United States of America v. Holsey Ellingburg, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 23-3129
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United States of America
Plaintiff - Appellee
v.
Holsey Ellingburg, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 9, 2024
Filed: August 23, 2024
[Published]
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Before GRUENDER, MELLOY, and KELLY, Circuit Judges.
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PER CURIAM.
In December 1995, Holsey Ellingburg, Jr. robbed a bank. Mr. Ellingburg was
indicted in April 1996, and in August of that same year, he was convicted. Mr.
Ellingburg was sentenced to time in prison and ordered to pay more than $7,500 in
restitution.

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Mr. Ellingburg was released from prison in June 2022. At that time, Mr.
Ellingburg had paid a little more than one quarter of his original restitution order. In
2023, Mr. Ellingburg filed a motion to show cause in district court,1 challenging the
continued enforcement of his restitution order, which, with interest, had grown to
five figures. Mr. Ellingburg argued that the statutory period of time for paying his
restitution (“restitution liability term”) under the Victim and Witness Protection Act
(“VWPA”) had expired in 2016. 18 U.S.C. § 3613(b)(1) (1995). Furthermore, he
argued that retroactively applying an expanded restitution liability term under the
Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3613(b), violated the
U.S. Constitution’s Ex Post Facto Clause, U.S. Const. art. I, § 9, cl.3. The district
court held that retroactively applying the MVRA to his restitution order did not
violate the Ex Post Facto Clause, and Mr. Ellingburg now appeals. We affirm.
In April 1996, Congress passed the MVRA, superseding the VWPA in
relevant part. Pub. L. No. 104-132, tit. II, §§ 201–11, 110 Stat. 1214, 1227–41
(1996). One significant difference between the two statutes, relevant to this appeal,
is that the MVRA changed the restitution liability term. Under the VWPA, the term
was 20 years from entry of judgment. Under the MVRA, the term became “the later
of 20 years from entry of judgment or 20 years after the release from imprisonment
of the person fined.” 18 U.S.C. § 3613(b). Additionally, the MVRA made interest
on restitution orders mandatory. Id. § 3612(f)(1). Mr. Ellingburg’s offense conduct
occurred while the VWPA was still in force, and he was convicted and sentenced
after the MVRA became law.
The parties do not dispute that the MVRA has been applied to Mr.
Ellingburg’s sentence retroactively. Rather, the parties dispute whether application
of the MVRA to Mr. Ellingburg’s sentence violates the Ex Post Facto Clause. “We
review questions involving the constitutionality of a federal statute de novo.” United
States v. Crawford, 115 F.3d 1397, 1400 (8th Cir. 1997).
1 The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

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Mr. Ellingburg argues that application of the MVRA violates the Ex Post
Facto Clause because it enlarges his restitution liability term, increasing his
punishment. “To fall within the ex post facto prohibition, a law must be
retrospective—that is ‘it must apply to events occurring before its enactment’—and
it ‘must disadvantage the offender affected by it’ by altering the definition of
criminal conduct or increasing the punishment for the crime.” United States v.
Williams, 128 F.3d 1239, 1241 (8th Cir. 1997) (quoting Lynce v. Mathis, 519 U.S.
433, 441 (1997)). The Ex Post Facto Clause applies only to criminal penalties, and
thus the dispute before us is whether MVRA restitution is a criminal or civil penalty.
Weaver v. Graham, 450 U.S. 24, 29 (1981).
The Eighth Circuit’s view on this issue appears to have changed over time. In
Williams, we stated that “an order of restitution under the MVRA is punishment for
Ex Post Facto Clause purposes.” 128 F.3d at 1241. We explained that “because the
MVRA provides that the district court shall order restitution ‘in addition to . . . any
other penalty authorized by law. . . . ’ 18 U.S.C.A. § 3663A(a)(1)[,] [t]he plain
meaning is that restitution under the MVRA is a penalty.” Id. A year after Williams,
we further noted “that an order of restitution under the [MVRA]” constitutes a
criminal penalty. United States v. Dugan, 150 F.3d 865, 868 (8th Cir. 1998).
Although Williams and Dugan were both persuasive, neither case definitively
held whether restitution under the MVRA amounted to a criminal or civil penalty.
United States v. Carruth, 418 F.3d 900, 903 (8th Cir. 2005) (“Our discussion about
whether restitution is a penalty or punishment for ex post facto purposes was thus
dicta and not necessary to reach the court’s holding.”). In Carruth, we had the
opportunity to decide the issue. Id. at 903–04. There, we held that, because
restitution under the MVRA “is designed to make victims whole, not to punish
perpetrators, . . . it is essentially a civil remedy created by Congress and incorporated
into criminal proceedings for reasons of economy and practicality.” Id. at 904.

