UNITED STATES of America, Plaintiff-Appellee, v. Calvin DAYEA, Defendant-Appellant

Calvin Dayea appeals an award of restitution granted to Mrs. Susan Zesiger, the widow of Sgt. David Zesiger, an Arizona police officer killed while on duty by Dayea’s drunken driving. We reverse the district court’s restitution order in favor of Mrs. Zes-iger because, although she lost more from Dayea’s crime than any court order could ever replace, we conclude that she was not eligible under the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663 , for the particular kind of lost income restitution the court awarded.

We have jurisdiction over this timely appeal under 18 U.S.C. § 3742 . We review the legality of a restitution order de novo. United States v. Baker, 25 F.3d 1452 , 1454 n. 1 (9th Cir.1994).

I

On July 3, 1992, Dayea crossed the center line of Arizona State Route 260 in the White Mountain Apache Reservation while driving under the influence of alcohol. He crashed into two oncoming vehicles, seriously injuring one person and killing Sgt. Zesiger. Dayea pled guilty to one count of involuntary manslaughter and one count of aggravated assault resulting in serious bodily injury. The court increased Dayea’s base offense level by four and departed upward two levels.…