A. Background

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 was enacted (Pub. L. 104-132). Title II of this legislation, the Mandatory Victims Restitution Act (MVRA), significantly reformed the law on restitution and the manner in which it is enforced. The MVRA expanded the scope of mandatory restitution, provided consolidated procedures for the issuance of restitution orders, and provided enhanced postconviction enforcement of restitution orders.

Earlier versions of the restitution statutes may apply, to some extent, to offenses committed before April 24, 1996. Consult the 1995 edition of the AG Guidelines for more information about and the requirements for enforcing restitution under the laws in effect prior to April 24, 1996.

Commentary

The Victim and Witness Protection Act (VWPA), passed in 1982, was the first general Federal victims' restitution statute. In enacting that statute, The Senate Judiciary Committee in its report stated, "As simple as the principle of restitution is, it lost its priority status in the sentencing procedures of our Federal courts long ago. Under current law, 18 U.S.C. § 3651, the court may order restitution for actual damage or loss, but only as part of a probationary sentence. As a matter of practice, even that discretionary grant of authority is infrequently used and indifferently enforced. In this respect, Federal criminal courts have gone the way of their State counterparts, reducing restitution from being an inevitable, if not exclusive, sanction to being an occasional afterthought." (S.Rep. No. 97-532, reprinted in 1982 U.S.C.C.A.N. 2515, 2536)

During the first ten years following enactment of the VWPA, Congress attempted on occasion to refine the enforcement mechanisms for restitution, but there were only minor amendments to the substantive provisions of the law dealing with imposition of restitution. It was not until 1992, with the enactment of the Child Support Recovery Act, that the concept of "mandatory" restitution was introduced into the Federal law. That Act mandated that courts impose restitution in cases of individuals convicted of willful failure to pay past due child support. (18 U.S.C. § 228) Two years later, in 1994, the Violence Against Women Act was enacted. In that Act, Congress identified four other types of crimes that were specifically subject to mandatory restitution: sexual abuse, sexual exploitation and other abuse of children, domestic violence, and telemarketing fraud.

1. Mandatory Restitution. Passage of the MVRA in 1996 brought a more comprehensive notion of mandatory, loss-based restitution to the Federal criminal justice system. The MVRA now requires courts to order full restitution in certain cases. It creates a new 18 U.S.C. § 3663A, which requires courts to enter restitution orders for each defendant (without regard to the defendant's economic situation) who has been convicted of or pled guilty to charges of
   • A crime of violence as defined in 18 U.S.C. § 16.

   • An offense against property under Title 18, including any offense committed by fraud or deceit.

   • An offense described in section 1365, relating to tampering with consumer products.

     (18 U.S.C. § 3663A(c)(1)(A))

     And,

   • Where there exists an identifiable victim¹ or victims who suffered a physical injury or pecuniary loss. (18 U.S.C. § 3663A(c)(1)(B))

     Note: The MVRA also provides that the court shall order restitution to persons other than the victim of the offense if agreed to by the parties in a plea agreement. (18 U.S.C. § 3663A(a)(3))

     The only exception to mandatory restitution for the above categories is for an offense against property if the court makes a finding from facts on the record that

   • The number of identifiable victims is so large that restitution is impracticable; or

   • Determining complex issues of fact related to the cause or amount of the victims' 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. (18 U.S.C. § 3663A(c)(3))

   Additionally, the four areas of mandatory restitution enacted under the Violence Against Women Act of 1994 still exist:

   • Sexual abuse. (18 U.S.C. § 2248)

   • Sexual exploitation and other abuses of children. (18 U.S.C. § 2259)

   • Domestic violence. (18 U.S.C. § 2264)

   • Telemarketing fraud. (18 U.S.C. § 2327)

   The procedures for issuing restitution under these sections are now the same as for the other areas of mandatory restitution and the general restitution statute. These procedures are set forth in 18 U.S.C. § 3664.

2. Discretionary Restitution. The general restitution statute, 18 U.S.C. § 3663, now states that the court "may order" restitution
   • For any Title 18 offense not covered by the new mandatory restitution provisions of 18 U.S.C. § 3663A(c).

   • For drug offenses under 21 U.S.C. §§ 841, 848(a), 849, 856, 861, and 863, as long as the victim is not a participant.²

   • For air piracy offenses (unless they fall within the new mandatory restitution provisions of 18 U.S.C. § 3663A(c)).

