HOUSE_OVERSIGHT_017745.jpg

Page 31 of 52 2005 B.Y.U.L. Rev. 835, *887 aware of this issue, having withdrawn a previous proposal to expand Rule 32 to include all victims in the wake of the CVRA. 223 Rule 32(c)(1)(B) - Presentence Report Considering Restitution in All Cases The Proposal: Rule 32(c)(1)(B) should be amended to require that the presentence report contain restitution information in all cases as follows: (c) Presentence Investigation. (1) Required Investigation. (A) In General. The probation officer must conduct a presentence investigation and submit a report to the court before it imposes sentence unless: (i) /8 U.S.C. 3593(c) or another statute requires otherwise; or (i1) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under /8 U.S.C. 3553, and the court explains its finding on the record. [*883] (B) Restitution. If the law requires permits restitution, the probation officer must conduct an investigation and submit a report that contains sufficient information for the court to order restitution. The Rationale: As currently written, the rule directs that a presentence report contain information about restitution only when the law "requires" restitution. The proposed amendment directs that all presentence reports contain appropriate restitution information whenever the law "permits" restitution. If the law permits restitution, the court ought to receive information sufficient to allow it to determine whether to order such restitution. Only with such knowledge can the court appropriately exercise its discretion. In most cases, restitution is covered by one of two federal statutes: the Mandatory Victims Restitution Act of 1996 (MVRA), 224 and its predecessor, the Victim and Witness Protection Act of 1982 (VWPA). 7%° For all crimes of violence and certain crimes against property, the MVRA firmly directs that "notwithstanding any other provision of law, when sentencing a defendant convicted of [certain offenses such as crimes of violence] ... 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." 226 For other crimes, the earlier 22) VWPA controls. It permits the court to order restitution in its discretion after considering various relevant factors. 223 See Letter from Ed Carnes, Chair of the Advisory Comm. on Federal Rules of Criminal Procedure, to Hon. David F. Levi, Chair of the Standing Committee on Rules of Practice and Procedure (May 18, 2004) (on file with the author) (noting that proposed expansion of Rule 32 should be withdrawn if the CVRA was passed). 224 18 U.S.C. 3663A, 3664 (2000). 225 Td. 3663, 3664. See generally United States v. Bedonie, 317 F. Supp. 2d 1285 (D. Utah 2004) (discussing different statutes), rev'd on other grounds, United States v. Serawop, 410 F.3d 656 (10th Cir. 2005). 26 18 U.S.C. 3663A(a)(1) (emphasis added); see United States v. Monts, 31] F.3d 993, 1001 (10th Cir. 2002) (holding that restitution under the MVRA is mandatory). 27 18 U.S.C. 3663A(a)(3); see United States v. Fountain, 768 F.2d 790, 801 (7th Cir. 1985) (holding that restitution under the VWPA is discretionary). DAVID SCHOEN HOUSE_OVERSIGHT_017745