United States of America, Plaintiff-appellant, v. R. Redding Construction Co., Inc., Defendant-appellee, 967 F.2d 595 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 967 F.2d 595 (9th Cir. 1992)

June 9, 1992. As Amended July 30, 1992


Before EUGENE A. WRIGHT, CANBY and WIGGINS, Circuit Judges.


MEMORANDUM** 

At sentencing, the district court did not have the benefit of our opinion in United States v. Blue Mountain Bottling Co. of Walla Walla, 929 F.2d 526 (9th Cir. 1991). In light of that decision, we must vacate the sentence and remand for resentencing. We find that both the $25,000 restitution and $75,000 community service requirements were invalid.

To allow such an order would stretch the concept of an offense's "victim" beyond the bounds of Blue Mountain. The record lacks evidence that any minority business suffered as a resutl of Redding's deception. But even assuming some did, the designed recipients here encompass far more than just minority businesses.

We are unwilling to assume that harm to any specific minority business necessarily implies harm to the minority community as a whole. Nor may we assume that payments to specified charitable organizations will necessarily benefit the entire minority community, even if we were willing to consider the entire community the "victim".

We realize the difficulty today's ruling presents for courts faced with the difficult task of sentencing corporate defendants, but we are constrained by the statutory directive that restitution be paid only to the "victim of the offense". 18 U.S.C. § 3563(3).

On remand, the court may alter the fine and may retain a community service requirement, but it may not define it in terms of a monetary contribution to the community.

VACATED AND REMANDED FOR RESENTENCING.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3