Sentencing Guidelines » Chapter 5

U.S.S.G. § 5E1.1

Restitution

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(a)       In the case of an identifiable victim, the court shall—

(1)       enter a restitution order for the full amount of the victim's loss, if such order is authorized under 18 U.S.C. § 1593, § 2248, § 2259, § 2264, § 2327, § 3663, or § 3663A, or 21 U.S.C. § 853(q); or

(2)       impose a term of probation or supervised release with a condition requiring restitution for the full amount of the victim's loss, if the offense is not an offense for which restitution is authorized under 18 U.S.C. § 3663(a)(1) but otherwise meets the criteria for an order of restitution under that section.

(b)      Provided, that the provisions of subsection (a) do not apply—

(1)       when full restitution has been made; or 

(2)       in the case of a restitution order under 18 U.S.C. § 3663; a restitution order under 18 U.S.C. § 3663A that pertains to an offense against property described in 18 U.S.C. § 3663A(c)(1)(A)(ii); or a condition of restitution imposed pursuant to subsection (a)(2) above, to the extent the court finds, from facts on the record, that (A) the number of identifiable victims is so large as to make restitution impracticable; or (B) determining complex issues of fact related to the cause or amount of the victim's losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.

(c)       If a defendant is ordered to make restitution to an identifiable victim and to pay a fine, the court shall order that any money paid by the defendant shall first be applied to satisfy the order of restitution.

(d)      In a case where there is no identifiable victim and the defendant was convicted under 21 U.S.C. § 841, § 848(a), § 849, § 856, § 861, or § 863, the court, taking into consideration the amount of public harm caused by the offense and other relevant factors, shall order an amount of community restitution not to exceed the fine imposed under §5E1.2.

(e)       A restitution order may direct the defendant to make a single, lump sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments. See 18 U.S.C. § 3664(f)(3)(A).  An in-kind payment may be in the form of (1) return of property; (2) replacement of property; or (3) if the victim agrees, services rendered to the victim or to a person or organization other than the victim.  See 18 U.S.C. § 3664(f)(4).

(f)       A restitution order may direct the defendant to make nominal periodic payments if the court finds from facts on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order and do not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments.

(g)       Special Instruction

(1)       This guideline applies only to a defendant convicted of an offense committed on or after November 1, 1997.  Notwithstanding the provisions of §1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing), use the former §5E1.1 (set forth in Appendix C, amendment 571) in lieu of this guideline in any other case.

 

Commentary

Application Note:

1.      The court shall not order community restitution under subsection (d) if it appears likely that such an award would interfere with a forfeiture under chapter 46 or 96 of title 18, United States Code, or under the Controlled Substances Act (21 U.S.C. § 801 et seq.).  See 18 U.S.C. § 3663(c)(4).

Furthermore, a penalty assessment under 18 U.S.C. § 3013 or a fine under subchapter C of chapter 227 of title 18, United States Code, shall take precedence over an order of community restitution under subsection (d).  See 18 U.S.C. § 3663(c)(5).

Background:  Section 3553(a)(7) of title 18, United States Code, requires the court, "in determining the particular sentence to be imposed," to consider "the need to provide restitution to any victims of the offense."  Orders of restitution are authorized under 18 U.S.C. §§ 1593, 2248, 2259, 2264, 2327, 3663, and 3663A, and 21 U.S.C. § 853(q).  For offenses for which an order of restitution is not authorized, restitution may be imposed as a condition of probation or supervised release.

Subsection (d) implements the instruction to the Commission in section 205 of the Anti­terrorism and Effective Death Penalty Act of 1996.  This provision directs the Commission to develop guidelines for community restitution in connection with certain drug offenses where there is no identifiable victim but the offense causes "public harm."

To the extent that any of the above-noted statutory provisions conflict with the provisions of this guideline, the applicable statutory provision shall control.

