NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 2 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10459

Plaintiff-Appellee, D.C. No. 4:18-cr-01255-RCC-DTF-1 v.

CHEROKEE RAY DELAHANTY, AKA MEMORANDUM*

Cherokee Delahanty,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding

Argued and Submitted November 19, 2020 Phoenix, Arizona

Before: TALLMAN, BYBEE, and BADE, Circuit Judges.

Convicted of a serious assault in Indian Country, Cherokee Delahanty

appeals the district court’s entry of an amended restitution order making him liable

for his victim’s medical expenses despite the government’s failure to raise this

unresolved amount of restitution at sentencing. We have jurisdiction pursuant to

28 U.S.C. § 1291. We vacate the amended restitution order and remand for further

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. proceedings.

1. The government erred when it sought to amend Delahanty’s

restitution order without complying with the Mandatory Victim Restitution Act’s

(“MVRA”) procedural requirements. 18 U.S.C. § 3664. Although the magistrate

judge warned Delahanty at his change-of-plea hearing that he would be subject to a

claim for reimbursement of the victim’s medical expenses—a warning repeated in

the Presentence Report—and his counsel had received copies of medical treatment

records in pretrial discovery, the government failed at sentencing to identify the

victim’s medical expenses as a non-ascertainable loss as required by law because

the Arizona Medicaid agency, as the victim’s insurer, had not yet responded to the

government’s request for the amount later claimed. See 18 U.S.C. § 3664(d)(5).

Prior to sentencing, the government and the defendant were aware that the

victim sustained significant injuries and received extensive medical treatment

arising from the assault. That the Medicaid agency did not timely respond to the

government’s solicitation of its claim does not establish good cause for the

government’s failure to raise what it knew to be a potential outstanding restitution

claim at the time of sentencing. Id. We note that the government effectively

conceded as much at the restitution amendment hearing before the district court.

The United States Attorney’s Office easily could have avoided procedural error

had it paid more careful attention to the MVRA’s requirements.

2 Nonetheless, the government’s procedural error was harmless. Failure to

comply with the MVRA’s procedural requirements does not divest the court of

jurisdiction to amend a restitution order. Dolan v. United States, 560 U.S. 605,

610–11 (2010). Indeed, “because the procedural requirements of section 3664

were designed to protect victims, not defendants, the failure to comply with them is

harmless error absent actual prejudice to the defendant.” United States v.

Moreland, 622 F.3d 1147, 1173 (9th Cir. 2010) (quoting United States v.

Cienfuegos, 462 F.3d 1160, 1163 (9th Cir. 2006)). We have declined to find actual

prejudice where, despite the procedural error, a defendant was otherwise given

notice that he would be obligated to pay restitution. See Moreland, 622 F.3d at

1173; United States v. Marks, 530 F.3d 799, 812 (9th Cir. 2008); Cienfuegos, 462

F.3d at 1163. Here, Delahanty had the following notice that he could be liable for

his victim’s medical expenses: the Presentence Report advised Delahanty that

restitution for a victim’s medical expenses was mandatory, not discretionary, under

the MVRA; the written plea agreement and the magistrate judge’s comments

during Delahanty’s change of plea advised him that he could be liable for the

victim’s medical expenses; and the district court did order some restitution at

sentencing, even if it later significantly changed the total amount of the restitution

award.

2. The district court, however, erred in failing to make any findings on

3 Delahanty’s timely objection to the sufficiency of the evidence supporting the

amended restitution award. The MVRA “recognizes that specific findings of fact

are necessary at times and contemplates that the district court will set forth an

explanation of its reasoning, supported by the record, when a dispute arises as to

the proper amount of restitution.” United States v. Waknine, 543 F.3d 546, 556

(9th Cir. 2008) (citation omitted). Even where it is “easy to reconstruct how the

District Court arrived at” the restitution figure, the failure to make findings on a

defendant’s challenge to the sufficiency of the evidence supporting a restitution

award is reversible error. United States v. Tsosie, 639 F.3d 1213, 1222–23 (9th

Cir. 2011). On remand, the district court is instructed to conduct a new hearing in

response to Delahanty’s objection to the sufficiency of the evidence supporting the

amended restitution award to determine the proper amount of restitution and to

make findings supporting the amount properly attributable to treatment arising

from the victim’s extensive injuries.

The Clerk will send a copy of this disposition addressed to the United States

Attorney for the District of Arizona so that appropriate steps may be taken to train

assistant United States attorneys in their obligations under the MVRA.

VACATED AND REMANDED with instructions.

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