No. IN THE Supreme Court of the United States. v. UNITED STATES OF AMERICA,

No. IN THE Supreme Court of the United States WALTER HOLMICH, v. UNITED STATES OF AMERICA, Petitioner, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit PETITION FOR A WRIT OF CERTIORARI LINDSAY C. HARRISON Counsel of Record JESSICA RING AMUNSON AMIR H. ALI JOSHUA M. PARKER* JENNER & BLOCK LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 (202) 639-6000 lharrison@jenner.com *Admitted only in NY; supervised by principals of the Firm.

i QUESTION PRESENTED Whether restitution is a criminal penalty subject to the requirement under the Sixth Amendment that the government allege in the indictment and a jury find beyond a reasonable doubt any fact that increases the amount of criminal sentences, penalties, and judgments.

ii TABLE OF CONTENTS QUESTION PRESENTED... i TABLE OF AUTHORITIES... v PETITION FOR A WRIT OF CERTIORARI... 1 OPINION AND ORDER BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 1 INTRODUCTION... 2 STATEMENT OF THE CASE... 4 I. Indictment & Guilty Plea... 4 II. Sentencing... 4 III. Appeal... 5 REASONS FOR GRANTING THE PETITION... 7 I. The Circuit Courts Are Deeply Divided Over Whether Restitution Is A Criminal Penalty To Which the Sixth Amendment Applies.... 8 II. The Seventh Circuit s Decision Is In Direct Conflict With This Court s Decisions.... 11

iii A. Restitution Is A Criminal Penalty To Which The Sixth Amendment Applies.... 11 B. The Seventh Circuit s Decision Cannot Be Reconciled With This Court s Decisions In Blakely, Southern Union, And Alleyne.... 16 III. IV. This Case Presents An Important And Recurring Question That Merits This Court s Review.... 23 This Is The Right Case To Resolve These Issues.... 25 CONCLUSION... 28 Appendix A United States v. Holmich, 563 F. App x 483 (7th Cir. 2014)... 1a Appendix B Judgment, United States v. Holmich, Case No. 11-CR-30028-001 (C.D. Ill. Nov. 30, 2012)... 8a Appendix C Indictment (excerpt), United States v. Holmich, Case No. 11-CR-30028-001 (C.D. Ill. June 9, 2011)... 24a

iv Appendix D CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 32a

CASES v TABLE OF AUTHORITIES Alleyne v. United States, 133 S. Ct. 2151 (2013)... 2, 6, 20 Anders v. California, 386 U.S. 738 (1967)... 5 Apprendi v. New Jersey, 530 U.S. 466 (2000)... 2, 7, 8, 11, 16 Blakely v. Washington, 542 U.S. 296 (2004)... 2, 16, 18 Creel v. Commissioner, 419 F.3d 1135 (11th Cir. 2005)... 9 Jones v. United States, 526 U.S. 227 (1999)... 3 Kelly v. Robinson, 479 U.S. 36 (1986)... 12, 14 Pasquantino v. United States, 544 U.S. 349 (2005)... 12 People v. Kyle, No. B244023, 2014 WL 1024250 (Cal. Ct. App. Mar. 17, 2014)... 23 Southern Union Co. v. United States, 132 S. Ct. 2344 (2012)... 2, 15, 17, 19, 27 United States v. Adams, 363 F.3d 363 (5th Cir. 2004)... 9 United States v. Agbebiyi, No. 12-2559, F. App x, 2014 WL 3930195 (6th Cir. Aug. 8, 2014)... 20 United States v. Bach, 172 F.3d 520 (7th Cir. 1999)... 12 United States v. Bapack, 129 F.3d 1320 (D.C. Cir. 1997)... 9

vi United States v. Basile, No. 12-3023, F. App x, 2014 WL 2937030 (3d Cir. July 1, 2014)... 22 United States v. Bearden, 274 F.3d 1031 (6th Cir. 2001)... 14 United States v. Cannon, 560 F. App x 599 (7th Cir. 2014)... 7, 23 United States v. Carruth, 418 F.3d 900 (8th Cir. 2005)... 18 United States v. Cohen, 459 F.3d 490 (4th Cir. 2006)... 9 United States v. Day, 700 F.3d 713 (4th Cir. 2012), cert. denied, 133 S. Ct. 2038 (2013)... 18, 21, 22 United States v. Dubose, 146 F.3d 1141 (9th Cir. 1998)... 10 United States v. Einstman, 325 F. Supp. 2d 373 (S.D.N.Y. 2004)... 21 United States v. Garcia-Castillo, 127 F. App x 385 (10th Cir. 2005)... 10 United States v. Garza, 429 F.3d 165 (5th Cir. 2005)... 21 United States v. George, 403 F.3d 470 (7th Cir. 2005)... 12 United States v. Green, 722 F.3d 1146 (9th Cir.), cert. denied, 134 S. Ct. 568 (2013)... 8, 10, 20, 21, 22 United States v. Jarjis, 551 F. App x 261 (6th Cir.), cert. denied, 134 S. Ct. 1571 (2014)... 18, 21

