United States v. Johnson ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4677
GREGORY JOHNSON, a/k/a Little Greg,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4849
GREGORY JOHNSON, a/k/a Little Greg,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-02-178-PJM)
Argued: October 29, 2004
Decided: March 8, 2005
Before WIDENER and MOTZ, Circuit Judges, and
Glen E. CONRAD, United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Motz wrote the opinion, in which Judge Widener and Judge
Conrad joined.
2 UNITED STATES v. JOHNSON
COUNSEL
ARGUED: Timothy Joseph Sullivan, SULLIVAN & SULLIVAN,
College Park, Maryland, for Appellant. Deborah A. Johnston, Assis-
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:
Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland,
for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After a jury convicted Gregory Anthony Johnson of kidnaping,
twice using a firearm in the commission of a crime of violence, and
attempting to kill a potential witness, the district court sentenced him
to imprisonment and ordered him to pay restitution to the victim and
to Family & Child Services, a mental health agency that provided
counseling to the victim at a reduced rate. Johnson appeals, arguing
the district court erred in denying his motion to suppress statements
he made to the police after he had invoked his Fifth Amendment right
to counsel. He also challenges the validity of the restitution order,
faulting the Government for missing a statutory deadline and arguing
that third parties, like Family & Child Services, are not eligible for
restitution under the Mandatory Victims Restitution Act, 18 U.S.C.
§ 3663A (2000). Further, after the Supreme Court decided Blakely v.
Washington, 124 S. Ct. 2531 (2004), Johnson filed a supplemental
brief challenging the constitutionality of his sentence, which was
based on facts not found by the jury. We find no reversible error with
the suppression or restitution orders, but we vacate his sentence and
remand for resentencing in accord with United States v. Booker, 125
S. Ct. 738 (2005).
I.
The Government introduced evidence at trial that in the early
morning of February 8, 2002, Johnson, Michael Watkins, and Alexan-
der Martin attempted to rob Anthony Raymond, Akil Asson, and
UNITED STATES v. JOHNSON 3
Ihsan Muhammad. Watkins died before Johnson’s trial, but Martin
cooperated with the Government and pled guilty to kidnaping and
using a firearm during the kidnaping. At Johnson’s trial, Martin, Ms.
Muhammad, and Sesame Sorrells, an eyewitness who knew Johnson
prior to the crimes, provided detailed testimony as to Johnson’s role
in the crimes.
As the victims walked through a parking lot from a 7-Eleven to a
nearby apartment complex in Chillum, Maryland, the assailants, dis-
playing guns, ordered them to lie on the ground and searched the
men’s pockets and Ms. Muhammad’s purse. One of the assailants
kicked Mr. Raymond in the face and shot at him, although the bullet
did not hit him. As the assailants were leaving, one of them said, "I
think we ought to take this one with us," referring to Ms. Muhammad.
The man pushed her into a waiting white car driven by a fourth man,
seating her between himself and another man, while the third assailant
sat in the front passenger seat. The men drove Ms. Muhammad to
Washington, D.C., en route threatening to kill her, trying to sexually
assault her, and slapping and punching her to stop her from praying
out loud.
Ms. Muhammad escaped from the moving vehicle and ran a few
feet but fell to the ground because the men had pulled her pants down
to her ankles as she had tried to climb over one of them to get out of
the car. The car stopped, and as Ms. Muhammad lay on the ground,
Johnson approached her and repeatedly stuck his fingers in her
vagina. Before the car drove off, Johnson shot Ms. Muhammad three
times. She sustained serious injuries. When Martin asked Johnson
why he shot Ms. Muhammad, Johnson indicated that he did so
because she had heard his name.
The jury convicted Johnson of kidnaping, in violation of 18 U.S.C.
§ 1201(a)(1) (2000), two counts of use of a firearm in the commission
of a crime of violence, in violation of 18 U.S.C. § 924(c)(2000), and
one count of attempting to kill a potential witness, in violation of 18
U.S.C. § 1512(a)(1)(c)(2000).1 Applying the United States Sentencing
Guidelines, the district court sentenced him to 789 months imprison-
1
The jury acquitted Johnson of two counts pertaining to the assault on
Mr. Raymond.
4 UNITED STATES v. JOHNSON
ment to be followed by a five year period of supervised release. The
court subsequently ordered Johnson to pay $495 to Ms. Muhammad
and $5,240 to Family & Child Services.
On appeal, Johnson challenges the denial of his motion to suppress,
the restitution order, and his sentence. We consider each contention
in turn.
II.
Johnson alleges that the district court committed reversible error by
failing to suppress two written statements he gave to Prince George’s
County Police officers and an FBI agent.
A.
Upon learning on February 28, 2002, that a warrant for his arrest
had been issued, Johnson turned himself in to the Prince George’s
County Police Department. The police promptly arrested Johnson and
placed him in an interview room, where they put a stationary handcuff
on him. After asking him for biographical information, Detective
Sherry Prince, accompanied by FBI Agent Jansen Jordan, gave John-
son the Prince George’s County standard advice of rights and waiver
form.
Detective Prince then read aloud the form, which states:
I am now going to read to you your rights under the law. If
you do not understand something that I say to you, please
stop me, and I will explain it to you.
