011 Page: 16 of 22

6216

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

trips listed on the spreadsheet may not have been made pursuant to the counselor’s treatment plan or been otherwise caused
by Tsosie’s offense. After expressing these concerns, Tsosie
requested a restitution hearing and that “further documentation be provided.”
The District Court did not respond to any of these objections or requests. Instead, after asking to view the spreadsheet,
the District Court stated only: “All right. I’ll overrule the
objections and grant the amount of restitution requested.”
That’s it. In short, the District Court did nothing to explain its
reasoning in deciding to award restitution or in calculating the
size of the award.
True, the amount of restitution ordered corresponds precisely to the amount the victim’s mother claimed on the
spreadsheet for travel costs, so it is easy to reconstruct how
the District Court arrived at that figure. Thus, there is some
merit to the government’s contention that it would be artificial
to require the District Court expressly to state that it relied on
the spreadsheet.
[13] But the spreadsheet alone is not enough to support the
restitution award. As an initial matter, no sworn statement in
the record supports the spreadsheet. Aside from the spreadsheet itself, the only pertinent evidence in the record is an
unsworn letter from the victim’s mother containing only the
vague statement that she had “had to travel to Flagstaff to
visit or bring home my daughter every weekend at the request
of counselors and doctors,” and the affidavit from the victim’s
mental health counselor, stating that she instructed the mother
to visit her daughter on a weekly basis, but not reporting that
the mother actually made the trips or indicating the distance
of the trips or the mode of transportation used. The PSR offers
no support either. To the contrary, it states that the probation
office “was unable to determine [that the travel expenses
were] directly related to the instant offense,” and so recommended that they not be awarded.

Case: 10-10030 05/10/2011 Page: 17 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

6217

In addition to being unsupported by any sworn affidavit,
the spreadsheet contained a number of oddities that the District Court did not acknowledge. For one, almost all of the
trips are listed as “RT” (presumably meaning “round trip”),
but approximately half are listed as 300 miles and the other
half are listed as 600 miles. The 600 mile trips are accompanied by the cryptic annotation “600 Miles RT (2),” and a note
reading “Victim checked out to go home (Kaibeto) and go bac
[sic] (Flagstaff)”. One is likely supposed to understand that
the mother made two round trips between Kaibeto and Flagstaff on the same day, but it is unclear why such double round
trips would be part of the victim’s treatment plan, let alone so
frequent. Driving 600 miles on a single day would have
allowed the victim hardly any time at home, and seems a
strange way to provide the “emotional support” of a loved
family member. Further, some of the driving expenses on the
spreadsheet have nothing to do with the “treatment plan.”
Most of the expense entries are followed by an asterisk, indicating that the expense was incurred “Per Northern Arizona
Healthcare Treatment Plan in conjunction with school psychologist.” But a number of entries are not followed by the
asterisk, including various trips to the hospital (quite possibly
for the gallbladder treatment the victim underwent), as well as
such items as “drove victim back to school” at the beginning
of the school year. In addition, the entry for one trip states
“Took Bus,” yet the mileage for the trip is still calculated at
the IRS rate for a private vehicle. Finally, the counselor’s affidavit states that she instructed the mother to visit her daughter
“each weekend,” yet the spreadsheet includes some trips
occurring within the same week as one another.
[14] Because it was not supported by any affidavit explaining how the trips and charges were part of the prescribed
treatment plan, and because many of the expenses are difficult
to interpret or seem inappropriate, the spreadsheet was an
inadequate evidentiary basis to support the restitution award.
The spreadsheet was “insufficient evidence to prove that it is
more likely than not that the victim[ ] lost the amounts” for

Case: 10-10030 05/10/2011 Page: 18 of 22

6218

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

which restitution was ordered as a proximate result of Tsosie’s offense. Waknine, 543 F.3d at 557. We also conclude
that, especially in light of the spreadsheet’s deficiencies, the
District Court failed to “set forth an [adequate] explanation of
its reasoning, supported by the record.” Id. at 556. We temper
our holding with the observation that, because district courts
possess “a degree of flexibility in accounting for a victim’s
complete losses,” id. at 557, a different question would be
presented had the district judge acknowledged the spreadsheet’s deficiencies and then set forth why he nonetheless
thought the spreadsheet was an adequate evidentiary basis to
support the restitution award.
V.

CONCLUSION

[15] For the foregoing reasons, the restitution order is
VACATED. We REMAND this case to allow the District
Court to reassess whether Tsosie must pay restitution and, if
so, the amount of such restitution. In doing so, it should consider Tsosie’s objections to the restitution requested and permit him to enter contrary evidence, holding an evidentiary
hearing if one proves necessary after documentary submissions. The District Court should also provide a statement of
its reasoning in determining whether to order restitution and
in calculating the amount of any restitution ordered.
VACATED and REMANDED.

BEA, Circuit Judge, concurring in part and dissenting in part:
I join Parts I through III of the majority opinion. This circuit’s case law requires that we hold Tsosie did not waive his
right to appeal the restitution order because he was not aware
of the restitution amount at the time he entered the plea agreement on the child molestation charges. United States v. Gordon, 393 F.3d 1044, 1050 (9th Cir. 2004). Further, the

Case: 10-10030 05/10/2011 Page: 19 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

