In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3899

United States of America,

Plaintiff-Appellee,

v.

Carmella Dawson,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 98 CR 378-01--James F. Holderman, Judge.

Argued April 6, 2001--Decided May 4, 2001

 Before Flaum, Chief Judge, and Posner and

Williams, Circuit Judges.

 Flaum, Chief Judge. Carmella Dawson

exploited her position as a billing clerk

at a Chicago hospital in order to defraud

the institution of over $175,000. After a

grand jury indicted Dawson on six counts

of mail fraud, she entered into a plea

agreement with the government. Pursuant

to that agreement, Dawson pled guilty to

one count of the indictment and

acknowledged that she owed the hospital

$175,089 in restitution. On October 23,

2000, the district court sentenced Dawson

to 18 months imprisonment, and ordered

her to pay the previously agreed upon

amount in restitution. Dawson now appeals

her sentence, arguing that her

restitution judgment should be vacated,

and the cause remanded, so that the

district court can offset the amount she

owes by any payments that may have been

made by her co-schemers. Furthermore,

Dawson contends that the application of

the Mandatory Victims Restitution Act of

1996 ("MVRA") to her crime violates the

Ex Post Facto Clause of the United States

Constitution. For the reasons stated

herein, we affirm the decision of the

district court.

I. BACKGROUND 

 Carmella Dawson was employed as a
Medical Services Plan Billing Clerk for

the Rush Presbyterian St. Luke’s Hospital

("Rush Hospital") in Chicago, Illinois.

In that capacity, one of Dawson’s duties

was to prepare the paperwork that

triggered the issuance of refund checks

to insurance companies that had overpaid

the hospital. Recognizing an opportunity

for illegal gains, Dawson (along with her

then husband, Derrell Adams) recruited

individuals to assist in defrauding the

hospital. For three years, Dawson

prepared and filed the necessary

paperwork so that the hospital

unwittingly issued refund checks to her

selected co-schemers. Once an individual

received his or her "refund," Dawson or

Adams would accompany that person to cash

the check. For assisting in the

machination, the individual would receive

a portion of the check sum, with the

lion’s share going to Dawson and Adams.

In all, Dawson fraudulently caused Rush

Hospital to issue approximately 100

checks, totaling $175,089. 

 Eleven of Dawson’s payees cooperated

with the government, detailing how the

scheme was perpetrated. As a result of

their testimony, Dawson was indicted by a

grand jury on six counts of mail fraud in

violation of 18 U.S.C. sec. 1341. Rather

than proceed to trial, Dawson entered

into a plea agreement with the

government. Pursuant to that agreement,

on May 23, 2000, Dawson pled guilty to

Count One of the indictment, and the

government dismissed the remaining five

counts. As to the amount Dawson was obli

gated to repay the hospital, the

agreement contained a statement that

"[r]egarding restitution, the parties ac

knowledge that the amount of restitution

owed to Rush Presbyterian St. Luke’s

Hospital, Chicago, Illinois . . . [is]

$175,089 and that pursuant to Title 18,

United States Code, section 3663A the

court must order defendant to make

restitution in this amount." 

 In a sentencing memorandum, Dawson

acknowledged that she owed Rush Hospital

$175,089 in restitution. However, Dawson

remarked that "several [of her] coschemers [had] entered into pre-trial

diversion agreements with the government

towards resolving their criminal

liability." Typically, she noted, those

types of agreements require restitution

to be made to the victim. Dawson informed
the court that she had received no

information as to whether her co-schemers

had contributed towards restitution. She

requested that if any such payments had

been made to Rush Hospital, that the

restitution figure of $175,089 be offset

to reflect those payments, thereby

ensuring that the hospital not receive a

"windfall." Neither the probation officer

who authored the Presentence

Investigation Report nor the government

responded to Dawson’s contention

regarding restitution. On October 23,

2000, the district court sentenced Dawson

to 18 months imprisonment, followed by

three years of supervised release, and

ordered Dawson to pay restitution in the

amount of $175,089. 