vii United States v. Keith, 754 F.2d 1388 (9th Cir. 1985)... 14 United States v. LaGrou Distribution Systems, Inc., 466 F.3d 585 (7th Cir. 2006)... 12 United States v. Leahy, 438 F.3d 328 (3d Cir. 2006)... 3, 9, 16 United States v. Milkiewicz, 470 F.3d 390 (1st Cir. 2006)... 25 United States v. Millot, 433 F.3d 1057 (8th Cir. 2006)... 10 United States v. Newman, 144 F.3d 531 (7th Cir. 1998)... 11, 26 United States v. Palma, 760 F.2d 475 (3d Cir. 1985)... 26 United States v. Phillips, 704 F.3d 754 (9th Cir. 2012), cert. denied, 133 S. Ct. 2796 (2013)... 10 United States v. Reifler, 446 F.3d 65 (2d Cir. 2006)... 18 United States v. Rico Industries, Inc., 854 F.2d 710 (5th Cir. 1988)... 26 United States v. Serawop, 505 F.3d 1112 (10th Cir. 2007)... 23, 26 United States v. Sosebee, 419 F.3d 451 (6th Cir. 2005)... 9, 20 United States v. Thompson, 113 F.3d 13 (2d Cir. 1997)... 9

viii United States v. Van Waeyenberghe, 481 F.3d 951 (7th Cir. 2007)... 26 United States v. Visinaiz, 428 F.3d 1300 (10th Cir. 2005)... 10 United States v. Volpendesto, 755 F.3d 448 (7th Cir. 2014)... 26 United States v. Ward, 448 U.S. 242 (1980)... 13 United States v. Wolfe, 701 F.3d 1206 (7th Cir. 2012), cert. denied, 133 S. Ct. 2797 (2013)... 7, 15 United States v. Wolfe, 133 S. Ct. 2797 (2013)... 27 United States v. Ziskind, 471 F.3d 266 (1st Cir. 2006)... 9 CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const. amend. VI... 8-9 18 U.S.C. 1343... 4 18 U.S.C. 3613A(a)(1)... 14 18 U.S.C. 3663(a)(1)(A)... 13 18 U.S.C. 3663A... 4-5 18 U.S.C. 3663A(a)(1)... 13 18 U.S.C. 3663A(a)(3)... 27 18 U.S.C. 3664... 4-5 18 U.S.C. 3664(g)(1)... 14 18 U.S.C. 3664(j)(2)... 14 28 U.S.C. 1254(1)... 1

LEGISLATIVE MATERIALS ix H.R. Rep. No. 104-16 (1995)... 14 S. Rep. No. 104-179 (1995), reprinted in 1996 U.S.C.C.A.N. 924... 14 OTHER AUTHORITIES William M. Acker, Jr., The Mandatory Victims Restitution Act Is Unconstitutional. Will the Courts Say so After Southern Union v. United States?, 64 Ala. L. Rev. 803 (2003)... 23, 24 James M. Bertucci, Note, Apprendi-land Opens Its Borders: Will the Supreme Court s Decision in Southern Union Co. v. United States Extend Apprendi s Reach to Restitution?, 58 St. Louis U. L.J. 565 (2014)... 23, 24 Brief for the United States, Pasquantino v. United States, 544 U.S. 349 (2004) (No. 03-725), 2004 WL 1743937... 13 Brief for the United States, Robers v. United States, 134 S. Ct. 1854 (2014) (No. 12-9012), 2014 WL 251996... 13 Brief for the United States in Opposition, Wolfe v. United States, 133 S. Ct. 2797 (2013) (No. 12-1065), 2013 WL 1945146... 17, 18, 27 Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv. L. Rev. 931 (1984)... 15

x Transcript of Oral Argument, Southern Union Co. v. United States, 132 S. Ct. 2344 (2012) (No. 11-94)... 20 United States Sentencing Commission, 2013 Sourcebook of Federal Sentencing Statistics, available at http://www.ussc. gov/research-and-publications/annual- reports-sourcebooks/2013/sourcebook- 2013.... 8, 25 Melanie D. Wilson, In Booker s Shadow: Restitution Forces a Second Debate on Honesty in Sentencing, 39 Ind. L. Rev. 379 (2006)... 14

1 PETITION FOR A WRIT OF CERTIORARI Petitioner Walter Holmich respectfully petitions this Court for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the Seventh Circuit in this case. OPINION AND ORDER BELOW The amended opinion of the United States Court of Appeals for the Seventh Circuit is not published in the Federal Reporter but is reprinted in United States v. Holmich, 563 F. App x 483 (7th Cir. 2014), and in the appendix to this petition, Pet. App. 1a-7a. The district court s judgment is unpublished and reprinted at Pet. App. 8a-23a. JURISDICTION The Seventh Circuit entered its order on April 23, 2014, and amended it on June 5, 2014. On July 3, 2014, Justice Kagan extended the deadline to file a petition for a writ of certiorari to August 21, 2014. On August 7, 2014, Justice Kagan further extended the deadline to September 20, 2014. This Court has jurisdiction under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Pertinent constitutional and statutory provisions are reprinted in the appendix to this petition. Pet. App. 32a-33a.

2 INTRODUCTION Under this Court s Sixth Amendment jurisprudence, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). This case presents the Court with an opportunity to answer a question that has perplexed and divided the circuit courts since Apprendi was decided: Whether restitution imposed on a criminal defendant is exempt from these Sixth Amendment protections. The Court s decision in Apprendi created a brightline rule prohibiting a judge from inflict[ing] punishment that the jury s verdict alone does not allow. Blakely v. Washington, 542 U.S. 296, 304, 308 (2004). In 2012, the Court applied that rule to criminal fines, explaining that there was no principled basis for distinguishing criminal fines from punishments such as imprisonment or death. So. Union Co. v. United States, 132 S. Ct. 2344, 2350 (2012). In 2013, the Court further extended that rule to facts that increase a mandatory minimum penalty, even where the facts have no impact on the maximum penalty. Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). In this case, the Seventh Circuit held that Apprendi does not apply to restitution orders because restitution is not a criminal penalty and thus does not implicate the Sixth Amendment. In so reasoning, the Seventh Circuit finds itself on the wrong side of a deep circuit