Historical Note:  Effective November 1, 1987.  Amended effective January 15, 1988 (amendment 53); November 1, 1989 (amendments 278, 279, and 302); November 1, 1991 (amendment 383); November 1, 1993 (amendment 501); November 1, 1995 (amendment 530); November 1, 1997 (amendment 571); May 1, 2001 (amendment 612); November 1, 2001 (amendment 627); November 1, 2023 (amendment 824).


 

Notes of Decisions
Cited in 151 cases (7 in the last 5 years), 1990–2026 · leading case: John W. Gall v. United States, 21 F.3d 107 (6th Cir. 1994).
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John W. Gall v. United States, 21 F.3d 107 (6th Cir. 1994). · cites it 9× “1992) (A panel of this court held that restitution ordered, pursuant to U.S.S.G. § 5E1.1 was limited to the loss caused by the crime of which defendant was convicted).”
United States v. David Phillips, United States of Am. v. David Phillips, 367 F.3d 846 (9th Cir. 2004). · cites it 6× “Finally, we hold that the Government may be a victim entitled to restitution pursuant to U.S.S.G. § 5E1.1. In that context, site investigation costs necessary to determine the extent of the environmental damage and the appropriate cleanup actions may be recoverable.”
United States v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). · cites it 3× “The court sentenced the defendant to 30 months’ imprisonment, the bottom end of the range. In an entirely different calculation, one which does not affect the defendant’s sentence of imprisonment, the district court ordered restitution in the amount of $165,000 to be paid to MBT…”
United States v. Phillips, 356 F.3d 1086 (9th Cir. 2004). · cites it 6× “Finally, we hold that the Government may be a victim entitled to restitution pursuant to U.S.S.G. § 5E1.1. In that context, site investigation costs necessary to determine the extent of the environmental damage and the appropriate cleanup actions may be recoverable.”
United States v. Jack Bearden, 274 F.3d 1031 (6th Cir. 2001). · cites it 2× “§ 3663A and U.S.S.G. § 5E1.1. This particular provision of the Sentencing Guidelines states that "[i]n the case of an identifiable victim, the court shall enter a restitution order for the full amount of the victim’s loss, if such order is authorized under” a number of statutes,…”
United States v. Willie James Blake, Jr., 81 F.3d 498 (4th Cir. 1996). · cites it 2× “1995); U.S.S.G. § 5E1.1. Blake raised several objections to the pre-sentence report.”
United States v. Jack A. Day, 418 F.3d 746 (7th Cir. 2005). · cites it 2× “We have held that Booker does impact a district court’s imposition of restitution as a condition of supervised release, pursuant to U.S.S.G. § 5E1.1. See United States v. Pree, 408 F.”
United States v. John R. Copple, an Individual Mechem Fin. Inc., a Corp., John R. Copple, 74 F.3d 479 (3rd Cir. 1996). · cites it 4× “2515, 2537 (quoted in U.S.S.G. § 5E1.1, comment. (backg’d.)) (“In those unusual cases where the precise amount owed is difficult to determine, the section authorizes the court to reach an expeditious, reasonable determination of appropriate restitution by resolving uncertainties…”
United States v. Ernest J. Badaracco, Jr., 954 F.2d 928 (3rd Cir. 1992). · cites it 2× “§ 3663 (a) (1988); see also U.S.S.G. § 5E1.1 (1990). “Difficulties of measurement do not preclude the court from ordering a defendant to compensate the victim through some restitution.”
United States v. Scott Allen McDaniel (03-1940) & Gregory Warren Wade (03-2073), 398 F.3d 540 (6th Cir. 2005). “§ 3663A and U.S.S.G. § 5E1.1. The PSR also noted that Wade had been ordered to pay restitution by Michigan’s 17th and 20th Circuit Courts.”
