                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                      No. 12-30155
              Plaintiff-Appellee,
                                                  D.C. No.
                    v.                       3:11-cr-00252-PK-1

 LAWRENCE MICHAEL STANFILL
 EL,                                               OPINION
           Defendant-Appellant.


        Appeal from the United States District Court
                 for the District of Oregon
         Anna J. Brown, District Judge, Presiding

                   Submitted March 8, 2013*
                      Portland, Oregon

                         Filed April 30, 2013

      Before: A. Wallace Tashima, Richard R. Clifton,
             and Carlos T. Bea, Circuit Judges.

                    Opinion by Judge Clifton




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

                           SUMMARY**


                           Criminal Law

    Affirming a conviction following a bench trial for assault
under a federal statute that provided for a maximum prison
sentence of six months, the panel held that the defendant had
no right to a trial by jury under either the Sixth or Seventh
Amendments because even though the prosecution resulted
in an order requiring the defendant to make monetary
payment in restitution, it was still a prosecution for a petty
offense and not a civil action.


                             COUNSEL

Thomas J. Hester, Assistant Federal Public Defender,
Portland, Oregon, for Defendant-Appellant.

S. Amanda Marshall, United States Attorney, Kelly A.
Zusman, Appellate Chief, and Seth D. Uram, Assistant
United States Attorney, Portland, Oregon, for Plaintiff-
Appellee.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V . STANFILL EL                        3

                             OPINION

CLIFTON, Circuit Judge:

    Defendant Lawrence Michael Stanfill El1 was charged
with assault under a statute that provided for a maximum
prison sentence of six months. He requested but was denied
a jury trial. Following a bench trial, he was convicted and
sentenced to pay restitution in the amount of $3,468.03. He
argues that the possibility of being ordered to pay a
substantial amount of money in restitution gave him the right
to a trial by jury under the Sixth and Seventh Amendments.
We disagree and affirm the judgment of the district court.

I. Background

    Stanfill El and Kyle Carmin were work-study interns with
adjacent workspaces at the Department of Veterans Affairs
office in Portland, Oregon. They had an altercation at work
during which Stanfill El punched Carmin several times.
Carmin required treatment at a nearby hospital.

    Stanfill El was charged with assault within the territorial
jurisdiction of the United States by striking, beating, or
wounding, under 18 U.S.C. § 113(a)(4). He pleaded not guilty
and demanded a jury trial. His jury demand was denied.
Following a bench trial, the magistrate judge found Stanfill El
guilty. The magistrate judge ordered him to pay $3,468.03
restitution to the Oregon Crime Services Division for the


 1
   During the pendency of these proceedings, Defendant, convicted under
the name Lawrence M. Stanfill, filed a motion seeking to have his name
changed in accordance with his legal name change. W e granted that
motion.
4             UNITED STATES V . STANFILL EL

medical bills it paid to treat Carmin’s injuries. No other
sentence was imposed.

    Stanfill El appealed his conviction to the district court
under 18 U.S.C. § 3402. He asserted that he was
unconstitutionally denied a jury trial guaranteed to him by the
Sixth and Seventh Amendments. The district court affirmed
the conviction. Stanfill El appealed to this court.

II. Discussion

   Stanfill El challenges his conviction under the Sixth and
Seventh Amendments. A defendant’s right to a jury trial
under the Constitution is a question of law that we review de
novo. Palmer v. Valdez, 560 F.3d 965, 968 (9th Cir. 2009).

    A. Sixth Amendment

     The Sixth Amendment to the United States Constitution
provides the right to a jury trial “[i]n all criminal
prosecutions.” But “‘there is a category of petty crimes or
offenses which is not subject to the Sixth Amendment jury
trial provision.’” Lewis v. United States, 518 U.S. 322, 325
(1996) (quoting Duncan v. Louisiana, 391 U.S. 145, 159
(1968)). To determine whether an offense is petty, courts look
to the maximum penalty that could result from a conviction.
Id. at 326.

