Strict Enforcement of Waiver and Plain-Error in Restitution under 18 U.S.C. § 1365

Introduction

United States v. Elliott is an appellate decision from the Court of Appeals for the Tenth Circuit, issued April 8, 2025. The appellant, Lance Wade Elliott, challenged the lawfulness and calculation of restitution ordered under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 1365. Elliott had pleaded guilty to assaultive conduct at a pool party in Oklahoma that resulted in serious injuries to two victims and emotional harm to a third witness, “J.M.” At sentencing, the district court ordered restitution for all three—including $1,600 to J.M. for emotional distress—without any party’s objection. On appeal, Elliott argued (1) that the MVRA limits victims to those who suffer “bodily injury,” and (2) that the $1,600 award lacked evidentiary support. The Tenth Circuit affirmed, concluding that Elliott waived both challenges by failing to preserve them at sentencing or properly invoke plain-error review in his opening brief.

Summary of the Judgment

The Tenth Circuit panel, consisting of Judges Tymkovich, Carson, and Federico, held:

Elliott did not object to restitution at the district court and therefore waived the argument.
Although plain-error review applies to forfeited objections, Elliott failed to brief the plain-error standard or its four elements in his opening brief; raising it only in reply waives the argument.
The court declined to exercise its discretion to excuse waiver because (a) Elliott knew of his forfeiture and (b) the alleged statutory error—that MVRA requires a physical “bodily injury”—is not “so obvious” as to overcome his briefing failures.
The restitution order was affirmed in all respects.

Analysis

Precedents Cited

United States v. Mendenhall, 945 F.3d 1264 (10th Cir. 2019): held that unpreserved restitution objections are reviewed for plain error.
United States v. James, 564 F.3d 1244 (10th Cir. 2009): reaffirmed plain-error as the correct standard when a defendant fails to object below.
United States v. Mann, 786 F.3d 1244 (10th Cir. 2015): outlined the four elements of plain-error review (error, plainness, substantial rights, serious effect on fairness).
United States v. Isabella, 918 F.3d 816 (10th Cir. 2019): held that failing to argue plain error at all waives the issue.
United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019): clarified that arguments raised for the first time in a reply brief are waived, absent compelling circumstances.
United States v. Pickel, 863 F.3d 1240 (10th Cir. 2017): supported refusal to consider new issues in reply briefs.
United States v. Dotson, 242 F.3d 391 (10th Cir. 2000) (table): an unpublished opinion holding that limiting restitution to physical injuries was at best an ambiguity.
United States v. Breshers, 684 F.3d 699 (7th Cir. 2012): held the MVRA’s “bodily injury” does not clearly exclude purely emotional harms.
United States v. Reichow, 416 F.3d 802 (8th Cir. 2005): suggested a narrower reading of “bodily injury,” but is non-binding and insufficiently authoritative to establish plain error.

Legal Reasoning

The court’s reasoning rests on two related doctrines: preservation/waiver and plain-error review.

Preservation Requirement: Under Federal Rule of Criminal Procedure 51 and Tenth Circuit Rule 28.1, a party must object at trial or sentencing to preserve an issue. Elliott made no objection to restitution at sentencing, thereby forfeiting both the lawfulness and amount challenges.
Plain-Error Review: When no objection is made, an appellate court may nonetheless correct an obvious error affecting substantial rights, but only if the defendant urges plain-error review and shows (1) error, (2) plainness, (3) impact on substantial rights, and (4) effect on fairness or integrity. Elliott’s opening brief neither cited the four-part test nor applied it, waiving the standard itself. Invoking it for the first time in his reply was too late.
Discretion to Excuse Forfeiture: Even if the court could overlook the briefing failure, it declined because:
- Elliott was fully aware of his forfeiture and failed deliberately to address the standard.
- The MVRA’s scope regarding non-physical injuries remains unsettled; the court’s unpublished and Seventh Circuit decisions show ambiguity—hardly “obvious error.”

Impact

United States v. Elliott reinforces strict adherence to preservation and briefing rules in criminal appeals, particularly in restitution cases:

Appellants must object in district court and fully brief both the standard and substance of any restitution challenge in their opening brief.
Reliance on reply briefs to raise or develop plain-error arguments is highly risky and generally disallowed.
The decision leaves open the unsettled question of whether emotional or purely psychological harms qualify as “bodily injury” under 18 U.S.C. § 1365, to be resolved in future, properly preserved appeals.
Victims seeking restitution for mental or emotional injury should anticipate factual and legal objections regarding their status under the MVRA and prepare the record accordingly.

Complex Concepts Simplified

Waiver vs. Forfeiture: Waiver is an intentional relinquishment of a right; forfeiture is the failure to make the timely assertion of a right. Both can prevent appellate review.
Plain-Error Review: A four-part test allowing review of unpreserved errors only if they are obvious and seriously affect the outcome or the integrity of the proceedings.
Mandatory Victims Restitution Act (MVRA): Federal statute requiring offenders to compensate victims for losses caused by certain crimes. The statute refers to “bodily injury,” but courts differ on whether that includes emotional harm without a physical component.

Conclusion

United States v. Elliott stands as a cautionary precedent on the importance of procedural rigor in criminal appeals. By affirming the restitution order despite questions about its scope, the Tenth Circuit underscores that appellate courts will not entertain forfeited issues absent proper briefing. Defendants must both register timely objections at sentencing and satisfy the rigorous requirements of plain-error review in their opening briefs. Until a court squarely resolves whether the MVRA’s “bodily injury” requirement excludes mental or emotional injuries, practitioners should anticipate and preserve such arguments at the earliest opportunity.