FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF OKLAHOMA (D.C. NO. 6:18-CR-00045-RAW).
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
TYMKOVICH, Chief Judge, BALDOCK, and EID, Circuit Judges.
Tymkovich, Chief Judge.
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.
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
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).
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.
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
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.
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, ...