                                     PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-1527



In re: CARLOS BROWN,

             Petitioner.


On Petition for Writ of Mandamus from the United States District Court for the District of
Maryland, at Greenbelt. (8:17-po-07283-TMD-1)


Argued: March 20, 2019                                            Decided: July 26, 2019


Before MOTZ, AGEE and WYNN, Circuit Judges.


Petition for writ of mandamus granted by published opinion. Judge Agee wrote the opinion,
in which Judge Motz and Judge Wynn joined.


ARGUED: Victor Darrel Stone, MARYLAND CRIME VICTIMS’ RESOURCE
CENTER, INC., Upper Marlboro, Maryland, for Petitioner. Jason Daniel Medinger,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland; Cullen Oakes
Macbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Respondents. ON BRIEF: Russell P. Butler, MARYLAND CRIME VICTIMS’
RESOURCE CENTER, INC., Upper Marlboro, Maryland, for Petitioner. Robert K. Hur,
United States Attorney, Jane F. Nathan, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Respondent United
States of America. James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh
S. Patel, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Respondent Joyce Boone.
AGEE, Circuit Judge:

       In June 2017, Joyce Boone injured Carlos Brown in a car accident she caused while

driving under the influence of alcohol. She pleaded guilty to three traffic violations before

the United States magistrate judge and was sentenced to two years’ probation. Brown asked

the court to order restitution as a condition of Boone’s probation, but his request was

denied. He now petitions this Court for a writ of mandamus pursuant to 18 U.S.C.

§ 3771(d)(3). For the reasons stated below, we grant the petition and remand the case.



                                             I.

                                             A.

       Brown owned and operated his own electrician’s business at the time of the

accident. In June 2017, he was riding a motorcycle on a federal roadway in Maryland when

Boone ran a red light while operating her vehicle under the influence of alcohol. She

collided with Brown, leaving him with serious injuries that required at least seven surgeries

within one year of the accident. Brown had metal rods installed in various parts of his body

and needed assistive devices to walk. Because of these injuries, Brown alleged that he

became unable to work as an electrician or perform daily activities and was “struggling

physically, mentally, emotionally, [and] financially.” J.A. 39.




                                             2
       Boone was later charged with six violations of various federal traffic regulations in

the United States District Court for the District of Maryland. 1 She reached a plea agreement

with the Government and pleaded guilty to three offenses 2: (1) driving with a blood alcohol

concentration of .08 or above in violation of 36 C.F.R. § 4.23(a)(2); (2) failing to obey a

traffic control device in violation of 36 C.F.R. § 4.12; and (3) unsafely operating a motor

vehicle in violation of 36 C.F.R. § 4.22(b)(1). Under the terms of the plea agreement, the

Government agreed to recommend a sentence of probation but make no recommendation

regarding Brown’s claim for restitution as part of Boone’s sentence. The parties proceeded

to a plea hearing, 3 during which the court conducted a plea colloquy and accepted Boone’s

guilty plea.

       At the hearing, Brown requested that the court order restitution in the amount of

$18,976 as a condition of Boone’s probation. Specifically, Brown sought restitution for the

deductible of $250 he paid to his vehicle insurance company and his estimated lost wages

for the past seven months, which he calculated at an hourly rate of $22, less the settlement

amount of $30,000 he received from his insurer. To support his restitution request, Brown



       1
          A violation of the federal traffic regulations is punishable for a term of
imprisonment not exceeding six months, 36 C.F.R. § 1.3; see 18 U.S.C. § 1865(a), and thus
is a Class B misdemeanor, 18 U.S.C. § 3559 (a)(7).
       2
         Boone’s proceedings were before the magistrate judge because she was charged
with petty offenses, see 18 U.S.C. § 19 (identifying a Class B misdemeanor as a “petty
offense”), and magistrate judges have authority “to dispose of cases involving petty
offenses . . . committed by both youth offenders and adults,” United States v. Snow, 748
F.2d 928, 931 (4th Cir. 1984).
       3
         The magistrate judge set a bench trial for February 1, 2018. On that day, the
Government notified the court that the parties reached a plea agreement, which converted
the scheduled trial into a plea hearing.
                                             3
provided personal and familial statements about his injuries and an October 2017 letter

from his physician stating that he would not be able to work full-time for one to one-and-

a-half years after the accident. Brown explicitly declined to seek restitution for his medical

bills or future lost wages.

