                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 13a0268p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                     Nos. 12-5056/5565
            v.
                                                  ,
                                                   >
                                                  -
 (12-5056) and SCOTT ANTHONY REISDORFER -
 ALAN LEE CHURCH aka Allen Lee Church
                                                  -
                                                  -
 (12-5565),
                       Defendants-Appellants. N
                   Appeal from the United States District Court
                 for the Eastern District of Kentucky at Pikeville.
               No. 7:11-cr-00021—Amul R. Thapar, District Judge.
                       Decided and Filed: September 10, 2013
        Before: DAUGHTREY, McKEAGUE, and GRIFFIN, Circuit Judges.

                                 _________________

                                      COUNSEL
ON BRIEF: David S. Hoskins, Corbin, Kentucky, for Appellant in 12-5056. Patrick F.
Nash, Lexington, Kentucky, for Appellant in 12-5565. Charles P. Wisdom, Miguel
Dickson, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for
Appellee.
                                 _________________

                                       OPINION
                                 _________________

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Federal prisoners Alan Lee
Church and Scott Anthony Reisdorfer each pleaded guilty to one count of assaulting an
inmate resulting in serious bodily harm, in violation of 18 U.S.C. §113(a)(6). They were
sentenced to 57 and 65 months in prison, respectively. Church appeals the district
court’s denial of his motion for a downward departure based on his claim that the victim
provoked his conduct (12-5056). Reisdorfer appeals the district court’s restitution order,


                                            1
Nos. 12-5056/5565 United States v. Church, et al.                                 Page 2


challenging the court’s decision to make it payable to a third party – the federal Bureau
of Prisons (BOP) (12-5565). For the reasons set out below, we find no error in
connection with the district court’s sentencing orders and affirm.

               FACTUAL AND PROCEDURAL BACKGROUND

       The events giving rise to the charges in this case stemmed from a disturbing lack
of supervision at the Big Sandy federal penitentiary in Inez, Kentucky. On February 6,
2011, inmates at Big Sandy celebrated Super Bowl Sunday by drinking contraband
liquor, and one prisoner, Dewayne MacAnally, drank enough to become belligerent.
He told Alan Lee Church, an inmate in the same housing unit, that he intended to stab
another inmate, Scott Reisdorfer, with a shank (a homemade knife) that he had stored
nearby. There was a history of bad blood between MacAnally and Reisdorfer, stemming
from Reisdorfer’s demotion from a leadership position in the local branch of the Aryan
Brotherhood, and MacAnally’s subsequent promotion to that position. Church, who, as
the Captain of the Aryan Brotherhood chapter, outranked both Reisdorfer and
MacAnally, hit MacAnally in the face to force him to abandon his plan to harm
Reisdorfer. MacAnally started crying and apologized to Church, but he eventually
became belligerent again. Church then physically restrained MacAnally from going
after Reisdorfer, telling MacAnally to go to his cell and stay there. In order to ensure
that MacAnally actually stayed in his cell and out of trouble, Church ordered another
inmate, Joshua McBee, to stand guard in front of MacAnally’s cell. He also removed
all of the weapons that MacAnally had stored in McBee’s locker and gave the weapons
to Reisdorfer and McBee for safe keeping.

       Sometime later in the evening, as Church entered MacAnally’s cell to speak with
him, Reisdorfer also entered the cell. MacAnally got angry and made a comment to
Reisdorfer about knocking his tooth out. Reisdorfer responded by hitting MacAnally in
the head, knocking him to the ground. At that point, Church told Reisdorfer to “kick
[MacAnally’s] ass and put him to bed” and left the cell. Reisdorfer, who was carrying
a shank (something Church claims not to have known at the time), proceeded to beat and
stab MacAnally and then went to get Church. When the two men returned to the cell,
Nos. 12-5056/5565 United States v. Church, et al.                                   Page 3


they found MacAnally lying unconscious on the cell floor, making “a funny noise,” and
bleeding profusely. Church positioned MacAnally’s head so that he would not choke
on his own blood but otherwise took no action, leaving MacAnally alone in the cell until
the guards found him later that night. Upon his discovery by the guards, MacAnally was
immediately rushed to a nearby hospital, where he was found to have suffered massive
head trauma, a collapsed lung, and two stab wounds in his back. He was subsequently
transferred to the Federal Medical Center in Butner, North Carolina, and has not
regained consciousness since the attack. MacAnally’s doctor at Butner reports that he
suffered severe brain damage and will likely never wake up.

