Leah and Michael Hagen were convicted by a jury of conspiring to defraud the United States and to pay and receive healthcare kickbacks, in violation of 18 U.S.C. 371, among other counts. They were each sentenced to 151 months of imprisonment and ordered to pay, jointly and severally, $27,104,359 in restitution. They appealed, among other issues, the order of restitution.

The Hagens argued the district court’s order of restitution was unlawful because, under a categorical approach, their crimes of conviction did not contain the elements of a crime against property. The Fifth Circuit observed that three other circuits had rejected application of the categorical approach to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3663A(c)(1)(A)(ii). It joined those circuits, holding that the categorical approach does not control the analysis of whether a Title 18 offense is “against property” for purposes of the MVRA. Instead, the factual circumstances of the crime of conviction determine whether the crime is an “offense against property” requiring mandatory restitution.

United States v. Hagen