                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0075p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                 X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                     No. 07-4363
          v.
                                                  ,
                                                   >
                                                  -
                       Defendant-Appellant. -
 RICHARD K. BORING,
                                                  -
                                                N
                  Appeal from the United States District Court
                   for the Northern District of Ohio at Akron.
              No. 07-00108—Christopher A. Boyko, District Judge.
                               Argued: October 21, 2008
                         Decided and Filed: February 27, 2009
              Before: KEITH, MERRITT, and GIBBONS, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Gregory J. Rufo, RUFO LAW FIRM, Canton, Ohio, for Appellant. Phillip J.
Tripi, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
ON BRIEF: Gregory J. Rufo, RUFO LAW FIRM, Canton, Ohio, for Appellant. Phillip J.
Tripi, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       MERRITT, Circuit Judge. Defendant Richard Boring was convicted at trial of one
count of mail fraud, eight counts of worker’s compensation fraud, and one count of making
false statements to federal agents. See 18 U.S.C. §§ 1001, 1341, 1920. He appeals his
conviction and, in the alternative, two aspects of his sentence: his two-point enhancement
for obstruction of justice and the calculation of his restitution order. We affirm his
conviction, which is supported by sufficient evidence, and his enhancement for obstruction,



                                            1
No. 07-4363          United States v. Boring                                            Page 2


which follows logically from the jury verdict. But we reverse the restitution award and
remand the case for resentencing.

                                       I. Background

        Richard Boring was hired by the U.S. Postal Service as a letter carrier in April 1991.
One year later, he was elected as a union steward and, two years after that, chosen as
president of the union. In February 2001, he sustained injuries to his shoulders, back, neck,
and left elbow. A year later, he began a series of four surgical procedures, including the
removal of a bone spur from his right shoulder (February 2002), the removal of a bone spur
from his left shoulder (March 2002), the removal of a piece of collarbone from his right
shoulder (August 2003), and the arthroscopic removal of scar tissue (April 2004). Over the
course of these four years, Boring missed work for long periods and collected benefits under
the Federal Employees’ Compensation Act.

        When an employee is injured, the Postal Service’s policy is to offer that employee
a limited-duty assignment unless his injuries are so serious that they prohibit work
altogether. One of the principal disputes at trial concerned Boring’s failure to take a limited-
duty job. He contended that he would have accepted a limited-duty job but was never
offered one. The government contended that he was never offered one because he had
misled his doctor about what sorts of limited-duty positions were available (making those
positions sound more physically demanding than they really were), thereby inducing the
doctor to tell the Postal Service that Boring could not work at all. The government put on
evidence showing that, during the period when Boring was absent from even limited-duty
assignment like answering phones, he was coaching baseball and football, sometimes on a
volunteer basis and sometimes for a small salary. Video recordings showed him taking snaps
under center, throwing a pass, making a straight-arm block, and repositioning players. Other
video showed him putting a sling on his supposedly injured arm after realizing that a postal
investigator was videotaping him. He also completed (and submitted by mail) a series of
government forms on which he indicated that he had not worked, even as a volunteer, during
the time for which he was seeking benefits. And when asked by letter and in person whether
he engaged in any hobbies or sports, he said that he did not and stated that the only things
No. 07-4363         United States v. Boring                                            Page 3


he did while out of work were reading at home and going to physical therapy. These filings
and false statements form the basis of his prosecution for fraud.

                                       II. Discussion

A. Sufficiency of the Evidence

        When a court reviews the sufficiency of the evidence to support a criminal
conviction, “the critical inquiry . . . [is] to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 318 (1979). “[T]his inquiry does not require a court to ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id. at
318-19 (quotations omitted). Instead, the court should review the evidence “in the light most
favorable to the prosecution” and determine whether “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id. at 319.