       Boone agreed that the $250 deductible was an appropriate part of a restitution award

but objected to Brown’s claim for past lost wages because she contended his supporting

evidence was speculative and not reliable. She asked the court to order a restitution award

of $250, or, in the alternative, schedule a hearing as to any other proper amounts, although

she believed the issue of restitution “would all get flushed out in the civil proceedings

through discovery where it should be flushed out. Not here [in] a criminal magistrate

court.” J.A. 52. At that point, the court noted that Brown “got serious injuries [and] has had

serious medical injuries in the past. It sounds like more surgery is down the road, lost

wages, children. [T]his is not something I can decide today.” J.A. 60–61. The court

declined to order restitution at that time, stating that Brown’s case was “extraordinarily

unusual,” J.A. 60, but ordered a presentence report directing the probation officer to

examine the issue of restitution. The court scheduled a sentencing hearing for April 2018.

       Prior to the sentencing hearing, Brown filed an amended request seeking restitution

in the amount of $19,040.32 solely to cover his past lost wages. To support the request, he

submitted his 2017 federal tax return, his own affidavit detailing his physical struggles, and

the letter from his physician. In the letter, the doctor noted that Brown was using a walker

and needed physical therapy twice per week for the next six months. The physician further

stated “[i]f he is able to resume his regular full-time work as an electrician, it will likely be

                                               4
1[ to ]1-1/2 years from the time of his injury.” J.A. 75. There was no evidence offered as

to whether Brown could work part-time as an electrician or was capable of maintaining

some other form of full- or part-time employment.

       At the sentencing hearing, Brown reiterated his request for restitution, stating that

he would not pursue any civil action against Boone. She continued to oppose the request,

arguing that the court should “stay out of it” because Brown’s restitution request “is [better

suited for] civil litigation.” J.A. 109. Further, Boone challenged the reliability of the

October 2017 letter from Brown’s doctor and questioned why Brown could not find other

employment and thereby mitigate damages. She also argued that the court may not award

restitution here because her conduct underlying the offenses to which she pleaded guilty

did not cause Brown’s injury. 4 Boone asked the court to place her on one year of probation

and not to order restitution as a condition of probation.

                                                  B.

       The court sentenced Boone to two years’ probation but declined to order restitution,

largely for two reasons: Brown lacked sufficient evidence to support his restitution request

and the sentencing forum was unsuitable for determining the requested restitution. First,

even though the court acknowledged that it had discretion to order restitution and “no

reason to not believe Mr. Brown,” J.A. 126, it rejected Brown’s request, stating:

       although there is evidence of lost wages through Mr. Brown’s own testimony
       and tax return, in my opinion there has got to be more than simply the
       victim’s statement to award restitution in the amount of $20,000. . . . . [T]his


       4
        Boone has abandoned this claim on appeal and does not contest that her conduct
underlying the convicted offenses did cause Brown’s injury.
                                              5
       is misdemeanor court. This court generally does not deal with restitution, and
       if we are going to deal with restitution, it is not in this amount.

J.A. 127. The court also discussed Brown’s future medical bills that were approximately a

“half a million dollars,” J.A. 128, although Brown did not request restitution for those

expenses.

       Next, based on the proffered evidence and Boone’s opposition, the court determined

that under the circumstances of this case it was not the appropriate forum to determine

restitution and referenced United States v. Fountain in support of its decision. See 768 F.2d

790, 801–02 (7th Cir. 1985) (upholding the district court’s decision not to award restitution

for future lost wages because “the calculation of lost future earnings involves the difficult

problem of translating an uncertain future stream of earnings into a present value”). The

court then stated, “[i]n a criminal context the Court will put its foot into the waters of

restitution if things are readily and accurately ascertainable uncontested. We are contested

here, and that is why this is just so not the forum to be dealing with these kinds of figures.”

