U.S. v. Serawop, 06-4022.

• Citation: 505 F.3d 1112
• Decision Date: 25 October 2007
• Docket Number: No. 06-4022.,06-4022.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Redd Rock SERAWOP, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

505 F.3d 1112

UNITED STATES of America, Plaintiff-Appellee, v. Redd Rock SERAWOP, Defendant-Appellant.

No. 06-4022.

United States Court of Appeals, Tenth Circuit.

October 25, 2007.

G. Fred Metos, McCaughey & Metos, Salt Lake City, UT, for Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (with Stephen J. Sorenson, Acting United States Attorney, on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before KELLY, HENRY, and ALARCÓN,^* Circuit Judges.

HENRY, Circuit Judge.

Redd Rock Serawop was convicted of one count of voluntary manslaughter in the death of his three-month-old daughter Beyoncé Serawop. The court sentenced Mr. Serawop to 120 months' imprisonment and ordered him, under the Mandatory Victims' Restitution Act, 18 U.S.C. § 3663A ("MVRA"), to pay $325,751 in restitution to the Estate of Beyoncé Serawop. Mr. Serawop appeals the restitution order. We affirm.

I. BACKGROUND

The following background is undisputed. Mr. Serawop was indicted for second-degree murder under 18 U.S.C. § 1111(a) following the death of his three-month-old daughter, Beyoncé, in Indian Country. A jury convicted him of the lesser-included offense of voluntary manslaughter.

The district court sentenced Mr. Serawop to 120 months' imprisonment and ordered restitution in the amount of $1,509 to be paid to the Ute Indian Tribe for burial (this amount is not in dispute). The district court determined it would aggressively approach other restitution issues in this case and found that it needed additional time to make a final determination of Beyoncé's income lost to calculate the restitution Mr. Serawop would pay to her estate.

Prior to sentencing, the district court, citing its power to "require additional documentation or hear testimony," 18 U.S.C. § 3664(d)(4), sua sponte appointed economist Dr. Paul A. Randle, at a cost of $100 per hour, to prepare a report regarding the victim's possible lost income for purposes of calculating restitution under 18 U.S.C. § 3663A. Rec. vol. I, doc. 69, at 7, 21-22 (Dist. Ct. Order, filed Feb. 14, 2004). The district court associated this case with United States v. Bedonie, 2:02-CR-00690-PGC (D.Utah), in which it had also appointed Dr. Randle to calculate the lost income of a homicide victim.¹

Mr. Serawop and the government objected to the appointment of Dr. Randle. Specifically, Mr. Serawop challenged the district court's authority to appoint an expert where no person had lost a source of financial support, such as the victim's spouse or children. The government argued that determination of the victim's lost income "is simply too speculative regarding a three month old infant . . . [and] the United States would be unable to sustain its burden of proof for a finding of restitution based on lost wages." Rec. vol. I, doc. 68, at 1-2. Concluding "that there is a reasonable argument for the imposition of restitution for a deceased victim's lost future income under the [MVRA]," the government subsequently withdrew its objection to the court's appointment of an expert. Rec. vol. I, doc. 79, at 1-2.

Dr. Randle's first report projected Beyoncé's lost income assuming that (1) as a woman, she would have worked fewer years than a man; and (2) as an American Indian, she would have earned substantially less than a Caucasian. He projected that had she not obtained a high school diploma the present value of her lifetime earnings would be $171,366; had she obtained a high school diploma the present value of her lifetime earnings would be $251,148; and that had she attended some college, that number would be $273,000. Rec. vol. VII, at 24.

The district court ordered Dr. Randle to prepare a second report that did not include reductions based on gender or race. Dr. Randle's revised assessments indicate that Beyoncé's projected lifetime earnings were $308,633 without a high school diploma, $511,623 with a high school diploma, and $576,106 with some college education. 317 F.Supp.2d 1285, 1314-15 (D.Utah 2004).

At sentencing and in its order, the district court interpreted the MVRA to apply to Mr. Serawop, because Beyoncé, as the "victim" of a homicide, had been "directly and proximately harmed." Id. at 1299 (quoting 18 U.S.C. § 3663A(a)(2)); id. at 1302-05. As such, the court determined that the statute required it to order Mr. Serawop to pay restitution for Beyoncé's lost income in the wake of her death. Id. at 1305. The district court rejected Mr. Serawop's suggestions that the calculation of Beyoncé's potential future lost income was speculative at best, because it would not have accrued until about eighteen years after her death.

