MVRA Restitution May Be Based on Updated Tax-Assessor “Fair Cash Value” as a Reasonable Proxy for Fair Market Value

I. Introduction

In United States v. Hemingway (10th Cir. Feb. 10, 2026), the Tenth Circuit affirmed a restitution order under the Mandatory Victims Restitution Act (MVRA) following the defendant’s conviction for arson in Indian Country under 18 U.S.C. §§ 81, 1151, 1153.

The fire destroyed a mobile home. The key appellate issue was narrow but practically important: whether the district court abused its discretion by ordering $21,086 in restitution for the mobile home based on a county assessor’s valuation generated using a newer valuation system, rather than the much lower $5,298 figure shown on a prior tax assessment.

The parties were the United States (Appellee) and Gunnar Mathew Hemingway (Appellant). Although Hemingway was acquitted on homicide and firearm counts, he admitted setting the fire and was convicted of arson. The appeal concerned only the amount of restitution attributable to the destroyed mobile home (not the separate restitution awarded for personal property inside it).

II. Summary of the Opinion

The Tenth Circuit held that the district court acted within its discretion in selecting fair market value as the appropriate MVRA “value” measure and in finding that $21,086 was a reasonable, record-supported estimate of that value. The court rejected Hemingway’s argument that the older assessment figure controlled, and it found his remaining challenges (land-value concern, alleged inflationary “tax grab,” and an Oklahoma constitutional cap argument) either factually refuted, speculative, or inadequately briefed.

III. Analysis

A. Precedents Cited

  • United States v. Parker, 553 F.3d 1309 (10th Cir. 2009)
    Role in the opinion: Parker supplies both the standard of review framework and a core restitution limitation: awarding restitution above “actual loss” is an abuse of discretion. Hemingway frames the appellate court’s restraint: restitution calculations are “inexact,” but cannot exceed actual loss.
  • United States v. Howard, 887 F.3d 1072 (10th Cir. 2018)
    Role in the opinion: Howard anchors the proposition that fair market value is an accepted MVRA valuation method, and that “one particular valuation method may be superior” depending on context. The panel relied on Howard to validate the district court’s choice of valuation metric over the defendant’s preferred tax-roll number.
  • United States v. Julian, 242 F.3d 1245 (10th Cir. 2001)
    Role in the opinion: Julian is cited for the evidentiary sufficiency point: a district court’s valuation is upheld where supported by the record. It reinforces deference to trial-level factfinding when evidence plausibly supports the chosen number.
  • United States v. James, 564 F.3d 1237 (10th Cir. 2009)
    Role in the opinion: James provides two critical MVRA principles: (1) because “value” is undefined, a district court may select the “best measure of value” case-by-case; and (2) restitution cannot exceed actual loss. The panel uses James to justify methodological discretion while policing the “actual loss” ceiling.
  • United States v. Ferdman, 779 F.3d 1129 (10th Cir. 2015)
    Role in the opinion: Ferdman emphasizes causation and scope: MVRA restitution covers losses “actually caused by the defendant’s offense.” The panel uses this to ground the inquiry in the destroyed home’s value (not punitive amounts or unrelated fiscal policies).
  • United States v. Wilfong, 551 F.3d 1182 (10th Cir. 2008)
    Role in the opinion: Wilfong supports the notion that restitution amounts need only be a “reasonable estimate” of loss. This is key to upholding the assessor-based number as sufficiently reliable even if not a traditional appraisal.
  • 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)
    Role in the opinion: These decisions define abuse-of-discretion boundaries (“clear error of judgment,” “arbitrary, capricious, whimsical, or manifestly unreasonable”). They justify affirmance absent a strong showing that the district court’s choice fell outside permissible options.
  • United States v. Petty Motor Co., 327 U.S. 372 (1946)
    Role in the opinion: Petty Motor Co. is used to explain a background economic premise: market value can fluctuate with demand and conditions. It supports the panel’s rejection of the defendant’s assumption that the home’s value could only decline absent improvements.
  • United States v. De Vaughn, 694 F.3d 1141 (10th Cir. 2012)
    Role in the opinion: De Vaughn supplies the waiver principle for inadequate briefing. The court applied it to Hemingway’s Oklahoma constitutional cap argument, which he did not connect with sufficient specificity to MVRA “fair market value” determinations.
  • Icon at Norman Apartments, LP v. Warr, 577 P.3d 259 (Okla. 2025)
    Role in the opinion: Icon provides contextual background on Okla. Const. art. X § 8B (the 3% cap) as an ad valorem taxation constraint on homestead valuation increases. The panel uses Icon to show the cap’s domain (taxation) and highlights the defendant’s failure to explain how it constrains federal MVRA restitution valuation.

