FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10201 Plaintiff-Appellant,

D.C. No.

v.  CR-03-00662-FJM

THEODORE ANTHONY CIENFUEGOS,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Frederick J. Martone, District Judge, Presiding

Submitted May 16, 2006*

San Francisco, California

Filed September 8, 2006

Before: Pamela Ann Rymer and Kim McLane Wardlaw,

Circuit Judges, and James V. Selna,** District Judge.

Opinion by Judge Wardlaw

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable James V. Selna, United States District Judge for the

Central District of California, sitting by designation. 

10909
COUNSEL

Linda C. Boone, Assistant United States Attorney, Phoenix,

Arizona, for the plaintiff-appellant. 

Martin Lieberman, Phoenix, Arizona, for the defendantappellee.

OPINION

WARDLAW, Circuit Judge: 

The Government appeals the district court’s denial of its

motion to order restitution for future lost income to a man10912 UNITED STATES v. CIENFUEGOS
slaughter victim’s estate pursuant to the Mandatory Victims

Restitution Act of 1996 (“MVRA”), 18 U.S.C.

§ 3663A(b)(2)(C). Because restitution for future lost income

may be ordered under the MVRA so long as it is not based

upon speculation, but is reasonably calculable, we reverse and

remand to the district court to redetermine the amount of restitution to be awarded.

I

On May 24, 2003, Theodore Anthony Cienfuegos drove to

an area on the San Carlos Apache Indian Reservation known

as the Windmill, an open circular area where a number of

local residents had gathered to socialize. Shortly after he

arrived at the Windmill, Cienfuegos engaged in an altercation

with several individuals. He then got into his car and drove

into six vehicles parked around the Windmill, causing the

nearby crowd to rapidly disperse. Billie Jean Noline, a registered member of the San Carlos Apache Indian tribe, tripped

and fell as she ran to avoid the path of Cienfuegos’ vehicle.

Cienfuegos ran over Noline with his car, hit a tree, and then

backed up and did it again. Noline was taken to the San Carlos Hospital, where she died as a result of the injuries inflicted

by Cienfuegos. 

A federal grand jury returned a three-count superseding

indictment on August 19, 2004, which charged: (1) second

degree murder in violation of 18 U.S.C. §§ 1152, 1111; (2)

assault with a dangerous weapon in violation of 18 U.S.C.

§§ 1152, 113(a)(3); and (3) assault resulting in serious bodily

injury in violation of 18 U.S.C. §§ 1152, 113(a)(6). Cienfuegos pleaded guilty on September 22, 2004 to Count Three of

the indictment and to involuntary manslaughter, a lesser

included offense of Count One. Cienfuegos’ plea agreement

required him to make restitution, with the total amount to be

determined by the court at the time of sentencing. 

Before sentencing, on February 2, 2005, the Government

moved for restitution for Noline’s future lost income pursuant

UNITED STATES v. CIENFUEGOS 10913
to the MVRA. It submitted a report from a certified public

accountant on February 18, 2005, calculating Noline’s lifetime future lost income to be $1,851,134.00. The district court

denied restitution for future lost income, reasoning that the

complexities associated with determining future lost income

belong in a civil action brought by the survivors and not as an

adjunct to a federal criminal case. The district court further

advised the victim’s family to file a civil suit, as the statute

of limitations had not yet expired. The district court sentenced

Cienfuegos to a term of imprisonment of fifty-one months on

each count, to be served concurrently, followed by three years

of supervised release. It also ordered Cienfuegos to pay a special assessment of $200.00 and restitution to the victims for

funeral and related expenses in the amount of $11,629.87. 

II

We review a restitution order for an abuse of discretion,

provided that it is within the bounds of the statutory framework. See United States v. Phillips, 367 F.3d 846, 854 (9th

Cir. 2004) (as amended). Factual findings supporting a restitution order are reviewed for clear error, United States v. De La

Fuente, 353 F.3d 766, 772 (9th Cir. 2003), and the legality of

a restitution order is reviewed de novo, Phillips, 367 F.3d at

854. 