United States v. Syed Sami Ahmad, 2 F.3d 245 (7th Cir. 1993). · cites it 2× “See also U.S.S.G. § 5E1.1(a), which makes restitution mandatory whenever the statute permits restitution.”
United States v. Jimenez, 513 F.3d 62 (3rd Cir. 2008). “1, as restitution is determined under USSG § 5E1.1 (to which the application notes of § 2B1.”
Show all 151 citing cases →
— U.S.S.G. §5E1.1(a) — 12 cases
John W. Gall v. United States, 21 F.3d 107 (6th Cir. 1994). “1992) (A panel of this court held that restitution ordered, pursuant to U.S.S.G. § 5E1.1 was limited to the loss caused by the crime of which defendant was convicted).”
United States v. Willie James Blake, Jr., 81 F.3d 498 (4th Cir. 1996). “1995); U.S.S.G. § 5E1.1. Blake raised several objections to the pre-sentence report.”
United States v. Syed Sami Ahmad, 2 F.3d 245 (7th Cir. 1993). “See also U.S.S.G. § 5E1.1(a), which makes restitution mandatory whenever the statute permits restitution.”
United States v. Jeffrey L. West, 942 F.2d 528 (8th Cir. 1991).
United States v. Golino, 956 F. Supp. 359 (E.D.N.Y 1997).
— U.S.S.G. §5E1.1(a)(1) — 20 cases
United States v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). “The court sentenced the defendant to 30 months’ imprisonment, the bottom end of the range. In an entirely different calculation, one which does not affect the defendant’s sentence of imprisonment, the district court ordered restitution in the amount of $165,000 to be paid to MBT…”
United States v. Jack Bearden, 274 F.3d 1031 (6th Cir. 2001). “§ 3663A and U.S.S.G. § 5E1.1. This particular provision of the Sentencing Guidelines states that "[i]n the case of an identifiable victim, the court shall enter a restitution order for the full amount of the victim’s loss, if such order is authorized under” a number of statutes,…”
United States v. David Phillips, United States of Am. v. David Phillips, 367 F.3d 846 (9th Cir. 2004). “Finally, we hold that the Government may be a victim entitled to restitution pursuant to U.S.S.G. § 5E1.1. In that context, site investigation costs necessary to determine the extent of the environmental damage and the appropriate cleanup actions may be recoverable.”
United States v. Kravchuk, 335 F.3d 1147 (10th Cir. 2003).
United States v. Grahame P. Sanders, Cross-Appellee, 95 F.3d 449 (6th Cir. 1996).
— U.S.S.G. §5E1.1(a)(2) — 16 cases
John W. Gall v. United States, 21 F.3d 107 (6th Cir. 1994). “1992) (A panel of this court held that restitution ordered, pursuant to U.S.S.G. § 5E1.1 was limited to the loss caused by the crime of which defendant was convicted).”
United States v. Tamny Westbrooks, 858 F.3d 317 (5th Cir. 2017).
United States v. John Rankin, 929 F.3d 399 (6th Cir. 2019).
United States v. James Frith, Jr., 461 F.3d 914 (7th Cir. 2006).
United States v. Bette J. Pree, Also Known as Betts Pree, 408 F.3d 855 (7th Cir. 2005).
— U.S.S.G. §5E1.1(b) — 1 case
United States v. Dupre, 117 F.3d 810 (5th Cir. 1997).
— U.S.S.G. §5E1.1(b)(1) — 1 case
United States v. Wade (6th Cir. 2005).
— U.S.S.G. §5E1.1(c) — 3 cases
United States v. Syed Sami Ahmad, 2 F.3d 245 (7th Cir. 1993). “See also U.S.S.G. § 5E1.1(a), which makes restitution mandatory whenever the statute permits restitution.”
United States v. Ferranti, 928 F. Supp. 206 (E.D.N.Y 1996).
United States v. Fleischer, 120 F. App'x 865 (2d Cir. 2005).
— U.S.S.G. §5E1.1(g) — 1 case
United States v. Beitler, 48 F. App'x 674 (9th Cir. 2002).
— U.S.S.G. §5E1.1(g)(1) — 1 case
United States v. Anderson, 85 F. Supp. 2d 1084 (D. Kan. 1999).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.