White Collar Criminal Defense Group

Calling it What it Is: Restitution as a “Plainly Criminal” Punishment Under Unanimous SCOTUS opinion in Ellingburg v. United States

The Mandatory Victims Restitution Act (MVRA), enacted in 1996, requires defendants convicted of certain federal crimes to pay monetary restitution to the victims.  Defendants convicted of crimes that occurred prior to the 1996 MVRA have raised constitutional challenges to the imposition of MVRA restitution, arguing that retroactively increasing the penalty for a crime after it has already been committed violates the Ex Post Facto Clause of the Constitution. 

Previously, Federal Circuit Courts of Appeals split in deciding whether MVRA restitution was a criminal punishment subject to the Ex Post Facto clause (Third, Fifth, Sixth, and Eleventh Circuits) or a civil remedy seeking the nonpunitive and equitable goal of compensating crime victims and restoring them to the position they occupied before the crime, and therefore not subject to the Ex Post Facto clause (Seventh and Eighth Circuits).  In its January 20, 2026 unanimous opinion in Ellingburg, the Supreme Court resolved this split by holding that MVRA restitution is “plainly criminal punishment for purposes of the Ex Post Facto Clause,” and reinforcing the constitutional protections against retroactive penal legislation.

Background of the Ellingburg Case

Holsey Ellingburg, Jr. was convicted of a 1995 bank robbery (before the enactment of the MVRA in 1996). However, his sentencing occurred after the law came into effect and Ellingburg was sentenced to 27 years in prison and ordered to pay $7,567.25 in MVRA restitution. While incarcerated, Ellingburg paid down $2,054 towards his restitution obligation.  But when he was released from prison in 2022, the government claimed that he now owed $13,476 in restitution due to interest accruing on his unpaid debt.  Ellingburg challenged the enforcement of this restitution order, arguing that applying the 1996-enacted MVRA to his 1995 crime violated the Ex Post Facto Clause, which prohibits laws that retroactively increase the punishment for criminal acts.

Legal Journey

The United States District Court for the Western District of Missouri rejected Ellingburg’s challenge, holding that restitution under the MVRA was not considered criminal punishment and thus not subject to the Ex Post Facto Clause. This decision was affirmed by the United States Court of Appeals for the Eighth Circuit, which held that restitution under the MVRA was “designed to make victims whole, not to punish perpetrators” and therefore was “essentially a civil remedy created by Congress” and had only been “incorporated into criminal proceedings for reasons of economy and practicality.”

Supreme Court’s Analysis

The Supreme Court’s unanimous decision, delivered by Justice Kavanaugh, reversed the Eighth Circuit’s ruling.  The Court’s analysis focuses on the statutory text and structure of the MVRA, noting that it explicitly labels restitution as a “penalty” for a criminal “offense” and imposes it during sentencing alongside other criminal punishments. This characterization aligns restitution with traditional forms of criminal punishment, thereby subjecting it to the constraints of the Ex Post Facto Clause.

The Court emphasized that restitution is ordered only after a criminal conviction and is imposed at a sentencing proceeding where the government, not the victim, is the party adverse to the defendant. This procedural context further supports the view that restitution under the MVRA is punitive in nature.

Additionally, the Court highlighted that the MVRA is codified in Title 18, “Crimes and Criminal Procedure,” and that the statutory provisions authorizing restitution orders are contained in chapters related to sentencing provisions. This placement within the criminal code reinforces the punitive character of restitution.

Importantly, the Court clarified that “our ruling today does not mean that a restitution statute can never be civil,” but was based on the specific statutory text and structure of the MVRA.

Conclusion

Ellingburg v. United States is an important decision that has solidified constitutional rights of criminal defendants regarding restitution and the Ex Post Facto Clause’s prohibition of retroactive penal laws. By affirming that restitution under the MVRA is criminal punishment, the Supreme Court has offered a reminder of the judiciary’s vital role in safeguarding individual rights and maintaining the integrity of the Constitution in the face of legislative changes.

No Vacancy for Privacy: Five Hours After Checkout, the Fourth Amendment Checks Out in Pittsburgh

In United States v. Mendoza (2026 WL 61591), the Third Circuit held that a hotel guest does not retain a reasonable expectation of privacy in a hotel room five hours after checkout time, affirming the denial of a motion to suppress evidence seized during a warrantless search of Appellant’s hotel room.

Facts

Ryan Mendoza checked into a Pittsburgh hotel for a two-night stay. Mendoza did not affirmatively checkout at noon on the date of his departure, which was the hotel’s posted checkout time. However, as with most hotels across the country, this hotel’s policy permitted “walk-out” checkout, where a guest can leave without any interaction with the front desk. Pursuant to this policy, on the day of a guest’s scheduled departure, if the guest does not arrange for a late checkout, the keycards are deactivated and charges processed automatically, two hours after checkout time.

At approximately 2:00 p.m., on the day of Mendoza’s departure, hotel staff entered his room as part of routine post-checkout procedure. At that time, they discovered a backpack containing suspected narcotics. At approximately 5:20 p.m., five hours after checkout time, police, accompanied by the hotel manager, entered the room without a warrant.

Mendoza returned to the hotel later that evening and was arrested. He subsequently moved to suppress the evidence, arguing that because he never formally checked out and believed he had paid for a two-night stay, he retained a reasonable expectation of privacy in the room for a full 48 hours. He lost.

Timing is Everything: Five Hours Is Too Late

The Third Circuit rejected Mendoza’s argument, holding that any subjective expectation of privacy he may have had was not objectively reasonable once checkout time had passed. The Court placed great emphasis on the fact that the search occurred five hours after the posted checkout time.

The Court emphasized that while hotel guests generally enjoy Fourth Amendment protection equivalent to that of a tenant, that protection ends when lawful occupancy ends. Checkout time, the Court explained, is a clear and administrable marker for when possession reverts to the hotel. Once that happens, hotel management may consent to police entry.

The Court stressed that this was not a close case. The search occurred five hours after checkout time, there was no communication from Mendoza regarding a late checkout, the hotel’s policies were clear and posted, and the room had already been entered by staff in the ordinary course. Under those circumstances, there can be no reasonable continuing expectation of privacy.

When Might the Result Be Different?

Although the Court ruled decisively on these facts, it identified scenarios that might warrant a different outcome in a future case. These included: 1) whether a guest might retain a reasonable expectation of privacy shortly after checkout time where a hotel has a known practice of allowing late departures; 2) whether hotel-specific customs or patterns could make continued privacy expectations objectively reasonable; and 3) whether express or implied communications between the guest and hotel staff regarding checkout timing could alter the analysis.

The Third Circuit made clear that, absent evidence of a late-checkout agreement, Fourth Amendment standing evaporates quickly after posted checkout times.