Criminal Practice – Restitution Reversed for Unnamed ‘Victim’

U.S. v. Davis (Lawyers Weekly No. 13-01-0461, 12 pp.) (Motz, J.) No. 12-4088, May 1, 2013; USDC at Raleigh, N.C. (Howard, J.) 4^th Cir.

Holding: The 4^th Circuit reverses a sentencing order insofar as it required defendant to pay $685 in restitution for a homeowner’s broken window and homeowner’s deductible, on defendant’s conviction pursuant to a plea agreement to possession of a stolen firearm; the presentence report identified no “victim” of the offense of conviction, and the restitution order was not authorized by statute.

Defendant challenges the restitution order on the ground that it requires repayment of losses neither caused by the conduct underlying the offense of conviction nor otherwise consented to in the plea agreement.

Federal courts do not have the inherent authority to order restitution, but must rely on a statutory source to do so. Defendant’s plea agreement cites the Victim and Witness Projection Act, 18 U.S.C. § 3663, which permits a court to order restitution to a “victim” suffering loss from certain crimes.

In Hughey v. U.S., 495 U.S. 411 (1990), the Supreme Court expressly held that § 3663 authorizes an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction. In this appeal, we must determine whether a conviction for mere possession of a stolen firearm can cause compensable losses to a § 3663 “victim.”

Here, the specific conduct underlying the elements of the offense, and thus forming the basis for the offense of conviction, does not include the theft. Rather, it includes only knowledge of a theft, and, as a result, the loss was not caused by possession of a stolen firearm, the sole “offense of conviction.” The homeowner cannot be considered a victim under § 3663, and is not entitled to restitution on that basis for the loss defendant caused him.

We next consider whether, as § 3663 permits, defendant’s plea agreement serves as a basis for the restitution order even though the homeowner is not a “victim” of the offense of conviction.

The plea agreement here does not contain any agreement by defendant to pay restitution other than that payable pursuant to a restitution statute. Nor does the plea agreement identify a compensable victim or losses other than those caused by the specific conduct that is the basis of the offense of conviction. Vague references to “victims” are insufficient to bind a defendant to pay restitution beyond that authorized under § 3663.

Defendant did not object to the restitution order in the district court. However, because the error left him responsible for restitution payments disallowed by law, that error affected his substantial rights, and, if uncorrected, would seriously affect the fairness, integrity or public reputation of judicial proceedings because it would impose an illegal burden of defendant.