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After Carruth, the Supreme Court called our holding into question. First, the
same year we decided Carruth, the Court explained that the reason for MVRA
restitution was “to mete out appropriate criminal punishment for [certain] conduct.”
Pasquantino v. United States, 544 U.S. 349, 365 (2005). Then, in 2014, the Court
went further. Paroline v. United States, 572 U.S. 434 (2014). Although the Court
examined whether restitution was criminal or civil under a different statute, 18
U.S.C. § 2259, it concluded that restitution ordered as part of a criminal sentence
serves “penological purposes.” Paroline, 544 U.S. at 457.
In light of Paroline, at least one circuit, the Tenth, overruled prior precedent
that had found MVRA restitution was a civil penalty. See United States v. Anthony,
25 F.4th 792, 798 n.5 (10th Cir. 2022) (“We have previously held that restitution
statutes such as the MVRA do not inflict criminal punishment and thus are not
punitive. See United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007) . . . .
But we reexamined this conclusion after the Supreme Court explained in Paroline
that restitution ‘serves punitive purposes.’” (citations omitted)).
When the Tenth Circuit changed course, it joined the majority of circuits in
finding that MVRA restitution is a criminal penalty. See United States v. Tull-Abreu,
921 F.3d 294, 305 (1st Cir. 2019); Gonzalez v. United States, 792 F.3d 232, 236, 236
n.18 (2d Cir. 2015); United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006); United
States v. Grant, 715 F.3d 552, 554 (4th Cir. 2013); United States v. Adams, 363 F.3d
363, 365 (5th Cir. 2004); United States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005);
United States v. Lillard, 935 F.3d 827, 835 (9th Cir. 2019); United States v. Siegel,
153 F.3d 1256, 1260 (11th Cir. 1998); but see United States v. LaGrou Distrib. Sys.,
Inc., 466 F.3d 585, 593 (7th Cir. 2006).
The year after Paroline, our court was asked to overrule Carruth. United
States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015). The court addressed
Carruth and declined to overrule it, finding Carruth to remain binding precedent.
Id. (rejecting defendant’s argument that “restitution is a criminal punishment”); see
also United States v. Rodriguez, 915 F.3d 532, 536 (8th Cir. 2019) (“While some

