                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                     September 10, 2015

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-8072

STEVEN P. BURNS,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Wyoming
                          (D.C. No. 2:14-CR-00142-ABJ-1)
                       _________________________________

Grant Russell Smith, Research and Writing Specialist (Virginia L. Grady, Federal Public
Defender, and Daniel G. Blythe, Assistant Federal Public Defender, with him on the
briefs), Cheyenne, Wyoming for Defendant-Appellant.

Thomas Szott, Assistant United States Attorney (Christopher A. Crofts, United States
Attorney, with him on the brief), Cheyenne, Wyoming, for Plaintiff-Appellee.
                        _________________________________

Before BRISCOE, Chief Judge, BALDOCK, and EBEL, Circuit Judges.
                    _________________________________

EBEL, Circuit Judge.
                         _________________________________

      In this direct criminal appeal, Defendant-Appellant Steven Burns challenges

the amount of restitution that the district court ordered him to pay. Having

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we AFFIRM.
                                      I. BACKGROUND

       Burns, a custodian at the Rock Springs, Wyoming post office, pled guilty to

one count of possessing stolen mail in violation of 18 U.S.C. § 1708. In pleading

guilty, Burns admitted that from December 1, 2013, through January 25, 2014, he

possessed letters, packages, mail, and articles and things contained therein, that had

been stolen from post office boxes in the Rock Springs Post Office, knowing that

those items had been stolen. The district court sentenced Burns to one year probation

and ordered him to pay $3,090.58 in restitution under the Mandatory Victims’ Rights

Act (“MVRA”), 18 U.S.C. §§ 3663A, 3664. Burns appeals, challenging the

restitution order.1

                                       II. DISCUSSION

       Burns asserts that the restitution order must be vacated, for two reasons which

we reject.

A. The district court did not clearly err in finding that Burns took five specific
pieces of mail

       Burns first argues that the district court clearly erred in finding that he took all

of the items on which the district court based the amount of restitution. The district

court based that amount, $3,090.58, on its finding that Burns possessed forty-seven

specific pieces of stolen mail. Burns denied possessing five of those forty-seven

items: prescription medication ($1,361.60); a National Hockey League hooded


1
  We GRANT the Government’s motion to seal its certificate listing the names of all
parties who are not in the caption of the notice of appeal but who have a financial
interest in the outcome of this litigation. See 10th Cir. R. 46.1(D)(1), (2).
                                             2
sweatshirt ($150.94); a camera, case, and disc ($67); silicon carbide for polishing

metal ($38); and an Ebay android tablet ($15). Following an evidentiary hearing, the

district court found that the Government had met its burden of proving, by a

preponderance of the evidence, that Burns took the five disputed items. See 18

U.S.C. § 3664(e); see also id. at § 3663A(d). That finding was not clearly erroneous.

See United States v. Kalu, 791 F.3d 1194, 1213 (10th Cir. 2015) (reviewing

sentencing court’s factual finding underlying MVRA restitution award for clear

error).

          The Government presented sufficient evidence to support the district court’s

finding that it was more likely than not that Burns took the five disputed items. That

evidence, briefly summarized here and viewed in the light most favorable to the

district court’s determination, see United States v. Dewberry, 790 F.3d 1022, 1034

(10th Cir. 2015), included the following: Burns admitted to taking letters and

packages from Rock Springs post office boxes from December 1, 2013, through early

January 2014. Burns told a postal investigator that “he carried out the thefts while he

was cleaning the post office without supervision.” (Doc. 19 at 5.) Burns explained

that he would take letters from post office boxes, hiding the letters in his pockets, and

that he would take parcels from carts located near the post office boxes, hiding the

stolen parcels in an empty post office box until he could retrieve these parcels from

the customer-lobby side of the boxes. Burns further explained that when he later

opened these stolen letters and packages, he would keep only gift cards and discard

the rest of the items. Although he could not tell the postal investigator exactly what

                                             3
items he stole, Burns guessed that he had taken approximately twenty parcels and

fifty letters. At sentencing, he did not dispute that he took forty-two of the forty-

seven specific items on which restitution was based, totaling $1,458.04. Once postal

officials discovered Burns’ thefts and suspended him, reports of mail missing from

Rock Springs post office boxes ceased.

