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Sergio Fernando Lagos v. United States

Paid petition · United States Court of Appeals for the Fifth Circuit, No. 16-20146 · judgment March 17, 2017

Decided · May 29, 2018
At-filing estimate: 3% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Under the Mandatory Victims Restitution Act (MVRA), courts must order the defendant to "reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense." 18 U.S.C. 3663A(b)(4). In the decision below, the Fifth Circuit, adopting the decisions of multiple courts of appeals, held that this provision covers the costs of internal investigations and private expenses that were "neither required nor requested" by the government; these private costs were incurred outside the government's official investigation, and, indeed, were incurred before the government's investigation even began. In reaching this conclusion, the Fifth Circuit expressly rejected the "opposite conclusion" from the D.C. Circuit, which itself "recognize[d]" but "respectfully disagree[d]" with the decisions of four other courts of appeals. Judge Higginson concurred below, acknowledging that he was bound by circuit precedent, but "agree[d] with the D.C. Circuit's persuasive interpretation" of the statute. The courts of appeals are clearly and intractably divided over this important and recurring question of statutory interpretation-one that repeatedly occurs whenever companies detect hints of fraud and conduct an internal investigation. The question presented is: Whether Section 3663A(b )( 4) covers costs that were "neither required nor requested" by the government, including costs incurred for the victim's own purposes and unprompted by any official government action.

Counsel of record

For petitioner
Daniel L. Geyser
Haynes and Boone, LLP

For respondent
Noel John Francisco
Jones Day

Case

Subject area
Criminal Procedure (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 2 conferences

Amicus briefs
2 merits
(2 supporting pet./neither)

Order
Miscellaneous order, January 12, 2018 · Certiorari granted

Argument & decision

Argued April 18, 2018 — Daniel L. Geyser · Michael R. Huston. Listen and read along · the Court’s audio

Decided May 29, 2018. Opinion by Breyer.

Proceedings

  1. Jul 02 2018
    JUDGMENT ISSUED.
  2. May 29 2018
    Judgment REVERSED and case REMANDED. Breyer, J., delivered the opinion for a unanimous Court.
  3. Apr 18 2018
    Argued. For petitioner: Daniel L. Geyser, Dallas, Tex. For respondent: Michael R. Huston, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
  4. Apr 11 2018
    Reply of petitioner Sergio F.Lagos filed. (Distributed)
  5. Mar 30 2018
    Record requested from the U.S.C.A. 5th Circuit.
  6. Mar 28 2018
    Brief of respondent United States filed. (Distributed)
  7. Mar 07 2018
    CIRCULATED
  8. Mar 05 2018
    Brief amicus curiae of National Association of Criminal Defense Lawyers filed. (Distributed)
  9. Mar 05 2018
    Brief amicus curiae of Professor Shon Hopwood filed. (Distributed)
  10. Feb 26 2018
    Joint appendix filed. (Statement of costs filed)
  11. Feb 26 2018
    Brief of petitioner Sergio F.Lagos filed.
  12. Feb 23 2018
    SET FOR ARGUMENT on Wednesday, April 18, 2018.
  13. Feb 09 2018
    Blanket Consent filed by Petitioner, Sergio F.Lagos.
  14. Jan 12 2018
    Petition GRANTED.
  15. Jan 08 2018
    DISTRIBUTED for Conference of 1/12/2018.
  16. Dec 13 2017
    DISTRIBUTED for Conference of 1/5/2018.
  17. Dec 13 2017
    Reply of petitioner Sergio F.Lagos filed. (Distributed)
  18. Dec 08 2017
    Waiver of the 14-day waiting period under Rule 15.5 filed by petitioner Sergio F.Lagos.
  19. Nov 30 2017
    Brief of respondent United States in opposition filed.
  20. Oct 24 2017
    Order further extending time to file response to petition to and including November 30, 2017.
  21. Sep 18 2017
    Order further extending time to file response to petition to and including October 26, 2017.
  22. Aug 14 2017
    Order further extending time to file response to petition to and including September 20, 2017.
  23. Jul 12 2017
    Order extending time to file response to petition to and including August 21, 2017.
  24. Jun 15 2017
    Petition for a writ of certiorari filed. (Response due July 21, 2017)