III

Cienfuegos first argues that because the Government failed

to provide the probation officer with a list of the amounts subject to restitution not later than sixty days prior to sentencing,

as was required by 18 U.S.C. § 3664(d)(1), the district court

was not compelled to consider the Government’s motion to

include future lost earnings in the restitution amount. Cienfuegos also points out that, under 18 U.S.C. § 3664(d)(5), if the

victim’s losses are not ascertainable ten days prior to sentencing, then the prosecution is required to notify the court so that

the court can set a date for determining the victim’s losses

10914 UNITED STATES v. CIENFUEGOS
within ninety days after sentencing. The Government

responds that any failure to follow the procedural requirements of section 3664 was harmless error. 

[1] The Government undisputedly failed to comply with the

section 3664 procedures. It submitted its motion for future

lost income on February 2, 2005, twenty-one days before the

sentencing hearing, and submitted the CPA’s calculation of

the amount of future lost income on February 18, 2005, five

days before sentencing. Because Cienfuegos timely objected

to the Government’s failure to follow the requirements and

procedures of section 3664, we review for harmless error.

However, because Cienfuegos fails to demonstrate actual

prejudice from the Government’s failure to comply with the

procedural requirements of section 3664, the only entity to

suffer prejudice here was Noline’s estate. Therefore, we hold

that any error the district court may have made in considering

the Government’s untimely future lost income motion was

harmless. This accords with decisions of the Second, Fourth,

Sixth, and Seventh Circuits, which have held that because the

procedural requirements of section 3664 were designed to

protect victims, not defendants, the failure to comply with

them is harmless error absent actual prejudice to the defendant. As the Second Circuit held in United States v. Zakhary,

357 F.3d 186, 191 (2d Cir. 2004):

[T]he purpose behind the statutory ninety-day limit

on the determination of victims’ losses is not to protect defendants from drawn-out sentencing proceedings or to establish finality; rather, it is to protect

crime victims from the willful dissipation of defendants’ assets. . . . Mindful of these goals, we have

ruled that a district court’s failure to determine identifiable victims’ losses within ninety days after sentencing, as prescribed by § 3664(d)(5), will be

deemed harmless error to the defendant unless he

can show actual prejudice from the omission. 

UNITED STATES v. CIENFUEGOS 10915
See also United States v. Johnson, 400 F.3d 187, 198-99 (4th

Cir. 2005) (failure to comply with the ten-day limit in section

3664(d)(5) is harmless error absent a showing of prejudice);

United States v. Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000)

(failure to afford defendant an opportunity to be heard as to

the proposed amount of restitution within the ninety days prescribed by § 3664(d)(5) is harmless error because “the court

provided him ample opportunity to object to the amount

thereafter”); United States v. Grimes, 173 F.3d 634, 638-39

(7th Cir. 1999) (because intended beneficiaries of section

3664(f)(1)(A) are victims, defendants have no rights under

section 3664 and trial court’s failure to name all of the victims

in the restitution order is not error). 

[2] Moreover, Cienfuegos was provided the functional

equivalent of the notice required under section 3664(d)(5) by

the terms of his plea agreement. See United States v. Dando,

287 F.3d 1007, 1010 (10th Cir. 2002) (“Defendant . . .

received the functional equivalent of the notice required by

the statute. Defendant signed a plea agreement in which he

acknowledged restitution was mandatory. Although the district court . . . did not establish a date to finalize the restitution

amount, the sentence hearing transcript clearly indicates the

court recognized restitution was mandatory . . . .”). Therefore,

we will not uphold the district court’s refusal to order restitution on account of the government’s failure to comply with

section 3664. See United States v. Catoggio, 326 F.3d 323,

329-30 (2d Cir. 2003) (rejecting defendant’s argument that

because an order of restitution under the MVRA must be

entered within 90 days of sentencing, the court should vacate

the restitution order without remanding for further proceedings). 

