Preserve This! Gorsuch and Sotomayor Express Interest in Applying Apprendi to Restitution Orders

Hester v. United States, an opinion by Justice Gorsuch (joined by Justice Sotomayor), flags an issue that defense counsel should be preserving in appropriate cases. Certiorari was denied in Hester, but the issue may attract enough votes for a grant of certiorari in the future.

The question presented in Hester was whether Apprendi v. New Jersey applies to restitution orders. Apprendi requires that a jury find beyond a reasonable doubt any fact that increases the maximum sentence for an offense. Mr. Hester maintained that Apprendi required a jury to find the facts supporting the amount of restitution that was ordered for his offense. The circuits, including the Tenth Circuit, have uniformly rejected this argument. The Supreme Court declined to review the issue in Hester, but Justices Gorsuch and Sotomayor dissented from the denial of certiorari.

Justices Gorsuch and Sotomayor not only opined that the issue was worthy of the Court’s consideration; they strongly suggested a view on the merits: that Apprendi should, indeed, apply to restitution orders. They reasoned that “the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss. And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.”

Justices Gorsuch and Sotomayor rejected the government’s assertion that restitution “isn’t a criminal penalty, only a civil remedy” as follows: “[T]he Sixth Amendment’s jury trial right expressly applies ‘[i]n all criminal prosecutions,’ and the government concedes that ‘restitution is imposed as part of a defendant’s criminal conviction. Federal statutes, too, describe restitution as a ‘penalty’ imposed on the defendant as a part of his criminal sentence, as do our cases.” As a coup de grâce, Justices Gorsuch and Sotomayor then invoked the Seventh Amendment: “Besides, if restitution really fell beyond the reach of the Sixth Amendment’s protections in criminal prosecutions, we would then have to consider the Seventh Amendment and its independent protection of the right to jury trial in civil cases.”

Equally telling about the merits of the government’s argument against applying Apprendi to restitution is Justice Alito’s opinion concurring in the denial of certiorari. He does not defend the lower courts’ interpretation of Apprendi but, instead, suggests Apprendi should be overruled.

Takeaways 

  • In cases where the applicability or amount of restitution is disputed, preserve an argument that Apprendi requires that the applicability and amount of restitution be determined by a jury beyond a reasonable doubt. You can preserve the argument by filing a written objection to the PSR’s recommendation that restitution be ordered and by raising the argument again at the sentencing hearing.
  • Don’t be deterred from preserving a sound argument just because the circuits have uniformly rejected it. The circuits can be (and have been) uniformly wrong!