United States v. Harvey , 38 F. App'x 147 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4311
DALE HARVEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-01-4)
Submitted: December 17, 2001
Decided: March 29, 2002
Before WIDENER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, David J. Cortes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. HARVEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dale Harvey pled guilty to one count of credit card fraud, in viola-
tion of 18 U.S.C.A. § 1029(a)(2) (West 2000); he appeals his sen-
tence. Harvey’s offense involved use of Social Security numbers and
other personal information he used to obtain credit cards and establish
credit accounts in the names of several individuals, and use of those
cards and accounts to obtain cash advances and purchase computers,
consumer electronics, and other items without paying the credit
charges. Harvey then sold those items and retained the proceeds.
Starting in March 2000, Harvey enlisted the aid of his companion,
Elissa Beeler, in executing the fraud.
In preparing the presentence investigation report, the probation
officer determined that Harvey’s crimes caused actual and intended
losses totaling $74,904.55, and recommended a six level enhancement
of Harvey’s offense level. See U.S. Sentencing Guidelines Manual
§ 2F1.1(b)(1)(G) (2000). The probation officer also recommended an
additional four level enhancement based upon a finding that Harvey
was a leader in a criminal enterprise that involved five or more partic-
ipants. See USSG § 3B1.1. Finally, the presentence report noted that
Harvey had a negative net worth and therefore no ability to pay a fine,
but that restitution was required in the amount of $39,881.79.
The district court adopted the findings and recommendations in the
presentence report and sentenced Harvey to forty-six months impris-
onment to be followed by a three year term of supervised release. The
district court ordered restitution of $39,881.79, due and payable
immediately, and held Harvey and Beeler jointly and severally liable
for the restitution.
Harvey first challenges the district court’s imposition of a four-
level enhancement, pursuant to USSG § 3B1.1(a). We review the dis-
UNITED STATES v. HARVEY 3
trict court’s determination for clear error. See United States v. Per-
kins, 108 F.3d 512, 518 (4th Cir. 1997). Section 3B1.1(a) of the
Sentencing Guidelines provides for a four-level enhancement, based
upon a defendant’s aggravating role in the offense, "[i]f the defendant
was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive." Harvey’s presentence
report, which was adopted by the district court, proposed a four-level
enhancement on the basis that Harvey was an organizer or leader of
a criminal activity that involved at least five participants. The govern-
ment, although conceding that it could not establish that Harvey’s
criminal activity involved five or more participants, asserted that a
four-level enhancement was nevertheless proper because Harvey’s
criminal activity was "otherwise extensive."
Harvey challenges the enhancement on multiple grounds. First, he
argues that the district court failed to make the requisite factual find-
ings to support its imposition of the enhancement, and failed to
resolve disputed facts concerning the enhancement. Federal Rule of
Criminal Procedure 32 requires that, at sentencing, "[f]or each matter
controverted, the court must make either a finding on the allegation
or a determination that no finding is necessary because the contro-
verted matter will not be taken into account in, or will not affect, sen-
tencing." Fed. R. Crim. P. 32(c)(1). We have held that, in lieu of
specific findings by the district court, "the district court may expressly
adopt the recommended findings in the presentence report." United
States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991). However, if "the
district court elects to take this approach in meeting its responsibilities
under Rule 32, it must make clear on the record that it has made an
independent finding and that its finding coincides with the recom-
mended finding in the presentence report." Id.Our review of the record reveals that the district court failed to
make adequate findings and resolve disputed factual issues to support
enhancement under § 3B1.1. First, in his objections to the presentence
report, and again at sentencing, Harvey asserted that information he
provided to authorities in post-arrest interviews should not have been
used to calculate his sentence. See USSG § 1B1.8 (2000). The Gov-
ernment argued that Harvey’s statements were not protected. The dis-
trict court did not resolve this disputed factual issue, or address
whether this issue had any impact on sentencing. In addition, Harvey
4 UNITED STATES v. HARVEY
submitted information to the district court that indicated Beeler tried
to minimize her own culpability for the fraud when she was inter-
viewed by investigators. The district court was required to, at a mini-
mum, rule on whether Harvey’s statements were protected under
§ 1B1.8, and on the credibility of the information Harvey submitted
and its impact, if any, on the propriety of the § 3B1.1 enhancement.
