Mandatory Victims Restitution Act (“MVRA”)

Under the Mandatory Victims Restitution Act (“MVRA”), a defendant can be ordered to make restitution to the victims of the offense. 18 U.S.C. § 3663A(a)(1).

A “‘victim’ means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a . . . conspiracy . . . , any person directly harmed by the defendant’s criminal conduct in the course of the . . . conspiracy.” Id. § 3663A(a)(2).

When more than one defendant “has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.” Id. § 3664(h).

As the district court acknowledged at sentencing, although gain may sometimes be used as a proxy for loss in calculating offense levels under the Sentencing Guidelines, under the MVRA, any “restitution order must be tied to the victim’s actual, provable, loss.” United States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012).

In United States v. Marino, 654 F.3d 310, 319-20 (2d Cir. 2011), the court found “restitution is authorized only for losses that were directly caused by the conduct composing the offense of conviction, and only for the victim’s actual loss.”

The government bears the burden of proof as to the amount of restitution. “Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.” 18 U.S.C. § 3664(e).

An order of restitution does not have to be mathematically precise, but district court must make a reasonable estimate based on the evidence before it. “[O]nly a victim’s actual loss is compensable, not losses that are hypothetical or speculative.” United States v. Maynard, 743 F.3d 374, 378 (2d Cir. 2014).

“[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 . . . outweighs the need to provide restitution to any victims, the court may decline to make [a restitution] order.” 18 U.S.C. 3663(a)(1)(B)(ii).

The appellate courts review an order of restitution for abuse of discretion. United States v. Goodrich, 12 F.4th 219, 227 (2d Cir. 2021). “An abuse of discretion occurs when a challenged ruling rests on an error of law, a clearly erroneous finding of fact, or otherwise cannot be located within the range of permissible decisions.” Id.