Restitution imposed only during supervised release is a Westbrooks case

Plain-English summary

Chief Counsel advised that a criminal restitution order was subject to the Westbrooks limitation because the judgment imposed payment to the United States only as a condition of supervised release under 18 U.S.C. § 3563(b)(2). The judgment did not impose restitution under the Mandatory Victims Restitution Act and omitted the amount from its criminal monetary penalties section. Although the defendant had entered a plea agreement and the court might have had authority under 18 U.S.C. § 3663(a)(3) to order restitution independently, the court did not use that authority. The final judgment therefore controlled, and the restitution was not an independent part of the sentence for purposes of the IRS's assessment authority under Section 6201(a)(4).

Ruling snapshot

• Question: Was restitution payable to the United States imposed independently, or only as a condition of supervised release under the Westbrooks rule?
• Outcome: Advice given: it was a Westbrooks case because the final judgment imposed restitution only as a supervised-release condition.
• Key authorities: IRC § 6201(a)(4); 18 U.S.C. §§ 3563(b)(2), 3663(a)(3), 3663A; United States v. Westbrooks

Full text (IRS public release)

ID: CCA_2020100911394344
UILC: 6201.01-06

Number: 202123008
Release Date: 6/11/2021
From: ----------------------
Sent: Friday, October 9, 2020 11:39:44 AM
To: -----------------------
Cc: ------------------------------
Bcc:
Subject: RE: Closing Package - Potential Westbrooks Case (----)

This is a Westbrooks case. Restitution payable to the United States is imposed as a condition of supervised release, and the condition specifically states that restitution is imposed under 18 USC 3563(b)(2) and not under 18 USC 3663A. Restitution payable to the United States is omitted from the criminal monetary penalties portion of the judgment. While the defendant was convicted under a plea agreement, the court retains discretion at sentencing, and here the court imposed the sentence as a condition of supervised release. While the court might have had the power to impose restitution as an independent part of the sentence under 18 USC 3663(a)(3) because of the plea agreement, it did not do so, and the judgment, having become final, binds the parties.

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