Opinion
May 7, 2007
MEMORANDUM OPINION AND ORDER ON RESTITUTION
THIS MATTER comes before the Court pursuant to objections made by Defendant at sentencing regarding the proper amount of restitution to be ordered by the Court pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663 A. Defendant was charged in a sealed information with violating the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq; Crime in Indian Country, 18 U.S.C. § 1153; Assault Resulting in Serious Bodily Injury and Aiding and Abetting, 18 U.S.C. § 113(a)(16) and 18 U.S.C. § 2. Defendant entered a guilty plea pursuant to a plea agreement and the only contested issue at sentencing concerned whether the probation officer was correct in including, as a component of restitution, the value of the Victim's annual and sick leave used while recovering from the bodily injuries he sustained.
The issue of whether used sick and vacation leave is properly included as restitution when such leave was used by a victim to recover from bodily injuries sustained as a result of a defendant's criminal conduct has not been addressed by the Tenth Circuit. However, in a case with a very similar restitution issue, the Third Circuit held that a victim's annual and restored leave were proper components of a restitution award. United States v. Jacobs, 167 F.3d 792, 796-97 (3rd Cir. 1999). I find the reasoning of the Third Circuit in Jacobs to be very persuasive authority.
In the instant case, the Victim suffered bodily injuries and missed work. Though the Victim's employer paid him while he was unable to work, this was not a gratuitous gesture. The Victim was paid during his absence because he had earned sufficient leave to be paid. The leave the Victim used to recover from Defendant's criminal conduct is leave that is no longer available to the Victim to be paid for any purpose. Thus, I find that the leave used by the Victim constitutes lost income, and I conclude that it is a proper component of restitution under 18 U.S.C. § 3663A(b).
Accordingly, I hereby adopt the probation officer's recommendation in the Pre-Sentence Report and, pursuant to the Mandatory Victims Restitution Act, order that the Defendant shall make restitution to the Victim in the amount of $9,958.79. The Defendant shall pay a minimum of $10 (ten dollars) per month at this time and restitution shall be paid jointly and severally with the co-defendants in this case.
SO ORDERED.