United States v. Bettie ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4647
LESLIE DALE BETTIE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CR-98-240)
Submitted: October 10, 2000
Decided: December 19, 2000
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Jennifer T. Harrod, BROOKS, PIERCE McLENDON, HUMPHREY
& LEONARD, L.L.P., Greensboro, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, Brian Lee Whisler,
Appellate Chief Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
2 UNITED STATES v. BETTIE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Leslie Dale Bettie entered a guilty plea to unlawful distribution of
methamphetamine, in violation of 21 U.S.C.A. § 841(a)(1) (West
1999). The court sentenced him to a sixty-month term of imprison-
ment to be followed by three years of supervised release and ordered
him to pay $4100 in restitution. Bettie appeals his sentence, asserting
that counsel provided ineffective assistance. We affirm in part, vacate
in part, and remand.
For Bettie to succeed on a claim of ineffective assistance of coun-
sel on direct appeal, he must show conclusively from the face of the
record that counsel provided ineffective representation. See United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing
standard and noting that ineffective assistance of counsel claims gen-
erally should be raised by motion under 28 U.S.C. § 2255), cert.
denied, 120 S. Ct. 837 (2000). To establish such a claim, Bettie must
show that: (1) counsel’s representation fell below an objective stan-
dard of reasonableness; and (2) there is a reasonable probability that
he was prejudiced by counsel’s unprofessional errors. See Strickland
v. Washington, 466 U.S. 668, 688, 694 (1984).
Bettie first contends that counsel failed to object to an error in the
calculation of the amount of drugs attributable to him as relevant con-
duct. Bettie essentially argues that the drugs seized from his home
were for personal use and not part of the same course of conduct as
the distribution offense to which he pled guilty. The Government
agrees that Bettie’s base offense level was calculated erroneously
using the amounts seized from his home.
Despite the parties’ agreement, however, our review of the record
leads us to conclude that counsel’s ineffectiveness does not conclu-
sively appear from the face of the record. See Richardson, 195 F.3d
UNITED STATES v. BETTIE 3
at 198. Accordingly, we decline to address this claim and Bettie’s
claim that counsel failed to advocate for him at sentencing as they are
more appropriately raised in a motion under 28 U.S.C.A. § 2255(West Supp. 2000).
Bettie also asserts that counsel failed to challenge the district
court’s order of restitution under the Victim and Witness Protection
Act ("VWPA") and that the award of restitution is illegal. He con-
tends that (1) counsel should not have stipulated at the sentencing
hearing to the award of restitution to reimburse the Government for
funds it expended in investigating his case because the Government
is not a victim under the VWPA; and (2) counsel should have
objected to the district court’s failure to make specific findings with
regard to Bettie’s ability to pay. The Government agrees.
Under the VWPA, the district court may order a defendant to pay
restitution to any victim of an offense of conviction. See 18 U.S.C.A.
§ 3663(a)(1)(A) (West 2000); United States v. Blake, 81 F.3d 498,
506 (4th Cir. 1996) (observing that authority of district court to order
restitution limited to terms of VWPA). An individual is a victim
under § 3663 if the act that harms him is either conduct underlying
an element of the offense of conviction, or an act taken in furtherance
of a scheme, conspiracy, or pattern of criminal activity that is specifi-
cally included as an element of the offense of conviction. See Blake,
81 F.3d at 506; 18 U.S.C.A. § 3663(a)(2) (defining "victim" as "a per-
son directly and proximately harmed as a result of the commission of
an offense for which restitution may be ordered").
Every circuit to address whether the Government is a "victim"
when it supplies the money used to apprehend criminals has held that
it is not. See United States v. Cottman, 142 F.3d 160, 169 (3d Cir.
1998); United States v. Khawaja, 118 F.3d 1454, 1460 (11th Cir.
1997); United States v. Meacham, 27 F.3d 214, 218-19 (6th Cir.
1994); United States v. Gibbens, 25 F.3d 28, 29 (1st Cir. 1994);
United States v. Salcedo-Lopez, 907 F.2d 97, 98-99 (9th Cir. 1990).
In light of these authorities, we find that counsel’s stipulation to
$4100 in restitution for the express purpose of repaying the Govern-
ment for funds it expended in the controlled buys on which Bettie’s
conviction was based falls below an objective standard of reasonable-
ness, see Strickland, 466 U.S. at 688, because the Government is not
4 UNITED STATES v. BETTIE
a victim under the VWPA. Moreover, requiring Bettie to pay restitu-
tion that is not authorized prejudices him. We therefore find that
counsel’s ineffectiveness conclusively appears on the face of the
record. See Richardson, 195 F.3d at 198.
Accordingly, we vacate the portion of the judgment ordering Bettie
to pay $4100 in restitution and remand to the district court for further
proceedings consistent with this opinion. We affirm Bettie’s sentence
in all other respects. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED