United States v. Reifler, Docket No. 03-1244 (L) (2d Cir. April 18, 2006) (Kearse, Jacobs, Calabresi): Guest Blogger wanted: Anyone wishing to throw in his or her 2 cents about this 164 page opinion should email me. I can’t even make myself print it out, much less read it. (At least this week …)
But sentencing fans can skip to page 104 of the opinion to see the Court reject, at long last, an Apprendi-Ring-Blakely-Booker challenge to the restitution order (which includes amounts not found by a jury or admitted by the defendant). The first two arguments proffered by the Court are plain bizarre — non-sequiturs, really — and the third is simply a repeat of the post-hoc rationale first invented in Fruchter (that the Apprendi rule does not apply to restitution because there is no “maximum” under the restitution statute).
I predict the S. Ct. will reverse this result (though maybe not this case) in the near future.
I don’t buy the court’s “indeterminacy” argument at all: The MVRA is indeed “determinate;” it explicitly limits restitution to the amount of the victim’s loss. No loss = no restitution. See the main dissent in the 3d Circ.’s Leahy opinion for this point.
Second, there is a useful thought experiment that I think disproves correctness of the Reifler holding: Suppose that the jury explicitly finds as a fact that the victim lost EXACTLY $25,000 and no more (assume there was a specific verdict form). Could the judge order restitution above $25,000? If your answer is no, then you must concede that Reifler is wrongly decided. If your answer is yes, then I don’t think you’re taking Booker/Apprendi very seriously or reading the MVRA very closely.
Would it really be that difficult for the government to ask the jury to find whether the victim lost “at least N-dollars?”