1. You have the right to remain silent. If you choose to
give up this right, anything that you say can be used
against you in court.
2. You have the right to talk to a lawyer before you are
asked any questions and to have a lawyer with you
while you are being questioned.
UNITED STATES v. JOHNSON 5
3. If you want a lawyer, but cannot afford one, a lawyer
will be provided to you at no cost.
4. If you want to answer questions now without a lawyer,
you still have the right to stop answering questions at
any time.
Detective Prince handed Johnson a pen so that he could check "yes"
or "no" to the four questions on the form and initial his answers. The
four questions are:
Do you understand these rights?
Do you want to make a statement at this time without a law-
yer?
Have you been promised anything, have you been offered
any kind of reward or benefit, or have you been threatened
in any way in order to get you to make a statement?
Are you under the influence of drugs or alcohol at this time?
At 12:10 p.m. Johnson initialed and checked "yes" to the first ques-
tion, but initialed and checked "no" to the other three questions, and
signed the form; he did not respond orally to the questions. Under-
standing Johnson’s written answers as an invocation of his rights,
Detective Prince and Agent Jordan did not ask him any further ques-
tions. They took a few photographs of Johnson and left the interview
room.
When Detective Prince returned to her desk, Detective Reginald
Fenner asked whether Johnson had waived his rights. Detective
Prince showed Detective Fenner the waiver form, and told him that
Johnson had "checked no" on the form. Detective Fenner asked
Detective Prince if Johnson had "waive[d]" his right to counsel, and
Detective Prince replied "no." Detective Fenner then asked if Johnson
had asked for an attorney, and Detective Prince said he had not.
Detective Fenner told Detective Prince that he would explain the form
to Johnson and entered the interview room at approximately 12:50
6 UNITED STATES v. JOHNSON
p.m., which was forty minutes after Johnson had checked "no," ini-
tialed, and signed the waiver form.
Detective Fenner spoke with Johnson alone in the interview room
for an hour. By his own account, Detective Fenner gave Johnson a
"one-way lecture" describing police investigative tactics. But Detec-
tive Fenner did not limit his lecture to generalities. At the suppression
hearing, Detective Fenner testified that he told Johnson:
that he was here for a reason. Either somebody identified
him or there was some evidence that apparently put him, his
individual person here, and I explained to him that could be
for any, any reasons. It could be for innocent reasons.
Maybe he was walking by. Maybe somebody knew him
and saw him in the area. Maybe somebody has something
against him and they are lying. That if he could tell me, you
know, anything that would prove that he wasn’t involved or
he was somewhere else, for example, like work or out of
town, something I could verify, then that would help his sit-
uation.
But I was honest with him. I explained to him that, you
know, if he wants to tell me I was there, he was there and
he did it, then I’m also, you know, willing to take that. I
always give both sides of the scenario.
After the hour-long lecture, Detective Fenner took Johnson to the
bathroom and when Johnson returned to the interview room, Detec-
tive Fenner gave him a cigarette and a cup of water and left him
uncuffed. Detective Fenner then gave Johnson a fresh copy of the
waiver form, reading through each of the rights and asking Johnson
to answer the four questions. At 2:15 p.m., a little more than two
hours after declining to waive his rights on the first waiver form,
Johnson checked "yes" next to the question "Do you want to make a
statement at this time without a lawyer?"
Over the next several hours, Johnson gave two written statements
to Detective Prince and Agent Jordan. In the statements, Johnson said
UNITED STATES v. JOHNSON 7
that he had been drinking beer and smoking weed with his friend Turk
(Alexander Martin) and a guy named T, who drove a white car. John-
son told them that he needed some money, so they drove up to two
men and a woman. According to Johnson, he pointed a BB gun at
them and told them to get down. Johnson and Turk patted them down
while T pointed a gun at the victims. Finding no money, Johnson got
back into the car, as did Turk, who sat in the front passenger seat. T
placed the woman in the car and said "this bitch is coming with us."
Once T and the woman were in the car, Johnson drove off. As they
drove away, T fired two shots out of the car. According to Johnson,
he got out of the car near his home, threw the BB gun into a dump-
ster, and went home. He denied shooting Mr. Raymond or hitting,
sexually assaulting, or shooting Ms. Muhammad.
Prior to trial, Johnson moved to suppress his statements, arguing
that Detective Fenner violated Miranda v. Arizona, 384 U.S. 436
(1966), by initiating further questioning after he had asserted the right
to counsel and by not scrupulously honoring his right to remain silent.
The district court conducted an evidentiary hearing and ruled from the
bench.
The court initially made the factual finding that Johnson, "at the
time of his first statement[,] was asserting a right to remain silent
without a lawyer present." Although the district court recognized that
Johnson claimed he had invoked both his right to remain silent and
his right to counsel by "asserting a right to remain silent without a
lawyer present," the court merged the two claims and reviewed both
under Michigan v. Mosley, 423 U.S. 96 (1975).
The court then questioned Detective Fenner’s credibility, stating:
What complicates this case, quite frankly, is I don’t think
that Detective Fenner has been as candid as he should have
been in this case. I think he has muddied this issue by being
other than particularly candid about what happened.