       Church was subsequently indicted on one count of assaulting an inmate resulting
in serious bodily harm, in violation of 18 U.S.C. § 113(a)(6). Reisdorfer was indicted
on three counts of assault, in violation of 18 U.S.C. §§ 113(a)(1), (a)(3), and (a)(6), and
one count of knowingly possessing a prohibited weapon, in violation of 18 U.S.C.
§ 1791(a)(2).

       Church later pleaded guilty to the assault charge and filed a motion for a
downward departure pursuant to USSG § 5K2.10, which allows courts to depart from
the guidelines when the victim’s conduct significantly contributes to provoking the
defendant’s offending behavior. The district court denied Church’s § 5K2.10 motion but
nonetheless imposed a below-Guidelines sentence of 57 months, to run consecutively
to Church’s existing sentence.

       Reisdorfer pleaded guilty to the same assault charge, in exchange for the
government’s agreement to dismiss the other three counts against him, and was
sentenced to 65 months of imprisonment. The judge concluded that restitution was
obligatory but reserved judgment on the amount of restitution that Reisdorfer owed, to
see if the parties could reach agreement on an amount. Their efforts were unsuccessful,
leading the district court to schedule a restitution hearing to settle the issue. Following
the hearing, the judge entered an amended judgment, ordering Reisdorfer to pay the BOP
restitution in the amount of $121,496.56.
Nos. 12-5056/5565 United States v. Church, et al.                                     Page 4


        Church now appeals the court’s refusal to grant a downward departure.
Reisdorfer appeals the restitution order.

                                      DISCUSSION

                  The Denial of a Downward Departure (12-5056)

        Church contends that the district court erred when it denied his motion for a
downward departure pursuant to USSG § 5K2.10. That guideline provides that if a
victim’s wrongful conduct contributed significantly to provoking the offense behavior,
the court may reduce the sentence below the guideline range to reflect the nature and
circumstances of the offense. It also lists six factors that courts should consider when
deciding whether a sentence reduction is warranted. These include:

        (1) The size and strength of the victim, or other relevant physical characteristics,
        in comparison with those of the defendant.
        (2) The persistence of the victim’s conduct and any efforts by the defendant to
        prevent confrontation.
        (3) The danger reasonably perceived by the defendant, including the victim’s
        reputation for violence.
        (4) The danger actually presented to the defendant by the victim.
        (5) Any other relevant conduct by the victim that substantially contributed to the
        danger presented.
        (6) The proportionality and reasonableness of the defendant’s response to the
        victim’s provocation.

Id.

        In this circuit, a district court’s decision not to depart downwards is considered
unreviewable, except where there is clear evidence that “the lower court incorrectly
believed that it lacked authority to grant such a departure.” United States v. Madden,
515 F.3d 601, 610 (6th Cir. 2008); see also United States v. Crouch, 288 F.3d 907, 910
(6th Cir. 2002) (“We will presume that the district court understood its discretion to
depart, absent clear evidence in the record to the contrary.”). If, however, a district court
recognizes its discretion, we will review a district court’s decision only if: “(1) the
Nos. 12-5056/5565 United States v. Church, et al.                                   Page 5


sentence was imposed in violation of the law; (2) it was imposed as a result of an
incorrect application of the guidelines; (3) the sentence represented an upward departure;
or (4) the sentence was imposed ‘for an offense for which there is no Sentencing
Guideline and is plainly unreasonable.’” United States v. Puckett, 422 F.3d 340, 346
(6th Cir. 2005) (quoting 18 U.S.C. § 3742(a)).