    Courts presume that an offense is petty when it carries a
maximum term of imprisonment of six months or less. Id.
The maximum period of incarceration is not the only relevant
form of punishment, but it is the most important. Blanton v.
City of N. Las Vegas, 489 U.S. 538, 542 (1989); United States
v. Ballek, 170 F.3d 871, 876 (9th Cir. 1999). A defendant can
              UNITED STATES V . STANFILL EL                   5

overcome the presumption that attaches to offenses with a
six-month maximum term of imprisonment only when the
additional authorized penalties “are so severe that they clearly
reflect a legislative determination that the offense in question
is a ‘serious’ one.” Blanton, 489 U.S. at 543. A very large
fine or a very long period of probation, for example, could be
such an onerous punishment that it would transform an
otherwise petty offense into a serious one. Ballek, 170 F.3d
at 876.

    Stanfill El was convicted under 18 U.S.C. § 113(a)(4),
which carries with it a maximum term of imprisonment of six
months. Thus, we start with the “very strong” presumption
that the offense was petty. See id. (using those terms to
describe the presumption).

    Stanfill El argues that the potential for an order of
restitution in a substantial amount is enough to overcome that
presumption. The Mandatory Victims Restitution Act of 1996
(“MVRA”), 18 U.S.C. § 3663A, requires a court to order a
person convicted under § 113(a)(4) to pay restitution. As
noted above, Stanfill El was ordered to pay restitution here.
Although the restitution he was ordered to pay amounted to
only $3,468.03, he argues that it is the maximum potential
punishment that determines whether an offense is petty, and
because the MVRA mandates full restitution without
financial limitation, the maximum amount of the award could
potentially have been enormous.

    We have already rejected that argument. In Ballek, we
held that an order requiring the defendant to pay monetary
restitution did not qualify as additional punishment that
would trigger the right to a jury trial under the Sixth
Amendment, “no matter how large the sum involved.” Id. The
6             UNITED STATES V . STANFILL EL

defendant in that case was found guilty of willfully failing to
pay child support. The district court sentenced him to six
months in prison and ordered him to pay $56,916.71 in past
due child support as restitution. Id. at 873. The defendant
argued that the imposition of restitution in excess of $50,000
converted what was otherwise a petty offense into a serious
one. We disagreed:

       Restitution does not impose an additional
       obligation on the defendant; rather, it
       recognizes the debt he already owes the
       victim. This is especially true where, as here,
       the debt is already liquidated by way of a
       state-court judgment or decree. The
       imposition of a restitution order as part of a
       federal criminal sentence does cause some
       additional hardship to the defendant, and
       gives the victim some additional enforcement
       mechanisms. But the additional burden on the
       defendant is relatively minor, as it merely
       reinforces his existing moral and legal duty to
       pay a just debt. We therefore hold that the
       possibility that the district court will order
       restitution, in addition to a six-month
       maximum sentence, does not turn an
       otherwise petty offense into a serious one, no
       matter how large the sum involved. Ballek
       was not entitled to a jury trial.

Id. at 876 (footnote omitted).

    Stanfill El contends that Ballek is distinguishable because
it involved a child support debt that had been previously
adjudicated by a state court. Stanfill El’s legal duty to pay
              UNITED STATES V . STANFILL EL                   7

restitution, he argues, hinged entirely on the fact-finder’s
determination of his guilt rather than a state-court
adjudication. But the result we reached in Ballek did not
depend upon the previous state-court judgment. See id. at 876
(noting that the state-court decree only rendered our
conclusion “especially true”). Accordingly, Stanfill El cannot
rely on it to distinguish his case. Ballek controls, and the
district court was correct when it relied on our holding in that
case to reject Stanfill El’s Sixth Amendment argument.

   B. Seventh Amendment

    The Seventh Amendment provides, in part: “In Suits at
common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved.”
The Supreme Court has held that “the thrust of the
Amendment was to preserve the right to jury trial as it existed
in 1791.” Curtis v. Loether, 415 U.S. 189, 193 (1974).

    Stanfill El argues that his trial was analogous to a
common law assault cause of action because it resulted in a
monetary award against him for restitution. If an action for
assault had been brought as a civil action, Stanfill El
contends, he would be entitled to a jury trial under the
Seventh Amendment, so he should likewise be entitled to a
jury trial in his criminal assault action.

