§ 2327. Mandatory restitution

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1994

   Senior Citizens Against Marketing Scams Act of 1994

   Pub. L. 103–322 title XXV § 250002(a)(2) · 108 Stat. 1796

   Enacted · 18 U.S.C. § 2327

   Added Pub. L. 103–322, title XXV, § 250002(a)(2), Sept. 13, 1994, 108 Stat. 2082

   Source evidence

   Code source credit
   Added Pub. L. 103–322, title XXV, § 250002(a)(2), Sept. 13, 1994, 108 Stat. 2082

   Enacted provision · exact public law section
   (2) by inserting after chapter 113 the following new chapter: “CHAPTER 113A— TELEMARKETING FRAUD “Sec. “2325. Definition. “2326. Enhanced penalties. “2327. Mandatory restitution. “§2325. Definition “In this chapter, ‘telemarketing’— “(1) means a plan, program, promotion, or campaign that is conducted to induce— “(A) purchases of goods or services; or “(B) participation in a contest or sweepstakes, by use of 1 or more interstate telephone calls initiated either by a person who is conducting the plan, program, promotion, or campaign or by a prospective purchaser or contest or sweepstakes participant; but “(2) does not include the solicitation of sales through the mailing of a catalog that— “(A) contains a written description or illustration of the goods or services offered for sale; “(B) includes the business address of the seller; “(C) includes multiple pages of written material or illustration; and “(D) has been issued not less frequently than once a year, if the person making the solicitation does not solicit customers by telephone but only receives calls initiated by customers in response to the catalog and during those calls takes orders without further solicitation. “§2326. Enhanced penalties “A person who is convicted of an offense under section 1028, 1029, 1341, 1342, 1343, or 1344 in connection with the conduct of telemarketing— “(1) may be imprisoned for a term of up to 5 years in addition to any term of imprisonment imposed under any of those sections, respectively; and “(2) in the case of an offense under any of those sections that— “(A) victimized ten or more persons over the age of 55; or “(B) targeted persons over the age of 55, may be imprisoned for a term of up to 10 years in addition to any term of imprisonment imposed under any of those sections, respectively. “§2327. Mandatory restitution “(a) In General.— Notwithstanding section 3663, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter. “(b) Scope and Nature of Order.— “(1) Directions.— The order of restitution under this section shall direct that— “(A) the defendant pay to the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court, pursuant to paragraph (3); and “(B) the United States Attorney enforce the restitution order by all available and reasonable means. “(2) Enforcement by victim.— An order of restitution may be enforced by a victim named in the order to receive the restitution as well as by the United States Attorney, in the same manner as a judgment in a civil action. “(3) Definition.— For purposes of this subsection, the term ‘full amount of the victim’s losses’ means all losses suffered by the victim as a proximate result of the offense. “(4) Order mandatory.— (A) The issuance of a restitution order under this section is mandatory. “(B) A court may not decline to issue an order under this section because of— “(i) the economic circumstances of the defendant; or “(ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source. “(C) (i) Notwithstanding subparagraph (A), the court may take into account the economic circumstances of the defendant in determining the manner in which and the schedule according to which the restitution is to be paid. “(ii) For purposes of this subparagraph, the term ‘economic circumstances’ includes— “(I) the financial resources and other assets of the defendant; “(II) projected earnings, earning capacity, and other income of the defendant; and “(III) any financial obligations of the defendant, including obligations to dependents. “(D) Subparagraph (A) does not apply if— “(i) the court finds on the record that the economic circumstances of the defendant do not allow for the payment of any amount of a restitution order, and do not allow for the payment of any or some portion of the amount of a restitution order in the foreseeable future (under any reasonable schedule of payments); and “(ii) the court enters in its order the amount of the victim’s losses, and provides a nominal restitution award. “(5) More than 1 offender.— When the court finds that more than 1 offender has contributed to the loss of a victim, the court may make each offender liable for payment of the full amount of restitution or may apportion liability among the offenders to reflect the level of contribution and economic circumstances of each offender. “(6) More than 1 victim.