IV

The parties do not dispute that the MVRA applies to this

case and that it makes victim restitution mandatory for Cienfuegos. The only issue in contention is whether the MVRA

10916 UNITED STATES v. CIENFUEGOS
permits or requires restitution for future lost income. The

Government argues that the district court had a mandatory

obligation to order restitution for future lost income. Cienfuegos, on the other hand, argues that restitution for future lost

income is neither required nor permitted under the MVRA.

Because the plain language of the statute, congressional

intent, and federal legal authorities support the conclusion that

the MVRA does not per se exclude restitution for lost future

income to homicide victims, the district court erred in denying

the Government’s motion outright. 

[3] The plain language of the MVRA contemplates an

award of restitution to the victim’s estate for future lost

income and certainly does not expressly exclude such an

award. The MVRA provides:

(a)(1) Notwithstanding any other provision of law,

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 or, if the victim is deceased, to the victim’s estate.

(b) The order of restitution shall require that such

defendant—

. . .

(2) in the case of an offense resulting in bodily

injury to a victim—

. . .

(C) reimburse the victim for income lost by such

victim as a result of such offense . . . . 

18 U.S.C. § 3663A. Cienfuegos argues that Congress’s use of

the term “reimburse” necessarily imputes a backward-looking

UNITED STATES v. CIENFUEGOS 10917
approach to a restitution award because the term “reimburse”

is generally understood to mean “paying back” someone for

losses already incurred. However, Congress also used the

phrase “income lost by such victim as a result of such

offense.” 18 U.S.C. § 3663A(b)(2)(C) (emphasis added). The

word “result” is forward-looking. The New Shorter Oxford

English Dictionary 2570 (1993) defines “result” as “[t]he

effect, consequence, issue, or outcome of some action, process, or design.” Any victim suffering bodily injury or death

necessarily incurs the income lost only after the injury, i.e. in

the future, as a consequence of the defendant’s violent act.

Moreover, the term “lost earnings,” which is analogous to “income lost,” is defined by Black’s Law Dictionary to include

future lost earnings: 

lost earnings. Wages, salary, or other income that a

person could have earned if he or she had not lost a

job, suffered a disabling injury, or died. Lost earnings are typically awarded as damages in personalinjury and wrongful-termination cases. There can be

past lost earnings and future lost earnings. Both are

subsets of this category, though legal writers sometimes loosely use future earnings as a synonym for

lost earnings. Cf. LOST EARNING CAPACITY. 

Black’s Law Dictionary 526 (7th ed. 1999). 

[4] Furthermore, the MVRA requires lost income to be paid

to victims who suffer bodily injury, 18 U.S.C. § 3663A(b)

(2)(C), or, in the case of victims who suffer death, to the victim’s estate, 18 U.S.C. § 3663A(a)(1). “In the case of a victim

who is . . . deceased, the legal guardian of the victim or representative of the victim’s estate, another family member, or

any other person appointed as suitable by the court, may

assume the victim’s rights under this section . . . .” Id.

§ 3663A(a)(2). It would be illogical to assume that the ultimate death of a person who suffered bodily injury eliminates

restitution for lost income. To not award restitution for future

10918 UNITED STATES v. CIENFUEGOS
lost income would lead to a perverse result where murderers

would be liable for markedly less in restitution than criminals

who merely assault and injure their victims. Thus, it is plain

that the statute allows a representative of the victim’s estate

or another family member to assume the victim’s rights to

collect restitution for future lost income; however, under section 3663A(a)(1), the restitution is to be paid to the victim’s

estate. 

Reading the MVRA to exclude restitution for future lost

income for homicide victims would conflict with Congress’s

stated intent to force offenders to “pay full restitution to the

identifiable victims of their crimes.” S. Rep. No. 104-179, at

12 (1996), as reprinted in 1996 U.S.C.C.A.N. 924, 925. The

Senate Report states that the purpose of the MVRA is “to

ensure that the loss to crime victims is recognized, and that

they receive the restitution that they are due” because “[i]t is

[ ] necessary to ensure that the offender realizes the damage

caused by the offense and pays the debt owed to the victim

as well as to society.” Id. In addition, the statute itself mandates that “[i]n each order of restitution, the court shall order

restitution to each victim in the full amount of each victim’s

losses as determined by the court and without consideration

of the economic circumstances of the defendant.” 18 U.S.C.