    We have previously held that an order of restitution as
part of a criminal sentence did not implicate the Seventh
Amendment guarantee of a jury trial. See United States v.
Dubose, 146 F.3d 1141, 1148 (9th Cir. 1998) (regarding an
order of restitution under the MVRA); United States v. Keith,
754 F.2d 1388, 1392 (9th Cir. 1985) (concerning restitution
under the Victim and Witness Protection Act of 1982, the
8              UNITED STATES V . STANFILL EL

predecessor statute to the MVRA); see also United States v.
Brock-Davis, 504 F.3d 991, 996 (9th Cir. 2007) (noting that
courts may look to VWPA cases in interpreting the MVRA).

     Dubose and Keith are different from the current case in
one respect. In those cases, the defendants were entitled to
jury trials under the Sixth Amendment because the crimes
were not petty offenses, but they waived the right to a jury
trial and pleaded guilty. Stanfill El did not plead guilty, and
his guilt was determined by the court after his request for a
jury was denied.

    We are not persuaded that this distinction alters the result,
however. The application of the Seventh Amendment
depends on whether the action before us “‘was tried at law at
the time of the founding or is at least analogous to one that
was.’” City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U.S. 687, 708 (1999) (quoting Markman v.
Westview Instruments, Inc., 517 U.S. 370, 376 (1996)). The
historic record does not support Stanfill El’s argument.

    As discussed above, it has long been held that the Sixth
Amendment does not provide a right to a jury trial for petty
offenses because there was no such right at the time the
amendment was enacted. In Callan v. Wilson, 127 U.S. 540
(1888), the Supreme Court identified types of cases that were
historically tried without a jury at common law. Id. at 549.
The Court observed the historical practice that “summary
convictions for petty offenses against statutes were always
sustained, and they were never supposed to be in conflict with
the common-law right to a trial by jury.” Id. at 552 (internal
quotation marks omitted); see also Duncan v. Louisiana,
391 U.S. 145, 160 (1968) (noting that petty offenses were
tried without juries “both in England and in the Colonies”).
              UNITED STATES V . STANFILL EL                   9

Callan’s observations are equally applicable to Stanfill El’s
Seventh Amendment claim.

     That a criminal prosecution might result in a monetary
award of restitution did not appear to implicate the Seventh
Amendment right to a jury at the time of the founding. As the
Second Circuit has noted, judges frequently ordered
restitution in larceny cases at common law without a jury.
United States v. Brown, 744 F.2d 905, 910 (2d Cir. 1984)
(citing 4 William Blackstone, Commentaries, *362–63); see
also United States v. Fountain, 768 F.2d 790, 801 (7th Cir.
1985) (“[C]riminal restitution is not some newfangled effort
to get around the Seventh Amendment but a traditional
criminal remedy.”). Thus, we cannot conclude that this action
was analogous to one that was tried at law before a jury.

    More broadly, Stanfill El’s trial was a criminal
prosecution. The Seventh Amendment guarantees a right to
a jury trial in civil cases. See Callan, 127 U.S. at 550; In Re
U.S. Financial Sec. Lit., 609 F.2d 411, 419–20 (9th Cir. 1979)
(discussing the history of the Seventh Amendment). Imposing
a restitution order as part of a criminal sentence is a means of
achieving criminal penal objectives. United States v.
Edwards, 595 F.3d 1004, 1013–14 (9th Cir. 2010); Dubose,
146 F.3d at 1148 (“Restitution undoubtedly serves traditional
purposes of punishment.”) (internal quotation marks omitted).
The fact that the restitution order involved monetary liability
that is civilly enforceable did not convert Stanfill El’s
criminal prosecution into a civil action. See id.; see also
United States v. Soderna, 82 F.3d 1370, 1379 (7th Cir. 1996)
(concluding that a defendant would not be guaranteed a jury
under the Seventh Amendment in a criminal proceeding
arising from his violation of a federal statute despite
possessing such a right in a civil proceeding under the same
10             UNITED STATES V . STANFILL EL

statute). Because this was a criminal prosecution, and it was
not an action that was tried before a jury at the time of the
founding nor analogous to one that was, the right to a jury
trial under the Seventh Amendment did not apply.

III.     Conclusion

    The prosecution of Stanfill El, even though it resulted in
an order requiring him to make monetary payment in
restitution, was still a prosecution for a petty offense, and was
not a civil action. Stanfill El had no right to a jury under
either the Sixth or Seventh Amendments.

       AFFIRMED.
