The opinion of the court was delivered by: Hayes Judge:
The matters before the Court are the objections by the Defendant to mandatory restitution under 18 U.S.C. § 3663A. (ECF No. 97).
On August 10, 2012, Defendant pled guilty pursuant to a Plea Agreement to twelve counts in the Superseding Indictment, including mail fraud, procuring false tax returns, fraudulent use of a Social Security number of another person, aggravated identity theft, filing false personal tax returns, money laundering, witness tampering, murder-for-hire, and solicitation of a crime of violence. The Plea Agreement, signed by the Defendant and the Government, provided in relevant part:
Defendant agrees that the amount of restitution ordered by the Court shall include defendant's total offense conduct, and is not limited to the count(s) of conviction. Accordingly, the parties will jointly recommend that defendant pay restitution in the amount of at least $11,000,000; the exact amount to be determined at sentencing. Defendant agrees and understands that any payment schedule imposed by the Court is without prejudice to the United States to take all actions and take all remedies available to it to collect the full amount of restitution. (Plea Agreement ECF No. 67at 29).
On November 19, 2012, the Court ordered the Government to provide "[a] listing of the amounts subject to restitution" in order to allow "the probation officer to obtain and include in its presentence report ... information sufficient for the court to exercise its discretion in fashioning a restitution order." (ECF No. 78).
On December 10, 2012, the Probation Office filed an addendum to the presentence report recommending that the Court order the Defendant to pay $15,009,593.46 in restitution to the following three identified victims: (1) $11,964,375.51 to the Internal Revenue Service (IRS); (2) $2,955,715.46 to the California Franchise Tax Board (FTB); and (3) $89,502.49 to the victim J.D.S. (ECF No. 88).
On December 12, 2012, Defendant filed objections to the addendum to the presentence report. (ECF No. 97).
On January 4, 2012, the Government filed a response to the Defendant's objections to the addendum to the presentence report. (ECF No. 98).
The Mandatory Victims Restitution Act (MVRA) makes restitution mandatory for offenses which involve fraud or deceit. 18 U.S.C. § 3663A(c)(1)(A)(ii). The statute provides that "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). The "primary and overarching goal" of the statute "is to make victims of crime whole, to fully compensate these victims for their original losses and to restore these victims to their original state of well-being." United States v. Gordon, 393 F.3d 1044, 1053 (9th Cir. 2004) (quoting United States v. Simmonds, 235 F.3d 826, 831 (3d Cir. 2000)).
"Restitution can only be based on actual loss." United States v. Xu, __ F.3d __, 2013 WL 28392 (9th Cir. 2013). 18 U.S.C. §3664(e) provides that "[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The 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.... The burden of demonstrating such other matters as the court deems appropriate shall be as upon the party designated by the court as justice requires." 18 U.S.C. §3664(e).
Defendant contends that the Government has made an insufficient factual showing to support its requested restitution order. The Government contends that the record is sufficient for the Court to make specific legal and factual findings to determine the proper restitution. The Government and the Defendant request that the Court resolve the ...