§ 3664(f)(1)(A) (emphasis added). Only by making restitution

for future lost income can the perpetrator of a homicide fully

pay the debt owed to the victim and to society. See, e.g., R.

Posner, Economic Analysis of Law 176-181 (3d ed. 1986)

(recovery of future lost income provides efficient incentives

to take care by ensuring that the tortfeasor will have to bear

the total cost of the victim’s injury or death). 

Moreover, the legislative history of a recent victims’ rights

bill, the Scott Campbell, Stephanie Roper, Wendy Preston,

Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act

(“CVRA”), Public Law No. 108-405, 118 Stat. 2260, 18

U.S.C. § 3771, evidences congressional understanding that

the MVRA provides for future lost income. The CVRA,

UNITED STATES v. CIENFUEGOS 10919
which was signed into law by President Bush on October 30,

2004, recites a comprehensive list of crime victims’ rights,

including “the right to full and timely restitution as provided

in law.” 18 U.S.C. § 3771(a)(6). During floor debate on the

CVRA, Senator Kyl, one of its primary sponsors, spoke

regarding the “broad bipartisan consensus” underlying the

CVRA. 150 Cong. Rec. S10910 (daily ed. Oct. 9, 2004).

Describing the effects of the bill, Senator Kyl specifically

endorsed a decision in the District of Utah in which that court

found that the MVRA required restitution for future lost

income in homicide cases:

I would like to turn now to restitution . . . . This section provides the right to full and timely restitution

as provided in law. We specifically intend to endorse

the expansive definition of restitution given by Judge

Cassell in U.S. v. Bedonie and U.S. v. Serawop in

May 2004. This right, together with the other rights

in the act to be heard and confer with the government’s attorney in this act, means that existing restitution laws will be more effective. 

Id. at S10911 (citing United States v. Bedonie, 317 F. Supp.

2d 1285 (D. Utah 2004), rev’d on other grounds, 413 F.3d

1126 (10th Cir. 2005); United States v. Serawop, 317 F. Supp.

2d 1285 (D. Utah 2004), verdict rev’d and case remanded on

other grounds, 410 F.3d 656 (10th Cir. 2005), restitution

award aff’d on remand in later proceeding, 409 F. Supp. 2d

1356, 1357-58 (D. Utah 2006)). 

When it passed the MVRA, Congress presumably was

aware of the background of the term “lost income,” which is

frequently interpreted under wrongful death and survival statutes and state criminal restitution statutes to allow compensation for both past and future lost income. State wrongful death

and survival actions generally allow compensation to the victim’s estate or the victim’s decedents for future lost income,

10920 UNITED STATES v. CIENFUEGOS
although the methods of calculating the lost income differ.1

1

See, e.g., Hern v. Safeco Ins. Co. of Ill., 125 P.3d 597, 604-05 (Mont.

2005) (“[t]he damages that may be recovered in a survival action include

lost earnings from the time of injury to death, the present value of reasonable earnings during the decedent’s remaining life expectancy”; “damages

under a wrongful death claim will include . . . the reasonable value of the

contributions in money that the decedent would reasonably have made for

. . . the heirs had she lived”); Classic Coach, Inc. v. Johnson, 823 So. 2d

517, 528 (Miss. 2002) (average salary of college graduate was best average to use when calculating future income of decedents in wrongful death

action, even though decedents had not yet graduated from college); Elmer

Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942-43 (Ind. 2001)

(pecuniary loss can be determined based on assistance that decedent would

have provided to beneficiaries through money, services, or other material

benefits minus the cost of decedent’s personal maintenance); Kiser v.

