USA v. VERNON BONNER AND MARIA MAGANA-BONNER,  06-3350.The defendants challenge various aspects of restitution payments they are required to make under the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A. In particular, the defendants claim that restitution under the MVRA is a criminal punishment and that the facts underlying the restitution amount must be proven beyond a reasonable doubt to a jury.

These arguments lack merit. This court has consistently held that restitution under the MVRA is not a criminal punishment and does not need to be proven to a jury. And the district court properly relied on intended loss in calculating Vernon Bonner’s advisory guidelines range. Therefore, we affirm the district court’s awards of restitution.

The defendants claim that the district court erred by ordering restitution without accounting for various protections set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and Booker, 543 U.S. 220 (2005). These cases hold that facts underlying certain criminal punishments must be proven beyond a reasonable doubt to a jury.

The defendants claim that restitution is in fact a criminal punishment and these protections apply.  The defendants rely on Pasquantino v. United States, 544 U.S. 349, 365 (2005), which mentions in passing, "The purpose of awarding restitution [under the MVRA] in this action is not to collect a foreign tax, but to mete out appropriate criminal punishment for that conduct."

The problem with the defendants’ argument is that we have rejected it many times, even after Pasquantino was decided.  See, e.g., United States v. Lagrou Distrib. Sys., 466 F.3d 585, 593 (7th Cir. 2006) ("We reiterate: restitution is not a penalty for a crime for Apprendi purposes since restitution for harm done is a classic civil remedy that is administered for convenience by the courts that have entered criminal convictions." Restitution under the MVRA is not a criminal punishment, at least not in this circuit.

Moreover, the Third Circuit, which recognizes that restitution under the MVRA is a criminal penalty, has held: restitution constitutes a return to the status quo, a fiscal realignment whereby a criminal’s ill-gotten gains are returned to their rightful owner. In these circumstances, we do not believe that ordering a convicted defendant to return ill-gotten gains should be construed as increasing the sentence authorized by a conviction pursuant to BookerUnited States v. Leahy, 438 F.3d 328, 338 (3d Cir. 2006)

Alternatively, the defendants suggest that if restitution is a civil remedy, then the Seventh Amendment guarantees them a jury trial.  We have already implicitly rejected this argument. See United States v. Scott, 405 F.3d 615, 619 (7th Cir. 2005) ("[T]he amount of criminal restitution is determined by the judge, whereas a suit for damages is a suit at law within the [Seventh] [A]mend-ment’s meaning.").

Finally, the defendants point out that the district court’s written judgments still prohibit the defendants from obtaining any federal benefits until they have completed their restitution payments, even though the district court did not mention this requirement when pronouncing judgment at the sentencing hearings. The government claims these were merely clerical errors. The defendants do not dispute this characterization.

We agree that these errors were likely clerical in nature [and] "[i]f an inconsistency exists between an oral and the later written sentence, the sentence pronounced from the bench controls." United States v. Becker, 36 F.3d 708, 710 (7th Cir. 1994).

The judgments are AFFIRMED, but the cases are REMANDED solely for the district court to correct the above-specified clerical errors in the judgments.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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