FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 09-50238 Plaintiff-Appellee,

D.C. No.

v.  2:08-cr-00855-PA

ALMA BATSON,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

January 12, 2010—Pasadena, California

Filed June 21, 2010

Before: William C. Canby, Jr., Cynthia Holcomb Hall, and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge Canby

9073
COUNSEL

Jennifer Y. Chou, Assistant United States Attorney, Los

Angeles, California, for the plaintiff-appellee.

Kathryn A. Young, Deputy Federal Public Defender, Los

Angeles, California, for the defendant-appellant. 

OPINION

CANBY, Circuit Judge:

This appeal presents a question of first impression in this

circuit, namely, whether federal courts may order restitution

as a condition of supervised release for offenses set forth in

Title 26 of the United States Code (the Internal Revenue

Code). Having been subjected to such an order, appellant

Alma Batson argues that the authority of the federal courts to

order restitution is limited to restitution authorized or required

by the Victim and Witness Protection Act (“VWPA”) and the

Mandatory Victims Restitution Act (“MVRA”), neither of

9076 UNITED STATES v. BATSON
which includes restitution for violations of Title 26. We reject

Batson’s contention and hold that the district court was authorized to order restitution for a violation of Title 26 as a condition of supervised release by 18 U.S.C. § 3563(b)(2), which

grants courts broad discretion to order restitution as a condition of probation, and 18 U.S.C. § 3583(d), which makes that

grant applicable to supervised release.

We agree with Batson, however, and the government concedes, that restitution so ordered must be limited to the

offense of conviction when, as here, that offense does not

involve an element of a “scheme, conspiracy, or pattern of

criminal activity.” 18 U.S.C. § 3663A(a)(2). For this reason,

we vacate the order of restitution and remand to the district

court for the limited purpose of determining the proper

amount of restitution due for the offense of conviction and for

entry of an order accordingly.

Background

For three years Batson operated a tax return preparation

business that falsified tax returns in order to precipitate undeserved tax refunds. She was indicted on one count of conspiracy to commit tax fraud in violation of 18 U.S.C. § 371, six

counts of willfully aiding and assisting in the preparation of

fraudulent tax returns in violation of 26 U.S.C. § 7206(2), and

two counts of making a false statement to a government agent

in violation of 18 U.S.C. § 1001(a)(2). Batson subsequently

pled guilty to one count of aiding and assisting in the preparation of a single fraudulent tax return, the loss caused by that

conduct apparently being somewhere between $4,571 and

$8,028. Batson stipulated in her plea colloquy that the taxpayers for whom she had prepared returns collectively received

at least $965,673 in refunds to which they were not entitled.1

1We use the term “taxpayers” loosely. As the record shows, many of the

7,000 or so taxpayers paid no taxes at all. 

UNITED STATES v. BATSON 9077
The district court sentenced Batson to 12 months of imprisonment followed by 12 months of supervised release as well

as a fine of $6,000 and a special assessment of $100. The

court reserved decision on the issue of restitution, indicating

that it would amend the order of judgment and commitment

to include an order of restitution if necessary. Meanwhile, the

Government reduced its request for restitution from $965,673

to $176,854, an amount representing only those overpayments

not amenable to collection from the payees by the Internal

Revenue Service. 

About three months later, the district court issued an

amended order of judgment and commitment identical to its

predecessor in all respects except for the addition of a condition of supervised release requiring Batson to pay restitution

in the amount of $176,854.2 Batson timely appealed. We have

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291.

Standards of Review

Provided that an order of restitution is within the bounds of

the statutory framework, we review the order for an abuse of

discretion. United States v. Gordon, 393 F.3d 1044, 1051 (9th

Cir. 2004). We review the legality of an order of restitution

de novo and the factual findings supporting such an order for

clear error. Id.

2Batson contends that the restitution was not ordered as a condition of

supervised release because the order set forth several other conditions and,

then on a separate page, imposed restitution “pursuant to 18 U.S.C.