Schulte, 648 A.2d 1, 4 (Pa. 1994) (measure of damages awarded in survival action include loss of his earning power less personal maintenance

expenses from time of death through his estimated working life span);

Mackey v. Irisari, 445 S.E.2d 742, 751-52 (W. Va. 1994) (parents or siblings of deceased in wrongful death action are not required to be financially dependent upon decedent in order to receive compensation for

reasonably expected loss of income of decedent); Wash. Metro. Area

Transit Auth. v. Davis, 606 A.2d 165, 177-78 (D.C. 1992) (lost earnings

may be awarded for death of child, but must be “grounded upon facts specific to the individual whose loss is being calculated”); Wilcox v.

Leverock, 548 So.2d 1116, 1118 (Fla. 1989) (monies which would have

accumulated as result of skill or efforts of decedent are irretrievably lost

upon death and are properly recoverable by the estate under Wrongful

Death Act, whereas passive income received investments is excluded);

Bryant v. Silverman, 703 P.2d 1190, 1196 (Ariz. 1985) (“Arizona has a

strong policy interest in fully compensating injured plaintiffs to make

them whole. Thus, Arizona allows unlimited recovery for . . . lost earnings, and diminished earning capacity.”); Goheen v. Gen. Motors, 502

P.2d 223, 236-37 (Or. 1972) (evidence of earning capacity is relevant to

the jury’s determination of economic damages, including claims of loss to

an estate in a wrongful death case, but net accumulation of substantial net

savings during remainder of life expectancy need not be demonstrated);

Estate of Hendrickson v. Genesis Health Venture, Inc., 565 S.E.2d 254,

263 (N.C. Ct. App. 2002) (in order to recover damages for loss of net

income of a decedent, plaintiff must offer evidence demonstrating that the

decedent was potentially capable of earning money in excess of that which

would be required for her support); see also Restatement (Second) of Torts

UNITED STATES v. CIENFUEGOS 10921
Similarly, wrongful death suits under maritime law and the

Federal Tort Claims Act (“FTCA”) have permitted recovery

for future lost income.2 State courts also frequently interpret

the term “lost income” under criminal restitution statutes to

permit restitution for future lost income to be paid to the victim’s estate.3

 The words Congress chose should be construed

in the light of those prior decisions. 

§ 924 (1979) (“One whose interests of personality have been tortiously

invaded is entitled to recover damages for past or prospective . . . (b) loss

or impairment of earning capacity . . . .”); Stuart Speiser & James E.

Rooks, Jr., Recovery for Wrongful Death § 6:53 (4th ed. 2005) (“The first,

and most prevalent, theory used in loss-to-estate statutes is that the damages should represent the present value of the decedent’s probable future

net earnings.”). 

2

See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 584-85 (1974)

(“Recovery for loss of support has been universally recognized, and

includes all the financial contributions that the decedent would have made

to his dependents had he lived. Similarly, the overwhelming majority of

state wrongful-death acts . . . have permitted recovery for the monetary

value of services the decedent provided and would have continued to provide but for his wrongful death.”), abrogation by statute on other grounds

recognized by Miles v. Apex Marine Corp., 498 U.S. 19 (1990); In re Air

Crash Disaster Near Cerritos, 982 F.2d 1271, 1277-78 (9th Cir. 1992)

(under FTCA, wrongful death damages are computed under state law;

under California law, wrongful death plaintiff may recover lost present

and future economic support). 