3 split as to whether restitution orders are a criminal penalty or only civil in nature. See United States v. Leahy, 438 F.3d 328, 334-35 & n.9 (3d Cir. 2006) (collecting cases). The Seventh Circuit acknowledged this in its opinion, noting that the circuits are split over whether restitution is a civil or criminal penalty, and suggesting that Petitioner may seek review of this question in the Supreme Court. Pet. App. 5a-6a. The facts of this case exemplify the prejudice that follows when restitution is exempted from Sixth Amendment protections. Petitioner pled guilty to an indictment that alleged particular conduct and particular loss caused to particular victims as a result of that conduct. After Petitioner pled guilty, the sentencing judge based on the findings of a probation officer as to additional conduct and additional victims not included in the indictment saddled Petitioner with a restitution order that required him to pay $270,000 more than the amount of loss alleged in the indictment. This violated the fundamental principle that under the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Jones v. United States, 526 U.S. 227, 243 n.6 (1999). This Court should grant this petition to resolve the confusion and disarray in the circuit courts over whether restitution is a criminal penalty deserving of Sixth Amendment protections.

4 STATEMENT OF THE CASE I. Indictment & Guilty Plea In June 2011, Petitioner Walter Holmich was indicted in the United States District Court for the Central District of Illinois on four counts of wire fraud. See 18 U.S.C. 1343; Pet. App. 1a. The indictment alleged that Petitioner and his business partners had procured government contracts without ever intending to pay the subcontractors who would perform the work. Id. The indictment described ten instances in which Petitioner and his codefendants allegedly obtained a government contract, caused a subcontractor to perform some work, and then did not pay the subcontractor the amount owed. See Pet. App. 25a-31a. In each instance, the government alleged the specific date and federal contract number of the government contract obtained, the name of the specific subcontractor, and the amount of loss that the subcontractor allegedly suffered. Id. In total, the indictment alleged loss of $512,222. See id. Petitioner pled guilty to the counts alleged in the indictment. Pet. App. 1a, 8a. II. Sentencing The government s presentence report (PSR) calculated a guideline range of 108 to 135 months imprisonment and calculated restitution under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C.

5 3663A-3664, in the amount of $780,190.40 approximately $270,000 more than the total loss alleged in the indictment, to which Petitioner pled guilty. PSR at 31. The amount of restitution in the PSR was determined by a probation officer, upon reviewing 23 victim impact statements that had been solicited by the government. See PSR at 18-23. According to the PSR, several of the victim impact statements claimed a specific amount of loss with [n]o further information and [n]o supporting documentation. Id. at 18, 19, 20, 22. Only six of the 23 victim impact statements related to transactions that were alleged in the indictment to which Petitioner pled guilty. In five of those six statements, the victims claimed losses that exceeded the amount specified in the indictment. Compare Pet. App. at 25a-31a with PSR at 19, 21, 22. The probation officer nonetheless credited all of the statements to reach the recommended restitution of $780,190.40. PSR at 31-32. The sentencing judge accepted the probation officer s recommendation. She sentenced Petitioner to 130 months in prison and ordered restitution under the MVRA in the amount of $780,190.40. Pet. App. 17a-18a. III. Appeal Petitioner appealed to the Seventh Circuit and was appointed counsel. Appointed counsel subsequently filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), requesting permission to withdraw on the

6 basis that there existed no non-frivolous grounds for appeal. Pet. App. 1a. Petitioner submitted pro se briefing opposing the withdrawal and arguing the merits of his appeal. Pet. App. 1a-2a. He argued, among other things, that the district court s restitution order violated this Court s decision in Alleyne v. United States, 133 S. Ct. 2151, 2162 (2013) (holding that [w]hen a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury ). Id. at 4a. Petitioner pointed out that the government s indictment, to which he pled guilty, alleged loss of only $512,220, and that it was unconstitutional to order restitution in excess of that amount. The Seventh Circuit granted counsel s request to withdraw and dismissed Mr. Holmich s appeal on the merits. Pet. App. 7a. The court rejected Petitioner s argument that his restitution order violated the Sixth Amendment on the sole basis that the argument was foreclosed by circuit precedent, citing its longstanding precedent that the Sixth Amendment does not apply to restitution because restitution is a civil remedy, not a criminal penalty. See Pet. App. 4a-5a ( [W]e repeatedly have said that Apprendi... and its progeny (including Alleyne), do not apply to the calculation of restitution (citing United States v. Wolfe, 701 F.3d 1206, 1216-17 (7th Cir. 2012); United States v. Bonner, 522 F.3d 804, 806-07 (7th Cir. 2008))). The court expressly acknowledged the circuit split over whether restitution is a civil or criminal penalty, but because the issue was

7 settled in the Seventh Circuit, the court advised Petitioner that his only recourse was to seek review of this question in the Supreme Court. Pet. App. 5a-6a. REASONS FOR GRANTING THE PETITION This case presents the Court with an ideal opportunity to answer a question that has caused significant disarray among the circuits: Whether the Sixth Amendment requires that the government allege and prove beyond a reasonable doubt the facts underlying a restitution order. In Apprendi, this Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. at 490. By holding that Apprendi does not apply to restitution because it is not a criminal penalty, the Seventh Circuit reaffirmed its position on the wrong side of a deep circuit split over the nature of restitution. The Seventh Circuit s decision conflicts not only with Apprendi, but also with this Court s more recent decisions in Southern Union and Alleyne. The Seventh Circuit itself has recognized that its case law is against the Supreme Court s recent trend... to submit more facts to the jury, United States v. Wolfe, 701 F.3d 1206, 1215 (7th Cir. 2012), cert. denied, 133 S. Ct. 2797 (2013), but has on multiple occasions stated that it is bound by its own precedent until this Court intervenes, id. at 1217; Pet. App. 5a-6a; United States v. Cannon, 560 F. App x 599, 605 (7th Cir. 2014).

8 Other courts, which have exempted restitution from the Sixth Amendment on the alternative basis that the MVRA lacks a statutory maximum, Apprendi, 530 U.S. at 489, have similarly recognized that such an exemption rests on questionable grounds in light of this Court s most recent case law. See, e.g., United States v. Green, 722 F.3d 1146, 1151 (9th Cir.) ( Our precedents are clear that Apprendi doesn t apply to restitution, but that doesn t mean our caselaw s well-harmonized with Southern Union. ), cert. denied, 134 S. Ct. 658 (2013). These courts too have found themselves constrained by earlier precedent and have, on multiple occasions, called upon this Court to intervene. Given the disarray among the circuits, the thousands of restitution orders entered every year, and the billions of dollars at issue, 1 the Court s review is urgently needed. I. The Circuit Courts Are Deeply Divided Over Whether Restitution Is A Criminal Penalty To Which the Sixth Amendment Applies. The circuits are deeply divided on the threshold question of whether restitution imposed under the MVRA is a criminal penalty triggering Sixth Amendment protections. See Apprendi, 530 U.S. at 490 (stating its application to any fact that increases the penalty for a crime (emphasis added)); see also U.S. 1 U.S. Sentencing Comm'n, 2013 Sourcebook of Federal Sentencing Statistics, tbl. 15, available at http://www.ussc.gov/research-andpublications/annual-reports-sourcebooks/2013/sourcebook-2013.

9 Const. amend. VI (limiting the right to an impartial jury... and to be informed of the nature and cause of the accusation to criminal prosecutions ). Six Circuits the First, Third, Fourth, Fifth, Sixth, and Eleventh have squarely held that restitution is a criminal penalty. See United States v. Ziskind, 471 F.3d 266, 270 (1st Cir. 2006) (holding that restitution ordered as part of a criminal sentence [under the MVRA] is a criminal penalty, not a civil remedy ); Leahy, 438 F.3d at 335 ( restitution ordered as part of a criminal sentence is criminal rather than civil in nature ); United States v. Cohen, 459 F.3d 490, 496 (4th Cir. 2006); United States v. Adams, 363 F.3d 363, 365 (5th Cir. 2004); United States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005); Creel v. Comm r, 419 F.3d 1135, 1140 (11th Cir. 2005). Though the Second and D.C. Circuits have not directly addressed whether restitution ordered under the MVRA is a criminal penalty, their case law holding that the Ex Post Facto Clause of the Constitution (which, like the Sixth Amendment, applies only in the case of criminal sanctions) prevents retroactive application of the MVRA strongly suggests that they likewise view restitution as a criminal penalty. See United States v. Thompson, 113 F.3d 13, 15 n.1 (2d Cir. 1997); United States v. Bapack, 129 F.3d 1320, 1327 n.13 (D.C. Cir. 1997). 2 2 The circuits have generally recognized that the question of whether restitution is criminal or civil is the same with respect to both the Ex Post Facto Clause and the Sixth Amendment. See,

10 The Seventh Circuit is joined by only the Eighth, Ninth, and Tenth Circuits in holding that the Sixth Amendment s protections do not apply to restitution because it is not a criminal penalty. See Pet. App. 5a; Wolfe, 701 F.3d at 1217 (recognizing the Circuit s wellestablished precedent that restitution is not a criminal penalty ); United States v. Millot, 433 F.3d 1057, 1062 (8th Cir. 2006) (holding that Apprendi does not affect restitution orders since... they are not in the nature of a criminal penalty (quotation marks omitted)); Green, 722 F.3d at 1150-51 (declining to apply Apprendi to the MVRA in part because it s not even clear that restitution s a form of punishment ); 3 United States v. Visinaiz, 428 F.3d 1300, 1316 (10th Cir. 2005) (holding that Apprendi does not apply to restitution imposed under the MVRA because [i]n the Tenth Circuit, restitution is not a criminal punishment ). e.g., United States v. Garcia-Castillo, 127 F. App x 385, 390 (10th Cir. 2005) (noting that the principle that restitution is criminal in Ex Post Facto cases does not change simply because we are examining the issue in a Sixth Amendment context ). 3 In contrast with its recent decisions, the Ninth Circuit has previously held that restitution imposed under the MVRA is a criminal penalty. Compare United States v. Dubose, 146 F.3d 1141, 1144 (9th Cir. 1998) ( [R]estitution under the MVRA is punishment because the MVRA has not only remedial, but also deterrent, rehabilitative, and retributive purposes. ) with United States v. Phillips, 704 F.3d 754, 771 (9th Cir. 2012) ( The purpose of restitution... is not to punish the defendant, but to make the victim whole again. (quoting United States v. Newman, 659 F.3d 1235, 1241 (9th Cir. 2011))), cert. denied, 133 S. Ct. 2796 (2013).

11 There is thus an 8-4 split among the circuits as to whether restitution is a criminal penalty to which the Sixth Amendment s protections apply. The Seventh Circuit s decision in this case was based solely on its erroneous belief that restitution is civil rather than criminal in nature a decision in direct conflict with eight other circuits. II. The Seventh Circuit s Decision Is In Direct Conflict With This Court s Decisions. The Seventh Circuit s position that restitution is not a criminal penalty is contrary not only to this Court s precedent, but also to the text, structure, and history of the MVRA. This Court held in Apprendi that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. at 490. This Court s subsequent decisions in Blakely, Southern Union, and Alleyne make clear that there is no exception to that rule for restitution. A. Restitution Is A Criminal Penalty To Which The Sixth Amendment Applies. The Seventh Circuit first determined that restitution under the MVRA is not a criminal penalty in United States v. Newman, in which it reasoned that, although restitution may serve some traditional aims of punishment... [t]he inherent and primary purpose of restitution is to compensate the victim of crime. United States v. Newman, 144 F.3d 531, 541 (7th Cir. 1998). It has, since then, consistently declined to

12 reconsider that determination including in this case. Pet. App. 5a-6a ( The argument has no possibility of succeeding here. ). 4 Restitution, however, is unquestionably a criminal penalty according to this Court. In Pasquantino v. United States, this Court stated that, under the MVRA, [t]he purpose of awarding restitution... is not to collect a foreign tax, but to mete out appropriate criminal punishment for that conduct. 544 U.S. 349, 365 (2005) (emphasis added). Likewise, in Kelly v. Robinson, 479 U.S. 36 (1986), in determining whether a restitution order was dischargeable in bankruptcy, the Court stated that [a]lthough restitution does resemble a judgment for the benefit of the victim, the context in which it is imposed undermines that conclusion. Id. at 52. Quoting the Bankruptcy Judge who decided the underlying issue, the Court then observed: Unlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal 4 See also, e.g., United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005); United States v. LaGrou Distrib. Sys., Inc., 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. (citation omitted)).

13 sanction intended for that purpose. Id. (quotation marks omitted and emphasis added). 5 The nature of restitution as criminal is confirmed by the MVRA itself. See United States v. Ward, 448 U.S. 242, 248 (1980) ( [T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. ). The MVRA expressly characterizes restitution as a penalty. 6 Furthermore, the statutory scheme set forth by the MVRA does not resemble any other sort of civil liability or judgment. The victim, for instance, has no control over the amount of restitution awarded or over 5 The government itself has previously argued that restitution ordered under the MVRA is criminal punishment. See Br. for the United States at 40-41, Robers v. United States, 134 S. Ct. 1854 (No. 12-9012), 2014 WL 251996 (2014) (arguing that Congress mandated restitution for certain crimes under the MVRA to mete out appropriate criminal punishment for the offense conduct. (emphasis added); see also Br. for the United States at 20-21, Pasquantino v. United States, 544 U.S. 349 (No. 03-725), 2004 WL 1743937 (2004) ( While victims have certain limited rights in the restitution process, restitution remains a criminal punishment that is imposed as part of the sentence for an offense. (footnote omitted)). 6 18 U.S.C. 3663A(a)(1) ( when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim (emphasis added)); see also id. 3663(a)(1)(A) ( The court, when sentencing a defendant... may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense[.] (emphasis added)).

14 the decision to award restitution, Kelly, 479 U.S. at 52, and, indeed, need not even participate in any part of the process, see 18 U.S.C. 3664(g)(1). And, in contrast to other civil liability, [a] defendant cannot escape an order of restitution by entering into a contract with victims in which the victims absolve the defendant from liability. Melanie D. Wilson, In Booker s Shadow: Restitution Forces a Second Debate on Honesty in Sentencing, 39 Ind. L. Rev. 379, 399 (2006); United States v. Bearden, 274 F.3d 1031, 1041 (6th Cir. 2001) (observing that a private settlement between a criminal wrongdoer and his victim... does not preclude a district court from imposing a restitution order for the same underlying wrong ). Nor does the imposition of restitution preclude a victim from pursuing a subsequent civil action against a defendant. 18 U.S.C. 3664(j)(2); United States v. Keith, 754 F.2d 1388, 1391 (9th Cir. 1985). Furthermore, unlike civil liability, the defendant can serve jail time for failing to pay restitution imposed under the MVRA. See 18 U.S.C. 3613A(a)(1). 7 Restitution orders, moreover, have been viewed as criminal punishment as a historical matter. See So. 7 The legislative history of the MVRA also confirms that Congress viewed restitution as a criminal penalty. See H.R. Rep. No. 104-16, at 5 (1995) (stating that the law requires the offender to face the harm suffered by his victims and, to others harmed by his unlawful actions. ); S. Rep. No. 104-179, at 18 (1995), reprinted in 1996 U.S.C.C.A.N. 924, 931 (emphasizing the benefits that even nominal restitution payments have for the victim of crime, as well as the potential penalogical [sic] benefits of requiring the offender to be accountable for the harm caused to the victim ).

15 Union Co. v. United States, 132 S. Ct. 2344, 2361 (2012) (explaining that Apprendi relied heavily upon the fact that in England before the founding of our Nation the prescribed punishment for more serious crimes ). As one commentator has described: In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offense. The primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. See Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv. L. Rev. 931, 933-34 (1984) (footnotes omitted). The Seventh Circuit s position that restitution is not a criminal penalty thus cannot be squared with this Court s case law or the text, structure, and history of the MVRA. The Seventh Circuit has itself acknowledged that it is in the minority and that its now entrenched precedent is against the Supreme Court s recent trend... to submit more facts to the jury. Wolfe, 701 F.3d at 1215, 1217. This Court s intervention is urgently required.

16 B. The Seventh Circuit s Decision Cannot Be Reconciled With This Court s Decisions In Blakely, Southern Union, And Alleyne. This Court s recent case law leaves no room to exempt restitution from the rule that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. Apprendi, 530 U.S. at 490. There can be no doubt after this Court s decision in Blakely that restitution orders which exceed the amount admitted to by the defendant or found by the jury run afoul of Apprendi. In Blakely, the Court clarified that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely, 542 U.S. at 303 (emphasis in original). In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Id. at 303-04 (emphasis in original). 8 The imposition of a restitution order that exceeds the amount admitted to by the defendant or found by the jury necessarily means that the judge has found additional facts that lead to the greater amount of loss. See Leahy, 438 F.3d at 342 (McKee, J., 8 See also Apprendi, 530 U.S. at 482-83 (defining maximum as the punishment the defendant would receive if punished according to the facts reflected in the jury verdict alone ).