        Boring challenges the sufficiency of the evidence on the element of intent. Because
intent to defraud is difficult to prove by direct evidence, “a jury may consider circumstantial
evidence of fraudulent intent and draw reasonable inferences therefrom.” United States v.
Davis, 490 F.3d 541, 549 (6th Cir. 2007) (quotations omitted). At trial, the jury was
presented with evidence indicating that: (1) Boring had been president of the union and
consequently understood the details of the worker’s compensation program; (2) he was
familiar with the restrictions placed on people receiving worker’s compensation; (3) from
a previous stint on limited duty (resulting from a back injury), he was aware of an array of
limited-duty jobs that were available; (4) he volunteered his time and earned a small salary
as a baseball and football coach while he was receiving worker’s compensation; (5) while
coaching, he was filmed throwing a football, taking snaps under center, repositioning
players, and performing a straight-arm block; (6) he was also filmed putting a sling on his
arm after discovering that he was being videotaped; (7) during this time, he was not
performing even limited work at the Postal Service; and (8) he indicated — on forms, in
response to a formal letter, and in person — that he was not engaged in any other
employment (including volunteer employment) and that he did not engage in any sports or
hobbies.
No. 07-4363         United States v. Boring                                            Page 4


        On appeal, Boring argues that it was the Postal Service’s duty to offer him a limited-
duty assignment — which he would have accepted if offered — and that the Postal Service’s
failure to do so vitiates any inference of criminal intent on his part. To support this, he
points to his own testimony at trial, where he stated that he had told his supervisor that he
would work a limited-duty assignment if it were offered to him and his doctor approved it,
but that his supervisor had refused to offer him one. However, the jury also heard testimony
from the supervisor, who directly contradicted Boring’s version of the conversation and
testified that he had asked Boring if he was able to answer phones, and that Boring had
replied that the doctor had ordered him not to work at all. The jury also heard from
Boring’s doctor, who testified that Boring had told him that the only limited-duty assignment
available was casing mail (an activity that involves filing mail into a large bookcase-like
structure), which the doctor concluded he could not do, and hence checked the “Off Work”
box on the form. (The prosecution charged Boring with one count of worker’s compensation
fraud based on this statement to his doctor, but the jury acquitted him on that charge.)

        When faced with conflicting testimony, “[t]he trier of fact, not the appellate court,
holds ‘the responsibility . . . fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts,’” Tibbs v.
Florida, 457 U.S. 31, 45 n. 21 (1982) (quoting Jackson, 443 U.S. at 319) (ellipsis in Tibbs),
and we are “loath to override [the factfinder’s] conclusion.” Davis, 490 F.3d at 550. Under
this “highly deferential standard,” id. at 549, we conclude that a rational trier of fact could
have found the existence of intent to defraud beyond a reasonable doubt based on the
evidence presented. Thus, Boring’s conviction is affirmed.

B. Addition of Two Points for Obstruction

        For a district court to impose an obstruction-of-justice enhancement to a defendant’s
sentence under § 3C1.1 of the Sentencing Guidelines, the court “must 1) identify those
particular portions of defendant’s testimony that it considers to be perjurious; and 2) either
make a specific finding for each element of perjury or, at least, make a finding that
encompasses all of the factual predicates for a finding of perjury.” United States v.
Lawrence, 308 F.3d 623, 632 (6th Cir. 2002). The elements of perjury are “false testimony
concerning a material matter with the willful intent to provide false testimony, rather than
No. 07-4363             United States v. Boring                                                     Page 5


as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S.
87, 94 (1993). A matter is considered material if it “would tend to influence or affect the
issue under determination” if believed. U.S.S.G. § 3C1.1 cmt n.6.

         At the sentencing hearing, the court identified the testimony that it considered to be
perjurious (the testimony about Boring’s conversation with his supervisor). It then made a
                                                                                        1
finding, albeit brief, that encompassed the factual predicates for perjury. That Boring’s
version of the conversation differed so substantially from his supervisor’s version, which
the judge and jury both believed, leads to the inference that the testimony’s falsity was
willful. It is also clear that the subject matter was material, since it directly concerned
one of the elements of the crime.