J.A. 129. The court also noted that “to order restitution in the amount that is being requested

with the evidence that would give me the level of confidence and comfort in that I am being

accurate would, in my opinion, complicate and prolong the sentencing process.” J.A. 130.

The court advised Brown to seek restitution in a civil suit so that he could conduct

discovery and deal with “big figures.” J.A. 129.




                                              6
       From the denial of his request for restitution, Brown timely petitions for a writ of

mandamus as authorized by the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. 5

Boone opposes the petition, and the Government, in accordance with its obligation under

the plea agreement, takes no position either for or against a restitution award. We have

jurisdiction under § 3771(d)(3) and grant the petition for the reasons that follow. 6



                                             II.

       On appeal, Boone makes two arguments: that (1) we lack subject matter jurisdiction

to review Brown’s petition and (2) even if we have jurisdiction, the petition lacks merit.

We examine and reject each argument in turn.

                                             A.

       Section 3771(d)(3) governs our jurisdiction over Brown’s petition, as it allows a

crime victim to “petition the court of appeals for a writ of mandamus” if “the district court

denies the [restitution request].” § 3771(d)(3) (emphasis added). Boone asserts that the

statute does not authorize our review of Brown’s petition because it challenges the decision

made by a magistrate judge, not a district court judge. She argues that by using the specific



       5
         The CVRA “protect[s] victims and guarantee[s] them some involvement in the
criminal justice process” by providing them with “notice of any proceedings, the right to
attend those proceedings, the right to confer with the prosecutor, and the right to be
‘reasonably heard at any public proceeding in the district court involving release, plea,
sentencing, or parole proceeding.’” United States v. Moussaoui, 483 F.3d 220, 234 (4th
Cir. 2007) (quoting 18 U.S.C. § 3771(a)).
       6
         We note that despite Boone’s concession that restitution for the $250 insurance
deductible was appropriate, the court declined to award that amount. Brown makes no
claim on appeal that the failure to make that award was erroneous.
                                              7
term “district court,” § 3771(d)(3) “only authorizes a victim to challenge a district court’s

denial of a restitution request—not a magistrate court’s denial of the same.” Response Br.

12. In effect, Boone argues that a magistrate court does not fall within the meaning of

“district court” under § 3771(d)(3) because it is separate and different from a district court.

       Arguing that Congress’ choice of the term “district court” in § 3771(d)(3) precludes

our review of magistrate judges’ decisions, Boone cites to 18 U.S.C. § 3402 in support.

This general appeal statute states, “[i]n all cases of conviction by a United States magistrate

judge an appeal of right shall lie from the judgment of the magistrate judge to a judge of

the district court of the district in which the offense was committed.” § 3402. Boone asserts

that only the Government can appeal a magistrate judge’s denial of a restitution request to

a district judge under § 3402 and, if the district judge denies the appeal, can proceed to a

court of appeals under § 3771(d)(3). According to Boone, Congress intentionally

distinguished the magistrate judge from the district judge in § 3402 and, had it intended a

crime victim to have any rights to directly petition a court of appeals for a writ of

mandamus based on a magistrate judge’s denial of restitution, Congress would have used

the term “magistrate” in § 3771(d)(3). Thus, in Boone’s view, where the Government takes

no position on a petition for a writ of mandamus and the district court judge has not

reviewed the magistrate judge’s denial, we lack subject matter jurisdiction to consider the

petition. We disagree.

       Boone’s argument is erroneous for at least three reasons. First, her reading of

“district court” in § 3771(d)(3) is inconsistent with the relevant statutory definitions. Under

18 U.S.C. § 3001, the statutes in Part II of Title 18, including § 3771, are governed by the

                                              8
applicable definitional rules of the Federal Rules of Criminal Procedure. Pursuant to Rule

1, “‘[c]ourt’ means a federal judge performing functions authorized by law.” Fed. R. Crim.

