United States of America v. Ben McCormack

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 24-2500
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UNITED STATES OF AMERICA
v.
BEN MCCORMACK,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4:16-cr-00173-001)
Chief District Judge: Hon. Matthew W. Brann
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Submitted Under Third Circuit L.A.R. 34.1(a)
on September 16, 2025
Before: BIBAS, MONTGOMERY-REEVES, and AMBRO,
Circuit Judges
(Filed: September 18, 2025)
Frederick W. Ulrich
FEDERAL PUBLIC DEFENDER’S OFFICE

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330 Pine Street
One Executive Plaza, Suite 302
Williamsport, PA 17701
Counsel for Appellant
Patrick J. Bannon
Sean A. Camoni
Jeffery F. St. John
UNITED STATES ATTORNEY’S OFFICE
MIDDLE DISTRICT OF PENNSYLVANIA
235 N Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Carlo D. Marchioli
UNITED STATES ATTORNEY’S OFFICE
MIDDLE DISTRICT OF PENNSYLVANIA
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Counsel for Appellee
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Defendants must pay victims what they owe, but not twice
over. Ben McCormack broke into two gun stores, stole dozens
of guns, and left a mess. At sentencing, the District Court ordered
restitution. Though the victims’ testimony and records were
incomplete, the evidence was sufficient to prove the value of
the guns and property damage. But the court erred by awarding
lost income and double-counting the value of the guns. So we
will vacate that part of the restitution award, affirm the rest,
and remand.
I. MCCORMACK OWES RESTITUTION FOR STEALING GUNS
McCormack had a short career as a gun thief. In 2016, he
and an accomplice forced open the back door of a gun store
and stole twenty-eight guns. A few weeks later, he and a dif-
ferent accomplice hit another gun store and stole forty-one
guns, a digital video recorder (DVR), and a cash register. Fed-
eral agents later identified McCormack and recovered many of
the stolen guns from his house and car.
McCormack pleaded guilty to stealing guns from federal
firearms licensees and conspiracy, in violation of 18 U.S.C.
§§ 922(u) & 371. As part of his plea bargain, he agreed to pay
restitution. The first time around, the District Court’s restitu-
tion order did not account for any insurance payments or guns
returned to the stores. On appeal, this Court sent the case back
so that the District Court could compute the actual amount
owed by subtracting any reimbursements.

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On remand, the District Court held an evidentiary hearing
on restitution. It heard not only from both store owners, but
also from an agent involved in the case who testified about the
Blue Book values of the stolen guns. It also reviewed support-
ing documents. Based on that evidence, the court ordered
McCormack to pay $57,044.96 in restitution.
McCormack raises two objections to the restitution order.
First, he claims that the District Court double-counted the store
owners’ losses, counting both the value of the stolen guns and
the lost sales of those same guns. Second, he claims that the
whole restitution award was speculative and too high. His first
claim prevails, but his second does not.
II. THE RESTITUTION ORDER DOUBLE-COUNTED THE
GUNS’ VALUE AS LOST INCOME
Start with the first objection. McCormack claims, and the
government concedes, that the District Court erred by award-
ing the victims lost income. Whether the Mandatory Victims
Restitution Act requires compensation for lost income is a
question of law, so we review de novo. See United States v.
Himler, 355 F.3d 735, 744 (3d Cir. 2004).
The Act requires restitution for violent, property, and cer-
tain other crimes. 18 U.S.C. § 3663A(c)(1). It seeks to restore
victims to where they stood before the crime. Cf. Hughey v.
United States, 495 U.S. 411, 416 (1990). That can require return-
ing stolen property, paying its value, or paying victims for costs
that they incurred while helping the government investigate or
prosecute the crime. § 3663A(b)(1), (b)(4); Lagos v. United
States, 584 U.S. 577, 580–81 (2018). But it does not let victims
recover consequential damages, or the same loss twice. United

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States v. Simmonds, 235 F.3d 826, 833 (3d Cir. 2000); United
States v. Quillen, 335 F.3d 219, 226 (3d Cir. 2003).
Yet the District Court made both errors. The restitution
award covered two things: first, the full retail value of the sto-
len guns—not just what the stores paid for them, but what they
would have earned by selling them; and second, a week’s
worth of lost income for each store, since the thefts forced them
to shut down for a week. But during the week they had to close,
each store would likely have sold some of the same guns for
which they were already getting reimbursed. Those lost sales
were double counted. And lost sales of other weapons are con-
sequential damages not covered by the MVRA. § 3663A(b)(1);
Simmonds, 235 F.3d at 833.
The government now agrees that the restitution award
should omit the lost-income component. So we will vacate
and remand to let the district court amend the restitution
awards accordingly.
III. THE EVIDENCE SUPPORTED THE REST
OF THE RESTITUTION AWARD
That leaves the second issue: Did the District Court
properly calculate the value of the guns and other damaged
property? We review for abuse of discretion and find none.
Himler, 355 F.3d at 744.
First, McCormack insists that the restitution award is spec-
ulative, built on “maybes” and “possibilities.” Appellant’s Br.
17. It has been nine years since the thefts, and one of the gun
stores has since closed. Many of the stores’ receipts and logs

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are lost; their other documents are imprecise or incomplete.
That uncertainty, he argues, taints the whole restitution award.
But no one doubts that these thefts caused damage. To
break in, McCormack smashed one store’s window and pried
open the other store’s back door. An agent testified that, before
they were returned, the recovered guns “were all thrown together
[in trash bags] where they basically would scratch each other
and bang up against each other.” App. 120.
And the Act requires full restitution for losses.
§ 3663A(a)(1) (“shall order”); United States v. Leahy, 438 F.3d
328, 337 n.11 (3d Cir. 2006). True, restitution awards must reflect
losses that are “actual, [and] provable.” United States v. Fair,
699 F.3d 508, 514 (D.C. Cir. 2012). But when precise figures
are unavailable, courts may rely on “reasonable estimate[s].”
United States v. Fumo, 655 F.3d 288, 310 (3d Cir. 2011) (internal
quotation marks omitted).
So the question is not whether the victims suffered losses,
but how large those losses were. The government had to prove
each victim’s losses by a preponderance of the evidence.
§ 3664(e). And it did. Both store owners testified and were
cross-examined about their losses and property damage. They
got some of their stolen guns back and resold them at a dis-
count. Though their records were incomplete, they still had
some and put them into evidence. And the agent testified about
the recovered guns’ condition and Blue Book value. The Dis-
trict Court found the witnesses credible and the numbers rea-
sonable. So the court’s computation, founded on evidence ra-
ther than speculation, was well within its discretion.

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McCormack also objects that the District Court never
explained its reasoning. But it did. After a full evidentiary
hearing, it spent several pages of transcript discussing the costs
and deductions before approving the government’s proposed
figures for each type of loss.
Last, McCormack argues that the District Court improperly
awarded emotional or consequential damages. But the court
did not do so. It just acknowledged the emotional toll and busi-
ness hardships that the store owners suffered. It never relied on
those harms in computing its figures and entering judgment.
* * * * *
As the government concedes, the District Court should not
have compensated the gun store owners for their lost income.
So we will vacate the lost-income component of the restitution
award and remand. But because the government proved the lost
value of the guns and property damage, we will affirm the rest
of it.

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