Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding D.C. No. 3:09-cr-08022-JAT-1
The opinion of the court was delivered by: Opinion by Judge Berzon;
March 16, 2011-San Francisco, California
Before: Richard A. Paez, Marsha S. Berzon, and Carlos T. Bea, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge Bea
Michael Tsosie entered into a plea agreement with the government and pleaded guilty to one count of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). Pursuant to the plea agreement, the District Court sentenced Tsosie to eighteen months of imprisonment, a sentence well below the Guidelines range of 97 to 121 months. See Fed. R. Crim. P. 11(c)(1)(C). At the sentencing hearing, the victim's counsel urged the District Court to order Tsosie to pay $31,994 in restitution to the victim's mother to cover costs she incurred in making a series of trips between her home and the victim's boarding school, 150 miles away. The District Court ordered the restitution.
Tsosie appeals the restitution order, arguing (1) that the mother's travel expenses were not "incurred by the victim" and were therefore not subject to restitution under the applicable statute, and, in the alternative, (2) that the restitution award was issued in violation of the procedural and evidentiary requirements of 18 U.S.C. § 3664. We agree with the second but not the first of these arguments. We also hold that Tsosie has not waived his right to appeal the restitution order.
Michael Tsosie is a 62-year-old Navajo resident of Northern Arizona. In October, 2006, a fourteen-year old girl reported to her school guidance counselor that Tsosie had sexually abused her when she was five or six years old. The abuse occurred within the Navajo Indian Reservation. In February, 2009, the government filed an indictment in U.S. District Court charging Tsosie with three counts of aggravated sexual abuse of a minor in violation of 18 U.S.C. § 2241(c), and two counts of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). See 18 U.S.C. § 1153(a) (providing that Indians committing certain offenses within Indian country "shall be subject to the same law and penalties" as other persons "committing . . . the. . . offense[ ] within the exclusive jurisdiction of the United States").
Tsosie agreed to plead guilty to one count of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1) in exchange for the government's promise to dismiss the other four counts. In the plea agreement, the parties stipulated that "an appropriate disposition of th[e] case" would be for Tsosie to "be sentenced to no more than 18 months" of imprisonment, have no contact with the victim, have no contact with any minor without the approval of a probation officer, register as a sex offender, and undergo sex offender treatment. The parties did not stipulate as to whether an order for restitution should issue. The plea agreement did state, however, under the heading "Maximum Penalties," that "the court . . . shall order the defendant to make restitution to any victim of the offense, unless, pursuant to 18 U.S.C. § 3663, the court determines that restitution would not be appropriate in the case."*fn1
At the change of plea hearing, the District Court explained the penalties for a violation of 18 U.S.C. § 2244(a)(1). The Court stated, in part, that:
[I]f any victim sustained any economic loss as a result of your crime, you'll be required to pay restitution to the victim for that loss, and if you willfully fail to pay the restitution yet have the ability to pay some or all of it or if you fail to make bona fide efforts to find work or borrow money, your probation or supervised released could be revoked and you could be sent back to prison as a sanction to enforce collection of the restitution. Do you understand that?
The presentence report ("PSR") calculated Tsosie's Guideline range as 97 to 121 months. The PSR also stated that the victim's mother reported that the victim had suffered bouts of depression, stress, and anxiety, which the mother believed had contributed to physical problems, including gallstones. The mother requested $200 in restitution for travel expenses related to a court hearing that she and the victim attended, $1,800 for the treatment of the victim's gallstones, and $31,994 "for expenses related to her traveling to Flagstaff to visit the victim each weekend." Although the record is unclear as to the details, the victim apparently attended boarding school in Flagstaff, but she otherwise lived with her mother in Kaibeto, Arizona, approximately 150 miles away. The author of the PSR recommended awarding only the $200 in restitution, stating that she "was unable to determine that the additional $33,794 requested for medical and travel expenses was directly related to the instant offense."
Appended to the PSR was an eleven-page spreadsheet listing approximately 140 trips, most of them between Kaibeto and Flagstaff and occurring within a three-year period. Next to each trip entry was a calculation of the costs of the trips according to the Internal Revenue Service rates in effect at the time of the trip. The $31,994 in travel expenses, which the District Court ultimately awarded, are the subject of this appeal.*fn2
One working day before the sentencing hearing, the victim's counsel filed a declaration from Martha Scranton, the Behavioral Health Program Director for Native Americans for Community Action, stating that in February, 2006, she had prescribed a treatment plan for the victim, and that the plan required "the minor's mother travel to her daughter's dorm, [and] pick up her daughter or visit her daughter at the dorm each weekend." Scranton averred that "in [her] professional opinion, the minor crime victim needed the added ...