P. 1(b)(2). “‘Federal judge,” in turn, is defined to include “a magistrate judge.” Fed. R.

Crim. P. 1(b)(3)(B). The Advisory Committee intentionally crafted this definition to

“reflect[] the current understanding that magistrate judges act as the ‘court’ in many

proceedings” because it found the term “court’s” synonymous use with “‘district judge’”

to be “misleading or unduly narrow” and not to “cover the many functions performed by

magistrate judges.” Fed. R. Crim. P. 1(b)(2) advisory committee’s note to 2002

amendment. This principle must be incorporated into the definition of “district court” in

§ 3771 because Rule 1 governs the statute’s definitions. See id. Thus, by definition, a

“district court” under § 3771(d)(3) includes a magistrate judge. Boone’s argument ignores

both the definitional structure for § 3771 imposed through § 3001 and Congress’ decision

not to alter that structure for purposes of § 3771.

        Second, Boone misstates the scope of § 3402, which deals with “an appeal of right”

“from the judgment of the magistrate judge to a judge of the district court” in “all cases of

conviction by a United States magistrate judge.” 18 U.S.C. § 3402. The case before us is

not such an appeal. It is a fundamentally different proceeding by the crime victim—not the

defendant—and thus does not fall under § 3402 as an appeal from a “case[ ] of conviction

by a United States magistrate judge.” § 3402; see In re Murphy-Brown, LLC, 907 F.3d 788,

793 (4th Cir. 2018) (“[W]rits of mandamus function differently from ordinary

appeals. . . .”).



                                              9
       Under the plain terms of § 3771(d)(3), it is the “movant” who “may petition the

court of appeals for a writ of mandamus” “[i]f the district court denies the relief sought.”

§ 3771(d)(3). Brown is the “movant” under § 3771(d)(3) and is clearly accorded the right

to petition under the statute. Congress’ specific grant of this right to a “movant” is unrelated

to any appeal under § 3402 and is plainly not a right granted to a defendant or limited to

the Government. Congress has made this distinction clear by enacting § 3771(d)(4), which

“simultaneously affords the government with the ability to obtain ordinary appellate review

of the [restitution] decision.” See In re Antrobus, 519 F.3d 1123, 1129 (10th Cir. 2008). By

expressly providing only the Government, not a “movant,” with ordinary direct appeal

rights, Congress has distinguished the appellate rights for mandamus review afforded to a

“movant” under § 3771(d)(3) from the ordinary appeal rights afforded to a party or the

Government under § 3771(d)(4) which would be subject to § 3402. See Sosa v. Alvarez-

Machain, 542 U.S. 692, 711 n.9 (2004) (“[W]hen the legislature uses certain language in

one part of the statute and different language in another, the court assumes different

meanings were intended.” (internal quotation marks omitted)).

       As a result, Boone’s position simply ignores Congress’ specific choice of “a

mandamus petition [to a court of appeals] as the appropriate vehicle for appellate review

of an order denying a crime victim’s assertion of a right protected thereunder.” In re Doe,

264 F. App’x 260, 262 (4th Cir. 2007); see Fed. R. Crim. P. 60(b)(5) (stating that a crime

victim may move to reopen a plea or sentence if, among other things, “the victim petitions

the court of appeals for a writ of mandamus within 10 days after the denial, and the writ is

granted”); United States v. Monzel, 641 F.3d 528, 540 (D.C. Cir. 2011) (“Since the

                                              10
enactment of the CVRA, every circuit . . . has held that mandamus is a crime victim’s only

recourse for challenging a restitution order”).

       Brown, as the victim, has no right to contest the propriety of Boone’s conviction.

See United States v. Aguirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) (“[C]rime victims

are not parties to a criminal sentencing proceeding. . . . . Thus, the baseline rule is that

crime victims, as non-parties, may not appeal a defendant’s criminal sentence.”). Instead,

by petitioning this Court for a writ of mandamus, Brown is asserting his separate statutory

right to restitution which Congress has afforded him under the CVRA. See id. at 54

(holding that although “crime victims have no right to directly appeal a defendant’s

criminal sentence,” “the CVRA expressly provides [them] with a limited avenue to

challenge the restitution component of a defendant’s sentence through a petition for a writ

of mandamus”). Brown’s § 3771(d)(3) petition thus has no relation to an appeal under

§ 3402 and the distinctions that statute draws between a magistrate judge and a district

judge do not apply here.

