United States v. Shugart ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
05/27/99
No. 98-8385 THOMAS K. KAHN
CLERK
D. C. Docket No. 5:97-CR-19-WDO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC ANTHONY SHUGART,
Defendant-Appellant.
__________
No. 98-8386
___________
D.C. Docket No. 5:97-CR-19-WDO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRENT PATTERSON,
Defendant-Appellant.
____________________________________________________________________________
______________
No. 98-8387
_____________
D.C. Docket No. 5:97-CR-19-WDO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON WESLEY CANTRELL,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of Georgia
(May 27, 1999)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
DUBINA, Circuit Judge:
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These consolidated criminal cases present an interesting sentencing issue that is one of
first impression in this circuit. After reviewing the record and having the benefit of oral
argument, we affirm the defendants’ sentences.
I. BACKGROUND
On February 22, 1997, appellants Eric Anthony Shugart, Brent Patterson, and Jason
Wesley Cantrell (“the defendants”) set fire to the century-old Oak Grove Methodist Episcopal
Church (the “Church”) in Elko, Georgia. The Church burned to the ground.
A grand jury charged the defendants with conspiracy to commit arson, in violation of 18
U.S.C. § 371 (Count I), as well as with substantive violations of the arson statute, 18 U.S.C. §
844(i), and aiding and abetting in the commission of an offense against the United States, in
violation of 18 U.S.C. § 2 (Count II). After the government presented its case to a jury, the
defendants pled guilty to Count I. The court then dismissed Count II on the government’s
motion.
In addition to sentencing the defendants to terms of imprisonment, the district court
ordered the defendants, jointly and severally, to pay restitution in the amount of $116,280. The
defendants appeal this portion of their sentences.
II. DISCUSSION
The defendants present two arguments on appeal. First, they submit that the district court
abused its discretion under 18 U.S.C. § 3663A when it ordered them to pay restitution in an
amount equal to the cost of rebuilding the Church using modern construction methods and
materials. Section 3663A, they urge, limits the amount the district court can award in restitution
to the actual cash value of the Church on the date of the offense. Second, they argue that even if
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§ 3663A permits a restitution order based on replacement cost, the district court clearly erred in
finding that $116,280 is the cost of rebuilding the Church.
Our analysis of the district court’s restitution order involves three standards of review.
First, whether the term “value” in § 3663A contemplates a restitution order based on
replacement cost instead of fair market value is a legal question, which we review de novo. See
United States v. Davis, 117 F.3d 459, 462 (11th Cir.), cert. denied sub nom. Morfa v. United
States, 118 S. Ct. 355 (1997). Second, if § 3663A does permit a restitution order based on
replacement cost, we review the district court’s use of replacement cost in this case for abuse of
discretion. See United States v. Twitty, 107 F.3d 1482, 1493 (11th Cir. 1997). Finally, we
review for clear error the district court’s factual finding that it will cost $116,280 to rebuild the
Church. See United States v. Bourne, 130 F.3d 1444, 1446 (11th Cir. 1997).
Section 3663A(b)(1) requires the defendants to pay restitution in an amount equal to the
“value” of the Church on the day they burned it down. For fungible commodities, value is easy
to determine: it’s the actual cash value, or fair market value, of the item — that is, “[t]he fair or
reasonable cash price for which the property could be sold in the market in the ordinary course
of business.” Black’s Law Dictionary 35 (6th ed. 1990). According to the defendants, § 3663A
always limits restitution to actual cash value. See Appellants’ Brief at 7. We disagree.
Although fair market value will often be an accurate measure of the value of property, it
will not always be so. Where actual cash value is difficult to ascertain — because an item is
unique, or because there is not a broad and active market for it — replacement cost may be a
better measure of value. The Sentencing Guidelines, for instance, when specifying how to
determine the value of stolen property for purposes of calculating the appropriate number of
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points to add to a defendant’s base offense level, allow that replacement cost may be used to
value items for which market value is “difficult to ascertain or inadequate to measure harm to the
victim.” U.S.S.G. § 2B1.1, application note 2; see also United States v. Pemberton, 904 F.2d
515, 516-17 & n.2 (9th Cir. 1990).
We conclude that “value,” as § 3663A uses that term, contemplates a restitution order
based on replacement cost where actual cash value is unavailable or unreliable. Whether actual
cash value is unavailable or unreliable is an issue of fact, and a district court’s decision to use
replacement cost is a matter of discretion.
In our view, the district court in this case did not abuse its discretion in ordering
restitution in an amount necessary to rebuild the Church. A church is not a fungible commodity.
See James C. Bonbright, The Valuation of Property 66, 419 (1937) (noting that a church is a
“[h]ighly unmarketable institutional propert[y]”). A congregation rarely sells its church so that
its members can relocate to a new city or a new neighborhood. A church is unique, and is valued
by its members, precisely because of its location, its design, and the memories it evokes. None
of these characteristics can be recreated by purchasing an alternate structure in another city or
neighborhood, even if such a structure were available. In sum, actual cash value is not, in our
view, an appropriate measure of value in this case. We conclude that the district court properly
determined that the only effective way to return to the victims the fair equivalent of what they
lost is to rebuild a church comparable in size and design on the same lot where the original
church stood. This is the only result that even comes close to returning to the victims what they
had before February 22, 1997.
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The rule of lenity does not affect our conclusion. The defendants argue that lenity
requires us to adopt their interpretation of the word “value” because it is ambiguous. We
disagree. We only invoke the rule of lenity when, after considering the structure and purpose of
a criminal statute, we are left with nothing more than a guess as to what Congress intended. See
United States v. Wells, 117 S. Ct. 921, 931 (1997). In this case, we see no “grievous ambiguity”
sufficient to require application of the rule of lenity. Chapman v. United States, 500 U.S. 453,
463 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)).
Finally, the defendants argue that the district court erred in determining that the
replacement cost of the Church was $116,280. This contention is without merit. Robert Tuggle,
the sole witness called to establish the replacement cost of the Oak Grove Church, testified that
the “actual replacement cost” of the Church, using “modern construction techniques,” was
$116,280. He also testified that the method and figures he used to estimate the replacement cost
were the ones generally used in the insurance industry to tell what it will cost to reconstruct a
building. In our view, this testimony amply supports the district court’s finding.
For the foregoing reasons, we affirm the district court's restitution order and the
defendants' sentences.
AFFIRMED.
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