The district court also failed to resolve the discrepancy in the basis
for the imposition of the enhancement under § 3B1.1. As noted above,
the presentence report recommended enhancement on the basis that
the criminal activity involved five or more persons. At sentencing, the
Government disavowed that basis, arguing instead that the activity
was otherwise extensive. While the district court’s adoption of the
presentence report can be interpreted as an implicit finding that Har-
vey’s criminal activity involved five or more persons, the record is
not "clear regarding which disputed issues were resolved by the adop-
tion." Morgan, 942 F.2d at 245-46. Harvey also argues that the evi-
dence was insufficient to support the four level enhancement imposed
by the district court. We find, however, that the present record is
insufficient to permit effective appellate review of this issue.
Harvey next contends that the district court erred in using the
intended loss from his criminal activity, rather than the actual losses,
in determining his offense level. Harvey did not raise this issue in the
district court. Therefore, we review for plain error. See United States
v. Olano, 507 U.S. 725, 732 (1993); United States v. Walker, 112 F.3d
163, 166 (4th Cir. 1997). In determining a sentence, "if an intended
loss that the defendant was attempting to inflict can be determined,
this figure will be used if it is greater than the actual loss." USSG
§ 2F1.1, comment. (n.8). See United States v. Williams, 81 F.3d 1321,
1328 (4th Cir. 1996). Harvey contends that he would not have placed
subsequent fraudulent computer orders if his earlier, unsuccessful
orders had been successful because his criminal activities were used
to fund his and Beeler’s daily living expenses. This contention is pure
conjecture. Moreover, his assertion is belied by the record of fraudu-
lent orders placed well before he and Beeler began working together.
The district court did not err in including intended losses in its sen-
tencing calculations.
Harvey next contends that the district court erred in ordering that
$39,881.79 in restitution be paid in full immediately, without consid-
UNITED STATES v. HARVEY 5
ering Harvey’s financial condition in determining a payment sched-
ule. Harvey did not raise this issue in the district court, and we limit
our review to plain error. See United States v. Ubakanma, 215 F.3d
421, 427 (4th Cir. 2000). The district court ordered Harvey to pay res-
titution in the amounts detailed in the presentence report, and imposed
joint and several liability with his co-defendant Beeler. Payment was
ordered due in full immediately. The court then found that Harvey did
not have the ability to pay a fine in addition to restitution, and
declined to impose a fine. Harvey does not argue that restitution was
inappropriate, nor contest the amount of restitution required, but
argues that the district court’s order of restitution does not comply
with the requirements of 18 U.S.C.A. § 3664(f) (West 2000), and our
holding in United States v. Dawkins, 202 F.3d 711 (4th Cir.), cert.
denied, 529 U.S. 1121 (2000). In Dawkins, we vacated and remanded
a sentence that included a restitution order, in part because the district
court failed to make the factual findings required by § 3664(f)(2) in
ordering restitution. Dawkins, 202 F.3d at 716-17. In this case, as in
Dawkins, the presentence report described Harvey’s negative net
worth and projected income, but the report is silent as to any schedule
for restitution payments. Because the presentence report does not
address a schedule of payments, and the district court did not state
any findings that relate Harvey’s financial condition to the restitution
schedule ordered, we find plain error. Dawkins, 202 F.3d at 717; Uba-
kanma, 215 F.3d at 428-29. On remand, the district court shall make
the appropriate findings in accordance with § 3664(f).
In his final assertion of error, Harvey contends that the district
court erred by failing to specify that the restitution due each victim
of his crimes is limited to the amount of actual loss incurred by that
victim. Harvey and his co-defendant, Beeler, were ordered jointly and
severally liable for restitution; Harvey is liable for $39,881.79, and
Beeler is liable for $25,564.06. Harvey did not raise this issue before
the district court, and we review for plain error. Ubakanma, 215 F.3d
at 429. In this case, if Harvey and Beeler each paid the full amount
of restitution ordered, the victims would receive $25,564.06 more
than the actual losses sustained as a result of the criminal conduct.
Because restitution is limited to an amount that will restore the victim
to the position occupied prior to the crime, the district court’s failure,
in imposing joint and several liability, to explicitly limit the total
recovery of each victim, is error. However, because there is no statute
6 UNITED STATES v. HARVEY
or controlling Fourth Circuit law requiring that a restitution order
imposing joint and several liability explicitly state the limit of the vic-
tims’ recovery, the district court’s error does not amount to plain
error. Nevertheless, because remand for resentencing is necessary in
any event, the district court should correct this error when resentenc-
ing Harvey by including a limitation on each victim’s recovery in its
written judgment.
Accordingly, we affirm Harvey’s conviction, but vacate his sen-
tence and remand for resentencing in accordance with this opinion.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART; VACATED
AND REMANDED IN PART