       Last, Boone’s interpretation of § 3771(d)(3) creates a conflict with other statutes

governing magistrate judges and ignores Congress’ policy choices behind those statutes.

Her approach violates canons of statutory interpretation that require courts to “reflect,

rather than distort, the policy choices that elected representatives have made” in

interpreting statutes, Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998), and

to avoid “reading conflicts into statutes,” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630

(2018). In following these doctrines, we must reject Boone’s argument.



                                             11
       Our analysis is derived from two statutes under the Federal Magistrates Act, 28

U.S.C. § 636, and 18 U.S.C. § 3401, which create and govern the office of magistrate judge

and demonstrate a magistrate judge’s role as an arm of the district court. The Federal

Magistrates Act invests certain judicial powers in magistrate judges, including the powers

“to enter a sentence for a petty offense” and “to conduct trials under section 3401, title 18,

United States Code, in conformity with and subject to the limitations of that section”

“within the district in which sessions are held by the court that appointed the magistrate

judge.” 28 U.S.C. § 636(a). In turn, § 3401(b) provides, “[a]ny person charged with a

misdemeanor, other than a petty offense may elect . . . to be tried before a district judge for

the district in which the offense was committed.” 18 U.S.C. § 3401(b) (emphasis added).

This section indicates that a defendant who is charged with a petty offense, like Boone,

may not elect to be tried before a district judge and must proceed before a magistrate judge

unless a district judge chooses to preside in the case.

       This statutory scheme reflects “Congress’ perception that the assistance of federal

magistrates was a necessary measure to ensure that the already severe pressures on the

federal district courts do not become overwhelming.” United States v. Raddatz, 447 U.S.

667, 713 (1980) (Marshall, J., dissenting). By enacting the Federal Magistrates Act,

       The Congress . . . manifested its intention to create a judicial officer and to
       invest in him the power to furnish assistance to a judge of the district court.
       The magistrate was given jurisdiction over petty criminal offenses and the
       Act also gave each district court the discretionary power to use the magistrate
       to assist a district court judge . . .
       ....
       [T]he Congress clearly indicated its intent that the magistrate should be a
       judicial officer whose purpose was to assist the district judge to the end that
       the district judge could have more time to preside at the trial of cases having

                                              12
       been relieved of part of his duties which required the judge to personally hear
       each and every pretrial motion or proceeding necessary to prepare a case for
       trial.

H.R. Rep. No. 94-1609, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 6162, 6166

(emphasis added). Pursuant to this clear congressional intent, magistrate judges “are

appointed and subject to removal by Article III judges,” Peretz v. United States, 501 U.S.

923, 937 (1991), and “district judges retain plenary authority over when, what, and how

many pretrial matters are assigned to magistrates,” Raddatz, 447 U.S. at 685 (Blackmun,

J., concurring). Thus, magistrate judges, as “competent and impartial assistants” of district

judges, are an integral part of a district court. Id. at 686.

       Based on this legislative history and the statutory scheme governing magistrate

judges, we conclude that a magistrate court is included within the term “district court”

under § 3771(d)(3). See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008) (noting

that courts’ construction of a statutory term must “ensure that the statutory scheme is

coherent and consistent”). Unlike the specific distinction Congress has drawn between the

magistrate judge and the district court judge in § 3402, Congress has made no such

distinction in § 3771 regarding petitions for a writ of mandamus. We see no basis, sub

silentio, to draw such a distinction in the absence of a specific direction from Congress. To

do so would create the absurd result that under § 3771(d)(3), a crime victim could petition

from the denial of restitution if a district judge made the determination but could not do so

if a magistrate judge made the same decision.

       Boone’s reading requires that when a magistrate judge declines to award restitution

pursuant to § 636(a) and § 3401 in a petty offense case, a victim cannot exercise his

                                               13
statutory rights under § 3771(d)(3) to seek appellate review of that decision. Boone points

to no legal authority other than her tortured interpretation of § 3771(d)(3), which

effectively negates the specific rights of crime victims guaranteed by the CVRA.