17 dissenting) ( Notwithstanding the jury s verdict, no restitution can be imposed absent a judicial determination of the amount of loss. ). If there were any doubt as to whether the Sixth Amendment applies to restitution following Blakely, it was resolved in Southern Union. That case involved a criminal fine under the Resource Conservation and Recovery Act of 1976, which provided for a fine of not more than $50,000 for each day of violation of the statute. 132 S. Ct. at 2349 (quotation marks omitted). The Court held that the Sixth Amendment reserved for the jury the determination of facts underlying the amount of criminal fines. Id. at 2357. As the Court explained, we have never distinguished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal sentence[s], penalties, or punishment[s] terms that each undeniably embrace fines. Id. at 2351. Just as this Court found no principled means of distinguishing criminal fines from imprisonment, there is no principled way to distinguish restitution from criminal fines and imprisonment. Undoubtedly, the government will respond, as it has in the past, that restitution is exempt from the Sixth Amendment because the MVRA establishes an indeterminate scheme that lacks a statutory maximum. Brief for the United States in Opposition at 11, Wolfe v. United States (No. 12-1065), 2013 WL 1945146 (May 10, 2013) ( Wolfe Opp. ). Because the courts of appeals have exempted restitution from the Sixth Amendment on this alternative basis, the

18 government has argued in the past that this Court s review of the split among the circuits as to the nature of restitution is not warranted. Id. at 8-13 (collecting cases); see also United States v. Reifler, 446 F.3d 65, 118 (2d Cir. 2006) ( the MVRA fixes no range of permissible restitutionary amounts and sets no maximum amount of restitution that the court may order... the Booker Blakely principle that jury findings, or admissions by the defendant, establish the maximum authorized punishment has no application to MVRA orders of restitution. ); United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012) ( Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on the amount of damage and injury caused by the offense. (emphasis in original)); see also United States v. Jarjis, 551 F. App x 261, 261 (6th Cir.) (per curiam), cert. denied, 134 S. Ct. 1571 (2014). This indeterminacy argument itself, however, cannot be squared with Blakely, Southern Union, or Alleyne. That the MVRA is indeterminate does not alter the fact that restitution may not be imposed based on additional facts that were not charged in the indictment or contained within the jury s verdict. Blakely, 542 U.S. at 303-04; see United States v. Carruth, 418 F.3d 900, 906 (8th Cir. 2005) (Bye, J., dissenting) ( While many in the pre-blakely world understandably subscribed to the notion Apprendi does not apply to restitution because restitution statutes do not prescribe a maximum amount, this notion is no longer viable in the post-blakely world which operates

19 under a completely different understanding of the term prescribed statutory maximum. (footnote and citation omitted)). The indeterminacy argument, moreover, conflicts with Southern Union, in which the Court applied Apprendi to a statutory penalty that itself prescribed an indeterminate amount of not more than $50,000 for each day of violation. 132 S. Ct. at 2349 (emphasis added). In holding that Apprendi applied to criminal fines, the Court in Southern Union expressly recognized that often fines like restitution ordered under the MVRA are determined based on amount of the defendant s gain or the victim s loss. Id. at 2351 & n.4. The Court also relied on several historical examples in which juries were required to find the requisite facts precisely because the fines at issue were indeterminate. See id. at 2353 (relying on sources observing that the jury was historically required to find facts where the amount of the fine depends upon the quantum taken or property s specific value (emphasis in original)). Indeed, at oral argument in Southern Union, the government specifically argued that extending Apprendi to fines would be all but dispositive with respect to restitution also. 9 9 In arguing that the government should not find that criminal fines increase the statutory minimum, the government argued: lower courts have said that restitution isn t swept up by Apprendi [because] it s a rule that has no maximum... if one is applying an algebraic understanding of the relevant statutory maximum from the Blakely decision, restitution would be hard to justify because the jury verdict does not

20 The indeterminacy argument also belies this Court s more recent decision in Alleyne, which held that Apprendi had been violated even though (1) the relevant statute set no maximum penalty at all and (2) the seven-year sentence at issue was well below the statutory ceiling. 133 S. Ct. at 2161-63. Though courts have declined to reconsider their precedent holding that restitution is exempt from the Sixth Amendment, they have done so on questionable grounds. Two circuits that had long held that restitution is a criminal penalty, for instance, upheld their prior case law by questioning whether restitution may in fact be civil in nature. United States v. Agbebiyi, No. 12-2559, F. App x, 2014 WL 3930195, at *9 (6th Cir. Aug. 8, 2014); Green, 722 F.3d at 1150-51. Other courts have held that the Sixth Amendment does not require a jury to find the facts underlying a restitution order because the MVRA mandates judicial determination. See, e.g., Sosebee, 419 F.3d at 461 ( [T]he Victim and Witness Restitution Act and the Mandatory Victim Restitution Act specifically state that the amount of restitution should be equal to the amount of each victim s losses as determined by the court.... Where, as here, a statute mandates that a judge exercise his or her discretion, Booker provides no impediments to a judicial determination of the contain findings about harm to victims. The jury verdict finds guilt. Afterwards, the judge finds an additional fact, namely the amount of harm, and imposes restitution. Transcript of Oral Argument at 31-32, Southern Union Co. v. United States, 132 S. Ct. 2344 (2012) (No. 11-94).

