What is the test for making restitution under the Mandatory Victim Restitution Act?

The Mandatory Victim Restitution Act ("MVRA") requires the court to order "in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense . . . ," 18 U.S.C. 3663A(a)(1), when the offense is one "in which an identifiable victim or victims has suffered a physical injury or pecuniary loss," id. 3663A(c)(1)(B). A "victim" is "a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern." Id. 3663A(a)(2). "[I]n a case involving a conspiracy or scheme, restitution may be ordered for all persons harmed by the entire scheme" and is "not confined to the harm caused by the particular offenses to which [defendant] pleaded guilty" because "[a] conspirator is vicariously liable for reasonably foreseeable substantive crimes committed by a coconspirator in furtherance of the conspiracy." United States v. Riley, 335 F.3d 919, 932 (9th Cir. 2003) (citation omitted). Restitution is, however, limited to harm "closely related to the

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scheme, rather than tangentially linked[,]" id. at 1292 (citation and quotation marks omitted), or harm that is "reasonably foreseeable," United States v. Lotze, 192 F. App'x 598, 600-01 (9th Cir. 2006).

When, as here, a dispute arises as to the proper restitution amount, the court must resolve the dispute by explaining its reasoning, supported by the record. See United States v. Waknine, 543 F.3d 546, 556 (9th Cir. 2008). In resolving any dispute regarding the amount of restitution, the court applies the preponderance of the evidence standard. Id. (citing 18 U.S.C. 3664(e)). The government has the burden to prove who the victims are and how much loss is reasonably recoverable as a result of the offense. 18 U.S.C. 3664(e).