       Here, there is no clear evidence that the district court failed to understand its
discretion to depart downward. To the contrary: at the sentencing, the district judge
made it clear that the reason he was denying Church’s motion was not because he
believed he lacked the power to grant it, but because he believed doing so was
inappropriate, given the circumstances of the case. (“[T]he reality of the 5K2.10 motion
is I will deny that because I don’t find that the factors are met.”)

       On appeal, Church argues that the judge’s decision not to depart is nevertheless
reviewable by this court because it was imposed as a result of an incorrect application
of the Sentencing Guidelines. More specifically, Church claims that the judge grafted
a duress requirement onto § 5K2.10 when he concluded that Church was not entitled to
a departure because he could have responded to MacAnally’s aggressive behavior by
calling the prison guards, rather than by assaulting him. Church also argues that when
the judge noted during sentencing that his interpretation of the § 5K2.10 factors was
influenced by his desire to foster civility in the institution of the prison, he “add[ed] a
requirement not present in the guidelines” by suggesting that “different rules should
apply because the defendant is a prisoner.”

       We find no merit to these arguments. At sentencing, the district judge clearly
indicated that he considered the fact that Church could have, but did not, call the prison
guards relevant specifically to the fourth and sixth § 5K2.10 factors, rather than as an
independent factor in its own right. The judge concluded that Church’s failure to call
for assistance likely meant that MacAnally did not represent a genuine danger to him
(relevant to the fourth § 5K2.10) and that the physical force he used in response to
MacAnally’s belligerence was therefore disproportional and unreasonable (relevant to
the sixth § 5K2.10 factor). The judge did not, therefore, graft an additional duress
Nos. 12-5056/5565 United States v. Church, et al.                                     Page 6


requirement onto § 5K2.10, but merely took Church’s other options into account when
applying the § 5K2.10 factors.

         The record clearly establishes that the district court’s denial of a departure was
not based on an incorrect application of the Sentencing Guidelines. Hence, it is not
reviewable on appeal and must be upheld.

                          The Restitution Order (No. 12-5565)

         Reisdorfer contends that the district court erred in ordering him to pay
$124,396.56 in restitution to the BOP pursuant to 18 U.S.C. § 3663A, which requires
that a defendant convicted of a crime of violence “make restitution to the victim of the
offense or, if the victim is deceased, to the victim’s estate.” 18 U.S.C. § 3663A(a)(1).
Reisdorfer challenges the restitution order on two grounds. First, he argues that it was
improper because the BOP was neither a victim of the offense nor responsible for
providing compensation to the victim of the offense. Alternatively, Reisdorfer argues
that the restitution order was improper because no evidence was presented to the district
court showing that Reisdorfer, rather than Church, was responsible for all of the costs
that the BOP incurred in providing MacAnally’s medical treatment after the attack.

         We review the propriety of a restitution order de novo. United States v. Johnson,
440 F.3d 832, 849 (6th Cir. 2006). “Because federal courts have no inherent power to
award restitution,” restitution orders are proper “only when and to the extent authorized
by statute.” United States v. Evers, 669 F.3d 645, 655-656 (6th Cir. 2012) (internal
quotation marks omitted). The amount of the restitution award is subject to review under
an abuse-of-discretion standard. United States v. Elson, 577 F.3d 713, 733 (6th Cir.
2009). Under this standard, neither of Reisdorfer’s challenges to the restitution order has
merit.