There is no question, and I want you to hear this, detec-
tive, there is no question in the Court’s mind that you went
into that room to try and get the statement that [Det. Prince]
8 UNITED STATES v. JOHNSON
could not get. It is absolutely clear to me that that’s what
happened here.
Nonetheless, the court denied the motion to suppress, reasoning that
"although there are aspects of the transaction, if you will, that are
somewhat troubling, I don’t think that contaminates the basic state-
ment that was made. He reconsidered his refusal to answer. There is
nothing in the record that suggests that he did that other than voluntar-
ily."
B.
We review "[t]he district court’s legal conclusions underlying a
suppression determination" de novo while we review its factual find-
ings for clear error. United States v. Sterling, 283 F.3d 216, 218 (4th
Cir. 2002). We first determine whether the district court should have
suppressed Johnson’s statements, and, then, if so, we ask whether the
failure to do so was harmless beyond a reasonable doubt. See United
States v. Mobley, 40 F.3d 688, 691-94 (4th Cir. 1994). Although
Johnson reiterates on appeal that the police violated both his right to
remain silent and his right to counsel, we need only address his con-
tention that the police unconstitutionally initiated further questioning
after he had indicated that he did not want to make a statement with-
out a lawyer.2
2
If Johnson had invoked only his right to remain silent and not also his
right to counsel, "the admissibility of statements obtained after [he] ha[d]
decided to remain silent [would] depend[ ] under Miranda on whether
his right to cut off questioning was scrupulously honored." Mosley, 423
U.S. at 104 (internal quotation marks omitted). Johnson contends here,
as he did below, that the police did not "scrupulously honor" his right to
remain silent. The Government argues to the contrary, pointing out that
Detective Prince and Agent Jordan promptly left the room after Johnson
indicated on the waiver form that he did not want to make a statement
and two hours elapsed between Johnson’s initial declination to make a
statement and his subsequent decision to do so. We note that the two
hour gap is misleading because Detective Fenner initiated his attempt to
get Johnson to make a statement a mere forty minutes after Johnson
declined to waive his rights. However, given our resolution of this case,
including our conclusion that the failure to suppress Johnson’s state-
ments was harmless, we need not decide whether the police "scrupu-
lously honored" Johnson’s right to remain silent.
UNITED STATES v. JOHNSON 9
1.
In Miranda the Supreme Court held that the police must advise a
suspect of his right to counsel and, "[i]f the individual states that he
wants an attorney, the interrogation must cease until an attorney is
present." 384 U.S. at 474. Several years later, in Edwards, the Court
explained that "it is inconsistent with Miranda and its progeny for
authorities, at their instance, to reinterrogate an accused in custody if
he has clearly asserted his right to counsel." 451 U.S. at 485. Thus,
when a suspect "expresse[s] his desire to deal with the police only
through counsel," the police cannot interrogate him "until counsel has
been made available to him, unless the accused himself initiates fur-
ther communication, exchanges, or conversations with the police." Id.
at 484-85.
If the police do subsequently initiate an encounter in the
absence of counsel (assuming there has been no break in
custody), the suspect’s statements are presumed involuntary
and therefore inadmissible as substantive evidence at trial,
even where the suspect executes a waiver and his statements
would be considered voluntary under traditional standards.
McNeil v. Wisconsin, 501 U.S. 171, 177 (1991).
The purpose of the rule formulated in Edwards is to prevent police
"badgering or overreaching — explicit or subtle, deliberate or unin-
tentional." Smith v. Illinois, 469 U.S. 91, 98 (1984) (internal quotation
marks and citations omitted). Police officers simply cannot continue
to question a suspect despite his request for counsel "in the hope that
[he] might be induced to say something casting retrospective doubt on
his initial statement that he wished to speak through an attorney or not
at all." Id. at 99 (internal quotation marks and citation omitted). Even
after the suspect has spoken with counsel, "officials may not reinitiate
interrogation without counsel present." Minnick v. Mississippi, 498
U.S. 146, 153 (1990). This prohibition applies to all officers, not just
those present when the suspect invoked his right to counsel. Arizona
v. Roberson, 486 U.S. 675, 687-88 (1988) (citation omitted).
The Supreme Court has directed that two elements be examined to
determine whether the police have obtained a statement in violation
10 UNITED STATES v. JOHNSON
of Edwards’ "rigid prophylactic rule." Smith, 469 U.S. at 95 (internal
quotation marks and citation omitted). A court must "determine
whether the accused actually invoked his right to counsel." Id. If he
did, the court must determine who initiated the further discussions
that yielded the eventual statement. See id. If an accused, after invok-
ing his right to counsel, did not "initiate[ ] further discussions with the
police" or "knowingly and intelligently waive[ ] the right he had
invoked," any statement procured by the police is inadmissible at
trial. Id.
