United States v. Crow

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4552
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD C. CROW, a/k/a Edward Crow,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph R. Goodwin,
Chief District Judge. (6:06-cr-00260)
Submitted: November 2, 2007 Decided: November 14, 2007
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Lisa Grimes
Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward C. Crow pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2)(2000), was sentenced to 235 months’ imprisonment followed
by five years of supervised release, and was ordered to pay
restitution to the West Virginia Crime Victims Fund in the amount
of $10,527. After Crow appealed his sentence and challenged the
court’s order of restitution, Crow and the Government filed a joint
motion to remand for resentencing. We grant the motion.
A district court’s order of restitution is reviewed for
abuse of discretion. United States v. Henoud, 81 F.3d 484, 487
(4th Cir. 1996). By definition, a court abuses its discretion when
it makes an error of law. EEOC v. Navy Fed. Credit Union, 424 F.3d
397, 405 (4th Cir. 2005), cert. denied, 547 U.S. 1041 (2006).
Under the Victim and Witness Protection Act (“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 & Supp. 2007); United States v. Blake,
81 F.3d 498, 506 (4th Cir. 1996) (authority of district court to
order restitution is 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 specifically included as an element of the offense
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of conviction. See Blake, 81 F.3d at 506; see also Hughey v.
United States, 495 U.S. 411, 413 (1990) (restitution allowed only
for loss caused by the specific conduct that is the basis of the
offense of conviction).
In this case, the elements of the offense of conviction,
possession of a firearm by a convicted felon are: (1) the defendant
was previously convicted of a felony; (2) the defendant possessed
a firearm; and (3) the possession was in or affected interstate
commerce. 18 U.S.C. § 922(g)(1). Use of the firearm to shoot the
victim, as occurred in this case, is not an element, nor is it
conduct underlying an element of the offense of conviction.
Accordingly, because the restitution order was not authorized under
the VWPA, we grant the parties’ motion to remand for resentencing.
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.
REMANDED
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