3

See, e.g., Koile v. State, 2006 WL 1838565 at *4-5 (Fla. July 6, 2006)

(interpreting the phrase “[r]eimburse the victim for income lost by the victim as a result of the offense” in a Florida restitution statute to authorize

restitution for lost future income to a murder victim’s estate); Richardson

v. State, 957 S.W.2d 854, 859 (Tex. Ct. App. 1997) (awarding restitution

for future lost income to child of manslaughter victim under Texas statute

allowing for reimbursement for “income lost by the victim as a result of

the offense”); State v. Blanton, 844 P.2d 1167, 1170 (Ariz. Ct. App. 1992)

(future lost earnings of homicide victim are economic losses covered by

Arizona restitution statute); State v. Mayberry, 415 N.W.2d 644, 645-46

(Iowa 1987) (en banc) (restitution permitted to parents of a murder victim

for the present value of the projected estate of the victim); State v. Moriarty, 742 P.2d 704, 707 (Or. Ct. App. 1986) (holding that restitution in

the amount of the homicide victim’s projected income is a valid award);

10922 UNITED STATES v. CIENFUEGOS
Our holding accords with decisions of the Fifth Circuit,

under the MVRA’s predecessor, the Victim and Witness Protection Act of 1982 (“VWPA”), 18 U.S.C. § 3663, and the

Tenth Circuit. See United States v. Checora, 175 F.3d 782,

795-96 (10th Cir. 1999) (finding that victim’s sons were victims under the MVRA and had suffered a compensable loss

of support, but reversing and remanding decision to order that

restitution be paid to Utah Child and Family Services because

the court made no finding under section 3663A(a)(2) that the

agency served as legal guardian of the two boys or had been

appointed as a suitable proxy); United States v. Razo-Leora,

961 F.2d 1140, 1146 (5th Cir. 1992) (affirming order that

defendant pay $100,000 in lost income to victim’s widow

under VWPA); United States v. Jackson, 978 F.2d 903, 915

(5th Cir. 1992) (holding that the district court has the authority to award future lost income under VWPA, but remanding

for further factual findings on victim’s losses).4

[5] We reject Cienfuegos’ argument that the district court

cf. Jerome v. Crime Victims Comp. Bd., 350 N.W.2d 239, 241-42 (Mich.

1984) (the phrase “loss of support,” as utilized in Michigan statute,

encompasses, for purposes of restitution, the child care and housekeeping

costs claimed by the widower of a murder victim); Lambert v. Neb. Crime

Victim’s Reparations Bd., 336 N.W.2d 320, 323-24 (Neb. 1983) (holding

that the loss of future financial support is a pecuniary loss which is compensable under this Nebraska Crime Victim’s Reparations Act). 

4Several federal district courts also have awarded restitution for future

lost income. United States v. Serawop, 409 F. Supp. 2d 1356, 1357-58 (D.

Utah 2006) (affirming on remand restitution for future lost income to

estate of three-month-old homicide victim under MVRA); United States

v. Visinaiz, 344 F. Supp. 2d 1310, 1313-14 (D. Utah 2004) (“[L]ost

income restitution is mandatory for homicide no less than for other violent

crimes. To reach any other conclusion would flout the plain language of

the MVRA.”), aff’d on other grounds, 428 F.3d 1300 (10th Cir. 2005);

United States v. Ferranti, 928 F. Supp. 206, 224 (E.D.N.Y. 1996) (as

amended) (awarding future lost income under VWPA to fire department

in arson homicide case), aff’d without discussion of restitution issue sub

nom., United States v. Tocco, 135 F.3d 116 (2d Cir. 1998). 

UNITED STATES v. CIENFUEGOS 10923
acted within its discretion when, relying on the complexity

involved in calculating future lost income, it denied the Government’s motion for such restitution. Cienfuegos argues that

because the Seventh Circuit in United States v. Fountain, 768

F.2d 790, 800-04 (7th Cir. 1985), held that the calculation of

future earnings is a difficult problem that “unduly complicates

the sentencing process” and is not suitable for resolution in a

summary proceeding ancillary to sentencing for a criminal

offense, the district court did not abuse its discretion by reasoning similarly. However, Cienfuegos’ reliance on Fountain

is misplaced. First, Fountain, id. at 802, construed a different

statute, the VWPA. That statute set forth a provision, 18

U.S.C. § 3579(d), recodified as 18 U.S.C. § 3663(a)(1)(B)(ii),

which specifically authorized the court to decline to order restitution if “the complication and prolongation of the sentencing process resulting from the fashioning of an order of

restitution . . . outweighs the need to provide restitution.” The

Fountain court explicitly relied on this provision in reaching

its decision. 768 F.2d at 802. Second, the MVRA made the

“complexity exception” inapplicable to crimes of violence.