Although the district court made no precise finding as to who initi-
ated the subsequent discussion that led to Johnson’s eventual state-
ments, the record is clear and the Government offers no contrary
argument, that Detective Fenner — not Johnson — initiated that dis-
cussion. Forty minutes after Johnson indicated that "no," he did not
wish to "make a statement at this time without a lawyer," Detective
Fenner decided to "talk to [Johnson] and see if he w[ould] waive his
rights;" so he entered the interrogation room, introduced himself, and
"lectured" Johnson for an hour before obtaining a waiver of Miranda
rights and two written statements from Johnson. As the district court
commented, Detective Fenner "went into that room to try and get the
statement that [Detective Prince] could not get." Accordingly, Detec-
tive Fenner plainly "initiated" the subsequent conversation with John-
son, "of his own volition, not in response to any actions by appellant."
McFadden v. Garraghty, 820 F.2d 654, 658 (4th Cir. 1987). Thus
Johnson’s statements should have been suppressed if he invoked his
right to counsel.
To invoke the right to counsel, a suspect must take an action that
"can reasonably be construed to be an expression of a desire for the
assistance of an attorney." McNeil, 501 U.S. at 178. The district court
found that Johnson "at the time of his first statement was asserting a
right to remain silent without a lawyer present." But the court com-
mitted legal error in failing to recognize that Edwards and its progeny
create a "bright-line rule that all questioning must cease" when an
accused asserts his right to counsel. Smith, 469 U.S. at 98. If police
initiate subsequent questioning, any statement by the suspect is pre-
sumed involuntary and is, accordingly, inadmissible at trial. See id. at
95.
 UNITED STATES v. JOHNSON 11
The Government concedes that in Edwards the Supreme Court
established a bright-line rule. Yet, without expressly suggesting that
the district court erred in its fact-finding, the Government argues that
the Edwards rule does not apply here because Johnson did not unam-
biguously invoke his right to counsel. The Government relies on
Davis v. United States, in which the Supreme Court stated that "if a
suspect makes a reference to an attorney that is ambiguous or equivo-
cal in that a reasonable officer in light of the circumstances would
have understood only that the suspect might be invoking the right to
counsel, our precedents do not require the cessation of questioning."
512 U.S. 452, 459 (1994). The Government apparently maintains that
Johnson, like Davis, did not "articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in the cir-
cumstances would understand the statement to be a request for an
attorney." Id.
The defendants in Davis, and the cases relying on it, voiced mere
equivocal requests for counsel, such as, "Maybe I should talk to a
lawyer," id. at 462; "I might want to talk to an attorney," United
States v. Zamora, 222 F.3d 756, 765-66 (10th Cir. 2000); "I think I
need a lawyer," Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.
2000); "Do you think I need an attorney here?," Mueller v. Angelone,
181 F.3d 557, 573-74 (4th Cir. 1999); I "might want to get a lawyer
then, huh?," United States v. Posada-Rios, 158 F.3d 832, 867 (5th
Cir. 1998); "I think I want a lawyer," "Do you think I need a law-
yer?," Diaz v. Senkowski, 76 F.3d 61, 63-65 (2d Cir. 1996); "I can’t
afford a lawyer but is there anyway I can get one," Lord v. Duck-
worth, 29 F.3d 1216, 1219-21 (7th Cir. 1994).
In contrast, Johnson did not equivocate. Rather he unequivocally
indicated in writing that he did not "want to make a statement at this
time without a lawyer." This statement was more unequivocal than
those statements that courts have found do trigger Edwards’ bright-
line rule. See, e.g., Smith, 469 U.S. at 93, 99-100 (finding Edwards
triggered where defendant responded to whether he understood that
he had a right to counsel, "Uh, yeah. I’d like to do that."); Abela v.
Martin, 380 F.3d 915, 919, 926-27 (6th Cir. 2004) (finding defendant
invoked his right to counsel by stating, "[M]aybe I should speak with
an attorney by the name of William Evans" and proffering Evans’
business card); Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999)
12 UNITED STATES v. JOHNSON
(finding defendant’s three questions, "Can I get an attorney right now,
man?," "You can have attorney right now?," and "Well, like right now
you got one?" constituted "an unequivocal request for an attorney");
Kyger v. Carlton, 146 F.3d 374, 376, 379 (6th Cir. 1998) (finding
statement "I’d just as soon have an attorney [’]cause, you know —
ya’ll say there’s been a shooting involved and that’s a serious charge"
in response to "[W]ould you answer some of our questions, without
an attorney present?" constituted an invocation of the right to counsel)
(first alteration in original).
Furthermore, we are unpersuaded by the Government’s implicit
assertion that by checking and initialing "no" on the waiver of rights
form, Johnson failed to make a clear unequivocal request for counsel
because the government form itself was unclear. This argument boils
down to a contention that because the question on the form, which the
Government itself formulated — "Do you want to make a statement
at this time without a lawyer?" — encompasses both the right to
remain silent and the right to counsel, the officers could not ascertain
from a simple "no" which right Johnson invoked. Such an argument
is meritless. Indeed, more than four years ago, the Government
expressly so conceded.
