                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 18 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-10501

              Plaintiff - Appellee,              D.C. No. 3:11-cr-08211-FJM-2

  v.
                                                 MEMORANDUM*
DEANNA DORA BENALLY,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10502

              Plaintiff - Appellee,              D.C. No. 3:11-cr-08211-FJM-4

  v.

JERRISON WILLIE JAMES, AKA
Jerrison James,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10505

              Plaintiff - Appellee,              D.C. No. 3:11-cr-08211-FJM-3



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

GARRISON WILLIE JAMES, AKA
Garrison James,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                       No. 13-10073

              Plaintiff - Appellee,             D.C. No. 3:11-cr-08211-HBM-1

  v.

REED LITTLESKY BIA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Arizona
               Frederick J. Martone, Senior District Judge, Presiding

                          Submitted December 4, 2013**
                            San Francisco, California

Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.

       Pursuant to plea agreements, Defendants Deanna Benally, Jerrison James,

Garrison James, and Reed Bia each pleaded guilty to one count of Robbery by

Force, Violence, and Intimidation within the Navajo Indian Reservation, in

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                        -2-
violation of 18 U.S.C. §§ 1153, 2111, and 2112. Defendants’ plea agreements

provided for restitution under 18 U.S.C. § 3663A. Defendants appeal the district

court’s restitution order directing them to pay $1,215.32 for costs associated with

the robbery victim’s psychological counseling.1 We have jurisdiction under

28 U.S.C. § 1291, and we vacate the restitution order in part corresponding to the

costs of the victim’s psychological counseling, affirm in part,2 and remand for

resentencing on an open record.

      Defendants contend that the district court erred when it awarded restitution

for psychological counseling in the absence of evidence that the victim suffered

physical injury. Defendants further contend that the district court erred in

determining that the restitution amount was sufficiently documented to show the

victim’s psychological counseling was related to the robbery.

      At sentencing, the district court was convinced that the victim’s

psychological injury was legitimate, but did not make a specific finding of the




      1
       Defendants were ordered to pay restitution to the Arizona Health Care Cost
Containment System (Arizona’s Medicaid agency), which paid for the victim’s
psychological counseling.
      2
        We affirm the order of restitution with respect to $45.00 for the victim’s
cell phone.

                                         -3-
nature of the victim’s physical injury.3 The district court determined the amount of

the restitution award from a summary medical billing statement that did not

describe the victim’s diagnosis or treatment.

      We have previously held that the cost of psychological counseling can only

be included in a restitution order when the victim has suffered physical injury. See

United States v. Hicks, 997 F.2d 594, 601 (9th Cir. 1993); see also United States v.

Follet, 269 F.3d 996, 1001 (9th Cir. 2001) (following Hicks); United States v.

Dayea, 73 F.3d 229, 231-32 (9th Cir. 1995) (same). The district court clearly erred

by ordering Defendants to pay restitution for costs of the victim’s psychological

treatment in the absence of a finding that the victim suffered physical injury from

the robbery.

      We vacate in part and remand for resentencing on an open record so that the

district court can determine whether the victim suffered a physical injury from the

robbery, and if so, whether sufficient documentation exists to support restitution

for the costs of the victim’s psychological counseling. See United States v.

Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc).

      3
         The issue of restitution was primarily discussed at the sentencing of
Defendants Benally, Garrison James, and Jerrison James before District Judge
Martone in September 2012. Defendant Bia was sentenced before visiting District
Judge McKibben in February 2013. All four sentences included restitution for the
cost of the victim’s psychological counseling.

                                         -4-
VACATED in part, AFFIRMED in part, and REMANDED.




                         -5-