         When reviewing a sentence enhancement on appeal, we employ a three-pronged
standard. “First, we review the factual determinations made by the district court for
clear error. Second, the determination that certain conduct constitutes obstruction of
justice, which is a mixed question of law and fact, is reviewed de novo. Third . . . the
actual imposition of the enhancement is reviewed de novo.” United States v. Bagget,
342 F.3d 536, 540-41 (6th Cir. 2003) (citations omitted).

         On the first prong, the district court’s factual determinations were not clear error.
The finding that Boring’s testimony was false is supported by the record and by the
jury’s verdict. As the court noted at sentencing, the jury had to credit the supervisor’s
testimony and reject Boring’s in order to convict. On the second prong, the court’s
finding that the conduct constituted obstruction, which is reviewed de novo, is also
sound. As noted, the discrepancy between Boring’s testimony and his supervisor’s


         1
         In the relevant portion of the sentencing hearing, the judge discusses the conflicting testimony
between Boring and his supervisor, Mr. Wastler:
             The Court found Mr. Warstler to be very credible, straightforward. I believe the
             jury did in order to reach their conclusions. And what Mr. Warstler testified to was
             in direct contradiction to what the defendant testified. The jury would have had to
             disbelieve completely the defendant’s testimony to arrive at the verdicts. And I
             believe [the prosecutor] has a basis for making the argument for obstruction in the
             sense of it seemed like at every opportunity, it was either somebody else’s fault or
             a reason or many reasons why he couldn’t return to work, wouldn’t return to work.
             The Court will find obstruction of justice; add two.
Sentencing Tr., Oct. 23, 2007, at 31; J.A. 214.
No. 07-4363         United States v. Boring                                          Page 6


suggests that, if Boring’s testimony was false, it was almost certainly willfully so, rather
than the product of a faulty memory. And, again, it was on a material matter. Finally,
the imposition of the enhancement was correct: perjury is a form of obstruction, which
increases the base offense level by two points.

        Boring suggests that his enhancement contravenes the comments to § 3C1.1,
which state that a defendant’s mere denial of guilt does not constitute obstruction
(because otherwise his Fifth Amendment rights would be infringed) and that “the Court
should be cognizant that inaccurate testimony or statements sometimes may result from
confusion, mistake, or faulty memory” not rising to the level of obstruction. But the
comment explicitly excepts “a denial of guilt under oath that constitutes perjury” from
its reminder not to assess an obstruction enhancement for a denial of or refusal to admit
guilt. U.S.S.G. § 3C1.1 cmt. n.2; see also United States v. Burnette, 981 F.2d 874, 879
(6th Cir. 1992) (“The right to testify at trial, however, does not include a right to commit
perjury.”). The two-point enhancement for obstruction of justice is subsumed within the
jury’s verdict and was properly applied.

C. Restitution Award

        We review de novo the question of whether restitution is permitted under the law,
and review the amount of a restitution award for abuse of discretion. United States v.
White, 492 F.3d 380, 414, 418 (6th Cir. 2007).

        The district court ordered Boring to pay the Department of Labor $37,355.27 in
restitution, pursuant to 18 U.S.C. §§ 3663, 3363A, and 3664. This figure represents the
entire amount that Boring received during the duration of his leave from work, plus a 7%
administrative fee. Boring contends that he should not have to pay back the money that
he received during the weeks immediately following each surgery, when he was
legitimately unable to work. He argues that even if we accept that he used fraud to
remain off work and collect benefits longer than he should have and that the entire
period represents a single scheme to defraud the Department, there was still some
quantum of recovery time that was uncontestedly legitimate, and he should not have to
repay the amount he collected then. We agree: the restitution award should be equal to
No. 07-4363        United States v. Boring                                           Page 7


the total amount Boring received minus the amount he received when he was
legitimately recovering from his surgeries and unable to work.