 On appeal, Dawson contends that, because

of possible restitution payments by her

co-schemers, the district court lacked

authority to order full restitution sans

offset. Additionally, Dawson posits that

the MVRA effectuates a criminal penalty,

which was applied in her situation in

violation of the constitutional

prohibition against ex post facto laws.

II. DISCUSSION

A. Offsetting Of Restitution

 Dawson’s first contention on appeal is

that the government failed to meet its

burden of proving Dawson’s liability for

$175,089 in restitution. Dawson notes

that under 18 U.S.C. sec. 3664(e) "[t]he

burden of demonstrating the amount of the

loss sustained by a victim as a result of

the offense shall be on the attorney for

the Government." In this instance, Dawson

points out that several of her coschemers entered into pretrial diversion

agreements with the government in order

to resolve their respective criminal

liabilities. Dawson posits that

wrongdoers do not typically cooperate

with the government without entering into

some form of agreement regarding

restitution, "and it is difficult to

imagine that the government would have

allowed offenders to escape prosecution

through pretrial diversion absent seeking

restitution." Thus, she contends that the

restitution judgment should be vacated,

and the cause remanded with instructions

to offset Dawson’s restitution obligation

by any restitution payments previously
made by co-schemers.

 A district court’s authority to order

restitution is a question of law which is

reviewed de novo. United States v. Wells,

177 F.3d 603, 608 (7th Cir. 1999). Any

dispute as to the proper amount of

restitution is resolved by the district

court under the preponderance of evidence

standard. See 18 U.S.C. sec. 3664(e).

Assuming a district has

correctlyconcluded that restitution is

authorized, the court’s calculation of

the amount of restitution is reviewed for

clear error. United States v. Newman, 144

F.3d 531, 542 (7th Cir. 1998).

 We note at the outset that Dawson does

not contend that the district court

lacked authority to order restitution in

this instance. Furthermore, despite

Dawson’s statements to the contrary, she

is not challenging her liability for

$175,089. In her plea agreement, Dawson

specifically notes that, under the MVRA,

she is responsible for paying Rush

Hospital the full amount owed. Rather,

Dawson is arguing that her co-schemers

surely have made restitution payments,

and that therefore her liability must be

offset by the amounts paid, in order to

prevent Rush Hospital from receiving a

"windfall."

 We agree with Dawson that Rush Hospital

should not receive anything more in

restitution than is required to make the

hospital whole. See, e.g., 18 U.S.C. sec.

3664(f)(1)(A). Furthermore, we are not

unsympathetic to Dawson’s assertion that

the information on restitution that she

requests is solely in the province of the

hospital and the government. At oral

argument, the government assured this

Court that it had not sought nor received

restitution from any of Dawson’s coschemers as part of their pre-trial

diversion agreements. Furthermore, the

government represented that, at this

time, it has no intention of seeking

restitution from any of those parties.

Were that to change, and were Dawson’s

co-schemers to pay Rush Hospital any

amounts in restitution, we expect that

the government would notify Dawson of

that occurrence so that she could

properly file a request for modification

of restitution. See 18 U.S.C. sec.

3664(j)(2). However, until such time, we

find that the district court’s decision
to hold Dawson accountable for the entire

$175,089--the amount she acknowledged was

owed to Rush Hospital--is in accordance

with the MVRA’s rules regarding

apportionment of liability. See 18 U.S.C.

sec. 3664(h) ("If the court finds that

more than 1 defendant has contributed to

the loss of a victim, the court may make

each defendant liable for payment of the

full amount of restitution . . . .").

Thus, we affirm the decision of the

district court. 

