United States v. Jeffrey D. Lachowski ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2485
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jeffrey D. Lachowski, *
*
Appellant. *
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Submitted: December 17, 2004
Filed: April 29, 2005
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Before WOLLMAN, MAGILL, and COLLOTON, Circuit Judges.
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MAGILL, Circuit Judge.
Jeffrey Lachowski appeals the district court’s imposition of a restitution order
as part of his sentence for possession with intent to distribute methamphetamine. The
district court ordered Lachowski to pay $2,250.75 in restitution (jointly and severally
with another person) to the Drug Enforcement Agency (DEA) for costs incurred
cleaning up toxic chemicals associated with methamphetamine production found on
the premises where Lachowski lived. Lachowski contends that there was no statutory
basis for the restitution order and that there was insufficient evidence to prove the
amount of restitution. We reverse and vacate the restitution order.
I.
On March 26, 2004, Lachowski entered a plea of guilty to a charge of
possession with intent to distribute fifty grams or more of methamphetamine in
violation of 21 U.S.C. § 841. According to the presentence report (PSR), a search of
Lachowski’s residence uncovered 66 grams of methamphetamine along with various
drug paraphernalia and ingredients used to manufacture and sell methamphetamine.
The PSR also states that Lachowski told Craig Dorn, who was convicted of
conspiracy to distribute methamphetamine in a related case, that he had been making
methamphetamine. Lachowski did not object to any of the sections of the PSR that
implicated him in the manufacture of methamphetamine.
The DEA cleaned up toxic materials in Lachowski’s residence associated with
the manufacture of methamphetamine and sought $2,250.75 in restitution. The PSR
suggested ordering restitution, but making Garth Ruh, who lived in the same
residence as Lachowski, jointly and severally liable. Lachowski objected, contending
that there was not sufficient information to impose the amount of restitution sought.
In response, the DEA submitted the invoice of the private contractor that performed
the cleanup and an affidavit by a DEA special agent that arranges for private
contractors to dispose of toxic waste from drug labs. At the sentencing hearing,
Lachowski renewed his objection. He argued that the evidence submitted by the DEA
was insufficient to show the “need for the clean up, what was cleaned up, and whether
the charges for the clean up were fair and reasonable.” Br. of Appellant at 10-11.
The district court found the affidavit and invoice to be sufficient and ordered
$2,250.75 in restitution to the DEA.
II.
On appeal, Lachowski raises two issues. First, he argues that the district court
lacked statutory authority to impose restitution. Second, he argues that the evidence
submitted was insufficient to support the restitution order.
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“Federal courts cannot order restitution in a criminal case without a statutory
basis.” United States v. Pawlinski, 374 F.3d 536, 540 (7th Cir. 2004). Although the
parties have argued that the district court ordered restitution to the DEA as a term of
supervised release, we do not agree. See 18 U.S.C. § 3583(d) (allowing for
discretionary imposition of restitution as a term of supervised release). Rather, after
a close review of the record, we believe that the district court followed the suggestion
of the PSR and imposed restitution pursuant to 21 U.S.C. § 853(q). Section 853(q)
authorizes the imposition of restitution for the clean-up costs of drug labs when the
defendant has been “convicted of an offense . . . involving the manufacture of
amphetamine or methamphetamine.”
Lachowski failed to object at trial to the statutory authority to impose a
restitution order, and his claim is therefore reviewed for plain error. United States v.
Piggie, 303 F.3d 923, 928 (8th Cir. 2002). The imposition of restitution without a
statutory basis can constitute plain error. United States v. Ramirez, 196 F.3d 895,
899 (8th Cir. 1999) (citing United States v. Trigg, 119 F.3d 493, 501 & n.7 (7th Cir.
1997), and United States v. Obasohan, 73 F.3d 309, 311 (11th Cir. 1996)) (“[A]n
order to pay restitution beyond that authorized by the statute is a plain error of law.”).
For an error to have been plain, it must have been “clear” or “obvious” under current
law. See United States v. Olano, 507 U.S. 725, 734 (1993).
We have found no pertinent authority concerning the scope of § 853(q).
Usually, for an error to be plain, it must be in contravention of either Supreme Court
or controlling circuit precedent. The lack of such precedent, however, does not
prevent a finding of plain error if the error was, in fact, clear or obvious based on the
materials available to the district court. See United States v. Ruiz-Gea, 340 F.3d
1181, 1187 (10th Cir. 2003) (finding that a district court’s ruling that is “clearly
erroneous” constitutes plain error if there was no precedent).
In the absence of controlling precedent of either this court or the Supreme
Court, the district court is granted more discretion under the plain error standard
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simply because the less guidance there is, the smaller the realm of decisions that
would be clearly or obviously wrong under current law. There is ultimately, however,
a limit to what the district court can do, even under plain error review, and, for
example, in the statutory construction context, it is possible that the construction of
the statute proffered by the district court departs so far from the text that it is clearly
incorrect as a matter of law. We must therefore determine if there was error and, if
so, whether it was plain.
