Evertson

MEMORANDUM *

Krister Sven Evertson appeals his conviction and sentence on one count of violating the Hazardous Materials Transportation Uniform Safety Act (“HMTUSA”), 49 U.S.C. § 5124 , and two counts of violating the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6928 (d)(2)(A). After a jury trial, Evertson was found guilty, sentenced to concurrent terms of twenty-one months’ imprisonment on each count, and ordered to pay $421,049.00 in restitution. We affirm the convictions but vacate the sentence insofar as it ordered restitution as part of the sentence and not solely as a condition of supervised release.

The district court properly instructed the jury on the “willfulness” requirement of the HMTUSA offense. Willfulness does not require actual knowledge of the specific regulations violated. Bryan v. United States, 524 U.S. 184, 191 , 118 *511 S.Ct. 1939 , 141 L.Ed.2d 197 (1998). Rather, it requires only knowledge that the conduct was unlawful. Id.

Because willfulness requires only knowledge that the conduct is unlawful, the indictment contained a surplus mens rea allegation that is not an element of the charged offense. See United States v. Pang, 362 F.3d 1187,…