MVRA Restitution Requires Bodily Injury: Purely Psychological Harm Cannot Support Lost-Income or Mental-Anguish Restitution

I. Introduction

In United States v. Kirkwood (5th Cir. July 17, 2026), the Fifth Circuit confronted a recurring restitution question under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A: when a robbery victim suffers serious psychological aftereffects but no physical harm, may the court order restitution for (i) mental anguish itself or (ii) lost income attributable to the trauma?

The defendant, James Anthony Kirkwood, robbed a Dollar Tree cashier, A.C., by claiming to have a gun. A.C. reported insomnia, nightmares, and fear of returning to cashier work; she quit the same day and later worked fewer hours in a different job, claiming diminished earnings. At sentencing, the district court ordered restitution to A.C. and candidly stated it would “make some new law,” awarding $8,000 either as lost wages or, alternatively, for mental anguish.

On appeal, two threshold issues shaped the case: (1) whether Kirkwood’s appeal waiver barred review; and (2) what standard of review applied, particularly where the district court raised the “mental anguish” question sua sponte.

II. Summary of the Opinion

The Fifth Circuit vacated the restitution award to A.C. It held:

  • Mental anguish is not an authorized restitution category under the MVRA on these facts; the statute provides no textual basis to award restitution for mental anguish standing alone.
  • Lost income restitution under 18 U.S.C. § 3663A(b)(2)(C) is available only “in the case of an offense resulting in bodily injury,” and “bodily injury” unambiguously excludes purely psychological harm without accompanying physical injury.
  • The lost-income award therefore constituted plain error (even though the issue was one of first impression in the circuit), affected substantial rights, and warranted correction.

Judge Haynes dissented, agreeing plain-error review applied but disputing that any error was “plain,” relying in part on United States v. Breshers.

III. Analysis

A. Precedents Cited

1. Appeal waivers and restitution “statutory maximum” challenges

The Government invoked the appeal waiver and relied on Hunter v. United States, 146 S. Ct. 1702, 1713-14 (2026), to argue the waiver foreclosed review. The panel rejected that framing by applying Fifth Circuit waiver doctrine specific to restitution:

  • United States v. Kim, 988 F.3d 803, 811 (5th Cir. 2021): an appeal waiver does not bar a claim that the sentence—“including the amount of a restitution order”—exceeds the statutory maximum.
  • United States v. Koutsostamatis, 956 F.3d 301, 303 (5th Cir. 2020): “A federal court cannot order restitution without statutory authorization.”
  • United States v. Lucas, 134 F.4th 810, 817 (5th Cir. 2025): notwithstanding an appeal waiver, a defendant may challenge whether the district court had authority to impose restitution in the first place; but courts must “carefully consider[] the relevant statute” to ensure the challenge fits the exception. (Id. at 815.)

Together, these cases supplied the controlling architecture: if the MVRA does not authorize restitution here, the award effectively exceeds the statutory maximum, and the appeal waiver cannot preclude review.

2. Standard of review when the district court raises and resolves an issue sua sponte

A key doctrinal contribution of United States v. Kirkwood is its treatment of preservation and standard of review where the district court itself injects and resolves a legal question. The opinion situated the issue within:

  • Esteras v. United States, 145 S. Ct. 2031, 2045 (2025): absent objection, appeals are generally governed by plain-error review when the district court is not made aware of a potential error.
  • United States v. Santiago, 96 F.4th 834, 842 (5th Cir. 2024): preservation requirements exist to alert the district court and allow correction.

