What is the test for an order of restitution in a sexual assault case?

There are two distinct, though related, stages in a district court's decision to order restitution. First, the sentencing judge must consider at least three factors before restitution can be imposed: the amount of the loss sustained by the victim of the crime, the defendant's ability to pay restitution, and the financial needs and earning ability of the defendant and the defendant's dependents. 18 U.S.C. 3664(a). "[T]he record must demonstrate that the court has considered these factors in ordering restitution." United States v. Broyde, 22 F.3d 441, 442 (2d Cir.1994) (quoting United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993)). Where there is no evidence suggesting the district court has made such consideration, we will vacate an order of restitution and remand for resentencing. See United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993).

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