   • In any criminal case to the extent agreed to by the parties in a plea agreement. (18 U.S.C. § 3663(a))

   Courts are also required to impose restitution under Section 3663 for past due child support for convictions under the Child Support Recovery Act. (18 U.S.C. § 228) In determining whether to award restitution in these cases, the court is required to consider
   • The amount of the loss sustained by each victim as a result of the offense.

   • The financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.

   Also, to the extent the court determines that the complication and prolongation of the sentencing process involved in ordering restitution outweigh the need to provide restitution to any victims, the court may decline to do so. (18 U.S.C. § 3663(a)(1)(B)(ii))

3. Restitution as a Condition of Probation. Restitution can also be ordered as a discretionary condition of probation and is not limited to the offenses set forth in 18 U.S.C. §§ 3663(a) or 3663A(c)(1)(A) (offenses for which mandatory or discretionary restitution applies). (18 U.S.C. § 3563(b)(2))

The changes to the law made by the MVRA "shall, to the extent constitutionally permissible, be effective for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment..." (Section 211 of the Act)

Prosecutors should use their best efforts to determine the current state of the law in their jurisdictions regarding the applicability of the provisions of the MVRA to offenses that occurred prior to April 24, 1996, the effective date of the Act.

Commentary

Because the MVRA makes substantive and procedural changes to restitution law, ex post facto questions arise with respect to convictions occurring on or after April 24, 1996 for offenses that occurred prior to that date. The Department of Justice has taken the position that any provision of the MVRA regarding the decision to impose restitution or the amount of the obligation must apply prospectively to offenses completed on or after April 24, 1996. Other provisions of the Act can apply to offenses committed before its effective date. Attorneys for the Government should seek to apply the new law where it would be constitutionally permissible to do so. A simple test is to ask "Will applying the new law increase the amount of restitution?" If the answer is "yes," the Ex Post Facto Clause prohibits application to offenses that were completed before April 24, 1996.

As of the date of this publication, at least two courts have issued reported decisions that disagree with the Department of Justice's position regarding ex post facto concerns. United States v. Newman, 144 F. 3d 531 (7th Cir. 1998), where the court, in disagreeing with the Eighth Circuit Court of Appeals in United States v. Williams, 128 F.3d 1239 (8th Cir. 1997), held that restitution authorized under the Victim Witness Protection Act, and mandated under the MVRA, is not a criminal punishment for the purposes of invoking the Ex Post Facto Clause, so the mandatory imposition of restitution was upheld for an offense that occurred prior to April 24, 1996; United States v. Nichols, 169 F.3d 1255, 1279-80 (10th Cir. 1999), petition for cert. filed, (U.S. June 30, 1999) (No. 99-5063). See also, United States v. Ledford, (Unpublished Decision) 1997 WL 659673 (6th Cir. Oct. 22, 1997) (Since full restitution was allowed under the Victim Witness Protection Act prior to the 1996 amendments, there was no ex post facto violation in applying the full restitution provisions of the MVRA amendments.).

But see, United States v. Baggett, 125 F.3d 1319 (9th Cir. 1997) (Application of the MVRA had the potential to increase the amount of restitution the defendant would be required to pay, and so applying the mandatory provision would violate the Ex Post Facto Clause of the Constitution. However, application of the MVRA may not create such constitutional problems if the defendant was already subject to mandatory restitution under the Senior Citizens Against Marketing Scams Act of 1994 (SCAMS Act). The case was remanded to the district court to determine if SCAMS applied.) See also, United States v. Williams, 128 F.3d 1239 (8th Cir. 1997) (In dicta, the court stated that an order of restitution under the MVRA is punishment for application of the Ex Post Facto Clause. But, the court held that a restitution order for the full amount of a victim's loss according to a plea agreement did not violate the Ex Post Facto Clause because the offense to which he pled occurred after the effective date of the Act, even though the amount of restitution included in the loss calculation was a result of conduct that occurred prior to the effective date of the Act); United States v. Sclafani, 996 F.Supp. 400 (D. N.J. 1998) (Application of the mandatory restitution provisions of the MVRA to offenses prior to its effective date was prohibited).