21 necessary underlying facts. (emphasis in original) (citation omitted)); Jarjis, 551 F. App x at 261 ( this court has held that the requirement of proving facts beyond a reasonable doubt does not apply to restitution[]... because the Mandatory Victim Restitution Act mandates that judges determine the amount ). 10 This, of course, gets it wrong: statutes must comply with the Constitution, not the reverse. Still other courts have continued to cling stubbornly to their pre-southern Union, pre-alleyne (and often pre-blakely) precedent that restitution is exempt because it is indeterminate. See, e.g., Day, 700 F.3d at 732 (distinguishing Southern Union on the basis that there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on the amount of damage and injury caused by the offense (emphasis in original)); Jarjis, 551 F. App x at 261 (relying on earlier precedent that restitution has no statutory maximum ); Green, 722 F.3d at 1150 ( Restitution carries with it no statutory maximum; it s pegged to the amount of the victim s loss. A judge can t exceed the non-existent statutory maximum for restitution no matter what facts he finds, so Apprendi s not implicated. ). 10 Cf. also United States v. Garza, 429 F.3d 165, 169-70 (5th Cir. 2005); United States v. Einstman, 325 F. Supp. 2d 373, 382 (S.D.N.Y. 2004) ( It appears that Congress wanted district courts to set the amount of restitution in the old-fashioned, pre-ussg way, just as they would set fines[.] ).

22 Whatever their rationale, the circuit courts appear unwilling to reconsider longstanding circuit precedent that Apprendi does not apply to restitution until this Court intervenes. As Judge Kozinski explained: Our precedents are clear that Apprendi doesn t apply to restitution, but that doesn t mean our caselaw s well-harmonized with Southern Union. Had Southern Union come down before our cases, those cases might have come out differently. Nonetheless, our panel can t base its decision on what the law might have been.... Faced with the question whether Southern Union has undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable, we can answer only: No. Green, 722 F.3d at 1151; see also id. at 1150 (characterizing Southern Union as a case that chips away at the theory behind our restitution cases ); United States v. Basile, No. 12-3023, 2014 WL 2937030, at *5, F. App x, (3d Cir. July 1, 2014) ( declin[ing] to explore the issue after Southern Union and Alleyne because these holdings are not directly applicable to restitution ); Day, 700 F.3d at 732 (declining to overrule its precedent because Southern Union does not discuss restitution and resorting to the indeterminacy argument). Indeed, given the state of confusion, many lower courts much like the Seventh Circuit in this case have effectively called for this Court to intervene. See

23 Pet. App. 6a (advising Petitioner that his only recourse is to seek review of this question in the Supreme Court. ); Cannon, 560 F. App x at 605 ( Cannon may petition the Supreme Court for a writ of certiorari if he so desires ); United States v. Serawop, 505 F.3d 1112, 1122-23 & n.4 (10th Cir. 2007) ( We are without power to revisit this precedent ); see also People v. Kyle, No. B244023, 2014 WL 1024250, at *9 (Cal. Ct. App. Mar. 17 2014) ( Until either of the Supreme Courts directs otherwise, we follow this substantial authority. ). Resolution of this important question thus requires this Court s intervention. III. This Case Presents An Important And Recurring Question That Merits This Court s Review. The question presented here is one of exceptional importance. As it now stands, the imposition of restitution, mandated as an integral part of a defendant s sentence, is, as a practical matter, controlled by the probation officer in accordance with his levels of integrity, intelligence, and workload. William M. Acker, Jr., The Mandatory Victims Restitution Act is Unconstitutional. Will the Courts Say So After Southern Union v. United States, 64 Ala. L. Rev. 803, 819 (2013). The PSR is routinely based on otherwise inadmissible hearsay, facts neither presented to nor found by a jury during trial, and facts not admitted to by the defendant in his or her plea agreement. James M. Bertucci, Note, Apprendi-land Opens Its Borders: Will the Supreme Court s Decision in Southern Union Co. v. United States Extend

24 Apprendi s Reach to Restitution?, 58 St. Louis U. L.J. 565, 570 (2014) (footnotes omitted). As a practical matter, [t]rial judges are virtually forced to adopt bureaucratically prepared, hearsay-riddled presentence reports. Acker, Jr., supra, at 819 (quoting United States v. Booker, 543 U.S. 220, 304 (2005) (Scalia, J., dissenting)). As a result, judges routinely mandate restitution for harms that, while occurring during or as a result of the defendant s conduct, were not elements of the underlying offense the defendant was either convicted of or pleaded guilty to committing. Bertucci, supra, at 570. This case epitomizes the problem with judges finding facts that support a restitution order. Petitioner pled guilty to four counts of wire fraud and to committing offenses that, according to the indictment, caused a maximum of $512,222 of loss. After he pled guilty, the government solicited and the probation officer relied upon victim impact statements that claimed substantially greater losses than those to which Petitioner pled guilty many of which provided no further information and [n]o supporting documentation, and almost all of which related to wholly different transactions. PSR at 18-23. The district court accepted the PSR s recommendation wholesale, thus requiring Petitioner to pay for conduct for which he was never indicted or convicted in the amount of $780,190.40. Not only was this restitution order premised on findings as to the ultimate amount of loss, but it was also premised on findings about transactions that were neither alleged in the indictment nor raised at his plea hearing.