B. Retroactive Application Of The MVRA

 Dawson’s second argument on appeal is

that the district court retroactively

applied the MVRA to her case, and in

doing so violated the constitutional

prohibition against imposition of ex post

facto laws. Specifically, Dawson points

out that the her acts of mail fraud were

alleged to have transpired between June

13, 1990 and June 22, 1993, and that the

fraud referenced in Count One of the

indictment (to which Dawson pled guilty)

occurred on May 23, 1993. At that time,

the Victim and Witness Protection Act

("VWPA") governed the district court’s

authority to order restitution. See 18

U.S.C. sec. 3663 (1993). Under the VWPA,

district courts were authorized, but not

required, to order restitution. See

Newman, 144 F.3d at 537. Crucial to the

discretionary decision was the

defendant’s financial standing. "Before a

district court could order any

restitution, the old Act required the

court to determine how much, if any,

restitution a defendant could make in

light of ’the financial resources of the

defendant, the financial needs and

earning ability of the defendant and the

defendant’s dependents, and such other

factors as the court deems appropriate.’"

Id. (citing 18 U.S.C. sec.

3663(a)(1)(B)(i)(II) (1993)).

 Dawson does not dispute that the MVRA

discarded this discretionary balancing

system, directing that district courts

"shall order" restitution. See 18 U.S.C.

sec. 3663A(a)(1) & (b). Under the MVRA, a

defendant’s financial status is relevant

only to fixing a payment schedule for the

mandated restitution payments. See 18

U.S.C. sec. 3664(f)(1)(A) ("In 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."). At the

time of Dawson’s sentencing, in October

of 2000, the MVRA was in effect. Dawson

suggests that the district court applied

the MVRA in ordering restitution, and

therefore did not analyze her financial

condition prior to finalizing its order.

Thus, she asserts that, in this instance,

application of the MVRA has increased the

punishment for her criminal conduct,

thereby creating a violation of the

prohibition against ex post facto laws.

 We review the district court’s decision

to apply the MVRA to Dawson’s charged

conduct de novo./1 See Newman, 144 F.3d

at 538. Unfortunately for Dawson, the

question of whether retroactive

application of the MVRA constitutes a

violation of the Ex Post Facto Clause is

a settled issue in this Circuit. In

Newman, we extensively examined the prob

lem, and concluded that the Clause was

not violated when a district court

imposed restitution pursuant to the MVRA

for actions which occurred prior to the

effective date of the law. See Newman,

144 F.3d at 537-42. In that decision, we

acknowledged, and found unpersuasive, the

arguments in favor of finding that the

MVRA could not be applied retroactively

without violating the Ex Post Facto

Clause, as well as the fact that our

decision was not in accord with those of

other Circuits. See id.; see also United

States v. Edwards, 162 F.3d 87, 89-90 (3d

Cir. 1998) (collecting cases). 

 Since that time, the holding of Newman

has been affirmed by this Court in cases

such as United States v. Grimes, 173 F.3d

634, 640 (7th Cir. 1999), United States

v. Bach, 172 F.3d 520, 523 (7th Cir.

1999), and United States v. Szarwark, 168

F.3d 993, 998 (7th Cir. 1999). While

Dawson has presented a bevy of reasons

why retroactive application of the MVRA

violates the Ex Post Facto Clause, we

have expressly found those justifications

unpersuasive in Grimes, Bach, Szarwark,

and Newman. Thus, we find that Dawson has

presented no compelling justification for

us to revisit the holding of Newman and

its progeny.

III. CONCLUSION

 For the foregoing reasons, we Affirm the
decision of the district court.

FOOTNOTE

/1 The government argues that Dawson’s agreement to

pay restitution constitutes a forfeiture of her

challenge to the propriety of retroactive

application of the MVRA. As such, the government

asserts that correct standard of review is plain

error rather than de novo. See United States v.

Olano, 507 U.S. 725, 733-34 (1993). Because we

find that law of our Circuit forecloses Dawson’s

claims under either standard of review, we will

assume arguendo that Dawson’s actions did not

constitute a forfeiture of her issue, and analyze

the claim under the de novo standard.