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United States v. Mendenhall

United States Court of Appeals, Tenth Circuit

December 23, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
STONEY RAY MENDENHALL, Defendant-Appellant.


          Barry L. Derryberry, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, and Whitney R. Mauldin, Assistant Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Northern and Eastern Districts of Oklahoma, Tulsa Oklahoma, for Appellant.

          Gregory Dean Burris, Assistant United States Attorney (Brian J. Kuester, United States Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Appellee.

          Before TYMKOVICH, Chief Judge, BALDOCK, and EID, Circuit Judges.

          Tymkovich, Chief Judge.

         This case requires us to consider the appropriate scope of an order of restitution. Relying on controlling Supreme Court precedent, we conclude that Congress has authorized restitution only "for the loss caused by the specific conduct that is the basis of the offense of conviction." Hughey v. United States, 495 U.S. 411, 413 (1990). In ordering restitution for losses related to, but not arising directly from, defendant's offense of conviction, the district court exceeded the range of restitution authorized by the Mandatory Victims Restitution Act. Accordingly, we reverse.

         I. Background

         In 2018, a burglar broke into H&H Pawn Gun & Tool (H&H) and stole a substantial amount of property. An inventory revealed that 62 firearms were among the property stolen. Of the 62 firearms, only 13 to 15 were eventually recovered.[1]

         A subsequent investigation by the sheriff's office and the Bureau of Alcohol, Tobacco, Firearms and Explosives led to Stoney Ray Mendenhall. Numerous pieces of evidence suggest Mendenhall committed the burglary. For example, an informant told investigators that Mendenhall had discussed details of how he accomplished the burglary. Indeed, even Mendenhall's mother told investigators she had seen him in possession of two firearms matching the descriptions of stolen firearms and that she believed Mendenhall was somehow involved in the burglary. For his part, Mendenhall does not meaningfully dispute this evidence. See Aplt. Br. at 10 (conceding that "the record supports a finding that [Mendenhall] caused property damage and other collateral damage" to H&H).

         Notwithstanding this evidence and for reasons not stated in the record, Mendenhall was not charged with burglary. Instead, in a single-count indictment, a grand jury only charged Mendenhall with "knowingly possess[ing], receiv[ing] and conceal[ing] a stolen firearm" in violation of 18 U.S.C. §§ 922(j), 924(a)(2). R. Vol. I at 7. The indictment states this violation occurred with respect to three firearms, each of which is identified by serial number therein. All three of the firearms listed were recovered and returned to H&H.

         Mendenhall pleaded guilty to knowingly possessing and concealing the firearms listed on the indictment. In the plea colloquy, he did not go further and accept guilt for the burglary or other related acts.

         The PSR calculated the advisory sentencing range by incorporating certain upward adjustments of Mendenhall's base offense level due to the fact that "the offense[] involv[ed] 25-99 firearms" and the fact that Mendenhall "us[ed] or possess[ed] any firearm . . . in connection with another felony offense." R. Vol. III at 9. The PSR also recommended mandatory restitution to H&H pursuant to 18 U.S.C. § 3663A in the amount of $33, 763.23 for "the loss of firearms not recovered, wages for employees to conduct inventory, loss of revenue for closing of business (historical average of Saturdays and Mondays), and cleanup/repairs." Id. at 14. Mendenhall did not object to any provision of the PSR at sentencing. The district court sentenced Mendenhall to 34 months' imprisonment followed by three years of supervised release and ordered Mendenhall to pay restitution to H&H in the amount recommended by the PSR.

         II. Analysis

         Mendenhall challenges the district court's restitution order as outside the bounds of what is authorized by 18 U.S.C. § 3663A. Generally, "[w]e review the legality of a restitution order de novo, the district court's factual findings for clear error, and the amount of restitution for abuse of discretion." United States v. Parker, 553 F.3d 1309, 1323 (10th Cir. 2009). Where the defendant has not properly preserved the issue below, ...

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