      Specifically as to the five disputed items, the evidence, viewed in the light

most favorable to the district court’s determination, see Dewberry, 790 F.3d at 1034,

indicated that postal customers ordered these five items to be delivered to Rock

Springs post office boxes during the same time period that Burns admitted stealing

mail.2 The customers never received these items. This evidence was sufficient to

support the district court’s finding that Burns more likely than not took the five

disputed items.

      Burns’ speculation to the contrary—that maybe someone in another postal

facility took these five items; maybe these five items never reached the Rock Springs

post office; maybe someone else who worked in the Rock Springs post office took

these five items; maybe the five items did not fit in a post office box and, if so,


2
 Postal Agent Mitchell testified that he began investigating these mail thefts after the
Rock Springs Postmaster received a number of complaints about mail missing from
post boxes. The agent also testified, however, that some of these complaints may
have involved mail that was to be delivered to homes, rather than to post office
boxes, though most of the complaints involved mail addressed to post boxes. But,
according to Agent Mitchell, the five disputed items were to be delivered to post
office boxes: “Q. [A]ll of these items that we have been discussing [they had just
been discussing the five disputed items] were anticipated to have arrived either in
December of 2013 or January of 2014 at P.O. boxes at the Rock Springs post office?
A. Yes.” (Sent. tr. at 24.)
                                            4
maybe the oversized packages were locked away where Burns could not access

them—is unavailing. See Niemi v. Lasshofer, 770 F.3d 1331, 1356 (10th Cir. 2014)

(declining to rely upon speculation to determine that district court’s factual finding

was clearly erroneous); cf. United States v. Winder, 557 F.3d 1129, 1137-38 (10th

Cir. 2009) (stating, in holding there was sufficient evidence to support criminal

conviction, that “the Government . . . need not disprove every other reasonable

theory of the case”); United States v. Horn, 946 F.2d 738, 743 (10th Cir. 1991)

(stating, in holding there was sufficient evidence to support criminal conviction, that

“the prosecution need not eliminate every hypothesis except guilt beyond a

reasonable doubt”).3

B. Apprendi4 does not require a jury to find, beyond a reasonable doubt, facts
underlying a restitution award

        Burns next argues that the restitution order must be vacated because the

district court, rather than a jury, made the factual findings underlying the restitution

order. Burns contends that the Supreme Court’s Apprendi line of cases requires that

a jury find, beyond a reasonable doubt, the facts underlying a restitution award.

Burns concedes that, because he did not make this argument to the district court, our

review is for plain error. Burns further concedes that existing Tenth Circuit

3
  Although Burns speculates that some of the five disputed items were too big to fit
into a post office box and, therefore, he could not have taken them, Burns told Postal
Agent Mitchell that he, Burns, had taken and thrown away “a quilted blanket” (Doc.
19 at 5), which would arguably have been bigger than any of the five disputed items.
(There is no evidence as to the exact size of any of the five disputed items, or the
quilt, nor evidence that Burns could not have accessed oversized items.)
4
    Apprendi v. New Jersey, 530 U.S. 466 (2000).
                                            5
precedent, which treats restitution as compensatory rather than punitive, forecloses

applying Apprendi’s rule of criminal law. See United States v. Kieffer, 596 F. App’x

653, 663-64 (10th Cir. 2014) (unpublished) (holding Apprendi does not apply to

restitution under the MVRA because it is not a criminal penalty), cert. denied, 135

S. Ct. 2825 (2015). Burns, therefore, claims to be raising this Apprendi issue now

“to preserve” that argument “for further review.” (Aplt. Br. at 14.)

