Reed

This case presents the question of whether a judge may order restitution under the Victim Witness Protection Act, 18 U.S.C. §§ 3663-64 , for conduct that is not an element of the offense of conviction. We hold that he may not, with one exception that is not applicable in this case. 1 Accordingly, we vacate the restitution order. On a wholly separate issue, we affirm the district court’s decision to enhance the defendant’s sentence for reckless endangerment.

On February 16, 1994, the San Francisco Police gave chase to a stolen Ford Aerostar van. Towards the end of the chase, the Aerostar reached speeds approaching 75 miles per hour and flew into the air at the top of a hill. When the officers reached the crest of the hill, they saw that the van had crashed into several cars and come to a halt. Police found Andre Reed, the appellant, lying in the street approximately five to ten feet from the van. Another suspect had fled the scene on foot and was never apprehended. The officers searched Reed, a convicted felon, and found a loaded .22 caliber revolver in his pants pocket.

On October 25, 1994, Reed pleaded guilty to being a Felon in Possession of a Firearm, a violation of 18 U.S.C.…