United States v. Dailey , 189 F. App'x 212 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4307
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARSHALL DAILEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-03-172)
Submitted: June 21, 2006 Decided: July 10, 2006
Before WILKINS, Chief Judge, and MICHAEL and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
Steven I. Loew, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marshall Dailey (“defendant Dailey” or “Dailey”) challenges
the sentence of imprisonment and the restitution order imposed on
him in the Southern District of West Virginia on his convictions
for two controlled substance offenses and a firearms offense. He
does not challenge his three convictions, which resulted from a
jury trial. As explained below, we affirm defendant Dailey’s
sentence of seventy-eight months imprisonment, but we vacate the
restitution order and remand.
I.
On May 1, 2002, while working for the Trilateral Drug
Enforcement Network Team Drug and Violent Crime Task Force
(“TRIDENT”), Detectives John Dunn, Dustin Joynes, and Marvin
Robinson used David Hess, a confidential informant, in an attempt
to make a controlled purchase of prescription painkillers from
defendant Dailey. The detectives equipped Hess with an audio
recording and transmitting device (the “recording device”), and
dropped him off near Dailey’s home in Raleigh County, West
Virginia.
While at defendant Dailey’s home, Hess discussed the cost of
buying Percocet and Lorcet tablets with Dailey and his brother,
Orlando Dailey (“Orlando”). During that conversation, Orlando
asked Hess “if [he] was wired,” and then tore Hess’ shirt off of
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him. Consequently, Orlando discovered the recording device and
ripped the microphone off Hess. When Detective Dunn, who was
listening in, recognized that the device had been discovered, he
called for backup support from Detectives Joynes and Robinson, and
rushed to the scene of the incident. When he arrived, he found
Hess, beaten and lying on the sidewalk. Defendant Dailey was
present and was holding the top portion of the recording device.
When Detectives Joynes and Robinson arrived, they called for
additional support from the local police, who arrested both Dailey
and Orlando.
The police officers and detectives then obtained search
warrants for the house and two safes inside the house. In carrying
out the searches, the officers seized both safes, which contained
numerous firearms, ammunition, and an assortment of controlled
substances. During the searches, the detectives attempted to
recover the broken recording device, but could not find all of its
components. The device was damaged in the sum of $1300.
On July 29, 2003, a federal grand jury in Beckley, West
Virginia, returned a three-count indictment against defendant
Dailey, charging him with: distribution of hydrocodone, in
contravention of 21 U.S.C. § 841(a)(1) (Count One); distribution of
oxycodone, in violation of 21 U.S.C. § 841(a)(1) (Count Two); and
possession of a firearm in furtherance of a drug trafficking
offense, in contravention of 18 U.S.C. § 924(c)(1)(A)(I) (Count
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Three). On April 30, 2004, after a one-day trial in Beckley, a
jury convicted Dailey of all three offenses.
Dailey’s presentence report (the “PSR”) was submitted to the
district court on July 16, 2004. The PSR recommended a base
offense level of 12 on Counts One and Two, and a two-level
enhancement for obstruction of justice, for a total offense level
of 14. The PSR further calculated Dailey’s criminal history
category as II, yielding an advisory Guidelines sentencing range
for Counts One and Two of eighteen to twenty-four months. Pursuant
to the statute of conviction for Count Three (18 U.S.C.
§ 924(c)(1)(A)(I)), the PSR advised that the court was obliged to
impose a sentence of at least sixty months on Count Three, to run
consecutively to the sentence imposed on Counts One and Two.1
Defendant Dailey’s sentencing hearing was conducted in the
district court on February 24, 2005. At that hearing, the court
calculated Dailey’s Guidelines sentencing range on Counts One and
Two as eighteen to twenty-four months. The court then asked
counsel for their positions on whether an order of restitution with
respect to the damaged recording device would be appropriate.
1
Dailey objected to the PSR’s recommendations, contending that
due process, informed by constitutional ex post facto principles,
precluded the sentencing court from imposing a sentence greater
than it could have imposed under the mandatory Guidelines scheme in
effect at the time of his offenses. Additionally, Dailey asserted
that his final offense level should be 12, and that the facts
supporting any enhancement applied against him had to be proven
beyond a reasonable doubt. However, the court overruled Dailey’s
objections to the PSR at his sentencing hearing.