25 Given that the imposition of restitution is mandatory under the MVRA, see 18 U.S.C. 3663A(a)(1), this sort of injustice is happening, quite literally, every day. See also United States v. Milkiewicz, 470 F.3d 390, 402 (1st Cir. 2006) (recognizing the importance of addressing this particular issue because the issue is appearing with increasing frequency ). According to a survey by the U.S. Sentencing Commission, in 2013 alone, judges imposed restitution in 14.2 percent of all criminal sentences (i.e., over 11,000 cases). 11 Of these sentences, the mean amount ordered to be paid was $740,000. 12 In fraud cases, like this one, restitution was ordered in 70.5% of cases, with a mean of over $1.7 million. 13 This case thus presents an issue with enormous practical implications and merits this Court s attention. IV. This Is The Right Case To Resolve These Issues. This case provides an excellent vehicle for the Court to resolve the question presented. Here, the Seventh Circuit squarely addressed the legal question of whether Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny... apply to the calculation of 11 U.S. Sentencing Comm n, 2013 Sourcebook of Federal Sentencing Statistics, tbl. 15, available at http://www.ussc.gov/research-and-publications/annual-reportssourcebooks/2013/sourcebook-2013. 12 13 Id. Id.

26 restitution. Pet. App. 4a-5a. 14 Because this case arose from a guilty plea, there is no added complication of what loss the government did or did not present to a jury and that would have been essential to the jury s verdict, such that the judicial 14 Alternatively, the Court could grant certiorari to resolve the threshold question of whether restitution is criminal or civil in nature. The nature of restitution informs not only the Sixth Amendment right at issue here, but a number of other fundamental questions, including application of the Ex Post Facto Clause, the Seventh Amendment right to a jury, the Double Jeopardy Clause, the rule of lenity, prejudgment interest, and the doctrine of abatement. See Newman, 144 F.3d at 542 (holding that restitution imposed under the MVRA is not a criminal punishment for purposes of the Ex Post Facto Clause ); United States v. Palma, 760 F.2d 475, 479 (3d Cir. 1985) (observing that courts that have rejected the argument that the VWPA violates the Seventh Amendment have uniformly held that an order of restitution imposed under the VWPA is a criminal, rather than civil, penalty ); United States v. Van Waeyenberghe, 481 F.3d 951, 959 (7th Cir. 2007) (holding that the Double Jeopardy Clause does not apply to restitution based on its precedent recognizing the non-punitive character of restitution (quotation marks omitted)); Serawop, 505 F.3d at 1122-23 (holding that the rule of lenity does not apply based on circuit precedent in the Sixth Amendment context holding that the MVRA does not inflict criminal punishment, and thus is not punitive ); United States v. Rico Indus., Inc., 854 F.2d 710, 714 (5th Cir. 1988) (holding that prejudgment interest may not be imposed on the amount ordered to be paid as restitution because [r]estitution is a criminal penalty and [c]riminal penalties do not bear interest ); United States v. Volpendesto, 755 F.3d 448, 453 (7th Cir. 2014) ( Those [circuits] that view restitution as an exception to the rule of abatement reason that restitution is intended to compensate victims much like a civil judgment; they do not see restitution as part of the offender s punishment ).

27 fact-finding that took place was harmless. Moreover, there was no plea agreement, through which Petitioner could have waived a challenge to his restitution order. See 18 U.S.C. 3663A(a)(3) ( The court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense. ). Here, Petitioner accepted responsibility for certain conduct and loss, and was saddled with a much larger bill that included transactions and victims appearing nowhere in the indictment. This Court recently considered a petition asking whether restitution is exempt from the Sixth Amendment protection because it is civil in nature in Wolfe v. United States, 133 S. Ct. 2797 (2013). The Court called for a response from the government, which then opposed certiorari on the basis that (1) the Seventh Circuit had resolved the petitioner s appeal under a plain error standard, and (2) the Sixth Amendment does not apply to restitution because the MVRA establishes an indeterminate framework. Wolfe Opp. at 7. As explained above, in this case the Seventh Circuit squarely addressed the legal question of whether Apprendi applies to restitution imposed under the MVRA. It did not apply a plain error standard or any other deferential standard of review. Furthermore, as described above, the indeterminacy argument is plainly inconsistent with Southern Union, which itself recognized that criminal fines are usually indeterminate. See 132 S. Ct. at 2351 & n.4, 2353. And since Wolfe, this Court has also decided Alleyne, which applied to a similarly

28 indeterminate statutory scheme. Multiple courts have since acknowledged that inconsistency of carving out an exception to the Sixth Amendment for restitution but have declined to act in the absence of guidance from this Court. This case thus presents a recurring and important question of law that the Court should resolve. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, LINDSAY C. HARRISON Counsel of Record JESSICA RING AMUNSON AMIR H. ALI JOSHUA M. PARKER* JENNER & BLOCK LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 (202) 639-6000 lharrison@jenner.com *Admitted only in NY; supervised by principals of the Firm.

1a Appendix A United States Court of Appeals, Seventh Circuit. UNITED STATES of America, Plaintiff Appellee, v. Walter HOLMICH, Defendant Appellant. No. 12 3792. Submitted March 26, 2014. Decided April 23, 2014. Amended June 5, 2014. Before DIANE P. WOOD, Chief Judge, DIANE S. SYKES, Circuit Judge and DAVID F. HAMILTON, Circuit Judge. ORDER Between 2006 and 2011 Walter Holmich managed several businesses that, without any intention ever to pay their subcontractors, procured government contracts. He pleaded guilty to four counts of wire fraud and was sentenced within the guidelines range to 130 months imprisonment; he was also ordered to pay restitution of almost $800,000. Holmich filed a notice of appeal, but his appointed counsel asserts that any appeal would be frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Holmich opposes counsel s motion. See CIR. R. 51(b). Counsel s brief explains the nature of the case and addresses the issues that a case of this kind might be expected to involve. Because the analysis appears to be thorough, we limit our review to the points counsel has identified and Holmich has