In Tindle v. United States, 778 A.2d 1077 (D.C. 2001), the defen-
dant checked "no" to precisely the same question — "Do you want
to make a statement at this time without a lawyer" — on precisely the
same Prince George’s County Waiver of Rights form. Id. at 1080. The
defendant in Tindle then moved, as Johnson did, to suppress subse-
quent statements made at police initiation. The trial court, like the dis-
trict court here, denied the suppression motion. In Tindle, however,
the United States "candidly concede[d] that the trial court erred by
failing to suppress" the defendant’s statement "under Miran-
da/Edwards." Id. at 1078. The D.C. Court of Appeals agreed, explain-
ing that any effort to persuade a suspect to make a statement after he
has indicated on this waiver form that he does not "want to make a
statement at this time without a lawyer" violates Edwards. Id. at 1083.3
3
Thus, the Prince George’s County police officers have been on notice
for some time that a suspect invokes his right to counsel by doing exactly
what Johnson did here. Moreover, we note that in this case not only did
UNITED STATES v. JOHNSON 13
This may be why the Government does not press this argument in the
case at hand.
In any event, we must reject it. Any ambiguity as to whether John-
son checked "no" on the form because he wanted to remain silent or
because he wanted an attorney would be due entirely to the limited
content and wording of the waiver form itself. In fact, the prosecutor
admitted during the suppression hearing that the question — "Do you
want to make a statement at this time without a lawyer?" — "blends
your right to remain silent and your right to an attorney into one ques-
tion." Unlike other waiver of rights forms routinely used by law
enforcement authorities, see, e.g., United States v. Brown, 287 F.3d
965, 970 n.2 (10th Cir. 2002), the form at issue here neither gave
Johnson the option of explicitly requesting an attorney nor the option
of simply stating he did not want to make a statement at this time. As
a Maryland court recently explained in similar circumstances:
[i]f there is any ambiguity in appellant’s unequivocal and
emphatic response, as contended by the State (and we do not
believe that there is) because of the "multifaceted" nature of
the sentences that compose the waiver of counsel provision,
the ambiguity should arguably be interpreted against the
author of that provision — the State. No discernable public
interest is served by interpreting a purportedly ambiguous
waiver of rights provision in favor of the party who, either
intentionally or unintentionally, inserted the ambiguity in
the provision in the first place.
Billups v. State, 762 A.2d 609, 615-16 (Md. Ct. Spec. App. 2000).
the district court conclude that Johnson had invoked his right to counsel
by checking the form, but both FBI Agent Jordan and Detective Prince,
albeit reluctantly, testified that they too had so concluded. Thus, Agent
Jordan acknowledged that the "last thing [he] heard [from Johnson
before he and Detective Prince left the room] was I want a lawyer." Sim-
ilarly, Detective Prince testified that, when Johnson checked "no" on the
form, she knew that "he did not want to make a statement at this time
without a lawyer, so I left."
14 UNITED STATES v. JOHNSON
We, too, refuse to fault the defendant for any ambiguities — inten-
tional or otherwise — created by the Government. The Supreme
Court has stated that "[i]t is no less good morals and good law that
the Government should turn square corners in dealing with the people
than that the people should turn square corners in dealing with their
government." Heckler v. Community Health Servs. of Crawford
County, Inc., 467 U.S. 51, 61 n.13 (1984) (quoting St. Regis Paper
Co. v. United States, 368 U.S. 208, 229 (1961) (Black, J., dissent-
ing)). This is especially true when dealing with the waiver of funda-
mental rights. "The courts must presume that a defendant did not
waive his rights; the prosecution’s burden is great." North Carolina
v. Butler, 441 U.S. 369, 373 (1979). Because "we should indulge
every reasonable presumption against waiver of fundamental constitu-
tional rights," Michigan v. Jackson, 475 U.S. 625, 633 (1986) (inter-
nal quotation marks and citation omitted), we cannot interpret an
ambiguity caused by the Government to be a waiver of the right that
"is indispensable to the protection of the Fifth Amendment privilege,"
that is, the right to counsel. Miranda, 384 U.S. at 469. "Doubts must
be resolved in favor of protecting the constitutional claim." Jackson,
475 U.S. at 633.
Therefore, we must interpret Johnson’s "no" in response to the
Government’s question, "Do you want to make a statement at this
time without a lawyer?," as an invocation of the right to counsel.
After Johnson invoked his right to counsel, Detective Fenner initiated
a discussion to persuade Johnson to make a statement in direct viola-
tion of Edwards’ bright-line rule. Accordingly, the district court erred
in admitting Johnson’s subsequent statements.
2.
Having found the district court erred in admitting Johnson’s state-
ments, we must "review[ ] the remainder of the evidence against
[him] to determine whether the admission of the confession was
harmless beyond a reasonable doubt." Arizona v. Fulminante, 499
U.S. 279, 310 (1991). We ask "whether, viewing the record as a
whole, it is ‘clear beyond a reasonable doubt that the jury would have
returned a verdict of guilty’" absent the confession or statement.
United States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990). Although
we recognize that a confession can be "the most probative and damag-
UNITED STATES v. JOHNSON 15
ing evidence that can be admitted against [a defendant]," Fulminante,
499 U.S. at 296 (internal quotation marks and citation omitted), we
must conclude that the jury would have convicted Johnson even with-
out his statements.
