AMENDMENT 571
Amendment: Chapter Five, Part E, Subpart 1 is amended by deleting §5E1.1 in its entirety as follows:
"§5E1.1. Restitution
(a) The court shall --
(1) enter a restitution order if such order is authorized under 18 U.S.C. §§ 3663-3664; or
(2) if a restitution order would be authorized under 18 U.S.C. §§ 3663-3664, except for the fact that the offense of conviction is not an offense set forth in Title 18, United States Code, or 49 U.S.C. § 46312, § 46502, or § 46504, impose a term of probation or supervised release with a condition requiring restitution.
(b) Provided, that the provisions of subsection (a) do not apply when full restitution has been made, or to the extent the court determines that the complication and prolongation of the sentencing process resulting from the fashioning of a restitution requirement outweighs the need to provide restitution to any victims through the criminal process.
(c) If a defendant is ordered to make restitution and to pay a fine, the court shall order that any money paid by the defendant shall first be applied to satisfy the order of restitution.
(d) With the consent of the victim of the offense, the court may order a defendant to perform services for the benefit of the victim in lieu of monetary restitution or in conjunction therewith. 18 U.S.C. § 3663(b)(4).
Commentary
Application Note:
1. In the case of a conviction under certain statutes, additional requirements regarding restitution apply. See 18 U.S.C. §§ 2248 and 2259 (applying to convictions under 18 U.S.C. §§ 2241-2258 for sexual-abuse offenses and sexual exploitation of minors); 18 U.S.C. § 2327 (applying to convictions under 18 U.S.C. §§ 1028-1029, 1341-1344 for telemarketing-fraud offenses); 18 U.S.C. § 2264 (applying to convictions under 18 U.S.C. §§ 2261-2262 for domestic-violence offenses). To the extent that any of the above-noted statutory provisions conflict with the provisions of this guideline, the applicable statutory provision shall control.
Background: Section 3553(a)(7) of Title 18 requires the court, ‘in determining the particular sentence to be imposed,’ to consider ‘the need to provide restitution to any victims of the offense.’ Section 3556 of Title 18 authorizes the court to impose restitution in accordance with 18 U.S.C. §§ 3663 and 3664, which authorize restitution for violations of Title 18 or 49 U.S.C. § 46312, § 46502, or § 46504. For other offenses, restitution may be imposed as a condition of probation or supervised release. See 18 U.S.C. § 3563(b)(3) as amended by Section 7110 of Pub. L. No. 100-690 (1988).
A court’s authority to decline to order restitution is limited. Subsection (a)(1) of this guideline requires the court to order restitution for offenses under Title 18, United States Code, or 49 U.S.C. § 46312, § 46502, or § 46504, unless full restitution has already been made or ‘the court determines that the complication and prolongation of the sentencing process resulting from the fashioning of an order of restitution . . . outweighs the need to provide restitution to any victims.’ 18 U.S.C. § 3663(d). The legislative history of 18 U.S.C. § 3579, the precursor of 18 U.S.C. § 3663, states that even ‘[i]n those unusual cases where the precise amount owed is difficult to determine, the section authorizes the court to reach an expeditious, reasonable determination of appropriate restitution by resolving uncertainties with a view toward achieving fairness to the victim.’ S. Rep. No. 532, 97th Cong., 2d Sess. 31, reprinted in 1982 U.S. Code Cong. & Ad. News 2515, 2537. If the court does not order restitution, or orders only partial restitution, it must state its reasons for doing so. 18 U.S.C. § 3553(c). Subsection (a)(2) provides for restitution as a condition of probation or supervised release for offenses not set forth in Title 18, United States Code, or 49 U.S.C. § 46312, § 46502, or § 46504.
In determining whether to impose an order of restitution, and the amount of restitution, the court shall consider the amount of loss the victim suffered as a result of the offense, the financial resources of the defendant, the financial needs of the defendant and his dependents, and other factors the court deems appropriate. 18 U.S.C. § 3664(a).
Pursuant to Rule 32(b)(4)(D), Federal Rules of Criminal Procedure, the probation officer’s presentence investigation report must contain a victim impact statement. That report must contain information about the financial impact on the victim and the defendant’s financial condition. The sentencing judge may base findings on the presentence report or other testimony or evidence supported by a preponderance of the evidence. 18 U.S.C. § 3664(d).
Unless the court orders otherwise, restitution must be made immediately. 18 U.S.C. § 3663(f)(3). The court may permit the defendant to make restitution within a specified period or in specified installments, provided that the last installment is paid not later than the expiration of probation, five years after the end of the defendant’s term of imprisonment, or in any other case five years after the date of sentencing. 18 U.S.C. § 3663(f)(1) and (2). The restitution order should specify the manner in which, and the persons to whom, payment is to be made.".
A replacement guideline with accompanying commentary is inserted as §5E1.1 (Restitution).
Chapter Eight, Part B, Subpart 1 is amended by deleting §8B1.1 in its entirety as follows:
"§8B1.1. Restitution - Organizations
(a) The court shall --
(1) enter a restitution order if such order is authorized under 18 U.S.C. §§ 3663-3664; or
(2) if a restitution order would be authorized under 18 U.S.C. §§ 3663-3664, except for the fact that the offense of conviction is not an offense set forth in Title 18, United States Code, or 49 U.S.C. § 1472(h), (i), (j), or (n), sentence the organization to probation with a condition requiring restitution.
(b) Provided, that the provisions of subsection (a) do not apply when the organization has made full restitution, or to the extent the court determines that the complication and prolongation of the sentencing process resulting from the fashioning of a restitution requirement outweighs the need to provide restitution to any victims through the criminal process.
Commentary
Background: This guideline provides for restitution either as a sentence under 18 U.S.C. §§ 3663-3664 or as a condition of probation.".
A replacement guideline with accompanying commentary is inserted as §8B1.1 (Restitution - Organizations).
Reason for Amendment: This amendment conforms the provisions of §§5E1.1 and 8B1.1 to section 204 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1227, which includes procedures for payment of full restitution to a victim of the offense. The amendment also implements the directive to the Commission in section 205 of the Act to issue guidelines to assist courts in determining an appropriate amount of "community restitution" when the defendant is convicted of certain drug offenses and there is no identifiable victim of the offense. As a starting point, the Commission has elected to issue a guideline that permits broad court discretion to determine an amount of community restitution not exceeding the fine imposed. Over time, the Commission intends to evaluate and refine this guideline in light of sentencing experience.
Effective Date: The effective date of this amendment is November 1, 1997.