Earlier this week, it agreed to hear this 4th Amendment case en banc at the urging at Judge Newsom to reconsider previous decisions on abandonment.
Yesterday, Judge Jill Pryor issued a big decision finding that a Hobbs Act robbery did not constitute a crime of violence under the Guidelines.
And today, Judge Rosenbaum issued an opinion on restitution and loss, with this fun introduction:
In Robert Louis Stevenson’s Treasure Island, Jim Hawkins memorably hunted for Captain Flint’s hidden treasure. The Goonies put its own spin on treasure hunting when the title band of friends defied One-Eyed Willy’s maze of booby traps to find his hidden treasure and save their beloved neighborhood. But for real-life treasure-hunting stories, perhaps nothing beats the quests of the aptly named Mel Fisher and his company Treasure Salvors, Inc.
Fisher and his team specialized in finding and salvaging shipwrecks of Spanish galleons and other vessels from the Spanish Colonial era, off the coasts of Florida and its Keys. As of the mid-1980s, Fisher’s operation had recovered treasure worth approximately $400 million at that time.
Among that treasure was Gold Bar 27, which Fisher donated to the Mel Fisher Maritime Heritage Museum (the “Museum”) in Key West, Florida. There, Gold Bar 27 became iconic, and three to four million Museum visitors handled it over the years. Enter Defendant-Appellant Jarred Alexander Goldman (sometimes truth can be stranger than fiction) and Codefendant Richard Steven Johnson. In 2010, Goldman and Johnson stole Gold Bar 27 from the Museum. This appeal requires us to consider the proper standard—we might call it the gold standard—for determining, for purposes of ordering restitution under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A (“MVRA”), the value of Gold Bar 27.
Today we take this golden opportunity to reaffirm that in a case like this one, where the loss is of a unique artifact for which market value cannot fully compensate, courts must use replacement cost in determining restitution. While absolute precision is not required under the MVRA, the district court must base its restitution order on evidence. And that evidence must show that the restitution will make the victim whole—nothing more and nothing less. Because the district court, without the benefit of our decision today, did not ascertain replacement value when it determined market value was insufficient and then imposed restitution, we vacate the restitution order and remand for valuation that applies the proper legal barometer to the gold bar here. Goldman also challenges the loss amount used to determine his offense level. But here, we part ways with Goldman’s analysis.
The district court explained that it would impose the same sentence, even if it had the loss figure wrong. For that reason and because the sentence the district court imposed is not substantively unreasonable, we affirm Goldman’s sentence.The 11th Circuit should really re-examine this practice of affirming sentences just because the district judge says that it would enter the same sentence even if reversed. It’s simply too easy to say that, and the truth is that judges are very unlikely to sentence above the guidelines. If there’s a reversal on the guideline calculation, of course the defendant should get a new sentencing.