— When the court finds that more than 1 victim has sustained a loss requiring restitution by an offender, the court shall order full restitution of each victim but may provide for different payment schedules to reflect the economic circumstances of each victim. “(7) Payment schedule.— An order under this section may direct the defendant to make a single lump-sum payment or partial payments at specified intervals. “(8) Setoff.— Any amount paid to a victim under this section shall be set off against any amount later recovered as compensatory damages by the victim from the defendant in— “(A) any Federal civil proceeding; and “(B) any State civil proceeding, to the extent provided by the law of the State. “(9) Effect on other sources of compensation.— The issuance of a restitution order shall not affect the entitlement of a victim to receive compensation with respect to a loss from insurance or any other source until the payments actually received by the victim under the restitution order fully compensate the victim for the loss. “(10) Condition of probation or supervised release.— Compliance with a restitution issued under this section shall be a condition of any probation or supervised release of a defendant. The court may revoke probation or a term of supervised release, modify the terms or conditions of probation or a term of supervised release, hold the defendant in contempt pursuant to section 3583(e), or suspend the offender’s eligibility for any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or with appropriated funds of the United States if the defendant fails to comply with the order. In determining whether to revoke probation or a term of supervised release, modify the terms or conditions of probation or supervised release or hold a defendant serving a term of supervised release in contempt, the court shall consider the defendant’s employment status, earning ability and financial resources, the willfulness of the defendant’s failure to comply, and any other circumstances that may have a bearing on the defendant’s ability to comply. “(c) Proof of Claim.— “(1) Affidavit.— Within 60 days after conviction and, in any event, not later than 10 days prior to sentencing, the United States Attorney (or the United States Attorney’s delegee), after consulting with the victim, shall prepare and file an affidavit with the court listing the amounts subject to restitution under this section. The affidavit shall be signed by the United States Attorney (or the United States Attorney’s delegee) and the victim. Should the victim object to any of the information included in the affidavit, the United States Attorney (or the United States Attorney’s delegee) shall advise the victim that the victim may file a separate affidavit and shall provide the victim with an affidavit form which may be used to do so. “(2) Objection.— If, after the defendant has been notified of the affidavit, no objection is raised by the defendant, the amounts attested to in the affidavit filed pursuant to paragraph (1) shall be entered in the court’s restitution order. If objection is raised, the court may require the victim or the United States Attorney (or the United States Attorney’s delegee) to submit further affidavits or other supporting documents, demonstrating the victim’s losses. “(3) Additional documentation and testimony—If the Records. court concludes, after reviewing the supporting documentation and considering the defendant’s objections, that there is a substantial reason for doubting the authenticity or veracity of the records submitted, the court may require additional documentation or hear testimony on those questions. The private Privacy. of any records filed, or testimony heard, pursuant to this section shall be maintained to the greatest extent possible, and such records may be filed or testimony heard in camera. “(4) Final determination of losses.— If the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing as provided in paragraph (1), the United States Attorney (or the United States Attorney’s delegee) shall so inform the court, and the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief. “(d) Modification of Order.— A victim or the offender may petition the court at any time to modify a restitution order as appropriate in view of a change in the economic circumstances of the offender. “(e) Reference to Magistrate or Special Master.— The court may refer any issue arising in connection with a proposed order of restitution to a magistrate or special master for proposed findings of fact and recommendations as to disposition, subject to a de novo determination of the issue by the court. “(f) Definition.— For purposes of this section, the term ‘victim’ includes the individual harmed as a result of a commission of a crime under this chapter, including, in the case of a victim who is incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim’s estate, another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named as such representative or guardian.”.

