United States v. Cherokee Delahanty ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10459
Plaintiff-Appellee, D.C. No.
4:18-cr-01255-RCC-DTF-1
v.
CHEROKEE RAY DELAHANTY, AKA MEMORANDUM*
Cherokee Delahanty,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted November 19, 2020
Phoenix, Arizona
Before: TALLMAN, BYBEE, and BADE, Circuit Judges.
Convicted of a serious assault in Indian Country, Cherokee Delahanty
appeals the district court’s entry of an amended restitution order making him liable
for his victim’s medical expenses despite the government’s failure to raise this
unresolved amount of restitution at sentencing. We have jurisdiction pursuant to
28 U.S.C. § 1291. We vacate the amended restitution order and remand for further
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
proceedings.
1. The government erred when it sought to amend Delahanty’s
restitution order without complying with the Mandatory Victim Restitution Act’s
(“MVRA”) procedural requirements. 18 U.S.C. § 3664. Although the magistrate
judge warned Delahanty at his change-of-plea hearing that he would be subject to a
claim for reimbursement of the victim’s medical expenses—a warning repeated in
the Presentence Report—and his counsel had received copies of medical treatment
records in pretrial discovery, the government failed at sentencing to identify the
victim’s medical expenses as a non-ascertainable loss as required by law because
the Arizona Medicaid agency, as the victim’s insurer, had not yet responded to the
government’s request for the amount later claimed. See 18 U.S.C. § 3664(d)(5).
Prior to sentencing, the government and the defendant were aware that the
victim sustained significant injuries and received extensive medical treatment
arising from the assault. That the Medicaid agency did not timely respond to the
government’s solicitation of its claim does not establish good cause for the
government’s failure to raise what it knew to be a potential outstanding restitution
claim at the time of sentencing. Id. We note that the government effectively
conceded as much at the restitution amendment hearing before the district court.
The United States Attorney’s Office easily could have avoided procedural error
had it paid more careful attention to the MVRA’s requirements.
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Nonetheless, the government’s procedural error was harmless. Failure to
comply with the MVRA’s procedural requirements does not divest the court of
jurisdiction to amend a restitution order. Dolan v. United States, 560 U.S. 605,
610–11 (2010). Indeed, “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.” United States v.
Moreland, 622 F.3d 1147, 1173 (9th Cir. 2010) (quoting United States v.
Cienfuegos, 462 F.3d 1160, 1163 (9th Cir. 2006)). We have declined to find actual
prejudice where, despite the procedural error, a defendant was otherwise given
notice that he would be obligated to pay restitution. See Moreland, 622 F.3d at
1173; United States v. Marks, 530 F.3d 799, 812 (9th Cir. 2008); Cienfuegos, 462
F.3d at 1163. Here, Delahanty had the following notice that he could be liable for
his victim’s medical expenses: the Presentence Report advised Delahanty that
restitution for a victim’s medical expenses was mandatory, not discretionary, under
the MVRA; the written plea agreement and the magistrate judge’s comments
during Delahanty’s change of plea advised him that he could be liable for the
victim’s medical expenses; and the district court did order some restitution at
sentencing, even if it later significantly changed the total amount of the restitution
award.
2. The district court, however, erred in failing to make any findings on
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Delahanty’s timely objection to the sufficiency of the evidence supporting the
amended restitution award. The MVRA “recognizes that specific findings of fact
are necessary at times and contemplates that the district court will set forth an
explanation of its reasoning, supported by the record, when a dispute arises as to
the proper amount of restitution.” United States v. Waknine, 543 F.3d 546, 556
(9th Cir. 2008) (citation omitted). Even where it is “easy to reconstruct how the
District Court arrived at” the restitution figure, the failure to make findings on a
defendant’s challenge to the sufficiency of the evidence supporting a restitution
award is reversible error. United States v. Tsosie, 639 F.3d 1213, 1222–23 (9th
Cir. 2011). On remand, the district court is instructed to conduct a new hearing in
response to Delahanty’s objection to the sufficiency of the evidence supporting the
amended restitution award to determine the proper amount of restitution and to
make findings supporting the amount properly attributable to treatment arising
from the victim’s extensive injuries.
The Clerk will send a copy of this disposition addressed to the United States
Attorney for the District of Arizona so that appropriate steps may be taken to train
assistant United States attorneys in their obligations under the MVRA.
VACATED AND REMANDED with instructions.
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