This case does not involve a "full confession in which the defen-
dant discloses the motive for and means of the crime," which "may
tempt the jury to rely upon that evidence alone in reaching its deci-
sion." Id. Rather it involves statements concerning only "isolated
aspects of the crime." Id. Moreover, in these statements, Johnson min-
imized his participation in the crime. He admitted that he attempted
to rob Ms. Muhammad, Mr. Raymond, and Mr. Asson and that he
was present when Ms. Muhammad was abducted. But he insisted that
he only threatened the victims with a BB gun and claimed that he
went home before Ms. Muhammad was taken to Washington, D.C.,
sexually assaulted, and near-fatally shot. Thus Johnson’s statements
provided evidence only that he had been one of the men in the park-
ing lot with Martin initiating the chain of events that ended in Ms.
Muhammad’s shooting.
The Government, however, introduced an abundance of other evi-
dence, including eye-witness testimony, placing Johnson in the park-
ing lot with Martin robbing the victims — and attempting to rob
others. For example, Sesame Sorrells, who knew Johnson before the
crime, identified Johnson from a photo array, and testified at trial that
Johnson was among the armed assailants in the parking lot the eve-
ning in question. And Martin, Johnson’s co-defendant, whom all of
the victims identified from a photo array, testified that he and John-
son, and two other men, committed the robbery and abducted Ms.
Muhammad. Thus, the Government offered ample and uncontroverted
evidence proving the only damaging facts revealed by Johnson in his
statements. See Mobley, 40 F.3d at 694 (finding improper admission
of defendant’s statement identifying gun was harmless because gov-
ernment presented other evidence establishing the gun belonged to
defendant).
Furthermore, the Government proved Johnson’s involvement in the
sexual assault and shooting of Muhammad without any use of his
statements. All of the evidence pertaining to Ms. Muhammad’s actual
sexual assault and shooting came from the testimony of Ms. Muham-
16 UNITED STATES v. JOHNSON
mad and Martin; Johnson never confessed to those crimes. To the
extent the improperly admitted evidence — that is, Johnson’s state-
ments — did not establish the conduct for which he was convicted,
the error must be harmless. See United States v. Suarez, 263 F.3d 468,
484 (6th Cir. 2001) (finding any error in admitting defendant’s state-
ments would be harmless because the statements did not pertain to the
conduct for which defendant was convicted).
For all these reasons, we conclude that the error in admitting John-
son’s statements was harmless beyond a reasonable doubt. Accord-
ingly, we affirm his conviction.
III.
Because of the nature of Johnson’s crimes, the Mandatory Victims
Restitution Act (MVRA), required the district court to order Johnson
to pay restitution. See 18 U.S.C. § 3663A(c). At the August 4, 2003,
sentencing hearing, the Government had yet to determine an estimate
of the amount of restitution owed, so the district court proceeded with
sentencing but referred the task of setting a restitution amount to a
magistrate judge. Two and a half months later, because the magistrate
had not scheduled a restitution hearing, the Government asked the
district court to schedule a restitution hearing before October 31,
2003, the date on which the statutory ninety-day period for ordering
restitution would expire. See 18 U.S.C. § 3664(d)(5). At a hearing on
October 29, the district court ordered Johnson to pay restitution to
Ms. Muhammad and Family & Child Services.
Johnson challenges the district court’s restitution order on two
grounds. First, he argues that the Government forfeited its request for
restitution by failing to give the court ten days’ notice that the amount
of the victim’s losses would not be ascertainable by the sentencing
hearing. Second, he contends that the court lacked authority to award
restitution to Family & Child Services because the agency does not
fall within the statutory definition of "victim." We reject both argu-
ments.
A.
Johnson maintains that the Government’s request for restitution
was untimely because § 3664(d)(5) provides in relevant part:
UNITED STATES v. JOHNSON 17
If the victim’s losses are not ascertainable by the date that
is 10 days prior to sentencing, the attorney for the Govern-
ment or the probation officer shall so inform the court, and
the court shall set a date for the final determination of the
victim’s losses, not to exceed 90 days after sentencing.
18 U.S.C. § 3664(d)(5). Johnson contends that the district court
lacked authority to postpone the restitution hearing because the Gov-
ernment failed to provide the court with ten days’ notice prior to the
sentencing hearing that the victim’s losses were not ascertainable. We
are unaware of any case — and Johnson cites none — considering the
preclusive effect of § 3664(d)(5)’s ten-day limit. However, our sister
circuits’ cases on the failure to comply with § 3664(d)(5)’s ninety-day
limit provide guidance on the proper disposition of Johnson’s claim.
The First, Second, and Seventh Circuits have held that district
courts can enter restitution orders more than ninety days after sentenc-
ing provided that the delay does not prejudice the defendant. See, e.g.,
United States v. Cheal, 389 F.3d 35, 49-50 (1st Cir. 2004) (finding
failure to enter restitution order within ninety days of sentencing did
not constitute plain error); United States v. Pawlinski, 374 F.3d 536,
539 (7th Cir. 2004) (stating the time limits in § 3664(d)(5) "can some-
times be bent"); United States v. Zakhary, 357 F.3d 186, 191 (2d Cir.