§ 3663A [the MVRA].” We reject Batson’s contention. The reference to

the MVRA was clearly an error. There is no question that the district court

reserved for later decision, and the parties briefed and argued, the question

whether the court could order restitution as a condition of supervised

release. The restitution order concluded by stating that “the defendant

shall pay the amount of restitution as of her supervised release pursuant

to 18 U.S.C. §§ 3563(b)(2) and 3583(d).” In context it appears clear that

“a condition” was inadvertently omitted after “restitution as.” The district

court may correct the judgment on remand. 

9078 UNITED STATES v. BATSON
Discussion

Batson argues that the district court lacked the authority to

order restitution as a condition of supervised release for an

offense under Title 26 and, furthermore, that the court abused

its discretion by ordering restitution in an amount greater than

the loss caused by the conduct underlying the offense of conviction.3

 We consider each argument in turn.

1. The District Court Did Not Err in Ordering 

Restitution as a Condition of Supervised Release

[1] The power to order restitution is not inherent in the federal courts; it is conferred only by statute. See United States

v. Brock-Davis, 504 F.3d 991, 996 (9th Cir. 2007). The

VWPA and MVRA are two such statutes. The VWPA, on the

one hand, grants courts the discretion to order restitution for

certain offenses set forth in Titles 18, 21, and 49 of the United

States Code. 18 U.S.C. § 3663. The MVRA, on the other

hand, requires courts to order restitution to any person who

suffered a physical injury or pecuniary loss as a direct or

proximate result of the commission of (1) a crime of violence,

(2) an offense against property under 21 U.S.C. § 856(a) or

Title 18, or (3) an offense under 18 U.S.C. § 1365, relating to

the act of tampering with consumer products. Id. § 3663A. 

[2] These two statutes, however, are not the only statutory

sources of authority for orders of restitution by federal courts.

3Batson also argues that the Government’s claim for restitution is barred

by laches because the Government acted too slowly in halting Batson’s

activities. As a matter of discretion, we find this argument unpersuasive.

Moreover, laches traditionally is not a defense against the United States.

See Olshausen v. Comm’r, 273 F.2d 23, 28-29 (9th Cir. 1960). Even if that

doctrine is not as rigid as it once was, see NLRB v. P*I*E Nationwide,

Inc., 894 F.2d 887, 894 (7th Cir. 1990), it does not apply here. Like the

Second Circuit, “[w]e have found no case applying a laches defense in the

criminal context.” United States v. Milstein, 401 F.3d 53, 63 (2d Cir.

2005) (per curiam). We accordingly reject Batson’s contention. 

UNITED STATES v. BATSON 9079
The crucial statutes here are 18 U.S.C. § 3563(b) (the “Probation Statute”), which authorizes courts to order restitution as

a condition of probation, and 18 U.S.C. § 3583(d), which

extends that authority to supervised release. 

a. The Probation Statute Grants Federal Courts the

Authority to Order Restitution as a Condition of

Probation for Any Criminal Offense

The starting point for our discussion is, as always, the plain

language of the statute. See Brock-Davis, 504 F.3d at 996.

Regarding restitution, the Probation Statute authorizes courts

to

provide, as [a] further condition[ ] of a sentence of

probation . . . that the defendant . . . make restitution

to a victim of the offense under section 3556 (but not

subject to the limitation of section 3663(a) or

3663A(c)(1)(A)). 

18 U.S.C. § 3563(b)(2). 

[3] The quoted language and cited statutory sections make

it perfectly clear that restitution imposed as a condition of

probation is not subject to the limitations of the VWPA and

MVRA. The quoted passage requires a court ordering restitution as a condition of probation to adhere to section 3556,

which in turn requires adherence to the provisions of the

VWPA and MVRA, but without “the limitation[s] of section

3663(a) or 3663A(c)(1)(A).” Id. § 3563(b)(2). Those limitations confine restitution under the VWPA and the MVRA to

particular offenses.4 The express exemption from these limita4The limitation of the VWPA from which supervised release restitution

orders are exempted is the requirement that the offense of conviction or

the offense charged in a plea agreement be 

an offense under [title 18], section 401, 408(a), 409, 416, 420, or

422(a) of the Controlled Substances Act (21 U.S.C. 841, 848(a),

9080 UNITED STATES v. BATSON
tions forecloses Batson’s contention that the district court’s

restitution authority is confined to the offenses covered by the

VWPA and the MVRA. The district court is therefore authorized by § 3563(b)(2) to order restitution as a condition of

probation to the victim of any criminal offense, including

those in Title 26, for which probation is properly imposed.