                                 Third Party Restitution

         Reisdorfer first contends that the restitution order is improper because it requires
him to provide restitution to the BOP, which was not a victim of his offense. The
assertion that the BOP is not a victim is technically correct under 18 U.S.C.
Nos. 12-5056/5565 United States v. Church, et al.                                    Page 7


§ 3663A(a)(2), which provides that “[f]or the purposes of this section, the term ‘victim’
means a person directly and proximately harmed as a result of the commission of an
offense for which restitution may be ordered . . . .” The BOP was clearly not “directly
and proximately” harmed by Reisdorfer’s assault on MacAnally, but instead suffered
expenses only after the assault, when it was forced to expend significant resources
providing MacAnally with medical care. Indeed, in its reply brief, the government
concedes that the BOP was not a “direct victim” of Reisdorfer’s offense.

        Whether the BOP constitutes a “victim” for purposes of § 3663A is not, however,
ultimately dispositive of the legality of the restitution order, given two statutory
provisions that indicate that restitution must, in certain cases, be awarded to entities
other than the actual victim of the offense. The first is 18 U.S.C. § 3663A(b)(2), which
provides that “in the case of an offense resulting in bodily injury to the victim . . . [the
order of restitution shall require that the defendant] (A) pay an amount equal to the cost
of [the victim’s] necessary medical and related professional services…; (B) pay an
amount equal to the cost of [the victim’s] necessary physical and occupational therapy
and rehabilitation; and (C) reimburse the victim for income lost by such victim as a
result of such offense.”

        The second provision is 18 U.S.C. § 3664(j), which is incorporated into § 3663A
by § 3663A(d). Section 3664(j) provides that when 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 provide the
compensation.” Hence, the first provision indicates that perpetrators of crimes of
violence must pay the total amount of the cost of their victim’s medical expenses, not
just those the victim personally incurred. The second provision makes this evident when
it expressly authorizes restitution to insurance companies and to other entities that
provide compensation to the victim for his or her losses.

        Reisdorfer acknowledges that §§ 3663A and 3664 require courts to order
defendants like him to provide restitution to insurance companies and other third parties
that provide monetary compensation for a victim’s medical expenses. However, he
Nos. 12-5056/5565 United States v. Church, et al.                                    Page 8


denies that the statutes authorize payment to third parties such as the BOP that provide
only non-monetary assistance – in this case, medical treatment – to victims. Reisdorfer
argues that, in such cases, there is no “loss” that can be compensated under § 3664(j)
because the victim of the offense never incurs, even in principle, the medical costs
identified in § 3663A(b)(2)(A) and (B) as proper subjects of restitution.

        We disagree. Although the question of whether defendants are obligated to
provide restitution to third-party medical providers under § 3663A is a question of first
impression in this circuit, the two circuits that have squarely addressed the question have
concluded that third-party medical providers are entitled to restitution when they pay
some or all of the cost of the victim’s medical treatment themselves. See United States
v. Johnson, 400 F.3d 187, 200 (4th Cir. 2005); United States v. Cliatt, 338 F.3d 1089,
1091 (9th Cir. 2003). Both circuit courts reached this conclusion on the basis of the
expansive language in § 3663A(b)(2). Johnson, 400 F.3d at 200 (“The careful choice
of words [in § 3663A(b)(2)] indicates a legislative intent to require those convicted of
crimes resulting in bodily injury to pay the entire ‘amount equal to the cost of necessary
medical . . . services,’ even when the provider of the services has not taxed the victim
herself with the full amount of those costs.”); Cliatt, 338 F.3d at 1091 (“The
. . . require[ment that] a defendant ‘pay an amount equal to the cost’ of necessary
medical and similar care . . . expresses Congress’ intention that a defendant must, in
every case involving bodily injury, pay what it costs to care for the victim, whether or
not the victim paid for the care or was obligated to do so.”) The Second Circuit has
reached the same conclusion as to restitution awards authorized under 18 U.S.C. § 3663,
which, like § 3663A, requires defendants to “pay an amount equal to the cost of [their
victim’s] necessary medical and related professional services.”                 18 U.S.C.
§ 3663(b)(2)(A); United States v. Malpeso, 126 F.3d 92, 95 (2d Cir. 1997).