      The Tenth Circuit has previously held that restitution “does not inflict criminal

punishment, and thus is not punitive.” United States v. Serawop, 505 F.3d 1112,

1122 (10th Cir. 2007); see also United States v. Wolfe, 701 F.3d 1206, 1216-17 (7th

Cir. 2012); United States v. Millot, 433 F.3d 1057, 1062 (8th Cir. 2006). Burns

suggests that the Tenth Circuit’s stance is no longer viable after the Supreme Court

stated, in Paroline v. United States, that “[t]he primary goal of restitution is remedial

or compensatory, but it also serves punitive purposes.” 134 S. Ct. 1710, 1726 (2014)

(citation omitted; addressing how to calculate restitution that possessor of child

pornography owes child pornography victim under the Violence Against Women

Act).5 See United States v. Ferdman, 779 F.3d 1129, 1132 n.1 (10th Cir. 2015)

(stating that Paroline’s “statement regarding the general nature of criminal restitution

calls into question our view that the MVRA lacks a penal element”).



5
  Paroline, 134 S. Ct. at 1726, relied upon an earlier Supreme Court case, Pasquantino
v. United States, 544 U.S. 349, 365 (2005) (stating that “[t]he purpose of awarding
restitution in this action is . . . to mete out appropriate criminal punishment”), which
the Court decided before the Tenth Circuit’s Serawop decision.

                                            6
       Assuming, without deciding, that Apprendi could apply to restitution because

it serves both compensatory and punitive purposes,6 we nevertheless reject Burns’

assertion that Apprendi requires a jury to find the facts underlying a restitution order.

The Apprendi line of cases requires a jury to find, beyond a reasonable doubt, any

fact that either increases a sentence beyond the statutory maximum available for his

offense of conviction or increases a mandatory minimum sentence. See United States

v. Zar, 790 F.3d 1036, 1054-55 (10th Cir. 2015) (citing Supreme Court cases). But

there is no “statutory maximum” amount of restitution that a sentencing court can

exceed in a given case. Instead, the MVRA simply requires a sentencing court to

order a defendant to pay restitution to compensate the victims of the defendant’s

crimes for their losses. See 18 U.S.C. § 3663A(a)(1), (b). The sentencing court has

no authority to impose restitution in excess of the victims’ losses. See United States

v. Griffith, 584 F.3d 1004, 1019 (10th Cir. 2009). Apprendi’s rule, therefore, has no

application to restitution.

       Other circuits have rejected applying Apprendi to restitution orders for similar

reasons. See United States v. Bengis, 783 F.3d 407, 411-13 (2d Cir. 2015) (agreeing

with Fourth and Ninth Circuits); United States v. Rosbottom, 763 F.3d 408, 420 (5th

Cir. 2014), cert. denied, 135 S. Ct. 985, 989 (2015); United States v. Lay, 612 F.3d

440, 448 (6th Cir. 2010); United States v. Milkiewicz, 470 F.3d 390, 403-04 (1st Cir.

6
 Although a panel of this court cannot overrule a prior panel’s decision, we can
consider whether an intervening Supreme Court decision has overruled earlier Tenth
Circuit case law. See United States v. White, 782 F.3d 1118, 1123 n.2 (10th Cir.
2015). But, as we explain, we do not need to decide here whether Paroline has
overruled our Serawop line of cases.
                                            7
2006) (agreeing with case law from, e.g., Third and Eleventh Circuits); see also

United States v. Bonner, 522 F.3d 804, 807 (7th Cir. 2008) (noting, in dicta, that

even if, contrary to Seventh Circuit precedent, restitution was a criminal punishment,

Apprendi would not apply).7

                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s order requiring

Burns to pay $3,090.58 in restitution. And we GRANT the Government’s motion to

seal its “Certificate of Interested Parties.”




7
  Burns incorrectly suggests that the First and Eighth Circuits have held that
Apprendi applies to restitution orders. See United States v. Ziskind, 471 F.3d 266,
269 (1st Cir. 2006) (rejecting argument that Apprendi and its progeny apply to
restitution); United States v. Ross, 279 F.3d 600, 608-10 (8th Cir. 2002) (holding
that, even if Apprendi applied to restitution orders, the defendant would not be
entitled to relief in that case).
                                                8
