In Southern Union Co. v. United States, 567 U.S. 343, 360 (2012), the Court held "that the rule of Apprendi applies to the imposition of criminal fines." That holding was based largely on how criminal fines were treated historically, under common law. See id. at 353-56. Despite the fact that the historical records with respect to requiring jury findings to support criminal fines and criminal restitution are the same, and that restitution is part of a criminal sentence, the circuit courts have all declined to apply the rule of Apprendi (and Southern Union) to criminal restitution. The first question presented is: should the rule of Apprendi apply to the imposition of criminal restitution?

The lower courts have taken different approaches in applying the double-counting rule set forth in the commentary to U.S.S.G. § 2B1.6, which governs aggravated identity theft convictions under 18 U.S.C. § 1028A. The second question presented is: when does the commentary to § 2B1.6 apply so as to prohibit application of both an increase under the Sentencing Guidelines and a two-year consecutive sentence under § 1028A.

Should the rule of Apprendi apply to the imposition of criminal restitution?