King: Grief counseling not includable in restitution

In U.S. v. King, No. 04-14021 (11th Cir. June 30, 2005), the Court (Tjoflat, Kravtich, and Mills, b.d.) vacated and remanded a $21k order of restitution against a defendant convicted of attempted bank robbery based on the government's concession that more than $11k of the ordered restitution represented the bank's cost for providing grief counseling to its employees, something not authorized by the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. However, on plain error review, the Court rejected Mr. King's claim that the ordered restitution violated his Sixth Amendment rights since the order was based on facts not admitted by him nor proven to a jury beyond a reasonable doubt. The Court noted that neither it nor the Supreme Court had held that Blakely/Booker applied to an order of restitution and that most of the other circuits had rejected such a claim. The Court thus concluded that Mr. King failed to demonstrate that the claimed error was plain.