Argued: March 20, 2019
Petition for Writ of Mandamus from the United States District
Court for the District of Maryland, at Greenbelt.
Darrel Stone, MARYLAND CRIME VICTIMS' RESOURCE CENTER,
INC., Upper Marlboro, Maryland, for Petitioner.
Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland; Cullen Oakes Macbeth, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Russell P. Butler, MARYLAND CRIME VICTIMS' RESOURCE
CENTER, INC., Upper Marlboro, Maryland, for Petitioner.
K. Hur, United States Attorney, Jane F. Nathan, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Respondent United States of America.
James Wyda, Federal Public Defender, Baltimore, Maryland,
Paresh S. Patel, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Respondent Joyce Boone.
MOTZ, AGEE and WYNN, Circuit Judges.
2017, Joyce Boone injured Carlos Brown in a car accident she
caused while driving under the influence of alcohol. She
pleaded guilty to three traffic violations before the United
States magistrate judge and was sentenced to two years'
probation. Brown asked the court to order restitution as a
condition of Boone's probation, but his request was
denied. He now petitions this Court for a writ of mandamus
pursuant to 18 U.S.C. § 3771(d)(3). For the reasons
stated below, we grant the petition and remand the case.
owned and operated his own electrician's business at the
time of the accident. In June 2017, he was riding a
motorcycle on a federal roadway in Maryland when Boone ran a
red light while operating her vehicle under the influence of
alcohol. She collided with Brown, leaving him with serious
injuries that required at least seven surgeries within one
year of the accident. Brown had metal rods installed in
various parts of his body and needed assistive devices to
walk. Because of these injuries, Brown alleged that he became
unable to work as an electrician or perform daily activities
and was "struggling physically, mentally, emotionally,
[and] financially." J.A. 39.
was later charged with six violations of various federal
traffic regulations in the United States District Court for
the District of Maryland. She reached a plea agreement with the
Government and pleaded guilty to three offenses: (1) driving with
a blood alcohol concentration of .08 or above in violation of
36 C.F.R. § 4.23(a)(2); (2) failing to obey a traffic
control device in violation of 36 C.F.R. § 4.12; and (3)
unsafely operating a motor vehicle in violation of 36 C.F.R.
§ 4.22(b)(1). Under the terms of the plea agreement, the
Government agreed to recommend a sentence of probation but
make no recommendation regarding Brown's claim for
restitution as part of Boone's sentence. The parties
proceeded to a plea hearing,  during which the court conducted
a plea colloquy and accepted Boone's guilty plea.
hearing, Brown requested that the court order restitution in
the amount of $18, 976 as a condition of Boone's
probation. Specifically, Brown sought restitution for the
deductible of $250 he paid to his vehicle insurance company
and his estimated lost wages for the past seven months, which
he calculated at an hourly rate of $22, less the settlement
amount of $30, 000 he received from his insurer. To support
his restitution request, Brown provided personal and familial
statements about his injuries and an October 2017 letter from
his physician stating that he would not be able to work
full-time for one to one-and-a-half years after the accident.
Brown explicitly declined to seek restitution for his medical
bills or future lost wages.
agreed that the $250 deductible was an appropriate part of a
restitution award but objected to Brown's claim for past
lost wages because she contended his supporting evidence was
speculative and not reliable. She asked the court to order a
restitution award of $250, or, in the alternative, schedule a
hearing as to any other proper amounts, although she believed
the issue of restitution "would all get flushed out in
the civil proceedings through discovery where it should be
flushed out. Not here [in] a criminal magistrate court."
J.A. 52. At that point, the court noted that Brown "got
serious injuries [and] has had serious medical injuries in
the past. It sounds like more surgery is down the road, lost
wages, children. [T]his is not something I can decide
today." J.A. 60-61. The court declined to order
restitution at that time, stating that Brown's case was
"extraordinarily unusual," J.A. 60, but ordered a
presentence report directing the probation officer to examine
the issue of restitution. The court scheduled a sentencing
hearing for April 2018.
to the sentencing hearing, Brown filed an amended request
seeking restitution in the amount of $19, 040.32 solely to
cover his past lost wages. To support the request, he
submitted his 2017 federal tax return, his own affidavit
detailing his physical struggles, and the letter from his
physician. In the letter, the doctor noted that Brown was
using a walker and needed physical therapy twice per week for
the next six months. The physician further stated "[i]f
he is able to resume his regular full-time work as an
electrician, it will likely be 1[ to ]1-1/2 years from the
time of his injury." J.A. 75. There was no evidence
offered as to whether Brown could work part-time as an
electrician or was capable of maintaining some other form of
full- or part-time employment.
sentencing hearing, Brown reiterated his request for
restitution, stating that he would not pursue any civil
action against Boone. She continued to oppose the request,
arguing that the court should "stay out of it"
because Brown's restitution request "is [better
suited for] civil litigation." J.A. 109. Further, Boone
challenged the reliability of the October 2017 letter from
Brown's doctor and questioned why Brown could not find
other employment and thereby mitigate damages. She also
argued that the court may not award restitution here because
her conduct underlying the offenses to which she pleaded
guilty did not cause Brown's injury. Boone asked the
court to place her on one year of probation and not to order
restitution as a condition of probation.
court sentenced Boone to two years' probation but
declined to order restitution, largely for two reasons: Brown
lacked sufficient evidence to support his restitution request
and the sentencing forum was unsuitable for determining the
requested restitution. First, even though the court
acknowledged that it had discretion to order restitution and
"no reason to not believe Mr. Brown," J.A. 126, it
rejected Brown's request, stating:
although there is evidence of lost wages through Mr.
Brown's own testimony and tax return, in my opinion there
has got to be more than simply the victim's statement to
award restitution in the amount of $20, 000 ..... [T]his is
misdemeanor court. This court generally does not deal with
restitution, and if we are going to deal with restitution, it
is not in this amount.
J.A. 127. The court also discussed Brown's future medical
bills that were approximately a "half a million
dollars," J.A. 128, although Brown did not request
restitution for those expenses.
based on the proffered evidence and Boone's opposition,
the court determined that under the circumstances of this
case it was not the appropriate forum to determine
restitution and referenced United States v. Fountain
in support of its decision. See768 F.2d 790, 801-02
(7th Cir. 1985) (upholding the district court's decision
not to award restitution for future lost wages because
"the calculation of lost future earnings involves the
difficult problem of translating an uncertain future stream
of earnings into a present value"). The court then
stated, "[i]n a criminal context the Court will put its
foot into the waters of restitution if things are readily and
accurately ascertainable uncontested. We are contested here,
and that is why this is just so not the forum to be dealing
with these kinds of figures." J.A. 129. The court also
noted that "to order restitution in the amount that is
being requested with the evidence that would give me the
level of confidence and comfort in that I am ...