        As these decisions indicate, there is strong textual support for the interpretation
of the statute that the Fourth and Ninth Circuit have adopted. In contrast to other
restitution statutes, such as 18 U.S.C. § 2248(b), that expressly limit a defendant’s
restitution obligations to those costs that victims incurred themselves (requiring the court
Nos. 12-5056/5565 United States v. Church, et al.                                    Page 9


to “direct the defendant to pay to the victim . . . the full amount of the victim’s losses”
and defining the “full amount of the victim’s losses” as “costs incurred by the
victim”), § 3663A(b)(2) requires that defendants pay “an amount equal to the cost of the
medical treatment.” This somewhat awkward phrasing suggests that Congress did not
intend that defendants would have to pay only the victim’s actual costs.

        The legislative history of the statute also supports this interpretation. When
Congress enacted § 3663A as part of the Mandatory Victims Restitution Act (MVRA),
its stated purpose was “to ensure that the offender realizes the damage caused by the
offense and pays the debt owed to the victim as well as to society.” S. Rep. 104-179, at
12 (1995) (emphasis added). The interpretation of the statute that Reisdorfer urges on
us would undermine legislative purpose by prohibiting courts from requiring defendants
to provide full restitution for the costs that their criminal behavior caused, if not to the
victim personally, then to other institutions such as the BOP. That is clearly a result that
Congress could not have intended.

        We therefore endorse the interpretation of § 3663A adopted by the Fourth and
Ninth Circuits and conclude that the district court was correct when it found Reisdorfer
obligated under the statute to pay restitution to the BOP for the necessary medical
expenses that it incurred on MacAnally’s behalf.

                                        Causation

        Reisdorfer argues, in the alternative, that even if he is obligated under § 3663A
to provide some amount of restitution to the BOP, the district court’s restitution order
was improper because there was no proof that he, rather than Church, was responsible
for all of MacAnally’s injuries and, therefore, all the BOP’s medical expenses. The
district court held that such proof was not necessary, given 18 U.S.C. § 3664(h), which
expressly authorizes courts that “find[] that more than 1 defendant has contributed to the
loss of a victim . . . [to] make each defendant liable for payment of the full amount of
restitution.” Under § 3664(e), the court concluded that all that was necessary to “hold
both Defendants fully liable for the restitution amount” was evidence that they both
contributed to MacAnally’s injuries in some way. The fact that “Reisdorfer and Church
Nos. 12-5056/5565 United States v. Church, et al.                                 Page 10


. . . admitted to injuring MacAnally through a crime of violence” when they pleaded
guilty provided this evidence. The court accordingly held both defendants jointly and
severally liable for the total amount of the BOP’s medical expenses and ordered
Reisdorfer to pay restitution in the full amount.

       Reisdorfer argues that the district court erred in imposing this order because
§ 3664(h) applies only in cases involving multi-defendant conspiracies. He notes
correctly that all the cases in which we have imposed on one or more defendants liability
for the total amount of the loss have involved conspiracy convictions. See United States
v. Rozin, 664 F.3d 1052, 1066 (6th Cir. 2012) (imposing full liability under § 3664(h)
on defendant convicted of conspiracy to defraud the government); United States v.
Williams, 612 F.3d 500, 513 (6th Cir. 2010) (acknowledging that the amount of
restitution the defendant was ordered to pay under the MVRA “may well be
disproportionate when compared to that of his codefendants” but affirming the legality
of the restitution order nonetheless on the grounds that “by participating in a conspiracy
to commit healthcare fraud, Williams bore the risk of becoming financially responsible
for the entire amount of the conspiracy victims’ losses”); United States v. Bogart,
576 F.3d 565, 576 (6th Cir. 2009) (affirming imposition of joint and several liability for
the total restitution amount on four defendants convicted of conspiracy to commit fraud).
The same appears to be true in other circuits as well. See, e.g., United States v. Nucci,
364 F.3d 419, 424 (2d Cir. 2004) (affirming imposition of joint and several liability for
the total loss on defendant convicted of conspiracy to commit robbery and use of a
firearm during a robbery).

       However, nothing in the text of § 3663A or § 3664 suggests that § 3664(h)
applies only to defendants convicted of conspiracy. Instead, it authorizes the imposition
of full liability on any defendant who the district court finds “contributed to the loss.”
Courts have, of course, struck down restitution awards in cases where there was no
evidence that a defendant contributed in any way to the loss that resulted from the
offense of conviction. See, e.g., United States v. Squirrel, 588 F.3d 207, 213 (4th Cir.
2009) (striking down restitution order against defendants whose offenses did nothing to
Nos. 12-5056/5565 United States v. Church, et al.                                   Page 11


cause or increase the victim’s harm). But, we know of no case in which the court struck
down a restitution order that imposed full restitution on a defendant who, like
Reisdorfer, clearly did contribute to the victim’s loss, even if to an indeterminate extent.

        Reisdorfer’s interpretation of § 3664(e) is thus entirely unpersuasive. A better
reading of § 3664(e), and the one we adopt here, is that in the case of a dispute over
restitution, the government is obligated to prove – by a preponderance of the evidence
– the total amount of the victim’s (or third party’s) losses, not the total amount of losses
that result solely from the defendant’s conduct. This interpretation avoids any conflict
between § 3664(e) and § 3664(h) and comports with existing case law. It follows that
the district court was correct when it concluded that individual restitution findings were
not required.

        Interpreting the statute in this way is not to say that courts may impose liability
for full restitution without proof of a causal connection between the offense and the loss.
Under § 3664(h), courts must find that the defendant “contributed” to the loss, i.e., that
the defendant’s criminal conduct directly and proximately caused the loss. Indeed, the
legislative history of the MVRA makes clear that Congress did not intend to make
defendants liable for losses they did not proximately cause. See S. Rep. No. 104-179,
at 19 (“The committee intends that . . . mandatory restitution provisions apply only in
those instances where a named, identifiable victim suffers a physical injury or pecuniary
loss directly and proximately caused by the course of conduct under the count or counts
for which the offender is convicted.”); see also Evers, 669 F.3d at 658 (“‘It is a bedrock
rule of both tort and criminal law that a defendant is only liable for harms he proximately
caused. . . . Thus, we will presume that a restitution statute incorporates the traditional
requirement of proximate cause unless there is good reason to think Congress intended
the requirement not to apply.’” (quoting United States v. Monzel, 641 F.3d 528, 535-536
(D.C. Cir. 2011)).

        In this case, the record clearly establishes that Reisdorfer’s assault was one of the
direct and proximate causes of MacAnally’s injuries and, therefore, the BOP’s costs.
“Evaluated in light of its common-law foundations, proximate cause requires ‘some
Nos. 12-5056/5565 United States v. Church, et al.                                  Page 12


direct relationship between the injury asserted and the injurious conduct alleged.’”
Evers, 669 F.3d at 659 (quoting Hemi Group, LLC, v. City of New York, 559 U.S. 1, 14
(2010)) (internal punctuation removed). Under this standard, “‘the [d]efendant’s
conduct need not be the sole cause of the loss, [but] it must be a material . . . cause, and
any subsequent action that contributes to the loss, such as an intervening cause, must be
directly related to the defendant’s conduct.’” Evers, 669 F.3d at 659 (quoting United
States v. Kennedy, 643 F.3d 1251, 1262-1263 (9th Cir. 2011)). Although Church’s
assault may also have contributed to MacAnally’s harm, there is no question that
Reisdorfer’s conduct was also a “material cause” of the severe injuries that MacAnally
sustained.

        It follows that the district court did not abuse its discretion when, pursuant to
§ 3664(h), it ordered Reisdorfer to provide restitution to the BOP in the full amount of
its loss.

                                    CONCLUSION

        For the reasons set out above, we AFFIRM the district court’s judgment in cases
12-5056 and 12-5565, including the sentencing orders pertaining to both defendants.
