United States v. Tara Hughes ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TARA PATRICE HUGHES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. J. Michelle Childs, District
Judge. (7:11-cr-00053-JMC-13)
Submitted: May 22, 2012 Decided: June 27, 2012
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
F. Scott Pfeiffer, PFEIFFER GLEATON WYATT HEWITT, PA,
Greenville, South Carolina, for Appellant. William N. Nettles,
United States Attorney, William J. Watkins, Jr., Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tara Patrice Hughes, who pled guilty to one count of
conspiracy to commit mail fraud, violating 18 U.S.C.A. §§ 1341
and 1349 (West Supp. 2011), appeals the district court’s order
that she pay $27,427.35 in restitution to three victims
identified in the presentence report (the “PSR”) prepared in her
case. Hughes asserts that the district court erred in three
ways, claiming (1) that the record failed to show evidence
specifically linking the $27,427.35 directly to Hughes’ actions
in furtherance of the conspiracy; (2) that the PSR failed to
elaborate sufficiently detailed findings demonstrating how each
victim suffered the loss amount attributed to it in the PSR; and
(3) that the district court gave insufficient consideration to
Hughes’ overall financial position, particularly in declining to
direct nominal periodic payments under 18 U.S.C. § 3664(f)(3)(B)
(2006).
The first two of Hughes’ assertions are essentially
parallel iterations of the same complaint; namely, that the
district court failed to properly link the $27,427.35 loss
amount to Hughes’ particular conduct. Generally, restitution
orders are reviewed for abuse of discretion. United States v.
Leftwich, 628 F.3d 665, 667 (4th Cir. 2010). Because Hughes did
not raise either of these arguments before the district court,
however, this court’s review is for plain error. United
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States v. Ubakanma, 215 F.3d 421, 427 (4th Cir. 2000); United
States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995).
In our view, Hughes’ argument neglects the fact that
the Mandatory Victims Restitution Act (the “MVRA”), 18 U.S.C.
§ 3663A (2006) -- which governs the restitution ordered in her
case -- “requires that defendants ‘make restitution to the
victim of the offense.’” United States v. Newsome, 322 F.3d
328, 341 (4th Cir. 2003) (quoting 18 U.S.C. § 3663A(a)(1))
(emphasis in original). In other words, “the MVRA focuses on
the offense of conviction rather than on relevant conduct.”
United States v. Llamas, 599 F.3d 381, 390 (4th Cir. 2010). As
a consequence, “under the MVRA, each member of a conspiracy that
in turn causes property loss to a victim is responsible for the
loss caused by the offense,” not merely for the loss occasioned
by her overt acts. Newsome, 322 F.3d at 341 (emphasis in
original). See also United States v. Plumley, 993 F.2d 1140,
1142 (4th Cir. 1993). Accordingly, it is immaterial that the
three victims identified in the restitution order were not
explicitly linked to the particular acts committed by Hughes,
given that there is no dispute that they were victimized by the
overall conspiracy in which Hughes took part.
Hughes also contends that the district court failed to
consider her financial circumstances in fashioning the
restitution order. Given that Hughes made this argument before
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the district court, our review is for abuse of discretion.
Leftwich, 628 F.3d at 667.
The MVRA requires the district court to set a payment
schedule “in consideration of – (A) the financial resources and
other assets of the defendant, including whether any of the
assets are jointly controlled; (B) projected earnings and other
income of the defendant; and (C) any financial obligations of
the defendant; including obligations to dependents.” 18 U.S.C.
§ 3664(f)(2). We have “interpreted this provision as requiring
the district court to make factual findings keying the payment
schedule to these factors and demonstrating the feasibility of
the schedule.” Leftwich, 628 F.3d at 668; see also United
States v. Dawkins, 202 F.3d 711, 717 (4th Cir. 2000) (vacating
and remanding restitution order because district court failed to
make any findings “that key[ed] [defendant’s] financial
situation to the restitution schedule ordered or that the
[restitution] order is feasible”).
Here, although the district court reduced Hughes’s
payment schedule from $200 to $100 per month, the court failed
to make such findings. Accordingly, we vacate and remand the
restitution order to the district court to make the required
findings. We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
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before the court and argument will not aid the decisional
process.
AFFIRMED IN PART AND
VACATED AND REMANDED IN PART
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