Decided May 1, 2013
The Fourth Circuit Court of Appeals reversed the district court’s order requiring the defendant to pay restitution for all property stolen and damaged as a result of his house burglary.
On March 23, 2009, the defendant, Jervis Ricky Davis (“Davis”), broke into a home and stole a handgun, bag of ammunition, and several pieces of jewelry. The police recovered all of the stolen items except for the firearm. Davis entered into a plea agreement in which he pled guilty to possession of a stolen firearm and agreed to make restitution to all victims. The United States Probation Office conducted a presentence investigation to determine the amount of restitution the defendant owed. Its presentence investigation report (“PSR”) noted the homeowner’s total requested restitution of $685.00 to cover window damage and the unrecovered firearm’s insurance deductible. However, the PSR also noted the restitution was non-compensable. Under the Victim and Witness Protection Act as interpreted by the Supreme Court in Hughey v. United States, restitution is limited to the count of conviction unless specifically agreed upon by both parties in the plea agreement. Because the homeowner was not specifically identified as the victim in the plea agreement nor associated with Davis’ count of conviction, the district court had no authority to compensate the homeowner. As such, the PSR noted that the requested restitution of $685.00 was non-compensable. However, the court disregarded that portion of the PSR and amended its judgment to order Davis to pay the $685.00 restitution. Davis appealed the restitution order although he did not previously object to it in the district court.
Davis challenged the restitution order on the basis that the order required repayment of losses that were not caused by the conduct underlying the offense of conviction or consented to in the plea agreement. Under the Victim and Witness Protection Act, a district court may order restitution to a victim that has been proximately harmed by the defendant’s criminal commission or to any other person recognized by the parties in the plea agreement. First, the court analyzed whether Davis’ underlying conduct for committing the offense proximately caused the homeowner’s loss. The court followed the analysis set forth in United States v. Blake, where owners of stolen credit cards were denied compensation. The credit card thief was convicted of fraudulent use of unauthorized access devices, an offense for which actual theft is not required. Therefore, the losses incurred by the card owners as a result of the defendant’s theft, rather than his fraudulent use of such cards, did not represent harms proximately caused by the convicted conduct. Likewise, the Fourth Circuit denied the homeowner victim status in this case. The court noted that the offense of possessing a stolen firearm did not require an element of theft and, as such, the court did not find the homeowner was a victim entitled to compensation under the Act’s proximate causation prong. Next, the court analyzed whether Davis consented to repayment in his plea agreement. Under applicable law, a person who is not a proximately harmed victim may still be entitled to restitution where the parties have specifically granted this right in the plea agreement. The court searched for such a provision in Davis’ plea agreement and, in light of governing contract principles, found no provision specifically identifying the homeowner as the victim or person to whom money is owed. Therefore, the court held the district court erred in ordering restitution. Lastly, the court analyzed whether the district court’s error affected the parties’ substantial rights. Because Davis failed to object to the restitution order in the district court, the appellate court can only reverse where there has been plain error. The court did, in fact, find plain error where the restitution order was not authorized by case law or either prong of the Act and, therefore, affected Davis’ substantial rights. Therefore, the court reversed the restitution order.
– Sarah Bishop