A consistent line of decisions supports this interpretation of

§ 3563. In United States v. Nachtigal, 507 U.S. 1 (1993) (per

curiam), the Supreme Court recognized the authority of federal courts “to attach a host of discretionary conditions to [a]

probationary term” pursuant to § 3563(b), id. at 2, and, more

specifically, to order restitution as a condition of probation for

offenses set forth in the Code of Federal Regulations, id. at 5

n.* (“Under 18 U.S.C. § 3563(b), a court may require, among

other things, that the defendant . . . pay restitution [as a condition of probation]”). In addition, several of our sister circuits

have recognized, directly or tangentially, the authority of

courts to order restitution as a condition of probation for

offenses under Title 26. See, e.g., United States v. May, 568

F.3d 597, 607 n.6 (6th Cir. 2009); United States v. Nolen, 523

F.3d 331, 332 (5th Cir. 2008); United States v. Lewis, 235

F.3d 215, 219 (4th Cir. 2000); United States v. Bok, 156 F.3d

157, 166-67 (2d Cir. 1998). Although we have not directly

849, 856, 861, 863) (but in no case shall a participant in an

offense under such sections be considered a victim of such

offense under this section), or section 5124, 46312, 46502, or

46504 of title 49, other than an offense described in section

3663A(c). 

18 U.S.C. § 3663(a). The limitation of the MVRA from which supervised

release restitution orders are exempted is the requirement that the offense

of conviction or the offense charged in a plea agreement be 

(i) a crime of violence, as defined in section 16; (ii) an offense

against property under this title, or under section 416(a) of the

Controlled Substances Act (21 U.S.C. 856(a)), including any

offense committed by fraud or deceit; or (iii) an offense described

in section 1365 (relating to tampering with consumer products).

Id. § 3663A(c)(1)(A). 

UNITED STATES v. BATSON 9081
held the same until today, we have recognized the authority

of courts to order restitution as a condition of probation for

offenses under Title 41 and, in the same opinion, affirmed an

order imposing restitution as a condition of probation for an

offense under Title 26. United States v. Gamma Tech Indus.,

Inc., 265 F.3d 917, 923, 924 n.7, 931 (9th Cir. 2001). We

have no doubt, therefore, of the authority of federal courts to

order restitution as a condition of probation for offenses not

set forth in the VWPA or the MVRA. 

b. The Supervised Release Statute Grants Federal

Courts the Authority to Order Restitution as a

Condition of Supervised Release for Any 

Criminal Offense

[4] Despite its expansive terms, the Probation Statute does

not, on its own, grant courts the authority to order restitution

as a condition of supervised release. That authority comes

from 18 U.S.C. § 3583(d) (the “Supervised Release Statute”),

which extends the reach of the Probation Statute to supervised

release. The version of the statute in effect at the time of Batson’s indictment, which is essentially identical to the one currently in effect, provides in pertinent part that

[a] court may order, as a further condition of supervised release . . . any condition set forth as a discretionary condition of probation in section 3563(b)(1)

through (b)(10) and (b)(12) through (b)(20), and any

other condition it considers to be appropriate. 

18 U.S.C.A. § 3583(d) (West July 2008).5 Thus the district

5Because § 3583(d) subsequently underwent only a single, minor revision that does not affect the issue in our case, see Judicial Administration

and Technical Amendments Act of 2008, Publ. L. No. 110-406, § 14(b),

122 Stat. 4291, 4294 (Oct. 13, 2008), our analysis of the Supervised

Release Statute as it then stood is equally applicable to the statute in its

present state. 

9082 UNITED STATES v. BATSON
court’s authority to order restitution as a condition of supervised release is just as broad as its authority to order restitution as a condition of probation. Accordingly, the Supervised

Release Statute, together with the Probation Statute, unambiguously authorizes federal courts to order restitution as a

condition of supervised release for any criminal offense,

including one under Title 26, for which supervised release is

properly imposed. 

In reaching this conclusion, we note that nothing in the text

of the VWPA or the MVRA remotely indicates that Congress

sought by those acts to constrain the pre-existing authority of

federal courts to order restitution. That pre-existing authority

had evolved from the Federal Probation Act, 18 U.S.C.

§ 3651 (repealed 1987), and was maintained in the Sentencing

Reform Act of 1984 (“SRA”), which contains the Probation

Statute. See Pub. L. No. 98-473, § 212(a)(2) (codified as

amended at 18 U.S.C. § 3563(a), (b)(1)-(2)). We had also recognized the authority of courts to order restitution not limited

to specific offenses as a condition of probation. See, e.g.,

United States v. Green, 735 F.2d 1203, 1205 (9th Cir. 1984)

(“In criminal tax cases, a district court may rely on [the FPA]

to condition probation on the defendant’s restitution of his

outstanding tax liability.”); cf. Burns v. United States, 287

U.S. 216, 220-21 (1932) (“The [FPA] authorizes courts of

original jurisdiction . . . to place the defendant upon probation

for such period and upon such terms and conditions as they

may deem best.”) (internal quotation marks omitted). 

Neither the VWPA, enacted in 1982, nor the MVRA,

enacted in 1996, disturbed this well-established authority. The

VWPA merely added to it; the VWPA permitted courts, for

the first time, to order payment of restitution independent of

a sentence of probation. The MVRA merely added a congressional mandate requiring an order of restitution for defendants

convicted of certain crimes. It did not repeal the SRA, which

Congress had enacted more than a decade earlier, and its text

UNITED STATES v. BATSON 9083
does not diminish the long-standing authority of federal courts

to order restitution as a condition of probation.

Finally, § 5E1.1(a)(2) of the United States Sentencing

Guidelines (“Guidelines”), while not controlling, calls for restitution as a condition of probation or supervised release “if

the offense is not an offense for which restitution is authorized under [the VWPA] but otherwise meets the criteria for

an order of restitution under that section.” U.S. Sentencing

Guidelines Manual § 5E1.1(a)(2) (2008). Promulgated nearly

nine years prior to the enactment of the MVRA,

§ 5E1.1(a)(2), originally designated § 5E4.1(a), was plainly

intended to bridge the gap between the VWPA and the many

offenses beyond its purview. See U.S. Sentencing Guidelines

Manual § 5E4.1(a) (1988) (“Restitution shall be ordered for

convictions under . . . [the VWPA], and may be ordered as a

condition of probation or supervised release in any other

case.”); U.S. Sentencing Guidelines Manual app. C and 383

(1991) (explaining that the aim of section 5E1.1, which had

been amended in 1991, is “to require [rather than permit] restitution as a condition of probation or supervised release for

offenses not set forth in [the VWPA]”). 

[5] Accordingly, we hold that 18 U.S.C. § 3563(b)(2),

which grants federal courts broad discretion to order restitution as a condition of probation, and 18 U.S.C. § 3583(d),

which extends that grant to supervised release, authorizes federal courts to order restitution as a condition of supervised

release for any criminal offense, including those set forth in

Title 26, for which supervised release is properly imposed. 

II. Restitution is Limited to the Loss Sustained by the

Government as a Result of the Offense of Conviction

Batson further argues that the district court erred by ordering restitution in an amount beyond the loss caused by the

conduct underlying the offense of conviction—in this case,

aiding and assisting in the preparation of a particular fraudu9084 UNITED STATES v. BATSON
lent tax return. She contends that the VWPA and MVRA limit

restitution to the offense of conviction unless the offense of

conviction “involves as an element a scheme, conspiracy, or

pattern of criminal activity.”

6

 18 U.S.C. § 3663(a)(1)-(2); id.

§ 3663A(a)(1)-(2). Although this issue was fully briefed on

both sides, the Government conceded Batson’s point in a letter to this court filed just prior to oral argument. We nevertheless briefly address the question presented, as it is one of first

impression in this circuit. 

[6] The statutory language supports the limitation of restitution to the offense of conviction. Although restitution as a

condition of probation (and by extension, supervised release)

is not limited to the offenses specified in the VWPA and

MVRA, restitution otherwise is to be ordered “under section

3556.” 18 U.S.C. § 3563(b)(2). Section 3556 provides for

orders of restitution in accordance with the VWPA and

MVRA. The VWPA provides that “[t]he court, when sentencing a defendant convicted of an offense [under listed titles or

statutes] may order . . . restitution to any victim of such

offense.” 18 U.S.C. § 3663(a)(1)(A) (emphasis added). The

language of the MVRA is equally singular: “when sentencing

a defendant convicted of an offense described in subsection

(c), the court shall order . . . that the defendant make restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(1)

(emphasis added). The natural reading of these provisions is

that restitution is authorized for the offense of conviction and

not for other related offenses of which the defendant was not

convicted.

[7] It is no surprise, therefore, that in Hughey v. United

States, 495 U.S. 411 (1990), the Supreme Court held that federal courts may order restitution under the VWPA “only for

the loss caused by the specific conduct that is the basis of the

6The Government concedes that the offense of conviction in this case

does not involve as an element a scheme, conspiracy, or pattern of criminal activity. 

UNITED STATES v. BATSON 9085
offense of conviction.” Id. at 413. Subsequent amendments to

the VWPA created an exception to Hughey when the crime of

conviction includes as an element a scheme, conspiracy or

pattern of criminal activity (which the parties agree is not the

case here), but otherwise Hughey’s limitation remains in

effect. United States v. Lawrence, 189 F.3d 838, 846 (9th Cir.

1999).

[8] Although we have not yet applied the rule of Hughey

to awards of restitution ordered as a condition of supervised

release, there is no reason why it does not apply. As the Second Circuit Court of Appeals recently observed, “every other

circuit that has considered this question has applied Hughey

to awards of restitution . . . under 18 U.S.C. §§ 3583(d),

3563(b)(2).” United States v. Varrone, 554 F.3d 327, 334 (2d

Cir. 2009) (citing United States v. Frith, 461 F.3d 914, 920

(7th Cir. 2006); United States v. Romines, 204 F.3d 1067,

1069 (11th Cir. 2000); Gall v. United States, 21 F.3d 107, 110

(6th Cir. 1994); United States v. Rosser, 963 F.2d 368 (4th

Cir. 1992) (unpublished per curiam)). We now join our sister

circuits in holding that an award of restitution ordered as a

condition of supervised release can compensate “only for the

loss caused by the specific conduct that is the basis of the

offense of conviction,” Hughey, 495 U.S. at 413, so long as

that offense does not involve an element of scheme, conspiracy or pattern of criminal activity. The district court, therefore, erred in ordering restitution in an amount beyond the

loss sustained by the Government as a result of the offense of

conviction.

Conclusion

We conclude that the district court acted within its statutory

authority in ordering restitution as a condition of supervised

release in connection with Batson’s conviction of an offense

set forth in Title 26 of the United States Code. See 18 U.S.C.

§§ 3563(b)(2), 3583(d). 

9086 UNITED STATES v. BATSON
[9] We also conclude that the district court erred in ordering restitution in excess of that resulting from the offense of

conviction. We therefore vacate that part of the sentence that

orders restitution. Because the amount of loss attributable to

the offense of conviction is disputed and the record does not

permit us to resolve that dispute here, we remand this matter

to the district court for appropriate proceedings to ascertain

the correct amount and for amendment of the judgment by

entry of a new order of restitution.7

SENTENCE VACATED IN PART; REMANDED with

instructions.

7At oral argument the Government requested that we remand for a total

resentencing, so that the district court could reconsider the $6,000 fine in

light of the new, lowered restitution amount. We decline to expand our

mandate to a total resentencing for that purpose. The district court

imposed the fine and imprisonment without condition at the time that it

reserved decision on the doubtful question of restitution. There is no indication that the amount of the fine was conditioned on the amount of restitution, and we decline to reopen the matter. See United States v. Matthews,

278 F.3d 880, 889 (9th Cir. 2002) (en banc) (stating that court may limit

scope of issues for which it remands after appeal of sentence). 

UNITED STATES v. BATSON 9087