2. 1996

   Pub. L. 104–132 § 205(e)(1) · 110 Stat. 1214

   Inserted · 18 U.S.C. § 2327(a)

   Pub. L. 104–132, § 205(e)(1), inserted “or 3663A” after “3663”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 104–132, § 205(e)(1), inserted “or 3663A” after “3663”.

   Enacted provision · exact public law section
   (1) in subsection (a), by inserting “or 3663A” after “3663”;

   Effective date note
   Amendment by Pub. L. 104–132 effective, to extent constitutionally permissible, for sentencing proceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set out as a note under section 2248 of this title.

3. 1996

   Pub. L. 104–132 § 205(e)(2)(A) · 110 Stat. 1214

   Amended · 18 U.S.C. § 2327(b)(1)

   Pub. L. 104–132, § 205(e)(2)(A), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “The order of restitution under this section shall direct that—

   Source evidence

   Code amendment note
   Subsec. (b)(1). Pub. L. 104–132, § 205(e)(2)(A), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “The order of restitution under this section shall direct that—

   “(A) the defendant pay to the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court, pursuant to paragraph (3); and “(B) the United States Attorney enforce the restitution order by all available and reasonable means.”

   Enacted provision · exact public law section
   (A) by amending paragraph (1) to read as follows: “(1) Directions.— The order of restitution under this section shall direct the defendant to pay to the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court pursuant to paragraph (2).”;

   Effective date note
   Amendment by Pub. L. 104–132 effective, to extent constitutionally permissible, for sentencing proceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set out as a note under section 2248 of this title.

4. 1996

   Pub. L. 104–132 § 205(e)(2)(B) · 110 Stat. 1214

   1. Struck · 18 U.S.C. § 2327(b)(2)

      Pub. L. 104–132, § 205(e)(2)(B), struck out “by victim” after “Enforcement” in heading

   2. Amended · 18 U.S.C. § 2327(b)(2)

      Pub. L. 104–132, § 205(e)(2)(B), amended text generally. Prior to amendment, text read as follows: “An order of restitution may be enforced by a victim named in the order to receive the restitution as well as by the United States Attorney, in the same manner as a judgment in a civil action.”

   Source evidence

   Code amendment note
   Subsec. (b)(2). Pub. L. 104–132, § 205(e)(2)(B), struck out “by victim” after “Enforcement” in heading and amended text generally. Prior to amendment, text read as follows: “An order of restitution may be enforced by a victim named in the order to receive the restitution as well as by the United States Attorney, in the same manner as a judgment in a civil action.”

   Enacted provision · exact public law section
   (B) by amending paragraph (2) to read as follows: “(2) Enforcement.— An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A”;

   Effective date note
   Amendment by Pub. L. 104–132 effective, to extent constitutionally permissible, for sentencing proceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set out as a note under section 2248 of this title.

5. 1996

   Pub. L. 104–132 § 205(e)(2)(C) · 110 Stat. 1214

   Struck · 18 U.S.C. § 2327(b)(4)(C); 18 U.S.C. § 2327(b)(4)(D)

   Pub. L. 104–132, § 205(e)(2)(C), struck out subpars. (C) and (D), which related to court’s consideration of economic circumstances of defendant in determining schedule of payment of restitution orders, and court’s entry of nominal restitution awards where economic circumstances of defendant do not allow for payment of restitution, respectively

   Source evidence

   Code amendment note
   Subsec. (b)(4)(C), (D). Pub. L. 104–132, § 205(e)(2)(C), struck out subpars. (C) and (D), which related to court’s consideration of economic circumstances of defendant in determining schedule of payment of restitution orders, and court’s entry of nominal restitution awards where economic circumstances of defendant do not allow for payment of restitution, respectively.

   Enacted provision · exact public law section
   (C) in paragraph (4), by striking subparagraphs (C) and (D); and

   Effective date note
   Amendment by Pub. L. 104–132 effective, to extent constitutionally permissible, for sentencing proceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set out as a note under section 2248 of this title.

6. 1996

   Pub. L. 104–132 § 205(e)(2)(D) · 110 Stat. 1214

   Struck · 18 U.S.C. § 2327(b)(5)(10)

   Pub. L. 104–132, § 205(e)(2)(D), struck out pars. (5) to (10), which related, respectively, to more than 1 offender, more than 1 victim, payment schedule, setoff, effect on other sources of compensation, and condition of probation or supervised release

   Source evidence

   Code amendment note
   Subsec. (b)(5) to (10). Pub. L. 104–132, § 205(e)(2)(D), struck out pars. (5) to (10), which related, respectively, to more than 1 offender, more than 1 victim, payment schedule, setoff, effect on other sources of compensation, and condition of probation or supervised release.

   Enacted provision · exact public law section
   (D) by striking paragraphs (5) through (10);

   Effective date note
   Amendment by Pub. L. 104–132 effective, to extent constitutionally permissible, for sentencing proceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set out as a note under section 2248 of this title.

7. 1996

   Pub. L. 104–132 § 205(e)(3) · 110 Stat. 1214

   1. Redesignated · 18 U.S.C. § 2327(c)

      Pub. L. 104–132, § 205(e)(3), (4), redesignated subsec. (f) as (c)

   2. Struck · 18 U.S.C. § 2327(c)

      Pub. L. 104–132, § 205(e)(3), (4), struck out former subsec. (c) relating to proof of claim

   Target inherited from the preceding amendment note.

   Source evidence

   Code amendment note
   Pub. L. 104–132, § 205(e)(3), (4), redesignated subsec. (f) as (c) and struck out former subsec. (c) relating to proof of claim.

