                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 19, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-3291
 v.                                          (D.Ct. No. 5:12-CR-40047-RDR-1)
                                                          (D. Kan.)
 ERIC JEROME JAMES,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Appellant Eric Jerome James pled guilty to one count of carjacking for

willfully taking a motor vehicle in violation of 18 U.S.C. § 2119, received a


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
sentence of 216 months imprisonment and five years supervised release, and was

ordered to pay $6,304.43 in restitution. Mr. James appeals only the order of

restitution, contending the district court lacked authority to impose restitution for

a loss not directly and proximately caused by the offense of conviction. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and vacate and remand to the

district court the judgment of restitution for damages concerning the vehicle

involved in this appeal.

                                   I. Background

      On April 18, 2012, Mr. James escaped on foot from a jail in Kansas and

came upon the owner of a 2002 Nissan Altima. After an altercation which left

lacerations on the owner’s face, Mr. James fled in the vehicle, driving to Omaha,

Nebraska. Two days later, while at the home of Latasha Collier, Mr. James

provided the vehicle to Jackson Williams; later that day, Omaha police stopped

Mr. Williams after verifying the vehicle was the one stolen from Kansas and

might contain an escaped felon. After explaining he borrowed the vehicle from

Mr. James, Mr. Williams directed the police to Ms. Collier’s residence where they

found Mr. James and arrested him. Meanwhile, the vehicle was towed from the

scene of Mr. Williams’s arrest to the Omaha police impound lot where United

States Marshals placed a “hold” and “hands-off” instruction on the vehicle. At

the time of impoundment, the Omaha Police Department reported the condition of

the vehicle as having “small scratches & minor interior damage.” Sometime

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thereafter, apparently either while impounded or transported back to Kansas, the

vehicle was damaged, causing the victim’s insurance company to determine the

vehicle was totaled; it later sold it for salvage.

      Following Mr. James’s guilty plea to the carjacking offense, a probation

officer prepared a presentence report calculating his sentence under the applicable

2011 United States Sentencing Guidelines. In recommending the amount of

restitution, the probation officer determined the total loss amount at $8,169.43,

which was later reduced to $6,304.43 after deduction of the salvage proceeds.

      Both in a formal objection and at the sentencing hearing, Mr. James

objected to paying restitution for damage caused to the vehicle, arguing that while

the vehicle was totaled when it was returned to Kansas, his crime was not the

proximate cause of the damage which arose after the crime was committed and

the vehicle was placed in the government’s custody. In turn, the government

admitted it had no evidence of how the damage actually occurred to the vehicle,

but that Mr. James should be responsible for any damage to the vehicle following

the carjacking given his offense ultimately resulted in such damage. At the

conclusion of the sentencing hearing, the district court agreed with the

government, stating it “accepts the argument that this man is responsible for what

happened to that automobile.” It then ordered Mr. James to pay restitution for

damage to the vehicle.




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                                   II. Discussion

      On appeal, Mr. James claims the district court did not have authority to

order restitution for a loss not directly and proximately caused by the carjacking.

Pointing to the government’s admission it had no evidence on the cause of the

damage, Mr. James argues the government failed to carry its burden of showing

either proximity or a lack of intervening cause or that any intervening cause of

the damage was not too attenuated from his offense. The government opposes the

appeal, but in the event the district court erred, asks we remand for further

proceedings rather than issue a final decision restitution was inappropriate.

      Generally, “[w]e review the district court’s application of the MVRA

[Mandatory Victims Restitution Act]1 de novo, review its factual findings for

clear error, and review the amount of restitution awarded for abuse of discretion.”

United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008). As Mr. James

points out, the government bears the burden of proving the loss was sustained as a

result of the offense. See United States v. Speakman, 594 F.3d 1165, 1172-73 n.5

(10th Cir. 2010). “‘Courts have no inherent power to order restitution; they may

only do so as authorized by statute.’” United States v. West, 646 F.3d 745, 750

(10th Cir. 2011) (quoting United States v. Gordon, 480 F.3d 1205, 1210 (10th Cir.


      1
        We refer to the Mandatory Victims Restitution Act of 1996 as the
“MVRA.” See Pub. L. No. 104-132, 110 Stat. 1227 (codified principally at 18
U.S.C. § 3663A and enforced under 18 U.S.C. § 3664, as provided in
§ 3663A(d)).

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2007)).

      With respect to the statute to which we look for authorization in this case,

the MVRA states, in part, the court shall order the defendant to make restitution

to the victim of the offense and defines “victim” as “a person directly and

proximately harmed as a result of the commission of an offense for which

restitution may be ordered ....” See 18 U.S.C. § 3663A(a)(1)-(2) (emphasis

added).

      We have held, with respect to the terms “directly and proximately,” the

word “and” is conjunctive, and therefore, “directly” and “proximately” each have

a separate meaning and both must be shown to support an order for restitution.

See Speakman, 594 F.3d at 1171. We define “directly” as requiring a showing of

“but-for” causation, so that a particular loss would not have occurred but for the

conduct underlying the offense of conviction. See id. In turn, “proximately”

requires a causal connection between the conduct and a loss that is not too

attenuated, either factually or temporally. See id. at 1171-72 (relying on United

States v. Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007); United States v.

Cutter, 313 F.3d 1, 7 (1st Cir. 2002)). In considering proximate cause, our main

inquiry is “whether there was an intervening cause and, if so, whether this

intervening cause was directly related to the offense conduct.’” Id. at 1172. In

conducting the direct and proximate cause analysis, we have held restitution

under the MVRA may only be ordered for losses caused by the offense of

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conviction. See West, 646 F.3d at 751.

      Applying these principles and the first causation prong, it is apparent Mr.

James’s offense was the direct cause of the damage to the victim’s vehicle. In

making this conclusion, we rely on the “but-for” analysis for the proposition that

“but for” Mr. James’s carjacking offense, the victim’s car would not have been

taken to Nebraska, impounded, transported back to Kansas, and thereby totaled in

the process.

      With respect to the second causation prong involving proximate cause, it is

clear an intervening event occurred. After commission of the crime and the

government’s possession of the vehicle, it is undisputed the vehicle had only

“small scratches & minor interior damage,” and it was clearly operating the day

Mr. Williams drove it. It is also undisputed that when it was returned to the

victim it was damaged beyond repair, to the point of being totaled and thereby

unusable by the victim. Clearly, an intervening event occurred, causing the

damage. At the sentencing hearing, the government admitted it had no evidence

to show how or when the vehicle incurred such damage. As a result, it did not

carry its burden of showing this intervening cause “was directly related to the

offense conduct,” Speakman, 594 F.3d at 1172, or that the causal connection

between the conduct and the loss was otherwise not too attenuated, either

factually or temporally. See id. at 1171-72. As a result, the district court erred in

ordering restitution concerning the vehicle. See, e.g., United States v. Kieffer,

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681 F.3d 1143, 1171 (10th Cir. 2012) (holding district court order of restitution

failed for lack of proof when government failed to meet burden), cert. denied, 133

S. Ct. 996 (2013). Because the government has not indicated on appeal that any

new evidence exists on how or when the damage occurred, it is evident its request

for a further proceeding on this matter lacks merit or would otherwise prove

fruitless.

                                  III. Conclusion

       For these reasons, we VACATE and REMAND to the district court the

judgment of restitution concerning damages sustained to the vehicle at issue in

this case, ordering it to revise such judgment in accordance with this decision.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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