B. Legal Reasoning

  1. Statutory framework: MVRA property-loss restitution.
    Because the mobile home was destroyed, return was impossible. Under 18 U.S.C. § 3663A(b)(1)(B), restitution equals the greater of the property’s value on the date of destruction or on the date of sentencing, and the government bears the burden by a preponderance under § 3664(e). The panel emphasized that “value” is undefined, leaving the district court discretion to choose an appropriate measure (per United States v. James).
  2. Method selection: fair market value as a permissible “best measure.”
    The district court selected fair market value, a method expressly recognized as permissible in United States v. Howard. The panel treated this as a threshold issue: the question was not whether another method might also be reasonable (e.g., replacement cost), but whether the chosen method and resulting figure were within the zone of discretion and did not exceed actual loss.
  3. Evidentiary support: assessor testimony and the “new system.”
    The government introduced (a) a J.D. Power estimate reflecting replacement cost for a similar new home and (b) testimony from the Choctaw County Assessor, Rhonda Cahill. Cahill explained the county’s earlier assessment method relied on periodic visual inspections and depreciation adjustments and that properties had been assessed “extremely below value” before a newer Oklahoma Tax Commission system was implemented. Using the 2017 inspection inputs, she testified the mobile home would have been assessed at $21,086 under the new system.

    The panel accepted that the district court could credit this testimony and treat the assessor’s “fair cash value” as a workable proxy for fair market value. This aligns with the MVRA’s pragmatic approach endorsed by United States v. Wilfong (reasonable estimate) and United States v. Parker (inexact science).
  4. Rejection of defendant’s “only depreciation” theory.
    Hemingway’s central premise—that the home’s value could only diminish over time without improvements—was undermined by the court’s recognition that market value fluctuates with market conditions (supported by United States v. Petty Motor Co.). The MVRA itself anticipates value changes by requiring the greater of the loss-date and sentencing-date values.
  5. Disposition of ancillary challenges.
    • Land value: The panel found the record refuted the claim; Cahill repeatedly clarified $21,086 represented the mobile home only, not the land.
    • Speculation about tax motives and inflation: The court treated this as speculative and not a showing of evidentiary inadmissibility or clear error of judgment; it did not demonstrate the district court’s reliance was “arbitrary” or “manifestly unreasonable” under Landers.
    • Oklahoma 3% cap: The argument was deemed inadequately developed and therefore waived under United States v. De Vaughn. Even as described, the cap pertains to state ad valorem taxation constraints rather than directly to federal restitution.

C. Impact

Although labeled an “Order and Judgment” and “not binding precedent,” United States v. Hemingway is likely to be cited for persuasive value on recurring MVRA valuation disputes, especially where:

  • Tax-assessor valuations are offered as loss evidence. The decision supports using assessor-derived values— even if produced for tax purposes—when accompanied by testimony explaining methodology and reliability.
  • Older tax-roll values appear artificially low. The court’s acceptance of testimony that prior assessments were “extremely below value” signals that defendants cannot assume a tax-roll number is a ceiling on MVRA “actual loss.”
  • Market shifts (including material-cost inflation) affect “value.” The opinion reinforces that MVRA restitution may reflect market-linked valuation changes up to sentencing, consistent with § 3663A(b)(1)(B)’s “greater of” rule.
  • Appellate posture matters. The case underscores the deference owed under abuse-of-discretion review and the risk of waiver for underdeveloped legal theories.

Practically, the decision encourages litigants to present competent valuation foundations (assessor methodology, appraisal standards, comparable sales, condition evidence) rather than relying on conclusory attacks (e.g., generalized claims of inflation-driven “bloat”).

IV. Complex Concepts Simplified

  • MVRA (Mandatory Victims Restitution Act): A federal statute that requires restitution for certain crimes, including property crimes. When property cannot be returned, the defendant must pay its value (subject to statutory timing rules).
  • “Value” under § 3663A(b)(1)(B): The MVRA does not define “value,” so courts choose an appropriate measure (often fair market value, sometimes replacement cost), so long as restitution does not exceed actual loss.
  • Fair market value vs. replacement cost:
    • Fair market value is what a willing buyer would pay a willing seller under ordinary conditions.
    • Replacement cost is what it would cost to buy/build a similar item new (often higher).
    Hemingway approved fair market value as an appropriate measure and treated the assessor’s “fair cash value” as evidence of it.
  • Preponderance of the evidence: The government must show the loss amount is more likely than not correct.
  • Abuse of discretion: A deferential appellate standard. Even if another judge might have picked a different number, reversal requires showing the trial judge’s decision was outside permissible choices or rested on a clear error of judgment.
  • Waiver for inadequate briefing: If an appellant mentions an argument but fails to develop it with meaningful legal explanation and record support, an appellate court may treat it as waived.

V. Conclusion

United States v. Hemingway affirms that, for MVRA restitution in a destroyed-property case, a district court may (1) select fair market value as the valuation measure and (2) rely on an updated county assessor valuation—here, “fair cash value” generated by a newer assessment system—as a reasonable estimate of that market value, so long as the award does not exceed actual loss and is supported by record evidence.

The decision’s broader significance lies less in a novel doctrinal test and more in its practical guidance: valuation disputes under the MVRA are resolved through evidentiary reliability and deference to trial-court judgment, not by assuming tax-roll numbers are dispositive or by offering speculative critiques untethered to the record.