United States v. Dennis Sutton , 506 F. App'x 235 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4297
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS BRADLEY SUTTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:10-cr-00096-FL-1)
Submitted: January 15, 2013 Decided: January 24, 2013
Before MOTZ, SHEDD, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis Bradley Sutton appeals the 200-month sentence
and restitution order imposed following his guilty plea to
possession of a firearm by a convicted felon and aiding and
abetting the same, in violation of 18 U.S.C. §§ 922(g)(1), 924,
2 (2006), and possession of a stolen firearm and aiding and
abetting the same, in violation of 18 U.S.C. §§ 922(j), 924, 2.
On appeal, Sutton contends that the district court erred in
sentencing him as an armed career criminal and in imposing
restitution. We affirm in part and vacate in part.
Sutton first contends that the district court
erroneously relied on non-Shepard 1-approved sources to determine
that his prior breaking and entering convictions were distinct
violent felonies. We conclude that Sutton expressly waived his
right to contest the armed career criminal designation. See
United States v. Olano, 507 U.S. 725, 733 (1993) (“[W]aiver is
the intentional relinquishment or abandonment of a known right.”
(internal quotation marks omitted)); United States v. West, 550
F.3d 952, 958-59 (10th Cir. 2008) (finding that defendant waived
challenge to prior conviction as predicate offense for purposes
of the Armed Career Criminal Act by affirmatively conceding
issue in district court), partially overruled on other grounds
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Shepard v. United States, 544 U.S. 13 (2005).
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as recognized by United States v. Smith, 652 F.3d 1244, 1246
(10th Cir. 2011); see also United States v. Taylor, 659 F.3d
339, 348 (4th Cir. 2011) (“[T]he defendant is deemed bound by
the acts of his lawyer-agent.” (internal quotation marks
omitted)), cert. denied, 132 S. Ct. 1817 (2012). Therefore, we
will not consider Sutton’s challenge to the armed career
criminal designation on appeal. See United States v. Claridy,
601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When a claim of . . .
error has been waived, it is not reviewable on appeal.”).
Sutton also contends that the district court erred in
ordering restitution to two businesses. 2 Generally, “[w]e review
a district court’s restitution order for abuse of discretion.”
United States v. Leftwich, 628 F.3d 665, 667 (4th Cir. 2010).
None of the specific claims Sutton has raised on appeal were,
however, raised in the district court. Thus, “our review is
limited to plain error.” United States v. Ubakanma, 215 F.3d
421, 427 (4th Cir. 2000). To demonstrate plain error, a
defendant must show that: (1) there was an error; (2) the error
2
Sutton does not challenge on appeal the restitution
payable to three individuals. Thus, he has forfeited appellate
review of that portion of the restitution order. See Edwards v.
City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)
(concluding that issues not raised in opening brief are deemed
abandoned).
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was plain; and (3) the error affected his “substantial rights.”
Olano, 507 U.S. at 732.
Under the Victim Witness Protection Act (VWPA), the
district court must consider the following factors prior to
imposing restitution: “the amount of loss sustained by each
victim as a result of the offense; and . . . the financial
resources of the defendant, the financial needs and earning
ability of the defendant and the defendant’s dependents, and
such other factors as the court deems appropriate.” 18 U.S.C.
§ 3663(a)(1)(B) (2006). After determining the amount owed to
each victim, the court must consider the defendant’s financial
resources and assets, projected earnings and income, and other
financial obligations in setting the payment schedule. 18
U.S.C. § 3664(f)(2); see United States v. Dawkins, 202 F.3d 711,
716 (4th Cir. 2000) (requiring district court to “find that the
manner of restitution ordered is feasible”).
The Government contends that the district court was
not required to consider the § 3663(a)(1)(B) factors because the
parties agreed to restitution in the plea agreement. While the
VWPA does permit the district court to order restitution “to the
extent agreed to by the parties in a plea agreement,” 18 U.S.C.
§ 3663(a)(3), the parties here merely agreed that Sutton would
pay restitution “in whatever amount the Court may order.” We do
not read this language as expressing the agreement of the
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parties to free the district court from its statutory obligation
to make factual findings under § 3663(a)(1)(B) before imposing
restitution.
Here, the district court made no factual findings
relevant to restitution. Nonetheless, “we have held that a
sentencing court satisfies its duty to make specific findings if
it adopts a presentence report that contains adequate factual
findings to allow effective appellate review of the fine or
restitution.” United States v. Karam, 201 F.3d 320, 329 (4th
Cir. 2000) (internal quotation marks omitted). Our review of
the record reveals that the presentence investigation report
adopted by the district court in this case provides some
relevant factual findings as to Sutton’s future earning
capacity. It does not, however, contain sufficient factual
findings to determine whether the businesses to which
restitution was ordered were “victims.” See 18 U.S.C.
§ 3663(a)(2) (defining “victim” as “a person directly and
proximately harmed as a result of the commission of an offense
for which restitution may be ordered”). Thus, we conclude that
the district court’s failure to make sufficient factual findings
relevant to these businesses, as required by the VWPA, was plain
error that affected Sutton’s substantial rights.
Accordingly, while we affirm Sutton’s convictions and
sentence of imprisonment, we vacate the restitution order and
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remand to the district court for additional factual findings
consistent with this opinion. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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