C. Considerations in Plea Agreements

In all plea agreements negotiated by the United States, prosecutors must give consideration to "requesting that the defendant provide full restitution to all victims of all charges contained in the indictment or information, without regard to the count to which the defendant actually plead[s]." (Pub. L. No. 104-132, § 209 (codified as a Note under 18 U.S.C. § 3551)) Pursuant to the requirements of that provision, the Attorney General, on July 24, 1996, issued guidelines to ensure compliance with this provision. Those guidelines, which are also published in the United States Attorneys' Manual (USAM) at §9-16.320, are restated below. Any commentary following the guidelines was added to the Attorney General's original guidelines for purposes of this publication.

1. Mandatory Restitution Offenses. First, 18 U.S.C. § 3663A mandates that restitution be ordered for crimes of violence, for offenses against property under the criminal code (unless the court makes a special finding described in subsection (c)(3) of that section), and for offenses described in 18 U.S.C. § 1365, if an identifiable victim or victims suffered a physical injury or pecuniary loss. There are also several other previously enacted statutes that mandate restitution: 18 U.S.C. §§ 2248, 2259, 2264, and 2327. In cases that fall under these statutes, the court is obligated to impose a restitution order.

   Commentary

   In cases that fall under any of the statutes that require mandatory restitution, prosecutors must give consideration to requesting in a plea agreement that the defendant provide full restitution to all victims of all charges contained in the indictment or information, without regard to the counts to which the defendant actually pleads.

   Subsection (c)(3), mentioned in the guideline above, provides an exception for a court in imposing mandatory restitution if the court finds that the number of identifiable victims is so large as to make restitution impracticable; or, that determining complex issues of fact related to the cause or the amount of the victims' 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. (18 U.S.C. § 3663A(c)(3))

2. Nonmandatory Restitution Offenses. Second, even when restitution is not mandatory, Federal prosecutors should give careful consideration to seeking full restitution to all victims of all charges contained in the indictment or information as part of any plea agreement.

3. Both Mandatory and Nonmandatory Restitution Offenses. Third, when an indictment contains both charges for which restitution is mandatory, and charges for which restitution is not mandatory, prosecutors should give careful consideration to requiring either a plea to a mandatory restitution charge, or an acknowledgment by the defendant in the plea agreement that a mandatory restitution charge gave rise to the plea agreement, which acknowledgment will trigger the mandatory restitution provisions of 18 U.S.C. § 3663A to apply. (18 U.S.C. § 3663A (c)(2))

   Commentary

   Section 3663A(c)(2) of Title 18 provides that the mandatory restitution provisions will apply even in cases where a defendant enters a guilty plea to a nonmandatory offense if the plea agreement specifically states that a mandatory offense gave rise to the plea agreement.

4. Application of the Sentencing Guidelines. Fourth, prosecutors should be mindful that the United States Sentencing Guidelines (USSG) generally require the imposition of restitution when it is authorized by the law, and should not enter into agreements regarding restitution that would violate the USSG (see USSG § 5E1.1; USAM § 9-27.410 [now published at USAM § 9-27.400 et seq.])

5. Approval of Plea Agreements by Supervisory Attorneys. Supervisory attorneys who approve plea agreements, as is required by the Principles of Federal Prosecution (USAM § 9-27.450), and Assistant United States Attorneys who draft plea agreements, should ensure that plea agreements comply with the law and these guidelines. The Principles of Federal Prosecution list the factors that should be considered when determining whether to enter into a plea agreement. These factors include, among other factors, the effect the plea agreement will have upon the victim's right to restitution. (USAM 9-27.420-430)

Regardless of how restitution is imposed-as mandatory under new 3663A or the Violence Against Women Act provisions, under the Child Support Recovery Act, as discretionary under 18 U.S.C. § 3663, or as a condition of probation—prosecutors must follow the procedures that are now set forth in 18 U.S.C. § 3664 in imposing restitution in all cases.

1. Determining the Amount of Restitution
   1. If requested by the probation officer, but not later than 60 days prior to sentencing, the attorney for the Government must promptly provide the probation office with a listing of the amounts subject to restitution. Before providing this list, the attorney for the Government should first consult, "to the extent practicable," with all identified victims. (18 U.S.C. § 3664(d))

      Commentary

      The statute does not detail the manner in which the attorney for the Government is to consult "to the extent practicable" with victims. The attorney for the Government should use his or her best judgment to determine whether such consultation is practicable, and if it is, to then determine the best and most efficient and effective manner of such consultation. Consultation with the victims by the attorney for the Government may include, but is not limited to, the following:

      • Contact with the victims, their attorneys, or their personal representatives either in person, by telephone, or by written correspondence.