       The statutes at issue authorize the imposition of restitution for losses to the
victim. They “require[] that the restitution award be based on the amount of loss
actually caused by the defendant’s offense.” United States v. Rhodes, 330 F.3d 949, 953
(7th Cir. 2003); see also Virgin Islands v. Davis, 43 F.3d 41, 44-45 (3d Cir. 1994);
United States v. Patty, 992 F.2d 1045, 1049 (10th Cir. 1993); United States v. Kenney,
789 F.2d 783, 784 (9th Cir. 1986); cf. Hughey v. United States, 495 U.S. 411, 413 (1990)
(holding that the Victim and Witness Protection Act “authorize[s] an award of restitution
only for the loss caused by the specific conduct that is the basis of the offense of
conviction”).

       The government relies on 20 C.F.R. § 10.529, which provides that an employee
who “knowingly omits or understates any earnings or work activity in making a report”
will “forfeit the right to compensation with respect to any period for which the report
was required.” Under this regulation, if an injured federal employee knowingly
misrepresents that he was convalescing the entire time he was away from work, when
in fact he did one day of volunteer work, he will forfeit all the benefits he received
during that period. But the government’s reliance on this regulation mistakenly
conflates forfeiture and restitution. As the Seventh Circuit recently and cogently
explained in a similar case,

       [f]orfeiture and restitution are distinct remedies. Restitution is remedial
       in nature, and its goal is to restore the victim’s loss. Forfeiture, in
       contrast, is punitive; it seeks to disgorge any profits that the offender
       realized from his illegal activity. Given their distinct nature and goals,
       restitution is calculated based on the victim’s loss, while forfeiture is
       based on the offender’s gain. Different adjudicatory procedures apply,
       moreover, depending on which of these remedies the Government is
       seeking. Of particular importance in this case, the Federal Rules of
       Criminal Procedure explicitly provide that “[n]o judgment of forfeiture
       may be entered in a criminal proceeding unless the indictment or the
       information provides notice that the defendant has an interest in property
       that is subject to forfeiture in accordance with the applicable statute.”
       Fed. R. Crim. P. 7(c)(2); see also Fed. R. Crim. P. 32.2(1) (“A court must
No. 07-4363            United States v. Boring                                                    Page 8


         not enter a judgment of forfeiture in a criminal proceeding unless the
         indictment or information contains notice to the defendant that the
         government will seek the forfeiture of property as part of any sentence
         in accordance with the applicable statute.”). Additionally, a defendant,
         “in a case in which a jury returns a verdict of guilty,” has a statutory right
         to have the jury “determine whether the government has established the
         requisite nexus between the property and the offense committed by the
         defendant.” Fed. R. Crim. P. 32.2(b)(4); Libretti v. United States, 516
         U.S. 29 (1995). Restitution, however, has no comparable requirements.
         See generally 18 U.S.C. § 3664(c) (discussing the procedures required
         for the issuance of an order of restitution).
United States v. Webber, 536 F.3d 584, 602-603 (7th Cir. 2008) (some citations omitted).
We agree.2 The government may rely on 5 U.S.C. § 8148 and 20 C.F.R. § 10.529 in a
civil forfeiture proceeding to recover the entire amount at issue. It also could have
sought a forfeiture order as part of the criminal prosecution by giving notice of its intent
to do so in the indictment. See 28 U.S.C. § 2461(c); Fed. R. Crim. P. 32.2; Webber, 536
F.3d at 604-05. But the district court may not include in its calculation of a restitution
award the worker’s compensation payments to which Boring was legitimately entitled,
since those do not constitute losses to the victim and thus are not properly the subject of
restitution. Therefore, we reverse the restitution award and remand for recalculation.

         It follows from this decision that after the district court recalculates the actual
loss to the government, it will also need to revisit the loss figure that underlay its
calculation of the advisory sentence under the Guidelines. See U.S.S.G. § 2B1.1(b).

                                           III. Conclusion

         For the foregoing reasons, we affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.




         2
         Although we recognize that the Fifth Circuit reached a contrary conclusion in United States v.
Harms, 442 F.3d 367 (5th Cir. 2006) (affirming a restitution award equal to all benefits received, pursuant
to 20 C.F.R. § 10.529), we believe that the Seventh Circuit persuasively explained why Harms was
mistaken. See Webber, 536 F.3d at 603-604.