But the panel adopted reasoning consistent with other circuits where the district court had already been “adequately alerted” because it raised the issue itself:

  • United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th Cir. 2003): when the district court sua sponte raises and explicitly resolves a legal issue on the merits, the appellant may challenge it on appeal even if not raised below.
  • United States v. Garcia, 936 F.3d 1128, 1132 (10th Cir. 2019): appellate review is appropriate when the district court had an opportunity to consider and responded to the issue.
  • Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 707 (D.C. Cir. 2009): the ordinary rule against entertaining arguments not made below does not apply where the district court addressed the merits.
  • Comcast, LLC v. Sacramento Metro. Cable Television Comm'n, 923 F.3d 1163, 1168-69 (9th Cir. 2019): an issue raised and addressed sua sponte is sufficiently raised for ruling; particularly apt when purely legal and not record-dependent.
  • United States v. Johnson, 93 F.4th 383, 387 (7th Cir. 2024): cited for the general context of reviewing legal issues.
  • United States v. Gardner, 826 F. App'x 218, 222 (3d Cir. 2020): quoting Hernandez-Rodriguez, allowing a party to challenge a sentencing ruling despite not having objected specifically.
  • United States v. Amaya, 576 F. App'x 416, 418-19 (5th Cir. 2014): Fifth Circuit application where an issue was effectively preserved because the district court engaged the substance and had opportunity to correct itself.

Applying these principles, the panel held de novo review applied to whether the MVRA authorized restitution for mental anguish because the district court sua sponte asked if mental anguish could be included and decided affirmatively. By contrast, the lost-income authority issue—never squarely presented as a statutory-authority objection—was reviewed for plain error.

3. MVRA interpretation and the statute’s limited restitution categories

The panel grounded its MVRA analysis in a text-first approach consistent with:

  • Lagos v. United States, 584 U.S. 577, 580 (2018): the MVRA enumerates specific restitution categories (property return/value; medical expenses and lost income for bodily injury; funeral expenses for death; and certain investigation/prosecution participation costs).

For interpretive method and ordinary meaning, the panel relied on:

  • United States v. Kaluza, 780 F.3d 647, 658 (5th Cir. 2015): start with statutory text.
  • Wisconsin Cent. Ltd v. United States, 585 U.S. 274, 277 (2018) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)): interpret words consistent with ordinary meaning at enactment.
  • Yates v. United States, 574 U.S. 528, 537 (2015): dictionary definitions inform ordinary meaning.

Those principles led to the holding that “bodily injury” in § 3663A(b)(2) is limited to injury to the physical body, supported by contemporaneous dictionary sources (cited in the opinion), including Black’s Law Dictionary and Merriam-Webster.

4. Rejecting “bodily injury includes mental trauma” and using broader legal context

To rebut the Government’s “brain is part of the body” argument, the panel drew on broader federal statutory context and doctrinal analogies:

  • 42 U.S.C. § 1997e(e) (Prisoner Litigation Reform Act): distinguishes “mental or emotional injury” from “physical injury,” reinforcing that federal law often treats them separately.
  • Travelers Indem. Co. of R.I. v. Holloway, 17 F.3d 113, 115 (5th Cir. 1994): in insurance context, “bodily injury” unambiguously excludes solely psychological injury (under the policy and facts at issue).
  • Evanston Ins. Co. v. Legacy of Life, Inc., 487 F. App'x 163, 164 (5th Cir. 2012): Texas Supreme Court guidance that bodily injury does not include mental anguish unrelated to physical damage or disease of the body.
  • Metro-N. Commuter R.R. Co. v. Buckley, 521 U.S. 424, 429-30 (1997): common-law tort limits recovery for negligent emotional distress absent accompanying physical injury.

The panel also rejected the Government’s reliance on a separate statute’s definition:

  • 18 U.S.C. § 1365(h)(4): defines “bodily injury” to include “impairment of the function of a bodily member, organ, or mental faculty,” but the panel found it inapposite given the consumer-product-tampering context and the statute’s physical-interaction premise.
  • United States v. Castleman, 572 U.S. 157, 169-70 (2014): interpreting “bodily injury” language (in a different context), the Court emphasized that causing bodily injury entails force in the common-law battery sense, undercutting the idea that purely mental harm is “bodily injury” as ordinarily understood.