The court also rejected Mr. Serawop's argument that the phrase "reimburse the victim for income lost" necessarily implied payment for losses that had already occurred. Instead, the court held that the phrase "income lost as a result of such offense" supported an award of future lost income because "[i]ncome losses that `result' from an offense are necessarily losses that occur at some future time." Id. at 1306 (quoting 18 U.S.C. § 3663(a)(2)(C) (emphasis added)). Finding nothing ambiguous about the MVRA, and relying on Tenth Circuit precedent that the statute is not punitive, the district court also refused to apply the rule of lenity.

The court proceeded to review Dr. Randle's testimony and relied upon selected parts of his reports. For example, despite Dr. Randle's testimony that standard industry practice would take into account a victim's gender and race, the district court chose to rely on the gender- and race-neutral statistics provided in the second report to calculate Beyoncé's actual lost income. The court found that, "[a]s a matter of fairness, the court should exercise its discretion in favor of victims of violent crime and against the possible perpetuation of inappropriate stereotypes," particularly "where the defendants have deprived their victims of the chance to excel in life beyond predicted statistical averages." Id. at 1319.

Over objections from both parties, the court also refused to reduce the restitution award to reflect Beyoncé's projected personal consumption. The court determined that the "MVRA does not permit a consumption reduction." Id. at 1324. Because "[t]he court's restitution decision is governed by the MVRA," the language of the statute controls. Id. "The statute mandates restitution for `income lost'—not `net income lost.'" Id. The district court concluded that an award of gross income lost did not produce "any kind of excessive restitution" in part because the award was not a recovery for an estate, as in a civil suit, but rather because it was recovery for the deceased victims. Id. at 1325.

The court ultimately adopted Dr. Randle's gender—and race-neutral estimate that Beyoncé would earn $308,633 if she were employed "with less than a high school education, beginning at age 17, for the balance of her worklife." Id. at 1322. The district court added $17,118 to reflect the present value of her tribal stipend of at least $80 per month, which Beyoncé would have received from her tribe during her lifetime, and which is not in dispute. The court arrived at a lost income restitution amount of $325,751. Id.

In a prior appeal, Mr. Serawop challenged the jury instructions, the restitution award and other aspects of his sentencing. This court did not reach the sentencing issues because it held that the jury had been improperly instructed as to the elements of voluntary manslaughter. We reversed and remanded for a new trial. 410 F.3d 656 (10th Cir.2005).

On remand, Mr. Serawop pleaded guilty to a superseding felony information alleging voluntary manslaughter in exchange for a 96-month sentence under Rule 11(c)(1)(C). At sentencing, the district court imposed the stipulated sentence of 96 months' imprisonment and again ordered Mr. Serawop to pay $325,751 in restitution to Beyoncé's estate for her future lost income.

In a separate written order, the district court adopted its earlier memorandum opinion on restitution and incorporated it into the order. Rec. vol. I, doc. 144 at 2. The district court suggested that its restitution award might actually understate Beyoncé's projected lifetime earnings because Dr. Randle had calculated her earnings from the date of the original sentencing hearing, rather than from the date of her death, and because the "calculations are based on discount rates and inflation rates that arguably are slightly outdated." Id. at 3. However, since neither the victim nor either party had requested that the court recalculate the amount, the court chose to "rely on Dr. Randle's earlier information in imposing the award." Id. The court noted that Mr. Serawop "preserved all of his objections to the restitution order that he raised during the first sentencing." Id. at 2.

In this appeal, Mr. Serawop challenges the restitution award as it relates to Beyoncé's future lost income.

II. DISCUSSION

Mr. Serawop argues that we must reverse the restitution order because the statute (1) is written in the disjunctive so as not to encompass an award of future income; (2) is meant to "reimburse" for past income lost, rather than project potential future income lost; (3) is ambiguous and is thus subject to the rule of lenity, which would resolve any ambiguity in favor of Mr. Serawop; (4) does not apply to speculative losses; and finally (5) requires that gender—and race-based statistics and consumption be included in the calculation. As will become apparent, we disagree.

A. Standard of review

We consider de novo the district court's application of the MVRA, and we review the district court's factual findings for clear error and the amount of restitution for abuse of discretion. See United States v. Visinaiz, 428 F.3d 1300, 1316 (10th Cir. 2005); United States v. Wilson, 416 F.3d 1164, 1170 (10th Cir.2005). "An abuse of discretion occurs when, for example, the trial court fails to consider the applicable legal standard...