6219

victim’s mother in this case may receive restitution under 18
U.S.C. § 2248. In Part IV, however, the majority holds the
district court erred in awarding restitution based on a detailed
spreadsheet from the victim’s mother to which the defendant
never objected, save for a vague statement by defense counsel
that “sufficient evidence ha[d] [not] been provided.” To this
holding, I respectfully dissent.
A district court’s restitution order is reviewed for abuse of
discretion. Gordon, 393 F.3d at 1051. As noted by the majority, the amount of restitution must be proven by a preponderance of the evidence. 18 U.S.C. § 3664(e). In this case, the
only evidence presented as to the proper amount of restitution
was a detailed, 11-page spreadsheet provided by the victim’s
mother and included as part of the Presentence Investigation
Report (“PSR”). As conceded by counsel at oral argument in
this court, Tsosie had received the spreadsheet at issue over
a week before the sentencing hearing in the district court, yet
filed no objection or contrary evidence. At the sentencing
hearing, defense counsel confirmed he had reviewed the PSR.
The district court judge asked whether defense counsel
believed there were “[a]ny errors or objections in that report.”
Defense counsel responded: “No, Your Honor.” At sentencing, upon the victim’s mother’s request for restitution, defense
counsel stated:
Your Honor, I don’t believe the request is appropriate in this case. I certainly don’t believe sufficient
evidence has been provided. We have received a list
of travel but I would imagine that there would be
some visitation on behalf of the mother, at least I
would like to believe that, and that the child, at least
on occasion, would go home at least for holidays and
other occasions.
It was our understanding from reading the discovery that initially when these disclosures were made
that there was very little travel at least on the vic-

Case: 10-10030 05/10/2011 Page: 20 of 22

6220

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

tim’s part to go home and she had spent the majority
of the time at the school that she was living [sic].
Your Honor, if the Court’s inclined to impose that
amount of restitution, we would ask that a hearing be
set and further documentation be provided.
This is not an objection to the spreadsheet’s authentication,
relevancy, foundation, or specificity. Instead, this is simply an
“objection” to the weight of the evidence. Tsosie did not make
an offer of proof as to what might be shown in an evidentiary
hearing. Indeed, Tsosie provided the district court with no
reason to doubt the veracity of the itemized spreadsheet provided by the victim’s mother.
The majority hangs its hat on the fact that “the spreadsheet
contained a number of oddities that the District Court did not
acknowledge.” Maj. Op. at 6217. As an initial matter, and
most importantly, none of these purported oddities were ever
raised in the district court as a reason for rejecting the victim’s mother’s spreadsheet. A district court can hardly be
faulted for failing to acknowledge oddities which were mentioned for the first time on appeal. Second, the majority
indulges in appellate fact-finding on a cold record. We have
been told repeatedly that fact-finding is the trial court’s province. See, e.g., Rice v. Collins, 546 U.S. 333, 339-42 (2006);
Li v. Ashcroft, 378 F.3d 959, 964 n.1 (9th Cir. 2004) (“My
brother and I differ on what is the appropriate appellate function. He would retry. I am content to review.”).
The majority points out that approximately half of the trips
were 600 miles, and that the description implies that—on a
single day—the mother picked her daughter up from school,
drove her home, and then returned the daughter to her school.
The majority contends that “[o]ne is likely supposed to understand that the mother made two round trips . . . on the same
day,” which is a “strange way to provide ‘emotional support’
of a loved family member.” Maj. Op. at 6217. The simpler,

Case: 10-10030 05/10/2011 Page: 21 of 22

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

6221

and more likely answer, however, is that on these weekends,
the mother drove to the daughter’s school in Flagstaff and
brought the victim home to Kaibeto at the beginning of the
weekend, and then drove the daughter back to school at the
end of the weekend, but made only one entry in the spreadsheet. This conduct is entirely consistent with the treatment
plan’s terms, which “ordered that the minor’s mother to [sic]
travel to her daughter’s dorm, pick up her daughter or visit her
daughter at the dorm each weekend.” The district court could
have so found without being “illogical, implausible, or without support in inferences that may be drawn from facts in the
record.” United States v. Hinkson, 585 F.3d 1247, 1251 (9th
Cir. 2009) (en banc), cert. denied, ___ S.Ct. ___, 2011 WL
1457546 (Apr 18, 2011).
The majority next notes that several of the entries should
not have been included as part of the restitution award, specifically: (1) several entries which were not followed by an
asterisk indicating that the expense was incurred as part of the
treatment plan; (2) one entry which states the victim took a
bus, yet the trip mileage was calculated at the IRS rate for a
private vehicle; and (3) some trips that occurred more than
weekly—the frequency for which the treatment plan called.
Maj. Op. at 6217. The majority overemphasizes the effect of
these discrepancies. The spreadsheet as a whole contained
139 entries covering 62,420 miles. These “problem” entries
accounted for only 19 entries and 6,620 miles. It is no wonder
the district court did not recognize these “oddities” when
presented with a spreadsheet to which no party objected, considering Tsosie did not even mention them until his appeal to
this court.
The spreadsheet provided by the victim’s mother was
highly detailed, recounting trips to visit her daughter over the
course of five years. One would expect a few inaccuracies or
confusing entries. Tsosie failed to object to the spreadsheet
prior to sentencing, objected at sentencing only to the spreadsheet’s weight, presented no countervailing evidence to cast

Case: 10-10030 05/10/2011 Page: 22 of 22

6222

ID: 7746081 DktEntry: 41-1

UNITED STATES v. TSOSIE

doubt on the veracity of the spreadsheet, and pointed out none
of the “oddities” now recognized on appeal. Cf. United States
v. Andrews, 600 F.3d 1167, 1172 (9th Cir. 2010) (holding the
district court abused its discretion in ordering restitution when
it rejected contrary evidence provided by the defendant).
Given this, the district court did not abuse its discretion in
concluding the spreadsheet “possesse[d] sufficient indicia of
reliability to support its probable accuracy” and was adequate
to establish the victim’s mother’s loss by a preponderance of
the evidence. United States v. Waknine, 543 F.3d 546, 556-57
(9th Cir. 2008) (internal quotation marks omitted). I would
affirm the district court’s restitution order, and therefore I dissent.