Construing the statutes as Boone proposes directly contradicts Congress’ express,

unambiguous intent that regardless of whether the underlying offense is a petty offense,

“[t]he crime victim or the crime victim’s lawful representative [as well as] the attorney for

the Government may assert” the rights to restitution provided under § 3771. § 3771(d)(1)

(emphasis added).

       For all these reasons, we reject Boone’s argument and hold that we have subject

matter jurisdiction over Brown’s petition under § 3771(d)(3).

                                            B.

       Next, we address Boone’s argument that the petition lacks merit. In doing so, we

review the lower court’s restitution decision for abuse of discretion. United States v.

Leftwich, 628 F.3d 665, 667 (4th Cir. 2010).

       Before analyzing the merits of the petition, we review the scope of the applicable

restitution statutes because “federal courts do not have the inherent authority to order

restitution, but must rely on a statutory source” to do so. United States v. Cohen, 459 F.3d

490, 498 (4th Cir. 2006). Relevant here are two restitution enactments: the Victim and

Witness Protection Act (“VWPA”), 18 U.S.C. § 3663, and the Mandatory Victims

Restitution Act (“MVRA”), 18 U.S.C. § 3663A. 7 These statutes “impose different


       7
       The CVRA is substantively different from the VWPA and the MVRA in that it
“makes available to crime victims, among other things, procedural mechanisms to assert
                                             14
requirements on the district court when it determines an award of restitution.” Leftwich,

628 F.3d at 667. The key difference between them is that “an award of restitution under

the VWPA is not mandatory,” whereas “the MVRA mandates that the sentencing court

order restitution in the full amount of the victim’s loss when the defendant has been

convicted of certain specified offenses.” Id. at 668. As the parties concede and the lower

court correctly held, the VWPA governs Brown’s restitution request because Boone’s

offenses do not qualify as offenses that warrant mandatory restitution under the MVRA.

Cf. 18 U.S.C. § 3663A(a)(1), (c).

       To analyze the applicable restitution statutes, we first examine whether the

sentencing court may award restitution under § 3563(b)(2) because Brown asked that

restitution be imposed as a condition of Boone’s probation. Under this provision, a court

has discretion to order “restitution to a victim of the offense under section 3556” as a

condition of probation. § 3563(b)(2). In turn, § 3556 states that “[t]he court, in imposing a

sentence on a defendant who has been found guilty of an offense . . . may order restitution

in accordance with section 3663” and follow the procedures set forth in § 3664. § 3556.

       An award of restitution under § 3663 is discretionary, as this section states that the

court “may order . . . that the defendant make restitution to any victim of [the] offense.”


substantive rights in a defendant’s criminal proceedings and on appeal, including rights as
provided in the VWPA and MVRA.” Aguirre-Gonzalez, 597 F.3d at 48 n.2; see United
States v. Kovall, 857 F.3d 1060, 1065 (9th Cir. 2017) (“The CVRA provides mechanisms
for enforcing a victim’s rights under the Act.”). Thus, the CVRA “provide[s] a right to
petition the court of appeals for mandamus, grant[s] the government express power to
assert crime victims’ rights on appeal, [and] set[s] forth procedures by which victims may
move to reopen sentences,” whereas the VWPA and the MVRA do not. See Monzel, 641
F.3d at 543–44.
                                             15
§ 3663(a)(1)(A) (emphasis added). The court’s discretion under the VWPA, however, is

not unfettered; instead, “[d]iscretion in ordering restitution is circumscribed by the

procedural and substantive protections” of the statute. Leftwich, 628 F.3d at 667 (internal

quotation marks omitted). The court, in “determining whether to order restitution,” must

consider “the amount of the loss sustained by each victim as a result of the offense,” “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.”

§ 3663(a)(1)(B)(i).