2004) ("[A] district court’s failure to determine identifiable victims’
losses within ninety days after sentencing, as prescribed by
§ 3664(d)(5), will be deemed harmless error to the defendant unless
he can show actual prejudice from the omission."). Cf. United States
v. Terlingo, 327 F.3d 216, 217 (3d Cir. 2003) (concluding ninety-day
time limit "is subject to equitable tolling when the delay is caused in
significant part by the defendant"); United States v. Dando, 287 F.3d
1007 (10th Cir. 2002) (upholding belated restitution order); United
States v. Maung, 267 F.3d 1113, 1122 (11th Cir. 2001) (finding dis-
trict court generally must enter restitution order within ninety days but
noting "we are not willing to say that the 90-day limitation is inexora-
ble and can never be equitably tolled"); United States v. Vandeberg,
201 F.3d 805, 812-14 (6th Cir. 2000) (upholding restitution order
even though defendant did not have an opportunity to object within
ninety-day period). But see United States v. Jolivette, 257 F.3d 581,
584 (6th Cir. 2001) (holding, without reference to Vandeberg, that
"when the 90-day clock runs out, the judgment of conviction and sen-
18 UNITED STATES v. JOHNSON
tence, including the restitution provision, becomes final by operation
of statute").
In so holding, the courts have explained that the procedural
requirements of § 3664 are intended to protect victims, "not the vic-
timizers." United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999).
"[T]he purpose behind the statutory ninety-day limit on the determi-
nation of victims’ losses is not to protect defendants from drawn-out
sentencing proceedings or to establish finality; rather, it is to protect
crime victims from the willful dissipation of defendants’ assets." Zak-
hary, 357 F.3d at 191. Thus, these courts have reasoned that,
"[a]bsent a defendant’s clear showing that his substantial rights have
been prejudiced by a § 3664(d)(5) delay, it would in fact, defeat the
statutory purpose to allow a defendant to invoke this provision in
order to avoid paying restitution to the victims of his crime." Id. at
192-93 (internal quotation marks and citation omitted).
Johnson offers no reason why the ten-day notification rule in
§ 3664(d)(5) should be enforced more strictly than the ninety-day
determination requirement, and we see none. Both rules are proce-
dural only and failure to comply with them does not provide a basis
for questioning the accuracy of the restitution order. Thus, just as the
failure to conform with the ninety-day limit constitutes harmless error
absent prejudice, so too does the failure to comply with the ten-day
limit. Johnson has failed to show any prejudice from the postpone-
ment of his restitution hearing. He had notice of the amount sought,
and the court held a lengthy hearing before entering the restitution
order. Accordingly, we reject this argument.
B.
Johnson also maintains that the district court improperly ordered
him to pay restitution to Family & Child Services. Johnson does not
dispute that the agency provided Ms. Muhammad with necessary psy-
chological counseling to deal with his crimes, or that the agency
charged a reasonable fee for these services. However, Johnson argues
that the district court could order him to pay restitution only to Ms.
Muhammad for the reduced fees she paid the agency and could not
order him to pay restitution to the agency for the fair cost of the treat-
ment it provided Ms. Muhammad at its own expense.
UNITED STATES v. JOHNSON 19
Johnson insists that Family & Child Services is not entitled to resti-
tution for the fair cost of the treatment provided Ms. Muhammad
because it is not a "victim" as that term is defined in the statute, i.e.,
"a person directly and proximately harmed as a result of the commis-
sion of an offense for which restitution may be ordered." 18 U.S.C.
§ 3663A(a)(2). Generally, Congress has provided for restitution pay-
ments only to victims. See United States v. Blake, 81 F.3d 498, 505-
06 (4th Cir. 1996) (interpreting other provisions of 18 U.S.C.A.
§ 3663 (West 1985 & Supp. 1995), a statutory predecessor of the
present § 3663A, which provided for discretionary, rather than man-
datory restitution.)
When a crime results "in bodily injury to a victim," however, the
MVRA does not limit restitution for medical or psychological costs
to those expenses incurred by the victim. 18 U.S.C. § 3663A(b)(2).
Rather, the statute expressly provides that a court "shall order" the
defendant to "pay an amount equal to the cost of necessary medical
and related professional services and devices relating to physical, psy-
chiatric, and psychological care, including non-medical care and treat-
ment rendered in accordance with a method of healing recognized by
the law of the place of treatment." § 3663A(a)(1) and (b)(2)(A).
Unlike subsection (b)(2)(C) of the same statute, which requires the
defendant to "reimburse the victim for income lost by such victim as
a result of [an offense resulting in bodily injury]," subsection
(b)(2)(A) does not require reimbursement for medical expenses be
made to the victim, but rather provides that the defendant "pay an
amount equal to the cost of necessary medical . . . services." Compare
18 U.S.C. § 3663A(b)(2)(A) with § 3663A(b)(2)(C). The careful
choice of words indicates a legislative intent to require those con-
victed of crimes resulting in bodily injury to pay the entire "amount
equal to the cost of necessary medical . . . services," even when the
provider of the services has not taxed the victim herself with the full
amount of those costs.4
4
Legislative history supports our estimation of congressional intent.
