United States v. Erickson , 83 F. App'x 997 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 30 2003
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 03-8018
v.
(D.C. No. 02-CR-34-D)
(Wyoming)
BRET ERICKSON, also known as
Brett Erickson,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
Bret Erickson pled guilty to interstate travel with intent to engage in a
sexual act with a minor, in violation of 18 U.S.C. § 2423(a). The district court
sentenced him to fifty-one months of incarceration and ordered him to pay
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
restitution in the amount of $138,996.61. Mr. Erickson appeals, claiming the
restitution order is illegal. We affirm.
The amount the district court ordered Mr. Erickson to pay derives from the
costs borne by the State of Wyoming in its care for the minor victim of Mr.
Erickson’s crime. The district court made Mr. Erickson jointly and severally
liable for these costs with the other perpetrators of sex crimes against the victim.
The district court gave Mr. Erickson seven years and three months to pay the full
amount in monthly installments of no less than fifty dollars.
Mr. Erickson’s first allegation as to the illegality of the restitution order is
that the government failed to prove the amount of the state’s loss, and the
sentencing court failed to make findings as to loss. The court clearly drew from
the presentence report in ordering restitution because the amount it ordered Mr.
Erickson to pay is identical to the amount recommended there. According to that
report, the $138,996.61 includes $59,091.61 already expended by the state for the
victim’s care and $105 per day for the cost of future treatment. The report also
notes that due to the severity of her psychological damage, the victim will remain
a ward of the state until she reaches the age of eighteen. Mr. Erickson lodged no
objection to the report. “Absent such a challenge, the sentencing court can rely
on any uncontested facts contained in the presentence report without requiring
production of evidence.” United States v. Patty, 992 F.2d 1045, 1051 n.5 (10th
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Cir. 1993). Consequently, the state was not required to present additional
evidence as to the amount of loss.
Mr. Erickson’s quarrel with the district court’s failure to make specific
findings is meritless because “the sentencing court need not make specific factual
findings unless the restitution amount is disputed.” United States v. Gabriele, 24
F.3d 68, 72 (10th Cir. 1994) (citing 18 U.S.C. § 3664(d)). Mr. Erickson never
objected to paying restitution for the costs the state had already expended on the
victim’s behalf, so the court’s order as to that amount will only be reversed for
plain error. United States v. Herndon, 982 F.2d 1411, 1420 (10th Cir. 1992). He
did object to the “amount over and above that already incurred by the state.”
Sent. Tr. at 68. This court reviews “the amount of the restitution order for an
abuse of discretion.” United States v. Rogat, 924 F.2d 983, 985 (10th Cir. 1991).
The presentence report adopted by the court indicated the victim would be
in the state’s care until the age of majority. At the sentencing hearing, the district
court found “[t]he impairment of this child’s intellectual, psychological,
emotional and behavioral functioning is unquestioned and severe beyond any that
I have seen as a sentencing judge. . . . Based on the testimony of [psychologists
attending the victim], the Court is satisfied, beyond any possible doubt, that this
child’s condition bespeaks severe sexual and physical abuse which will have long-
lasting impact.” Sent. Tr. at 55. Ordering Mr. Erickson to pay costs already
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expended to treat this severe trauma was not error, much less plain error.
Moreover, we cannot hold that including in its restitution order the costs of the
victim’s uncontested long-term care needs was an abuse of discretion.
Mr. Erickson also asserts his restitution order is illegal because it includes
losses attributable to other defendants. He raises this argument for the first time
on appeal, so we review it for plain error. Herndon, 982 F.2d at 1420. We first
note the statute under which Mr. Erickson received his restitution sentence states
that “[i]f 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.” 18 U.S.C. § 3664(h). In addition, Dr. Lindberg, who treated the
victim, testified at Mr. Erickson’s sentencing hearing that the severe,
collaborative abuse of this child was cumulative in effect and could not be
apportioned to individual perpetrators of crimes against her. See Sent. Tr. at 29-
32. In relation to Mr. Erickson’s crimes, the district court found:
It is no defense for this defendant to say there were other partners;
that there were other people who are complicit. He knowingly
preyed upon this child, exacerbating the extent of her victimization.
He knew that others were abusing her; and he knew some of the
manner and means by which they were accomplishing this abuse.
He used that for his own purpose.
Id. at 55-56. The district court did not commit plain error in making Mr. Erickson
jointly and severally liable for the full cost of this victim’s treatment and care.
Finally, Mr. Erickson argues “the district court’s failure to make any
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inquiry or finding regarding his financial condition mandates reversal.” Once
again, Mr. Erickson did not make this argument to the district court, so our review
is for plain error. The Mandatory Victim Restitution Act (MVRA) mandates that
a court “order [restitution paid] 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). This court has previously
addressed the same claim brought by a defendant who pleaded guilty to the same
crime as Mr. Erickson. See United States v. Johnson, 183 F.3d 1175, 1178-79
(10th Cir. 1999). We held then and reiterate now that § 3663A(c)(1)(A)(i) of the
MVRA “requires federal district courts to order restitution to the victim of [a
crime of violence] regardless of the defendant’s ability to pay.” Johnson, 183
F.3d at 1179. The district court need not make findings concerning a matter it has
been instructed not to consider. Mr. Erickson has not demonstrated plain error as
to the district court’s restitution order.
We AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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