      • In appropriate circumstances, such as when the number of victims makes other contact impractical, publication of notice in a manner designed to reach as many victims as possible.

   2. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the Government. (18 U.S.C. § 3664(e)) Since the attorney for the Government bears this burden, the attorney should work with the investigative agent to try to confirm and verify the amount of losses claimed by each victim. After the required consultation with the victims, the attorney for the Government may make an independent determination regarding the amount of the losses that can be proven by a preponderance of the evidence, and which are appropriately attributable to the defendant's criminal conduct.

   3. In each order of restitution, the court shall order restitution to each victim in the full amount of each victim's losses, without consideration of the economic circumstances of the defendant. (18 U.S.C. § 3664(f)(1)(A)) In other words, even though it may not be mandatory restitution that is imposed, once the court determines that restitution will be ordered, it must be ordered for the full amount of the loss without regard for the defendant's ability to pay. For example, for discretionary restitution under 3663, the amount of the loss and the defendant's economic circumstances can be considered by the court on the issue of whether to award restitution, but once that decision is made, those considerations are irrelevant to the amount of restitution ordered.

   4. If the losses of the victim(s) cannot be determined within 10 days of the sentencing hearing, the attorney for the Government or the probation officer should so inform the court, and a date for final determination of the losses can be set for up to 90 days after the sentencing. (18 U.S.C. § 3664(d)(6))

   5. Even after a final determination of restitution, a victim may petition the court for an amended restitution order within 60 days after discovering additional losses. A showing of good cause for failure to include such losses in the initial claim is required before such an order can be granted. (18 U.S.C. § 3664(d)(5))

   6. A fine should not be imposed if it would impair the defendant's ability to make restitution, unless the victim is the United States. (18 U.S.C. § 3572(b))

   7. After the attorney for the Government gives to the probation officer the listing of the amounts subject to restitution, the probation officer is required to include in the presentence report (or another report if a presentence report is not prepared) a complete accounting of losses to each victim; restitution owed pursuant to a plea agreement; and, information relating to the economic circumstances of each defendant. Each defendant is required to provide to the probation officer an affidavit describing his or her financial resources, including a complete listing of all assets owned or controlled as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant's dependents, and such other information as the court may require. (18 U.S.C. § 3664(d)(3)) If the number or identity of the victims cannot be ascertained, or other circumstances exist that make it impracticable for the probation officer to complete the report to the court, the probation officer will so inform the court. (18 U.S.C. § 3664(a))

   8. It is the probation officer's responsibility, which may be coordinated with the prosecutor's office, to provide notice to all identified victims of
      • Offense(s) of which the defendant was convicted.

      • Amounts subject to restitution submitted to the probation officer.

      • Opportunity of the victim to submit information to the probation officer concerning the amount of the victim's losses.

      • Scheduled date, time, and place of the sentencing hearing.

      • Availability of a lien in favor of the victims pursuant to 18 U.S.C. § 3664 (m) (1)(B).

      • Opportunity of the victim to complete and file with the probation officer a separate affidavit (on a form provided by the probation officer) relating to the amount of the victim's losses subject to restitution.

        (18 U.S.C. § 3664(d)(2))

   9. After reviewing the probation officer's report, the court may require additional documentation or hear testimony. (18 U.S.C. § 3664(d)(4)) These proceedings may be done in camera for privacy concerns and are governed only by Fed.R.Crim.P. 32(c), chapter 227 (sentences) and chapter 232 (miscellaneous sentencing provisions). (18 U.S.C. § 3664(c))

2. Payment Provisions. The attorney for the Government should advocate that payment of restitution be made immediately, unless the interests of justice require a different payment option. (18 U.S.C. § 3572(d)(1)) If the court finds that the interests of justice so require, the court may provide for payment on a date certain or in installments. (18 U.S.C. § 3572 (d)(1)) If the court orders other than immediate payment, the length of time over which scheduled payments are made shall be the shortest time in which full payment can reasonably be made. (18 U.S.C. § 3572(d)(2))

