A Non-Categorical Approach to Federal Restitution

Last month, the U.S. Court of Appeals for the Second Circuit declined to construe a federal criminal statute by looking to the elements of a predicate criminal offense, choosing instead to focus on the defendant’s underlying conduct supporting the criminal conviction. Despite the prevalence of elements-based approaches in immigration and in cases involving the Armed Career Criminal Act, the court charted a different path in construing “offense against property” under the Mandatory Victims Restitution Act (the MVRA). In United States v. Razzouk, 976 F.3d 250 (2d Cir. 2020), Circuit Judges John M. Walker Jr. and Susan L. Carney and District Judge John G. Koeltl, sitting by designation, unanimously held that the categorical approach should not apply to federal restitution orders and that district courts should look to the facts and circumstances underlying a conviction in deciding whether to impose a restitution remedy for crimes against property. In so holding, the Second Circuit joined the Fourth and Eleventh Circuits. See United States v. Ritchie, 858 F.3d 201, 210 (4th Cir. 2017); United States v. Collins, 854 F.3d 1324, 1334 (11th Cir. 2017).

Background and District Court Proceedings

Appellant, Sassine Razzouk, was convicted of bribery and tax evasion arising out of his actions as a manager in the electrical design engineering department of Con Edison between 2007 and 2011. Razzouk, 976 F.3d at 252. Razzouk admitted to exploiting his position for the benefit of a company run by one of his friends, which obtained Con Edison contracts, assistance in bidding, and payments Razzouk lacked authority to approve in exchange for bribes. Razzouk’s scheme ultimately diverted approximately $6 million in overpayments from Con Edison. Razzouk pleaded guilty to one count of accepting bribes in connection with an organization receiving federal funds, in violation of 18 U.S.C. §666(a)(1)(B), and three counts of tax evasion, in violation of 26 U.S.C. §7201.3, for failing to report the bribery payments. In addition to being sentenced to a term of imprisonment, Razzouk was ultimately ordered to pay almost $9 million in restitution to Con Edison and its insurer. The district court based its restitution order on the determination that Razzouk’s conviction involved a “crime against property,” which made restitution mandatory under the MVRA.

The Mandatory Victims Restitution Act of 1996