United States v. Mendenhall, 2019 WL 7207352 (10th Cir. December 23, 2019) (OK): After reviewing for plain error, the panel held that Congress has authorized restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction. The panel reviewed the elements of the offense of conviction to determine whether the loss cited as the basis for the restitution order were directly attributable to those elements. It concluded they were not: the district court exceeded the range of restitution authorized by 18 U.S.C. § 3663A when it order Mendenhall pay for losses related to, but not arising directly from his offense of conviction, knowing possession and concealment of a stolen firearm (18 U.S.C. §§ 922(j), 924(a)(2)).

Please note: Evidence suggested that the stolen firearm Mendenhall possessed came from a pawn shop he burglarized. The burglary resulted in losses to the pawn shop owners which were the basis for the court’s restitution order. The panel suggested that restitution orders will likely be affirmed on appeal if the government includes in the plea agreement’s factual basis a description of the conduct on which the loss is directly based.