United States v. Sizemore

• Decision Date: 08 March 2017
• Docket Number: No. 16-5700,16-5700
• Citation: 850 F.3d 821
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joshua Michael SIZEMORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

850 F.3d 821

UNITED STATES of America, Plaintiff-Appellee,

v.Joshua Michael SIZEMORE, Defendant-Appellant.

No. 16-5700

United States Court of Appeals, Sixth Circuit.

Decided and Filed: March 8, 2017

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.

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

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 .

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 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 (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 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

...