4
Defendant Dailey responded that restitution was not appropriate
because the damage to the recording device was not directly caused
by the conduct constituting his offenses of conviction. He
asserted that “the offenses of conviction are possessing a gun and
distributing drugs. They have nothing to do with destruction of
Government property.” J.A. 273.2 The Government, on the other
hand, contended that, although it did not “know any case law that
goes one way or the other,” the court was authorized to order
restitution under the drug and firearms offenses, because “[i]t’s
clearly related to these counts. It was during the drug offense
that [defendant Dailey] . . . ripped off the wire and damaged the
property.” J.A. 274. Consequently, the Government maintained, a
restitution order for the damaged recording device, in the sum of
$1300, would be appropriate. The court thereafter concluded that
the damage to the recording device was sufficiently related to the
offenses of conviction to allow for an order of restitution.
The court then sentenced defendant Dailey to concurrent terms
of eighteen months each on Counts One and Two, and a consecutive
term of sixty months on Count Three, for a total of seventy-eight
months in custody. The court further ordered Dailey to pay $1300
in restitution to TRIDENT. Dailey has timely noted this appeal,
and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
2
Our citations to “J.A. ” refer to the contents of the Joint
Appendix filed by the parties in this appeal.
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II.
We review a district court’s order of restitution for abuse of
discretion. United States v. Vinyard, 266 F.3d 320, 325 (4th Cir.
2001). By definition, however, a court abuses its discretion when
it makes an error of law. EEOC v. Navy Federal Credit Union, 424
F.3d 397, 405 (4th Cir. 2005). We review questions of law, such as
statutory interpretation issues, de novo. United States v. Turner,
389 F.3d 111, 119 (4th Cir. 2004). And we review for
reasonableness a sentence imposed under the advisory Sentencing
Guidelines regime. United States v. Booker, 543 U.S. 220, 261
(2005).
III.
A.
In his first contention on appeal, Dailey maintains that the
district court erred in ordering him to pay $1300 in restitution to
TRIDENT for the damage caused to the recording device. We are
constrained to agree. The federal sentencing courts possess no
inherent authority to order restitution, and they may do so only
when explicitly authorized by statute. See United States v.
Donaby, 349 F.3d 1046, 1052 (7th Cir. 2003). The Victim and
Witness Protection Act of 1982 (the “VWPA”) provides, in relevant
part, that a court, in sentencing a defendant convicted of an
offense under 21 U.S.C. § 841 (the statute of conviction on Counts
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One and Two), may order the defendant to make restitution to any
victim of the offense. See 18 U.S.C. § 3363. Additionally, the
Mandatory Victims Restitution Act (the “MVRA”) provides, as
pertinent, that a sentencing court shall award restitution to
victims of certain categories of offenses, including “a crime of
violence, as defined in [18 U.S.C. §] 16.” 18 U.S.C. § 3663A. We
have recognized that the use or possession of a firearm in
furtherance of a drug offense, in violation of 18 U.S.C. § 924(c)
(the statute of conviction on Count Three), is a crime of violence
as defined in 18 U.S.C. § 16(b), thereby making restitution
mandatory to a victim under the MVRA. See United States v. Myers,
280 F.3d 407, 416-17 (4th Cir. 2002). The district court therefore
possessed discretion, under the VWPA, to order restitution to the
victims of Dailey’s Counts One and Two offenses, and it was
required, under the MVRA, to award restitution to the victims of
the Count Three offense.
TRIDENT, the Drug and Violent Crimes Task Force, was not,
however, a “victim” of any of defendant Dailey’s offenses in this
case. Under both the VWPA and the MVRA, a “victim” is defined as
a person directly and proximately harmed as a result of
the commission of an offense for which restitution may be
ordered including, in the case of an offense that
involves as an element a scheme, conspiracy, or pattern
of criminal activity, any person directly harmed by the
defendant’s criminal conduct in the course of the scheme,
conspiracy, or pattern.
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§ 3663(a)(2), § 3663A(a)(2). In our decision in United States v.