Our analysis of the statute must start, as always, with the plain text. In re Hen
House Interstate, Inc., 177 F.3d 719, 722 (8th Cir. 1999). By its text, § 853(q) applies
only when the defendant has been convicted of an offense “involving” the
manufacture of methamphetamine.1 The term “involving” appears to expand the
scope of the statute beyond convictions for the manufacture of methamphetamine into
related areas. See United States v. King, 325 F.3d 110, 113 (2d Cir. 2003). Thus, as
with most statutes, there is a gray area in which arguments can be made regarding the
applicability of the statute. But we need not determine the actual scope of the statute.
Rather, we only need to determine whether it was clear or obvious that possession
with intent to distribute was not covered by the statute.
“Involving” is defined as “includ[ing] as a necessary circumstance, condition,
or consequence.” Random House Webster’s Unabridged Dictionary 1005 (2d ed.
1997). Possession with intent to distribute and manufacture are distinct crimes and
are listed separately in the federal criminal code. See, e.g., 21 U.S.C. § 841(a)(1)
(making it unlawful to “manufacture, distribute, or dispense, or possess with intent
to manufacture, distribute, or dispense, a controlled substance ”). It strikes us as clear
that possession of an item does not include as a necessary circumstance being
1
Because § 853(q) is limited to situations where the offense the defendant was
convicted of “involves” the manufacture of methamphetamine, we look only to what
Lachowski was convicted of, not whether the district court could reasonably conclude
that Lachowski had manufactured methamphetamine.
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associated in any way with its manufacture. Furthermore, distribution is essentially
the deliverance of a product to its intended recipients. See Random House Webster’s
Unabridged Dictionary, supra, at 572. Again, this does not require the person
distributing the good to have any connection with its manufacture. Thus, the offense
of possession with intent to distribute does not, in any way, include as a necessary
circumstance that the person possessing or distributing the drugs had any connection
whatsoever with the manufacture of those drugs. Based purely on the plain language
of the statute, it is clear that it does not authorize restitution for possession with intent
to distribute. Normally, our inquiry would end here as we find that the plain language
does not support restitution in this case. See, e.g., United States v. S.A., 129 F.3d
995, 998 (8th Cir. 1997). However, because we are reviewing for plain error, we will
continue our inquiry to ensure that other methods of statutory construction do not
suggest an alternative outcome.
An examination of other federal drug statutes confirms our understanding of
the statute. See United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484
U.S. 365, 371 (1988) (noting that a provision that is ambiguous in isolation is “often
clarified” by the rest of the statutory scheme). There are a myriad of different federal
drug offenses beyond the actual manufacture of a controlled substance, including, for
example, the unlawful possession of a listed chemical with intent to manufacture a
controlled substance, as well as the criminalization of conspiracy or attempt to
manufacture a controlled substance. On some level, any drug crime “involves” the
manufacture of the drug, because if the drug was not manufactured it could not be
later possessed. But we believe that such a reading of “involving” goes too far.
When the Second Circuit commented while construing 18 U.S.C. § 924(e)(2) that
“[t]he word ‘involving’ has expansive connotations,” it was interpreting a statute that
referenced offenses “involving manufacturing, distributing, or possessing with intent
to manufacture or distribute, a controlled substance.” King, 325 F.3d at 113. The
inclusion of both manufacturing and possession with intent to distribute in a statute
that includes the term “involves” further suggests to us that possession with intent to
distribute does not “involve” manufacturing.
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It strikes us as quite illogical that Congress would have used the term
“involving the manufacture” of methamphetamine if it intended to authorize
restitution to the United States for any drug crime. An examination of other
restitution schemes involving drug offenses confirms that Congress knows how to
create an expansive restitution program. Under 18 U.S.C. § 3663(a)(1)(A), a district
court is authorized to order restitution to the victim of most drug offenses if certain
conditions are met. Section 3663(c)(1) allows for the imposition of restitution when
there is no identifiable victim. Had Congress intended to allow restitution to the
United States for drug lab cleanup when the defendant had been convicted of
possession with intent to distribute, it could have simply referenced 21 U.S.C. § 841,
which contains the prohibition on both possession with intent to distribute and
manufacturing. Congress did not do so, but rather limited restitution to offenses
“involving” the manufacture of methamphetamine.
In light of the foregoing statutory analysis, we are persuaded that the district
court’s conclusion that restitution is authorized by § 853(q) for possession with intent
to distribute is clearly and obviously incorrect. We therefore find that the restitution
order in this case constitutes plain error.
III.
We therefore REVERSE the judgment of the district court and VACATE the
restitution order.
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