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States v. Kearney, 672 f.3d 81, 96 n.12 (1st Cir. Under the guidelines, “loss is the greater of

2012), cert. dismissed, 133 S. Ct. 1521, 185 actual loss or intended loss.” U.S.S.g. §3B1.1,
L. ed. 2d 570 (U.S. 2013) (internal quotation cmt. (n.2) (2002). in particular, federal courts
marks and citations omitted).
have interpreted “actual loss” to incorporate
moreover, the concept of mitigation is pred- a “causation standard that, at a minimum,
icated on principles of proximate causation, requires factual causation (often called ‘but
which are applicable in both criminal and tort for’ causation) and provides a rule for legal
law. “A plaintiff who fails to take reasonable causation (i.e., guidance to courts regarding
steps to avoid the alleged loss ‘has broken how to draw the line as to what losses should
the chain of causation, and loss resulting to be included and excluded from the loss deter-

him thereafter is suffered through his own mination).” United States v. Olis, 429 f.3d 540,
act[; i]t is not damage that has been caused 545 (5th Cir. 2005) (internal quotation marks
by the wrongful act of the [defendant].’” Na’l and citations omitted); see also United States v.
Commc’ns Ass’n v. Am. Tel. & Tel., 93 Civ. 3707 Molina, 106 f.3d 1118, 1124 (2d Cir. 1997) (hold-
(LAp), 2001 wL 99856, at *6 (S.D.N.Y. feb. 5, ing that causation is established for purposes
2001) (quoting McClelland v. Climax Hosiery of U.S.S.g. §1B1.3(a)(3) when the defendant
Mills, 252 N.Y. 347, 359, 169 N.e. 605, 609-10 “put into motion a chain of events that con-
(1930) (concurring opinion of Judge Cardozo)). tained an inevitable tragic result” of the rele-
“put another way, if a plaintiff could reasonably vant harm) (internal quotation marks omitted).

have avoided the consequences, the defen- Because courts must examine whether
dant’s wrongdoing is not the proximate cause losses were “caused” by a defendant’s criminal
of their occurrence.” Slotkin v. Citizens Cas. conduct for both restitution and sentencing
of New York, 614 f.2d 301, 320 (2d Cir. 1979).
purposes, there is a legal basis for defending
The idea of mitigation may therefore be against a loss determination in either context
relevant in the sentencing and restitution con- based on a victim’s failure to mitigate losses.
texts because of its relationship to and theo- for example, if a victim unreasonably delays
retical foundation in principles of proximate in selling collateral or undertakes affirmative

causation. Although the calculation of a “loss actions or omissions, either of which deval-
amount” for guidelines purposes and “victims’ ue the collateral, the additional loss to the
losses” for restitution purposes are not identi- collateral’s value as a result of the victim’s
cal, they are “‘closely related’ inquiries.” United independent conduct can be said to break
States v. Niebuhr, 456 f. App’x 36, 38 (2d Cir. the chain of causation between the defen-
2012). in particular, the determination of loss dant’s criminal conduct and the victim’s
for both restitution and sentencing purposes losses. Consequently, the defendant cannot
requires a finding of causation.
be regarded as the “proximate cause” of that
federal courts require that restitution portion of the loss and therefore should not

under the mvrA be awarded for only those be made to bear that loss for either restitu-
losses for which the defendant’s conduct was tion or sentencing purposes. The causation
an actual and proximate cause. See, e.g., Unit- requirements underlying both restitution and
ed States v. Marino, 654 f.3d 310, 316 (2d Cir. sentencing suggest that a victim’s independent
2011); United States v. Swor, 728 f.3d 971, 974 decisions and conduct should neither drive
(9th Cir. 2013). This is so because the mvrA up a defendant’s sentence nor increase the
defines “victim” as any “person directly and amount of restitution ordered. in other words,
proximately harmed as a result of the com- in such situations the victim’s independent
mission of an offense.” 18 U.S.C. §3663A(a)(2).
conduct may extend the multiple links in the

The Second Circuit has further explained causal chain between the defendant’s conduct
that “the mvrA’s proximate causation require- and the victim’s losses too far as to become
ment promotes efficiency in the sentencing unreasonable. Clearly, Sotomayor and gins-
process by ‘limit[ing] a person’s responsibility burg envisioned this exact scenario in Robers.
for the consequences of that person’s own Although, as explained above, there is a
acts[,] ... reflect[ing] ideas of what justice legal basis to assert a mitigation defense, sev-
demands, or of what is administratively pos- eral circuits have rejected attempts to do so,
sible and convenient.’” Marino, 654 f.3d at 320 instead, holding that a “crime victim is not

(quoting United States v. Reifler, 446 f.3d 65, required to mitigate damages.” United States v.
135 (2d Cir. 2006)) (emphasis in the original). Brock-Davis, 504 f.3d 991, 1001 (9th Cir. 2007);
federal courts also recognize that although United States v. Miller, 962 f.2d 739, 744 (7th
“[t]here may be multiple links in the causal Cir. 1992) (“A victim’s failure to mitigate or
chain between the defendant’s offensive the negligence of intervening actors does not
conduct and the victim’s specific losses, the prevent attributing to the defendants the full
chain may not extend so far ... as to become of amount of loss.”); United States v. Lutz, 154
unreasonable” Swor, 728 f.3d at 974 (internal f.3d 581, 590 (6th Cir. 1998) (same). These
quotation marks and citation omitted).cases conceptualize victim conduct as an addi-
1
Similarly, federal courts have applied a tional or intervening cause of loss along with
causation analysis to a determination of loss the defendant’s criminal offense as opposed
under the guidelines for sentencing purposes. to a complete break in the causal chain of
See, e.g., United States v. Rothwell, 387 f.3d the loss. Thus, these courts have found that
579, 583 (6th Cir. 2004) (“This court has also the existence of multiple causes counsels in
recognized that the Sentencing guidelines favor of awarding a discretionary downward
import the legal concept of a causal relation- departure under the guidelines rather than a
ship between the defendant’s conduct and the reduction in the loss calculation. See United
States v. Morris, 80 f.3d 1151, 1171-72 (7th Cir.
determined loss.”); United States v. Hicks, 217
f.3d 1038, 1048 (9th Cir. 2000) (“Like the other 1996) (finding that the “existence of other pos-
courts to consider this provision, we believe sible causes of the loss could be accounted for
that the term ‘resulted from’ establishes a only by way of a downward departure”); United
causation requirement.”); United States v. Mar- States v. Olis, 429 f.3d 540, 545-46 (5th Cir. 2005)
latt, 24 f.3d 1005, 1007 (7th Cir. 1994) (same).
(“if causes beyond the defen- » Page S11
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