Sentencing — restitution

Listen to this article

United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — restitution

Where the defendant failed to object to an award of restitution for mental distress in the absence of physical injury, it was not plain error for the district court to award restitution.

“Bearing in mind the limited information before us, we turn to Breshers’s argument. He contends that the district court plainly erred in ordering restitution for The Hartford and T.A. because, in his view, the MVRA, 18 U.S.C. § 3663A, authorizes payment based only on the victim’s physical—as contrasted with mental— injuries. A plain reading of the statute does not clearly support Breshers’s position. Section 3663A(b)(2) states that ‘in the case of an offense resulting in bodily injury to a victim’ the defendant may be responsible for ‘the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care’ and ‘income lost by such victim as a result of such offense.’ The statute does not include a definition of ‘bodily injury.’ On the one hand, it may be argued that the term ‘bodily injury’ would be redundant if it included ‘physical, psychiatric, and psychological care.’ This argument is reinforced by Black’s Law Dictionary’s definition of the term: ‘Physical damage to a person’s body.’ Black’s Law Dictionary (9th ed. 2009). On the other hand, one might argue that ‘bodily injury’ is an umbrella term that includes ‘physical, psychiatric, and psychological care.’ United States v. Dotson, 242 F.3d 391, *5 (Table) (10th Cir. 2000) (suggesting that ‘perhaps “bodily injury” is a holistic phrase referring to all aspects of the body, physical and psychological’). These alternate plausible readings of the statute reveal its ambiguity.”

Affirmed.

12-1364 U.S. v. Breshers

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Wood, J.