The stated purpose of the MVRA was "to ensure that the offender real-
izes the damage caused by the offense and pays the debt owed to the vic-
tim as well as to society." S. Rep. 104-179, at 12 (1995), reprinted in
20 UNITED STATES v. JOHNSON
As the only other court to consider the question has explained, the
language of § 3663A(b)(2)(A) "expresses Congress’ intention that a
defendant must, in every case involving bodily injury, pay what it
costs to care for the victim, whether or not the victim paid for the care
or was obligated to do so." United States v. Cliatt, 338 F.3d 1089,
1091 (9th Cir. 2003).5 Thus, the Cliatt court upheld an order of resti-
tution to a military hospital that provided treatment at no cost to a vic-
tim of violent crime. Id. at 1090. In doing so, the court said, "under
the MVRA, a district court properly orders restitution to be paid to a
third party when that party bears the cost of providing necessary med-
ical care to a victim of a covered offense who suffered bodily injury
as a result of the offense." Id.
In sum, the district court did not abuse its discretion in ordering
Johnson to pay restitution to the agency that provided necessary psy-
chological counseling to Ms. Muhammad.
1996 U.S.C.C.A.N. 924, 925 (emphasis added). Congress’ intent that res-
titution cover the victim’s medical expenses regardless of whether the
victim is obligated to pay for them is further evidenced by 18 U.S.C.
§ 3664(j)(1), which "clarifies that if a victim receives, or is entitled to
receive, compensation from some other source (including insurance pro-
ceeds), the court must order that, after the victim’s losses have been fully
satisfied, restitution be payed to the person providing that compensa-
tion." S. Rep. 104-179, at 15, 1996 U.S.C.C.A.N. 924, 928.
5
United States v. Follet, 269 F.3d 996 (9th Cir. 2001), on which John-
son heavily relies, does not hold to the contrary or in any way assist him.
Rather, it supports the result we reach here. In Follet, the court vacated
an order requiring the defendant to pay restitution to a third-party — but
the restitution order was issued pursuant to a very different statute,
namely, 18 U.S.C. § 2248 (2000). That statute required the defendant to
pay the victim the "full amount of the victim’s losses," which it defined
to include "any costs incurred by the victim" for enumerated expenses.
18 U.S.C. § 2248(a),(b)(1), and (b)(3) (emphasis added). The Follet court
specifically contrasted this language with that of the statute at issue here,
18 U.S.C. § 3663A(b)(2)(A), which "permits courts to order not the costs
incurred by the victim but ‘an amount equal to the cost of necessary . . .
psychological care.’" Follet, 269 F.3d at 1001 (first emphasis added).
The Follet Court concluded that this language in § 3663A "appears
clearly to allow restitution to reflect the value of services provided, no
matter who is obligated to pay for them." Id.
UNITED STATES v. JOHNSON 21
IV.
After the Supreme Court decided Blakely, Johnson filed a supple-
mental brief challenging his sentence. He argues that the district court
violated the Sixth Amendment by imposing a sentence that exceeded
the maximum authorized by the facts found by the jury.
The jury convicted Johnson of kidnaping, using a firearm in the
kidnaping, attempting to kill a witness, and using a firearm in the
attempted killing. However, his sentence was based on a fifth crime
for which he was not convicted — criminal sexual assault. Pursuant
to Guidelines §§ 2A4.1(b)(7)(A) and 2A3.1(a) (2000), the presen-
tence report indicated that Johnson’s base offense level for kidnaping
Muhammad was a 27 because the kidnaping occurred in connection
with a sexual assault, a fact not found by the jury. The report recom-
mended an enhancement of fourteen points, in part because the kid-
naping involved sexual abuse and Ms. Muhammad sustained
permanent or life-threatening bodily injury, facts which were not
found by the jury. The presentence report calculated Johnson’s com-
bined offense level as 41. The district court summarily "adopt[ed] the
factual findings and Guideline application in the presentence report."
Based on Johnson’s criminal history category of I, the Guideline
range for the grouped kidnaping and attempt to kill a witness counts
was 324 to 405 months. The district court sentenced Johnson at the
top of the range to 405 months, that is, to 33.75 years. The district
court also found that the two gun counts involved separate uses of a
firearm and, therefore, imposed consecutive sentences of seven years
and twenty-five years on the respective § 924(c) counts, bringing
Johnson’s total sentence to 65.75 years.
The Government admits that Johnson’s sentence exceeded that
which would be available absent a finding of criminal sexual abuse.
See Supp. Brief of Appellee at 9. Of course, because Johnson raises
his Sixth Amendment challenge to his sentence for the first time on
appeal, we can only vacate his sentence if the district court imposed
it in plain error. See Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 731-32 (1993). However, we have recently held that a
district court does commit plain error, which we will recognize, when
it "impos[es] a sentence exceeding the maximum authorized by the
22 UNITED STATES v. JOHNSON
jury findings alone." United States v. Hughes, ___ F.3d ___, 2005
WL 147059, at *2 (4th Cir. 2005). In this case, the district court
imposed a sentence based on facts not found by the jury. Accordingly,
as in Hughes, we notice the error, vacate the sentence, and remand for
resentencing "consistent with the remedial scheme set forth in Justice
Breyer’s opinion for the Court in Booker." Id. (citing Booker, 125
S.Ct. at 756-57).
V.
For the reasons set forth above, the judgment of the district court
is
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED.