US v. Cienfuegos, No. 05-10201 (9-8-06). The 9th (Wardlaw) holds that restitution for future lost income may be ordered under the Mandatory Victims Restitution Act of 1996 (MVRA) so long as it is not based upon speculation, but is reasonably calculable. The defendnat was convicted of involuntary manslaughter for a vehicular homicide on an Indian reservation. At sentencing, the gov't submitted a report from a CPA calculating the victim's lifetime future lost income as $1,851,134. The district court had denied the restitution, reasoning that the complexities for lost income belonged in a civil suit, and not in a federal sentencing. The court ordered restitution for funeral and related expenses. The 9th first brushes off the gov't missing deadlines and filing, reasoning that the failure to comply was harmless, and the deadlines were actually to prevent the defendant from accelerating sentencing. The 9th then goes through the MVRA legislative history, and the term 'lost income" and concludes that future income is permissable as restitution. The 9th cautions against speculation, or unrelated casual factors. The import of the decision is to make sentencing even more complex, as the district court warned, and can result in discovery focused on the victim and his or her true future potentials. Of course, restitution can be ordered, but realistically, can millions or even thousands really be paid?

US v. Mueller, No. 05-10180 (9-8-06). In an interesting opinion, albeit yet another loss for the defendnat, the 9th concludes that Booker does not allow probation for a defendnat convicted of receiving child porno in violation of 2252. The defendant's argument was that the statute did not preclude probation. The defendant argues further that a court could impose probation, instead of the mandatory. No such luck, answers the 9th, because that would be an accidental byproduct of Booker, and would run counter to Congressional intent.