5. Plain-error framework and the “first impression but unambiguous statute” principle

For plain-error review, the panel applied:

  • United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005): three-part plain-error test (error; plain; affects substantial rights).
  • United States v. Olano, 507 U.S. 725, 731-32 (1993): discretionary correction when error seriously affects fairness, integrity, or public reputation of judicial proceedings.

Critically, it invoked:

  • United States v. Silva-De Hoyos, 702 F.3d 843, 849 (5th Cir. 2012): even on an issue of first impression, an unambiguous statute can make the error “plain.”

And it found substantial-rights prejudice with:

  • United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007): where restitution was unauthorized, the outcome would have been different.

For the discretionary fourth prong, the panel relied on:

  • United States v. Dubois, 164 F.4th 418, 424 (5th Cir. 2026) (quoting Rosales-Mireles v. United States, 585 U.S. 129, 134 (2018)): judicial, guideline- or sentence-like errors often warrant correction due to their effect on the public reputation of proceedings.

6. Out-of-circuit MVRA restitution authority for psychological harm

The panel emphasized that other circuits largely align with its reading that MVRA psychological-care expenses are recoverable only when a bodily injury exists:

  • United States v. Maynard, 743 F.3d 374, 380 (2d Cir. 2014)
  • United States v. Reichow, 416 F.3d 802, 806 (8th Cir. 2005)
  • United States v. Husky, 924 F.2d 223, 226 (11th Cir. 1991)
  • United States v. Hicks, 997 F.2d 594, 601 (9th Cir. 1993)
  • United States v. Manna, 201 F. App'x 146, 148 (4th Cir. 2006)

The dissent, however, found the Seventh Circuit’s decision in United States v. Breshers, 684 F.3d 699, 702-03 (7th Cir. 2012), particularly important on the “plainness” question. The majority declined to follow Breshers, concluding the MVRA text is not ambiguous and that later developments (including Castleman) diminished any persuasive force.

7. Distinguishing Fifth Circuit precedent cited by the Government

The Government pointed to United States v. Sepulveda, 64 F.4th 700, 713 (5th Cir. 2023), but the panel treated it as non-dispositive because no one in Sepulveda raised or litigated the precise statutory-authority question—whether MVRA lost-income restitution is available absent bodily injury—so the case could not establish or clarify the rule.

B. Legal Reasoning

1. The MVRA’s structure is exclusive, not illustrative

The opinion’s core interpretive move is structural: the MVRA enumerates specific categories of restitution and thereby withholds authority to award other forms absent a textual hook. Relying on Lagos v. United States and the maxim that courts lack inherent restitution power (United States v. Koutsostamatis), the panel treated the statute as a constrained remedial scheme.

2. Mental anguish has no textual “home” under § 3663A(b)

Under de novo review, the panel held the district court lacked authority to award restitution for “mental anguish” as a standalone compensable loss. The court walked through § 3663A(b)’s buckets—property restitution (§ 3663A(b)(1)), bodily injury-related restitution (§ 3663A(b)(2)), death (§ 3663A(b)(3)), and investigation/prosecution participation costs (§ 3663A(b)(4))—and found none that encompassed an $8,000 award for psychological suffering itself.

This portion of the holding is important because it rejects a common sentencing instinct: that restitution can be used to approximate tort-like damages for non-pecuniary suffering. The panel’s message is categorical: under the MVRA, that instinct must yield to statutory limits.

3. “Bodily injury” is a threshold condition for lost income and psychological care reimbursement

For lost income, the panel treated “in the case of an offense resulting in bodily injury” as a gatekeeper to the entire § 3663A(b)(2) package. Only if the offense results in bodily injury may a court order: (A) medical and related services including psychiatric/psychological care; (B) therapy/rehabilitation; and (C) reimbursement for lost income.

The Government tried to leverage subsection (A)’s inclusion of “psychiatric, and psychological care” to broaden “bodily injury” to include mental trauma. The panel rejected that inversion: the care categories do not define the threshold; they are available only after the threshold is satisfied.

