United States v. Elliott: Enforcing Preservation of Restitution Objections and Limits of Plain-Error Review

Introduction

United States v. Elliott, decided April 8, 2025, by the Tenth Circuit Court of Appeals, addresses the procedural requirements for challenging a restitution order under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A. Lance Wade Elliott appealed a district court’s order requiring him to pay restitution to a bystander who suffered emotional distress but no physical injury. The appeal raised two issues: (1) whether the MVRA permits restitution awards for non‐physical injuries, and (2) whether the $1,600 restitution award was supported by sufficient evidence. Elliott did not object at sentencing and initially failed to invoke plain-error review properly. The Tenth Circuit affirmed the restitution order, outlining strict preservation requirements and declining to exercise its discretion to consider forfeited arguments.

Summary of the Judgment

The panel unanimously held that Elliott waived both challenges by failing to preserve them at sentencing and by not properly invoking plain‐error review in his opening brief. Under the Circuit’s precedents, an appellant who does not raise an objection in the district court must demonstrate plain error on appeal. Elliott mentioned plain error only in his reply, too late to satisfy the adversarial process. The court declined to notice any error sua sponte because the legal question—whether “bodily injury” under the MVRA includes pure emotional harm—was not so clearly settled as to constitute plain error. The restitution order was therefore affirmed.

Analysis

Precedents Cited

United States v. Mendenhall, 945 F.3d 1264 (10th Cir. 2019): Establishes that unpreserved restitution objections are reviewed for plain error.
United States v. James, 564 F.3d 1244 (10th Cir. 2009): Confirms standard for restitution review when objections are not preserved.
United States v. Mann, 786 F.3d 1244 (10th Cir. 2015): Defines the four‐part plain-error test.
United States v. Isabella, 918 F.3d 816 (10th Cir. 2019): Explains that failure to argue plain error on appeal waives the argument.
United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019): Limits raising new issues in reply briefs and underscores preservation obligations under Fed. R. App. P. 28.
United States v. Pickel, 863 F.3d 1240 (10th Cir. 2017): Reiterates that arguments first raised in reply briefs are forfeited.
United States v. Taylor, 514 F.3d 1092 (10th Cir. 2008): Requires that plain error must be “contrary to well-settled law.”
Unpublished and persuasive authority: Dotson, 242 F.3d 391 (10th Cir. 2000) (Table) and Breshers, 684 F.3d 699 (7th Cir. 2012), which find no clear statutory prohibition on non-physical injuries under § 3663A.

Legal Reasoning

The Court first confirmed that objections to restitution must be made in the district court to preserve review, pointing to Federal Rule of Criminal Procedure 51(b) and local rules. Absent such an objection, plain-error review applies. Elliott’s opening brief failed to assert any preservation effort and did not analyze plain error under the four‐part test (error, plainness, substantial rights, effect on judicial proceedings). His belated reliance on plain error in a reply brief was insufficient under the adversarial framework; the government had no opportunity to respond. The panel declined to exercise the limited discretion to notice plain error because the scope of “bodily injury” in § 3663A remains unsettled and subject to competing interpretations in circuit courts.

Impact

This decision reinforces strict adherence to preservation rules in criminal appeals, particularly involving restitution. Practitioners must lodge timely, specific objections to orders under the MVRA and develop plain-error arguments fully in opening briefs. The ruling underscores the judiciary’s reluctance to expand restitution rights for non-physical injuries absent clear statutory or binding precedent. Future appellate litigants will confront a high bar to secure review of forfeited restitution challenges.

Complex Concepts Simplified

Preservation vs. Forfeiture: An issue is preserved if raised at trial or sentencing; if not, it is forfeited, triggering plain-error review.
Plain-Error Review: A four-pronged test requiring (1) an error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting judicial integrity.
Mandatory Victims Restitution Act (MVRA): Federal law mandating restitution for victims of specified crimes, traditionally limited to those with “bodily injury,” though the exact scope is disputed.
Adversarial Process Constraint: Appellate courts will not entertain new issues raised for the first time in a reply brief, ensuring fairness by allowing both sides to fully brief each argument.

Conclusion

United States v. Elliott crystallizes the Tenth Circuit’s insistence on prompt preservation of restitution objections and the narrow application of plain-error review. It confirms that appellate courts are not a safety net for arguments unraised below or for claims of clear error that lack support in binding precedent. The decision carries significant implications for defense counsel and district courts in structuring and contesting restitution orders under the MVRA.