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aspects of mandatory restitution statutes are punitive, the primary purpose of such
statutes is ‘remedial or compensatory.’” (quoting Paroline, 572 U.S. at 456)).
Carruth and Thunderhawk remain the binding precedent in the Eighth Circuit,
and only the en banc court may overturn such precedent. United States v. Flynn, 969
F.3d 873, 882 (8th Cir. 2020). Accordingly, retroactive application of the MVRA to
Mr. Ellingburg’s restitution order does not violate the Ex Post Facto Clause. We
affirm.2
MELLOY, Circuit Judge, with whom KELLY, Circuit Judge, joins, concurring.
In Thunderhawk, we reaffirmed our holding in Carruth that MVRA restitution
“is essentially a civil remedy created by Congress and incorporated into criminal
proceedings for reasons of economy and practicality.” Thunderhawk, 799 F.3d at
1209 (quoting Carruth, 418 F.3d at 904). Though Paroline was issued just months
before, our opinion in Thunderhawk did not address or analyze that case. See
generally id. Because results dictate stare decisis, we are bound by our holding in
Thunderhawk, and I therefore concur. However, if not for Thunderhawk, I would
conclude Paroline overruled Carruth. Paroline, 572 U.S. at 456–57 (explaining that
restitution “is imposed by the Government ‘at the culmination of a criminal
proceeding and requires conviction of an underlying’ crime”; “restitution still
implicates ‘the prosecutorial powers of government,’”; “[t]he primary goal of
restitution is remedial or compensatory . . . but it also serves punitive purposes”;
interpreting restitution as a civil penalty “would undermine the remedial and
penological purposes” of criminal restitution; “there can be no doubt Congress
wanted victims to receive restitution for harms”; mandatory restitution has
penological purposes, “includ[ing] the need to impress upon offenders that their
conduct produces concrete and devastating harms for real, identifiable victims”
2 Mr. Ellingburg also argues that application of the MVRA’s mandatory interest
provision to his sentence violates the Ex Post Facto Clause. Because Thunderhawk
precludes relief from interest on the same grounds as the restitution payments, we
affirm.

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(citations omitted throughout)); see also Hester v. United States, cert. denied, 139 S.
Ct. 509, 511 (2019) (Gorsuch, J., dissenting) (explaining that “restitution is imposed
as part of a defendant’s criminal conviction” and that federal statutes and Supreme
Court cases “describe restitution as a ‘penalty’ imposed on the defendant as part of
his criminal sentence . . . . 18 U.S.C. §§ 3663(a)(1)(A), 3663A(a)(1), 3572(d)(1); see
Paroline v. United States, 572 U.S. 434, 456 (2014); Pasquantino v. United States,
544 U.S. 349, 365 (2005)”).
GRUENDER, Circuit Judge, concurring in the judgment.
I agree that United States v. Carruth, 418 F.3d 900 (8th Cir. 2005), and United
States v. Thunderhawk, 799 F.3d 1203 (8th Cir. 2015), control the outcome of this
case. However, the court also suggests that our precedent conflicts with the Supreme
Court’s decisions in Pasquantino v. United States, 544 U.S. 349 (2005), and
Paroline v. United States, 572 U.S. 434 (2014). I concur in the judgment but write
separately because, in my view, nothing in Pasquantino or Paroline calls our prior
holdings into question.
In Carruth and Thunderhawk, we held that restitution under the Mandatory
Victims Restitution Act (“MVRA”) is “essentially a civil remedy.” Carruth, 418
F.3d at 904; Thunderhawk, 799 F.3d at 1209. In Pasquantino and Paroline, the
Supreme Court noted that restitution serves penological purposes. Pasquantino, 544
U.S. at 365; Paroline, 572 U.S. at 457. Because restitution serves penological
purposes, the court today suggests that MVRA restitution is a criminal penalty, and
not a civil remedy. But restitution can serve penological purposes and still be, as
Carruth and Thunderhawk held, “essentially a civil remedy created by Congress and
incorporated into criminal proceedings for reasons of economy and practicality.”
Carruth, 418 F.3d at 904; Thunderhawk, 799 F.3d at 1209.
Whether restitution is primarily civil or criminal is a matter of statutory
construction and not based solely on “the character of the actual sanctions imposed.”
Hudson v. United States, 522 U.S. 93, 101 (1997). “[T]he mere presence of [a

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penological] purpose [such as deterrence] is insufficient to render a sanction
criminal, as deterrence may serve civil as well as criminal goals.” Id. at 105 (internal
quotation marks omitted); see also Paroline, 572 U.S. at 456 (“The primary goal of
restitution is remedial or compensatory. . . .”). Because the court takes it a step too
far by suggesting that Carruth and Thunderhawk are inconsistent with Supreme
Court precedent, I do not join the court as to that part of the opinion.
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