4. Plain error: first impression does not shield a clear statutory violation

A notable doctrinal move is the panel’s finding of “plainness” despite concededly no on-point Fifth Circuit case. Relying on United States v. Silva-De Hoyos, it held that the statute’s unambiguous text can itself make an error plain. The dissent disagreed, treating the absence of Fifth Circuit precedent and the existence of United States v. Breshers as enough to defeat plainness.

5. Discretionary correction: judicially created restitution beyond statutory limits harms legitimacy

The panel emphasized the district court’s frank statement that it would “make some new law,” and it invoked United States v. Dubois and Rosales-Mireles v. United States to justify exercising discretion: unauthorized restitution orders are “judicial” errors that directly undermine the public reputation of sentencing.

C. Impact

1. A Fifth Circuit rule on MVRA restitution for psychological-only harm

The decision establishes (or at minimum strongly cements) two practical rules in the Fifth Circuit:

  • MVRA restitution cannot be awarded for mental anguish as such absent a statutory basis.
  • MVRA restitution for lost income under § 3663A(b)(2)(C) requires an “offense resulting in bodily injury,” which does not include solely psychological injury.

For victims of robberies, threats, stalking, and similar crimes where the harm is real but non-physical, the opinion sharply limits MVRA restitution unless there is bodily injury (or unless another restitution statute applies in a particular case).

2. Sentencing practice: restitution remains statutory, not equitable

District courts in the Fifth Circuit are on notice that restitution is not a free-form, victim-compensation device. Even well-motivated awards designed to compensate trauma-related economic changes (such as reduced work hours) must fit the MVRA’s text.

3. Preservation and review: de novo review when the court raises and decides the legal question

Beyond restitution, the opinion’s discussion of preservation signals a broader procedural lesson: where a district court sua sponte raises and resolves a purely legal question on the merits, appellate courts may treat it as preserved and review the legal issue de novo, because the core purpose of objection rules—alerting the district court—has already been satisfied.

4. Legislative implication explicitly flagged by the court

The panel closed by noting that restitution for victims like A.C. may be desirable as policy, but “the statute would need to be revised to allow it.” That is an invitation—explicitly rooted in separation-of-powers—to Congress rather than courts to expand restitution for psychological harms.

IV. Complex Concepts Simplified

  • MVRA (Mandatory Victims Restitution Act): A federal statute that requires restitution in certain cases, but only for the specific kinds of losses Congress listed.
  • Restitution vs. damages: Restitution in federal criminal cases is not the same as civil “pain and suffering” damages. Courts can order only what the statute authorizes.
  • “Bodily injury” as a threshold: Under § 3663A(b)(2), the victim must have suffered bodily injury before the court can order medical/therapy costs or lost income under that subsection.
  • Plain error review: If a party did not properly raise an issue, an appellate court corrects it only if the error is clear (“plain”), affected the outcome, and correction is needed to preserve fairness and legitimacy.
  • Appeal waiver exception (“statutory maximum”): Even if a defendant waived appeal rights, courts will still hear challenges arguing the restitution exceeded what the statute permits—because courts cannot impose unauthorized restitution.

V. Conclusion

United States v. Kirkwood reaffirms a strict, text-bound approach to restitution under the MVRA: federal courts may not award restitution for mental anguish itself, and they may not award lost-income restitution under § 3663A(b)(2)(C) without an offense “resulting in bodily injury,” which the panel held does not include purely psychological harm. The decision also contributes a significant procedural holding: when a district court raises and resolves a purely legal issue sua sponte, the purposes of preservation are satisfied, supporting de novo review of that legal ruling on appeal.

The broader significance is twofold: (1) it draws a bright statutory boundary around MVRA restitution in psychologically traumatic—but non-physically injurious—crimes, and (2) it underscores that expanding victim compensation in criminal sentencing is primarily a task for Congress, not judicial innovation.