   Enacted provision · exact public law section
   (3) by striking subsections (c) through (e); and

   Effective date note
   Amendment by Pub. L. 104–132 effective, to extent constitutionally permissible, for sentencing proceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set out as a note under section 2248 of this title.

8. 1996

   Pub. L. 104–132 § 205(e)(3) · 110 Stat. 1214

   Struck · 18 U.S.C. § 2327(d); 18 U.S.C. § 2327(e)

   Pub. L. 104–132, § 205(e)(3), struck out subsecs. (d) and (e) which read as follows:

   Source evidence

   Code amendment note
   Subsecs. (d), (e). Pub. L. 104–132, § 205(e)(3), struck out subsecs. (d) and (e) which read as follows:

   “(d) Modification of Order.—A victim or the offender may petition the court at any time to modify a restitution order as appropriate in view of a change in the economic circumstances of the offender. “(e) Reference to Magistrate or Special Master.—The court may refer any issue arising in connection with a proposed order of restitution to a magistrate or special master for proposed findings of fact and recommendations as to disposition, subject to a de novo determination of the issue by the court.”

   Enacted provision · exact public law section
   (3) by striking subsections (c) through (e); and

   Effective date note
   Amendment by Pub. L. 104–132 effective, to extent constitutionally permissible, for sentencing proceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set out as a note under section 2248 of this title.

9. 1996

   Pub. L. 104–132 § 205(e)(4) · 110 Stat. 1214

   Redesignated · 18 U.S.C. § 2327(f)

   Pub. L. 104–132, § 205(e)(4), redesignated subsec. (f) as (c)

   Source evidence

   Code amendment note
   Subsec. (f). Pub. L. 104–132, § 205(e)(4), redesignated subsec. (f) as (c).

   Enacted provision · exact public law section
   (4) by redesignating subsection (f) as subsection (c).

   Effective date note
   Amendment by Pub. L. 104–132 effective, to extent constitutionally permissible, for sentencing proceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set out as a note under section 2248 of this title.

10. 1996

    Economic Espionage Act of 1996

    Pub. L. 104–294 title VI § 601(n) · 110 Stat. 3488

    Substituted · 18 U.S.C. § 2327(c)

    Pub. L. 104–294, which directed substitution of “designee” for “delegee” wherever appearing, could not be executed because of amendment by Pub. L. 104–132, § 205(e)(3), (4). See below

    Source evidence

    Code amendment note
    Subsec. (c). Pub. L. 104–294, which directed substitution of “designee” for “delegee” wherever appearing, could not be executed because of amendment by Pub. L. 104–132, § 205(e)(3), (4). See below.

    Enacted provision · exact public law section
    (n) Correction of Misspelling.— Section 2327(c) of title 18, United States Code, is amended by striking “delegee” each place it appears and inserting “designee”.

11. 1998

    Pub. L. 105–184 § 5(1) · 112 Stat. 520

    Substituted · 18 U.S.C. § 2327(a)

    Pub. L. 105–184, § 5(1), substituted “to all victims of any offense for which an enhanced penalty is provided under section 2326” for “for any offense under this chapter”

    Source evidence

    Code amendment note
    Subsec. (a). Pub. L. 105–184, § 5(1), substituted “to all victims of any offense for which an enhanced penalty is provided under section 2326” for “for any offense under this chapter”.

    Enacted provision · exact public law section
    (1) in subsection (a), by striking “for any offense under this chapter” and inserting “to all victims of any offense for which an enhanced penalty is provided under section 2326”; and

12. 1998

    Pub. L. 105–184 § 5(2) · 112 Stat. 520

    1. Added · 18 U.S.C. § 2327(c)

       Pub. L. 105–184, § 5(2), added subsec. (c)

    2. Struck · 18 U.S.C. § 2327(c)

       Pub. L. 105–184, § 5(2), struck out former subsec. (c) which read as follows:

    Source evidence

    Code amendment note
    Subsec. (c). Pub. L. 105–184, § 5(2), added subsec. (c) and struck out former subsec. (c) which read as follows:

    “(c) Definition.—For purposes of this section, the term ‘victim’ includes the individual harmed as a result of a commission of a crime under this chapter, including, in the case of a victim who is incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim’s estate, another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named as such representative or guardian.”

    Enacted provision · exact public law section
    (2) by striking subsection (c) and inserting the following: “(c) Victim Defined.— In this section, the term ‘victim’ has the meaning given that term in section 3663A(a)(2).”.

15 of 15 references resolved to an enrolled provision