MVRA Restitution: District Court May Use Updated County “Fair Cash Value” as a Reasonable Proxy for Fair Market Value of Destroyed Property

I. Introduction

In United States v. Hemingway (10th Cir. Feb. 10, 2026), Gunnar Mathew Hemingway was convicted by a jury of arson in Indian Country under 18 U.S.C. §§ 81, 1151, 1153 for setting fire to and destroying a mobile home in Hugo, Oklahoma (within the Choctaw Nation Reservation). Although he was acquitted of homicide- and firearm-related counts, the district court ordered restitution under the Mandatory Victims Restitution Act (MVRA), focusing on the value of the destroyed mobile home.

The appeal presented a narrow but practically important question: whether the district court abused its discretion by valuing the destroyed mobile home at $21,086—a figure derived from the county assessor’s testimony about what the home would be assessed at under a newer assessment system—rather than adopting the defendant’s preferred $5,298 value from an older tax assessment.

II. Summary of the Opinion

The Tenth Circuit affirmed. It held that the district court acted within its discretion by using fair market value as the MVRA’s “value” measure, and by crediting evidence—particularly the county assessor’s testimony—that the earlier tax assessment was “extremely below value” and that the newer assessment system produced a more accurate “fair cash value.” The court rejected the defendant’s speculative criticisms (inflation, tax-revenue motives, possible inclusion of land value) and treated his Oklahoma-law “3% cap” argument as waived for inadequate briefing.

III. Analysis

A. Precedents Cited

  • United States v. Parker, 553 F.3d 1309 (10th Cir. 2009)
    The panel relied on Parker for the appellate framework: restitution legality reviewed de novo, factual findings for clear error, and the amount for abuse of discretion. It also invoked Parker’s substantive constraint that restitution cannot exceed the victim’s “actual loss,” and its practical recognition that restitution is “an inexact science.” Parker thus underwrote deference to reasonable valuation choices while policing against overcompensation.
  • United States v. Howard, 887 F.3d 1072 (10th Cir. 2018)
    Howard supplied the key doctrinal point: “fair market value” is a permissible method of valuation under § 3663A, and no single valuation method is invariably best. Hemingway uses Howard to validate the district court’s selection of fair market value and to rebut the notion that the defendant’s preferred metric (a prior tax assessment) is categorically superior.
  • United States v. Julian, 242 F.3d 1245 (10th Cir. 2001)
    Cited for the proposition that a valuation supported by record evidence will be upheld. Julian bolstered the panel’s conclusion that the $21,086 figure was evidentiary grounded.
  • In re Nat. Gas Royalties Qui Tam Litig., 845 F.3d 1010 (10th Cir. 2017) and United States v. Landers, 564 F.3d 1217 (10th Cir. 2009)
    These cases supplied the abuse-of-discretion vocabulary: reversal requires a “definite and firm conviction” of a “clear error of judgment,” and an abuse occurs if the ruling is “arbitrary, capricious, whimsical, or manifestly unreasonable.” The panel used these standards to explain why it would not second-guess the district court’s evidentiary weighing.
  • United States v. James, 564 F.3d 1237 (10th Cir. 2009)
    James contributed two controlling MVRA principles: (1) because “value” is undefined, the district court may determine the “best measure of value” case-by-case; but (2) it may not order restitution exceeding “actual loss.” Hemingway frames the district court’s task as a bounded discretion: flexible methodology, but capped by actual loss.
  • United States v. Ferdman, 779 F.3d 1129 (10th Cir. 2015)
    Ferdman reinforced causation and scope limits under MVRA: restitution covers losses “actually caused” by the offense. The panel used it to center the inquiry on the home’s value as the measure of actual loss from the arson.
  • United States v. Petty Motor Co., 327 U.S. 372 (1946)
    Petty Motor Co. was used by analogy for the economic point that market value fluctuates with demand and conditions. This helped rebut the defendant’s premise that value can only diminish absent improvements and supported § 3663A(b)(1)(B)’s recognition that valuation may differ between the date of loss and sentencing.
  • United States v. Wilfong, 551 F.3d 1182 (10th Cir. 2008)
    Wilfong provided the operational evidentiary rule: the court need only make a “reasonable estimate” of loss. This supported affirmance notwithstanding the imperfect fit between tax assessment methods and a full appraisal.
  • Icon at Norman Apartments, LP v. Warr, 577 P.3d 259 (Okla. 2025)
    The opinion referenced Icon for background on Oklahoma’s ad valorem taxation regime and the homestead cap in Okla. Const. art. X § 8B, underscoring that the cap concerns taxation mechanics—not necessarily MVRA fair market valuation.
  • United States v. De Vaughn, 694 F.3d 1141 (10th Cir. 2012)
    De Vaughn was used to apply waiver: inadequately briefed arguments in the opening brief are waived. This disposed of the defendant’s Oklahoma “3% cap” contention.

B. Legal Reasoning

  1. MVRA requires a value-based remedy when return is impossible.
    Because the mobile home was destroyed, § 3663A(b)(1)(B) required payment equal to the greater of the property’s value on the date of destruction or the date of sentencing, with the government bearing the burden under § 3664(e) to prove the loss by a preponderance of evidence.
  2. “Value” is flexible; fair market value is an accepted option.
    Following United States v. James and United States v. Howard, the court treated “value” as context-dependent and affirmed that the district court could select fair market value as the measure of actual loss.
  3. The district court permissibly credited assessor testimony to approximate fair market value.
    The government offered a higher replacement-cost estimate ($30,232.10 via J.D. Power), but the district court instead adopted $21,086 as fair market value based on Choctaw County Assessor Rhonda Cahill’s explanation that the older system undervalued property and that a newer system would assess this home at $21,086. Although Cahill acknowledged differences between “fair cash value” and a full appraisal (e.g., lack of interior inspection), she testified that properties had sold at their “fair cash value.” The panel treated this as sufficient to support a “reasonable estimate” under United States v. Wilfong.
  4. Defendant’s contrary valuation did not show abuse of discretion.
    The defendant’s anchor was the 2020 tax assessment of $5,298, plus arguments that: (a) value should not rise due to post-pandemic building-material inflation; (b) the new system was “bloated”; and (c) the new system was motivated by tax revenue. The panel rejected these as either inconsistent with market-based valuation (supported by § 3663A(b)(1)(B) and United States v. Petty Motor Co.) or speculative and unsupported by evidence. Under the deferential abuse-of-discretion standard (Landers; In re Nat. Gas Royalties), disagreement with the district court’s evidentiary weighing was not enough.
  5. Land-value and Oklahoma “cap” arguments failed.
    The panel rejected the suggestion that the $21,086 included land value because the assessor repeatedly clarified it was only for the mobile home. The Oklahoma constitutional “3% cap” argument was not explained with specificity as to MVRA valuation and was deemed waived under United States v. De Vaughn.

C. Impact

Although designated as a nonprecedential “Order and Judgment,” United States v. Hemingway is likely to be cited persuasively in MVRA disputes involving valuation of destroyed property where traditional appraisals are unavailable or contested. Its practical contributions include:

  • Validation of assessor-driven valuation evidence as a reasonable proxy for fair market value, even where the assessor’s methodology is not identical to a private appraisal.
  • Deference to trial courts selecting among competing valuation anchors (replacement cost, tax assessment, market proxies), so long as the award is supported and does not exceed actual loss.
  • Resistance to inflation-based objections where the statute itself contemplates valuation at sentencing and market value inherently reflects market conditions.
  • Briefing discipline: state-law assessment caps or analogous constraints must be tied concretely to MVRA valuation principles or risk waiver.

IV. Complex Concepts Simplified

Mandatory Victims Restitution Act (MVRA)
A federal statute requiring restitution for certain crimes (including property crimes). When property can’t be returned, the court orders payment of the property’s value, subject to proof and the “actual loss” ceiling.
Fair market value vs. replacement cost
Fair market value is what a willing buyer would pay a willing seller in the market. Replacement cost is what it would cost to replace the item with a comparable new (or similar) item. Courts may choose among these depending on what best measures “value” in context, but cannot exceed the victim’s actual loss.
Tax “fair cash value”
A county assessor’s value used for taxation. It may be based on standardized models and periodic exterior inspections rather than a full appraisal. Hemingway accepts that such a figure can support a restitution valuation if the judge finds it credibly tracks market value.
Burden of proof (preponderance of the evidence)
The government must show the loss amount is more likely than not correct. It need not prove value with mathematical certainty.
Abuse of discretion
A highly deferential appellate standard. Even if another valuation seems plausible, the appellate court will affirm unless the district court’s choice was unreasonable or lacked evidentiary support.
Waiver for inadequate briefing
If a party mentions an argument but does not develop it with legal authority and analysis, the appellate court may treat it as waived and decline to consider it.

V. Conclusion

United States v. Hemingway reinforces a pragmatic MVRA valuation approach: when return is impossible, a district court may select fair market value as the measure of “value” and may rely on credible assessor testimony—including updated assessment methodologies—to reach a reasonable loss estimate, so long as the award does not exceed actual loss. Speculation about motives or inflation effects, without supporting evidence, will not carry an abuse-of-discretion appeal, and underdeveloped state-law cap arguments may be waived.