   Commentary

   After the court determines the amount of restitution owed to each victim, the court must, pursuant to 18 U.S.C. § 3572, establish the manner and schedule according to which restitution is to be paid. (18 U.S.C. § 3664(f)) This determination should be made after considering the interests of justice, as required by 18 U.S.C. § 3572, and after considering the financial resources and other assets of the defendant, including whether any assets are jointly controlled, the projected earnings and other income of the defendant, and any financial obligations of the defendant. The court may then order 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. (18 U.S.C. § 3664(f)(3)(A))

   If the "economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments," the court may order the defendant to make nominal periodic payments. (18 U.S.C. § 3664(f)(3)(B))

3. Change in Defendant's Economic Circumstances. A restitution order must provide that the defendant notify the court and the Attorney General (through the United States Attorney's Office) of any material change in economic circumstances that might affect his or her ability to pay restitution. (18 U.S.C. § 3664(k)) This requirement should only be in effect for as long as the defendant remains liable for payment of the restitution. Victims and the United States may also notify the court of any change in the defendant's economic condition. (18 U.S.C. § 3664(k)) After receiving notice of any material change in the defendant's economic circumstances, the United States Attorney's Office must then notify all of the victims of this change in circumstances, and must certify to the court that the victims have been notified. After receiving this notification, the court may on its own or on motion of any party, adjust the repayment schedule. (18 U.S.C. § 3664(k))

   Commentary

   In addition to the requirement that the defendant notify the United States and the court of any material change in economic circumstances, if an incarcerated defendant who is obligated to pay restitution receives "substantial resources from any source," the defendant is required to apply the value of the resources to any unpaid restitution or fine. (18 U.S.C. § 3664(n))

Pursuant to § 209 of the MVRA, Pub. L. No. 104-132, § 209 (codified as a Note under 18 U.S.C. § 3551), the Attorney General was directed to issue guidelines to ensure that "orders of restitution made pursuant to the amendments made by this subtitle [the MVRA] are enforced to the fullest extent of the law. Those guidelines, issued July 24, 1996, are restated below. Any Commentary that follows the guidelines was added to the Attorney General's original guidelines for purposes of this publication.

1. Enforcement by the United States. Orders of restitution imposed under the MVRA must be enforced to the fullest extent of the law. Restitution owed to victims of crimes is a critical part of the criminal judgment. The Financial Litigation Units in the United States Attorneys' Offices should take all steps possible to help ensure that this money is collected and that victims of crime are fully compensated for their losses. All prosecutors and Victim-Witness Coordinators should support the mission of criminal debt collection.

2. Aggressive Efforts to Enforce Restitution. Absent a court-ordered stay on appeal, a defendant who fails to pay restitution that is due immediately or defaults on a payment plan should be aggressively pursued for collection of the debt.

   Commentary

   The liability to pay a fine or restitution issued under the MVRA lasts 20 years plus any period of incarceration or until the death of the defendant. (18 U.S.C. § 3613(c))

   The MVRA provides that an order of restitution may be enforced by the United States

   1. In the manner provided for fines (chapters 227 and 229 of Title 18) (like a civil judgment under Federal or State law. (18 U.S.C. § 3613(a))

   2. By all other available and reasonable means. (18 U.S.C. § 3664(m)(1)(A)(i) and (ii))

   Other enforcement provisions of the MVRA provide
   • Payments for fines, restitution, and special assessments must be made to the clerk of the court and are to be applied first to special assessments, then to restitution to all victims, and finally to all other fines, penalties, costs, and other payments required under the sentence. (18 U.S.C. §§ 3611,3612(c))

   • Interest accrues on unpaid restitution, as do delinquency and default penalties. (18 U.S.C. §§ 3612(f), (d), and (e); § 3572(h) and (i)) A defendant can also be resentenced under 18 U.S.C. § 3614 for knowingly failing to pay restitution.

   • Either State or Federal procedures may be used to effect enforcement for restitution. (18 U.S.C. § 3613(a)) Under the MVRA, criminal defendants have very limited property that is exempt from seizure. The only property that is exempt from enforcement is some of the same property that is exempt from an IRS levy for taxes. (18 U.S.C. § 3613(a)(1))

3. Filing of Liens. To guarantee enforcement to the fullest extent of the law, a lien should be filed by the United States in all cases where restitution is ordered and not immediately paid.

   Commentary

   An order of restitution is a lien in favor of the United States on all property and rights to property of the person fined as if it were liability for unpaid taxes. (18 U.S.C. § 3613(c)) The lien arises on the entry of judgment and continues until satisfied, remitted or set aside, or for 20 years plus the period of incarceration or the death of the defendant. (18 U.S.C. § 3613(c))

4. Discovery of Assets. Additionally, discovery of the debtor's assets should be pursued, to include, but not limited to, the following: reviewing the presentence report for asset information; requesting a financial statement or completed interrogatories from the debtor regarding assets and liabilities or, in the case of an incarcerated debtor, consulting with the assigned case manager regarding assets and liabilities; inquiring whether any victims have information about the debtor's assets; requesting asset information from the prosecutor and case agent; and, researching on-line property locator services available to the Financial Litigation Unit.

5. Further Investigation. In cases where the United States Attorney's Office has reason to believe that the debtor might have assets based on the inquiries and research set forth above or other information, a credit report should be obtained and, where practicable, the deposition of the defendant or other parties who may have knowledge of the debtor's assets should be conducted.

6. Default. If it is discovered that a defendant who has defaulted on payment of restitution has the ability to pay, a default hearing under 18 U.S.C. § 3613A, or resentencing pursuant to 18 U.S.C. § 3614, should be considered. All enforcement remedies, including those under the Federal Debt Collection Procedures Act, 28 U.S.C. §§ 3001-3308, should be pursued, including garnishment of the debtor's wages, execution of the debtor's nonexempt property, and filing of a fraudulent transfer action.

   Commentary

   Upon a finding that a defendant is in default of a payment toward a fine or restitution, the court may

   • Revoke the defendant's probation or supervised release pursuant to 18 U.S.C. § 3565

   • Modify the terms of the defendant's probation or supervised release.

   • Resentence a defendant under 18 U.S.C. § 3614.

   • Hold the defendant in contempt of court.

   • Enter a restraining order or injunction.

   • Order the sale of property of the defendant.

   • Accept a performance bond.

   • Enter or adjust the defendant's payment schedule.

   • Take any other action necessary to obtain compliance.

   (18 U.S.C. § 3613A(a)(1))

   In determining what action to take, the court must consider the defendant's employment status, earning ability, financial resources, and willfulness in failing to comply with the order. (18 U.S.C. § 3613A(a)(2)) Any default hearing that is held may be held by a magistrate judge and, to the extent practicable, be conducted without removing an incarcerated defendant from prison. (18 U.S.C. § 3613A(b))

7. Enforcement for Debtors Who Are Under Supervision by the Probation Office. Enforced collection remedies should only be used against debtors under the supervision of the probation office after consultation with that office. Additionally, while the new law provides the Government the ability to reach substantial assets of a criminal defendant, the Government must be cautious about seizing a debtor's residence if family members would be left homeless. For this reason, approval of the United States Attorney is required prior to executing upon a criminal debtor's residence. USAM § 3-21.020 [now published at USAM § 3-10.540, made applicable to criminal procedures by USAM § 3-12.350].

Government attorneys prosecuting civil or criminal forfeiture cases should assist crime victims in obtaining restitution in the following manner. If a defendant has sufficient assets to pay the restitution order without using property forfeitable to the Government, the defendant must use other assets (not the forfeitable property) to satisfy the restitution order. Where, however, a defendant does not have sufficient assets to pay the restitution order without using forfeitable property, the Government may use the procedural provisions of the forfeiture statutes to preserve and recover forfeitable property, and then move to dismiss the forfeiture proceeding to allow the property to be used for the benefit of the victims.

G. Limitation on Liability

These guidelines are issued in conformance with the statutory requirements of the MVRA. Pursuant to that Act, 18 U.S.C. § 3664(p), nothing in §§ 2248, 2259, 2264, 2327, 3663, 3663A, or 3664 of Title 18 and arising out of the application of those sections, and therefore nothing in these guidelines, shall be construed to create a cause of action not otherwise authorized in favor of any person against the United States or any officer or employee of the United States.

1. The definition of "victim" is expanded by the new law to include those "proximately" harmed as a result of the commission of the offense. (see 18 U.S.C. §§ 3663(a)(2))

2. An order of "community restitution" for certain drug offense may be imposed in cases where no identifiable victim exists. The amount of such community restitution will be based on the amount of the public harm caused by a defendant in accordance with guidelines gromulgated by the Sentencing Commission. (18 U.S.C. § 3663(c) and U.S.S.G. § 5E1.1(d))