ORDER

PATRICK J. SCHILTZ, District Judge.

Defendant Milton Rucker was convicted by a jury of attempt or conspiracy to commit bank fraud, aggravated identity theft, and being a felon in possession of a firearm. On August 2, 2012, the Court sentenced Rucker to 204 months in prison and 5 years of supervised release. The Court left open the issue of restitution and, after the parties could not resolve the issue, held an evidentiary hearing on November 20, 2012.1 Having received the parties' supplemental briefing, the Court orders restitution in the amount of $1,652, which is the full amount that the government is seeking on behalf of Rucker's victims.

In the summer of 2011, Rucker and his codefendant committed a series of automobile break-ins to steal credit cards and other items. The government seeks restitution on behalf of two of Rucker's victims for property that Rucker stole from their vehicles. The victims' losses are calculated as follows:

See Gov't Hr'g Exs. 1, 2.

Some of these items — specifically, D.T.'s handbag and wallet and S.M.'s watch and wallet — were recovered by the government and remain in the government's possession.2 Rucker argues that the Court cannot order restitution of the value of these items because they will eventually be returned to the victims.3 See United States v. Gregoire, 638 F.3d 962, 974 (8th Cir. 2011) ("restitution may include the retail value of unsold stolen property if it cannot be returned"). Gregoire states, however, that the anticipated return of property to a victim "normally does not delay immediate entry of a restitution order." Id.; cf. United States v. McCracken, 487 F.3d 1125, 1128-29 (8th Cir. 2007) (stating that "the district court has no discretion to adjust the total restitution due to the victim based on funds held by law enforcement" and noting that the district court could adjust the restitution order after the money's return). The Court therefore rejects Rucker's argument that it cannot include the value of the property in the government's possession.4

Rucker next argues that the government has failed to prove the value of the stolen property. See United States v. Alexander, 679 F.3d 721, 731 (8th Cir. 2012) (the government bears the burden of proving the amount of restitution by a preponderance of the evidence). Although the Court had hoped that the government would provide more in the way of evidence on this point,5 the Court concludes that the government has met its burden under the circumstances of this case. The victims are mostly claiming restitution for common consumer items of relatively low retail value and the amounts claimed appear to be within the expected price range for such items. Before the hearing, the government submitted printouts from consumer websites listing prices for Michael Kors handbags, Hobo wallets, Chanel sunglasses, and Bulova watches. ECF Nos. 195-1, 195-2, 195-3, and 195-4. Although the government did not seek the admission of these printouts at the hearing, they were available to defendant beforehand and he did not raise any objection to the Court's consideration of them. They confirm that the amounts sought are in line with the common retail prices of these items. In addition, Agent Fredkove testified that S.M. (who is also an FBI agent) told him the cost of the watch and the wallet, and he also testified — based on his personal experience as an FBI agent — that the prices for certain items that S.M. purchased from the FBI seemed reasonable.

The Court notes that in United States v. Young, the Eighth Circuit held that the victim's "estimate" of his lost profits, as stated in the PSR, was an insufficient basis for a restitution award. 272 F.3d 1052, 1056 (8th Cir. 2001). Young is distinguishable, however. In Young, the disputed amount was a $4,000 "estimate" of the victim's lost profits on $5,600 worth of stolen American Indian artifacts. Here, the restitution at issue (with one or two minor exceptions) concerns the value of common retail consumer items. In addition, in this case victim D.T. submitted her claim under penalty of perjury; there is no indication that the victim in Young did the same. Although the documentation of S.M.'s claim was (inexplicably) not submitted under penalty of perjury, Agent Fredkove testified that S.M. told him the cost of the watch and the wallet, which are two of the most expensive items on S.M.'s list. In addition, the Court notes that S.M. testified under oath at trial about, among other things, the contents of his gym bag and the fact that he personally purchased the wallet. The Court found S.M. to be a careful and credible witness. The Court therefore concludes that the government has met its burden as to the value of the stolen property.

Rucker next argues that there is insufficient evidence that he stole the property. The property belonging to S.M. was the subject of much trial testimony, however, and the evidence that Rucker stole S.M.'s gym bag and its contents is overwhelming. As for D.T.'s property, Agent Fredkove testified at the evidentiary hearing that D.T. reported a theft from her car and that D.T.'s purse and wallet, along with an insurance card in D.T.'s name, were later found in Rucker's apartment. To the extent that Rucker contends that there is no proof that items other than D.T.'s purse and wallet were stolen, the Court considers D.T.'s declaration of loss, made under penalty of perjury, sufficient proof that her stolen purse contained such commonplace items as sunglasses, cash, and a gift card.

Rucker also argues that there is insufficient proof that S.M. — who, again, is an FBI agent — personally owned the items for which he is seeking restitution. The Court disagrees. Evidence at trial established that among the items stolen from S.M.'s car were his duty weapon and FBI credentials. S.M. is not seeking restitution for those items, however, which indicates that he is seeking restitution only for the items that he personally owned.

Rucker next argues that the thefts were not part of the offenses of which he was convicted. Again, the Court disagrees. As noted, Rucker was convicted of, among other things, attempt or conspiracy to commit bank fraud. Evidence at trial established that the items were stolen from the victims' cars as part of a series of thefts that were in turn a part of a scheme to defraud banks through the use of stolen credit cards. Rucker's thefts were thus criminal acts committed in the course of the fraudulent scheme of which he was convicted, and a restitution award is therefore proper as to these items. See 18 U.S.C. § 3663A(a)(2) ("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" is entitled to restitution).

Finally, Rucker objects to the entry of a restitution order beyond the 90-day deadline in 18 U.S.C. § 3664(d)(5). But so long as a court makes clear, before the deadline's expiration, that it intends to order restitution — as the Court did in this case, both at Rucker's sentencing and in the judgment, see ECF No. 176 at 5 — the court retains the power to order restitution even beyond the 90-day deadline. Dolan v. United States, 130 S.Ct. 2533, 2537 (2010). The Court therefore rejects this argument and orders restitution in full.

ORDER

Based on the foregoing and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT: