U.S. v. Tsosie, No. 10-10030 (5-10-11) (Berzon with Paez; concurrence and dissent by Bea)(Editorial note: This case is from the Arizona FPD office).

The issue here is restitution. Under a plea agreement, the defendant pled guilty to abusive sexual contact arising on the Navajo Indian reservation and was sentenced to 18 months (the guideline range was 97 to 121 months). He was also ordered to pay restitution in the amount of $31,994 to the victim's mother to cover costs incurred in making trips between her home and the victim's boarding school, 150 miles away. The defendant argued that such travel costs were not appropriate because they were not incurred by the victim under 18 U.S.C. 2244(a)(1); and that the restitution was ordered in violation of procedural and evidentiary requirements of 18 U.S.C. 3664. The 9th held that such costs were allowed by restitution but that procedure and evidence for the restitution was lacking. There was also no waiver of the appeal. The restitution, argued the victim's mother, was for travel to visit and see her daughter because of medical issues and for emotional support. (The PSR only recommended $200 because of lack of support). The 9th first considered whether the appeal was waived, and held it was not because the defendant did not get notice of the amount when he agreed to plea. The policy and precedent so compel because there is no guidance or set amount of restitution as there is, say, for a sentence or fine. Turning to whether restitution to the victim's mother falls within the statute, the 9th holds it does so long as the mother's actions or trips were for the victim and required, as apparently it was here by a counselor. The amount is vacated and the sentence issue remanded because the district failed to set forth its reasons for the restitution amount and failed to have the amount adequately supported by evidence. The proferred evidence, a spreadsheet showing trips over several years, was not a sworn statement, there were incosntitenciues and oddities, and some of the trips may not have been for treatment related to the abuse. The 9th believes that procedural due process mandates a stronger evidentiary link. Bea concurs in finding that the appeal was not waived and that the mother could seek restitution. He dissents however from the finding of inadequacy of evidence because he would hold that the spreadsheet was sufficient. Bea would excuse the "oddities" because one would expect a "few inaccuracies or confusing entries." Bea wanted more specific objections.

Congrats to AFPDs Dan Kaplan and Sarah Stone, Arizona FPD (Phoenix).

Velasquez v. Kirkland, No. 08-55823 (5-10-11)(O'Scannlain with W. Fletcher and Clifton).

The 9th decides a tolling issue. The petitioner was convicted of first-degree murder in California. His appeals and state habeas were denied, and he went to federal court. Under AEDPA, however, he was over time by 767 days. He argued that this was statutorily, or, in the alternative, equitably tolled. He argued that the state court's denial 'on the merits" and the state's requirement that his appeals be filed in a reasonable time both were enough to statutory tolling. The 9th found it was not because the Supremes have held that an indeterminate "reasonable" period was close to a determinate 30 to 60 days. Here, the delays were longer. There was also no equitable tolling due to Evans v. Chavis, decided after the petitions were filed, which held that an "on the merits" denial did not necessarily toll. The 9th held that federal courts independently determine what a state can find timely or untimely; that the petition could not have relied on the state's timely consideration even if he was untimely; and that counsel's failure to recognize that an 80 to 90 day delay would be considered untimely is not an external force. The petition is denied.