Blake, we recognized that, in order to qualify as a victim under
the VWPA, one must be directly and proximately harmed by either:
(1) the conduct underlying an element of the offense of conviction;
or (2) an act taken in furtherance of a scheme, conspiracy, or
pattern of criminal activity, which is an element of the offense of
conviction. See 81 F.3d 498, 506 (4th Cir. 1996); accord United
States v. Davenport, 445 F.3d 366, 373-74 (4th Cir. 2006)
(construing “victim” under the MVRA). A person who has been harmed
by conduct not falling within one of these scenarios is not
entitled to an award of restitution by a sentencing court. Blake,
81 F.3d at 506.3 Since none of Dailey’s offenses of conviction
have as an element a scheme, conspiracy, or criminal pattern, the
only inquiry left to us is whether the damage suffered by the
recording device was “conduct underlying an element of the offense
of conviction.” See Davenport, 445 F.3d at 373-74; Blake, 81 F.3d
at 506.
The Government contends that TRIDENT is a victim of Dailey’s
offenses because his destruction of the recording device was “part
of the ongoing commission of” his drug and firearm offenses of
conviction and was “inextricable” from those offenses. Appellee’s
3
The VWPA and MVRA also authorize a sentencing court to award
restitution if the parties have so agreed in a plea agreement. See
18 U.S.C. § 3663(a)(3); 18 U.S.C. § 3663A (a)(3). These statutory
provisions are irrelevant here as defendant Dailey was convicted
after a jury trial, rather than pursuant to a guilty plea.
8
Br. at 8-9. Unfortunately for the Government and this contention,
however, we have heretofore rejected the proposition that
restitution may be ordered for conduct “inextricably intertwined”
with the offense of conviction, merely because of a factual
connection between the two. See United States v. Broughton-Jones,
71 F.3d 1143, 1149 (4th Cir. 1995). We cannot, therefore, extend
Dailey’s drug and firearms offenses to include his destruction of
the recording device, simply because of a temporal proximity
between the events.
Moreover, Blake proscribes us from concluding that Dailey’s
damage to the recording device, insofar as it evidenced his
consciousness of guilt, constitutes conduct underlying any
knowledge or intent element of his drug and firearms offenses. In
Blake, the defendant, who had pleaded guilty to the use of
unauthorized credit cards, was ordered to make restitution to the
card owners as part of his sentence. See 81 F.3d at 502. Blake’s
offense of conviction had four elements, including the intent to
defraud. See id. at 506. We there determined that, although his
stealing of credit cards was evidence of Blake’s intent to defraud,
the specific conduct underlying the intent element did not include
theft of the credit cards. See id. The restitution order against
Blake was therefore deemed inappropriate. See id. at 507; accord
Davenport, 445 F.3d at 373-74 (concluding that conduct underlying
elements of fraudulent use of credit card offense did not include
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theft of card, and restitution was therefore inappropriate). By
analogy, we are foreclosed from concluding that the damage to the
recording device in Dailey’s case (although evidence of
consciousness of guilt), is conduct underlying a knowledge or
intent element of an offense of conviction. TRIDENT was therefore
not, under these facts, a “victim” of any of Dailey’s offenses of
conviction, and the sentencing court erred in ordering Dailey to
make restitution to TRIDENT.
B.
Defendant Dailey further contends that his sentence was
unreasonable under the standards set forth in United States v.
Booker, 543 U.S. 220 (2005). We are obliged to disagree. First,
the district court, in imposing sentence, properly followed the
procedures we established in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), by calculating Dailey’s sentencing range under
the Guidelines and then considering the factors provided in 18
U.S.C. § 3553(a). Second, the sentence imposed fell within the
advisory Guidelines range and is thus “entitled to a rebuttable
presumption of reasonableness.” United States v. Moreland, 437
F.3d 424, 433 (4th Cir. 2006). In attempting to rebut this
presumption, Dailey asserts only that his sentence is unreasonable
because of his need for medical care. Although his medical needs
may have justified a variant sentence, see § 3553(a)(1) (providing
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that sentencing courts must consider “the nature and circumstances
of the offense and the history and characteristics of the
defendant”) and § 3553(a)(2)(D) (providing that sentencing courts
must consider “the need for the sentence imposed . . . to provide
the defendant with needed . . . medical care”), the district court
properly weighed each of these factors. As a result, it sentenced
at the bottom of the Guidelines range and recommended that Dailey
be assigned to a facility which would be able to treat his medical
condition. In these circumstances, the fact that the court did not
impose a sentence below the advisory Guidelines range, is not,
standing alone, sufficient to rebut the presumption of
reasonableness.
IV.
Pursuant to the foregoing, we affirm the district court’s
sentence of imprisonment, but we vacate its restitution order and
remand for such other and further proceedings as may be
appropriate.4
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
4
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid in the decisional process.
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