       Nonetheless, “[t]o the extent that the court determines that the complication and

prolongation of the sentencing process resulting from the fashioning of an order of

restitution under this section outweighs the need to provide restitution to any victims, the

court may decline to make such an order.” § 3663(a)(1)(B)(ii). Congress adopted this

provision “to prevent sentencing hearings from becoming prolonged and complicated trials

on the question of damages owed the victim,” S. Rep. No. 97-532, at 31 (1982), as

reprinted in 1982 U.S.C.C.A.N. 2515, 2537, and so “that sentencing courts [do] not

become embroiled in intricate issues of proof,” 8 United States v. Reifler, 446 F.3d 65, 136


       8
        Several decisions cited herein address the complexity exception under the MVRA,
but they are relevant here. Similar to the VWPA, the MVRA exempts sentencing courts
from awarding restitution if “determining complex issues of fact related to the cause or
amount of the victim’s losses would complicate or prolong the sentencing process to a
degree that the need to provide restitution to any victim is outweighed by the burden on the
sentencing process.” 18 U.S.C. § 3663A(c)(3)(B) (emphasis added); cf.
§ 3663(a)(1)(B)(ii). Because the balancing test required under the complexity exception of
the MVRA is substantially similar to that under the VWPA, the decisions interpreting and
applying the MVRA’s complexity exception provide useful guidance in our
§ 3663(a)(1)(B)(ii) analysis. See United States v. Randle, 324 F.3d 550, 556 n.3 (7th Cir.
                                             16
(2d Cir. 2006). Relying primarily on this rationale, the magistrate judge here held that

determining restitution would complicate and prolong the sentencing process and thus

denied Brown’s request for restitution.

       In making this determination, the court abused its discretion because it improperly

failed to articulate the balancing analysis as required by § 3663(a)(1)(B)(ii) when

restitution is denied. A court does not properly discharge its duty to conduct “a balancing

test” under § 3663(a)(1)(B)(ii) unless it expressly “weigh[s] the need to provide restitution

to a victim against the burden on the sentencing process posed by determining complex

issues of fact.” United States v. Malone, 747 F.3d 481, 486 (7th Cir. 2014); United States

v. Gushlak, 728 F.3d 184, 192 (2d Cir. 2013) (“[T]he statute explicitly contemplates that

the district court weigh against the burden of ordering restitution the victims’ interests in

receiving restitution.”). In conducting this balancing test, the court must articulate its

analysis because we require “district courts to make specific fact findings on those matters

relevant to application of the VWPA.” United States v. Bruchey, 810 F.2d 456, 458 (4th

Cir. 1987). Thus, in applying § 3663(a)(1)(B)(ii), a court must (1) make fact findings

specific to two statutory factors—“the need to provide restitution to a victim,” and “the

burden on the sentencing process posed by determining complex issues of fact”—and (2)

then explicitly balance these two factors. Malone, 747 F.3d at 486.




2003) (“Because of the similarity of the statutory language in the VWPA and MVRA, court
decisions interpreting the language of the VWPA are helpful in construing the language of
the MVRA.”).
                                             17
       The magistrate judge acknowledged Brown’s need for restitution and stated, as to

his proffered proof of lost earnings, “I have no reason to not believe Mr. Brown.” J.A. 126.

The court went on to note, though, that it questioned the sufficiency of Brown’s evidence,

saying, “in my opinion there has got to be more than simply the victim’s statement to award

restitution in the amount of $20,000.” J.A. 127. The magistrate judge then noted Brown’s

extensive medical expenses—although he did not seek restitution for these—and his

disputed claim for lost earnings, and observed, “this is a forum which is so much less

equipped to handle situations like this than a civil proceeding.” J.A. 127.

       After discussing case law on the difficulty of calculating lost future earnings, the

court reiterated its concern

       about not just lost wages, but about future medical bills, future pain and
       suffering, future emotional distress. In a criminal context the Court will put
       its foot into the waters of restitution if things are readily and accurately
       ascertainable uncontested. We are contested here, and that is why this is just
       so not the forum to be dealing with these kinds of figures.

J.A. 129.

       The court then quoted the text of § 3663(a)(1)(B)(ii) and concluded:

       Mr. Brown is not without his day in court. He has a remedy. He has a civil
       remedy. And to order restitution in the amount that is being requested with
       the evidence that would give me the level of confidence and comfort in that
       I am being accurate would, in my opinion, complicate and prolong the
       sentencing process.
              . . . I am going to decline to order, as a discretionary condition of
       probation, restitution in this matter.

J.A. 130.

       While the court found certain facts relating to each of the statutory factors—the

victim’s need for restitution and the burden imposed on the sentencing court—it failed to

                                             18
articulate how it balanced those factors to determine that restitution was unwarranted. By

failing to do so, the court violated its duty under § 3663(a)(1)(B)(ii) to expressly weigh:

       the burden of adjudicating the restitution issue against the desirability of
       immediate restitution—or otherwise stated, a weighing of the burden that
       would be imposed on the court by adjudicating restitution in the criminal
       case against the burden that would be imposed on the victim by leaving him
       or her to other available legal remedies.

United States v. Kones, 77 F.3d 66, 68–69 (3d Cir. 1996). Put another way, the court abused

its discretion by failing to state why the burden of complexity or delay in sentencing

outweighed Brown’s need for restitution. This abuse of discretion harmed Brown because

he received none of the requested restitution to which he may be entitled under the VWPA.

Accordingly, we grant the petition for mandamus, thereby vacating the order denying

restitution, and remand the case for the magistrate judge to conduct and explain on the

record its balancing analysis in determining whether to award restitution.

                                             C.

       In light of some of the court’s remarks and the parties’ arguments on brief, we will

exercise our discretion to address certain issues that are likely to recur upon remand. United

States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 406 (4th Cir. 2012)

(“[W]e note that our precedent is clear that we may address issues that are likely to recur

on remand.”). First, the lower court’s reference to Fountain, 768 F.2d at 801–02, and its

explanation of the difficulty in calculating restitution for future lost earnings, appears to

have limited applicability when, as here, the requested restitution is limited to past lost

earnings. While projecting future losses is inherently speculative, the same concern is



                                             19
absent for earnings already lost. For that reason, Fountain should not be a guiding star for

the lower court’s balancing analysis on remand.

       Next, Brown asserts that the sentencing court erroneously considered the

availability of a civil remedy in deciding whether to award restitution. This argument lacks

merit. Other circuits have concluded that in determining whether to deny restitution under

§ 3663(a)(1)(B)(ii), a court may consider the availability of other legal remedies. See

Kones, 77 F.3d at 68–69 (holding that in applying § 3663(a)(1)(B)(ii), a court must

consider “the burden that would be imposed on the victim by leaving him or her to other

available legal remedies”). Specifically, the Tenth Circuit in United States v. Gallant

observed the following:

       While the availability of other relief is deemed irrelevant to the process of
       calculating the amount of a restitution award [under the MVRA], it is not
       necessarily irrelevant to the availability of such an award under § 3663A. The
       existence of pending civil litigation may in some cases be relevant to the
       balancing test established by [the MVRA’s] complexity exception.

537 F.3d 1202, 1254 (10th Cir. 2008) (final emphasis added). We agree with the Tenth

Circuit’s reasoning and hold that, in considering and balancing the statutory factors under

§ 3663(a)(1)(B)(ii), the court may consider, among other factors, the availability of

alternative civil remedies for Brown’s past lost earnings. That said, the court on remand

“should not place great weight on this factor.” Id. It is merely one factor for the court to

balance and should not be the controlling factor in and of itself. Rather, “the primary

consideration” of the complexity exception “is the burden that calculating restitution would

place on the sentencing process.” Id.



                                            20
       Last, the court below referenced Brown’s need for compensation for his medical

expenses despite the fact that Brown specifically denied any claim to medical expenses and

requested restitution only for past lost earnings. In performing its § 3663(a)(1)(B)(ii)

balancing analysis, the court should confine its review to what Brown requested—past lost

earnings. Any consideration of unclaimed medical expenses is irrelevant. 9



                                             III.

       For the reasons stated above, Brown’s petition for a writ of mandamus is granted

and the case is remanded to the lower court for further proceedings consistent with this

opinion.

                                                                      PETITION GRANTED




       9
          We express no view, and take no position, on whether Brown’s motion for
restitution should be granted. That matter is left to the lower court to determine in a manner
consistent with this opinion on remand.
                                             21