Indeed, the exception currently only applies to offenses

against property, offenses violating the Controlled Substances

Act, and offenses committed by fraud or deceit. 18 U.S.C.

§ 3663A(c)(3)(B) (allowing exception only for offenses listed

under 18 U.S.C. § 3663A(c)(1)(A)(ii)). The MVRA contemplates that some calculations may be complex, and, accordingly, authorizes the district court to “require additional

documentation or hear testimony,” id. § 3664(d)(4), or to

“refer any issue arising in connection with a proposed order

of restitution to a magistrate judge or a special master for proposed findings of fact,” id. § 3664(d)(6). 

[6] In addition, under the MVRA the availability of a civil

suit can no longer be considered by the district court in deciding the amount of restitution. It provides that “[i]n no case

shall the fact that a victim has received or is entitled to receive

compensation with respect to a loss from insurance or any

other source be considered in determining the amount of resti10924 UNITED STATES v. CIENFUEGOS
tution.” Id. § 3664(f)(1)(B). The MVRA also precludes duplicative awards by reducing restitution by any amount later

recovered as compensatory damages for the same loss by the

victim in any federal or state civil proceeding: “Any amount

paid to a victim under an order of restitution shall be reduced

by any amount later recovered as compensatory damages for

the same loss by the victim in—(A) any Federal civil proceeding; and (B) any State civil proceeding, to the extent provided

by the law of the State.” Id. § 3664(j)(2). Thus, the district

court abused its discretion by relying on the perceived complexity of the restitution determination and the availability of

a more suitable forum to decline to order restitution for future

lost income. 

[7] Any award of future lost income must not be predicated

on speculation or conduct unrelated to the offense of conviction, as such an award would be inconsistent with congressional intent. The accompanying Senate Report stated that “[t]he

committee believes that losses in which the amount of the victim’s losses are speculative, or in which the victim’s loss is

not clearly causally linked to the offense, should not be subject to mandatory restitution.” S. Rep. No. 104-179, at 19,

1996 U.S.C.C.A.N. at 932. Accordingly, the MVRA provides

that the presentence report (“PSR”) should contain all of the

“information sufficient for the court to exercise its discretion

in fashioning a restitution order.” 18 U.S.C. § 3664(a). The

PSR “shall include, to the extent practicable, a complete

accounting of the losses to each victim.” Id. “After reviewing

the [PSR], the [sentencing] court may require additional documentation or hear testimony.” Id. § 3664(d)(4). In addition,

the district court must ensure that the Government has met its

“burden of demonstrating the amount of the loss sustained by

a victim” and “[a]ny dispute as to the proper amount . . . of

restitution shall be resolved by the court by the preponderance

of the evidence.” Id. § 3664(e). Speculative losses are incompatible with the MVRA’s statutory scheme because “[o]ne

cannot bear the burden of proving the amount of a loss by a

preponderance of the evidence when it is no more than possiUNITED STATES v. CIENFUEGOS 10925
ble that the loss will occur at all.” United States v. Follet, 269

F.3d 996, 1002 (9th Cir. 2001). 

[8] While calculation of future lost income must be based

upon certain economic assumptions, the concepts and analysis

involved are well-developed in federal law, and thus the district court is not without persuasive analogy for guidance. See,

e.g., Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523,

533-53 (1983) (outlining method for estimating stream of

future earnings and choosing discount rate); Sutton v. Earles,

26 F.3d 903, 918-19 (9th Cir. 1994). We therefore reverse the

district court’s order of restitution and remand to the district

court for further proceedings consistent with this opinion. 

REVERSED AND REMANDED FOR PROCEEDINGS

CONSISTENT HEREWITH.

10926 UNITED STATES v. CIENFUEGOS