PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4419
JUNE ORLANDO LEFTWICH,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(8:08-cr-00549-RWT-1)
Argued: October 29, 2010
Decided: December 20, 2010
Before WILKINSON, KING, and AGEE, Circuit Judges.
Vacated and remanded by published opinion. Judge Agee
wrote the opinion, in which Judge Wilkinson and Judge King
joined.
COUNSEL
ARGUED: Elita C. Amato, Arlington, Virginia, for Appel-
lant. Jonathan C. Su, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee. ON
2 UNITED STATES v. LEFTWICH
BRIEF: Rod J. Rosenstein, United States Attorney, Balti-
more, Maryland, for Appellee.
OPINION
AGEE, Circuit Judge:
June Orlando Leftwich was convicted of mail fraud in vio-
lation of 18 U.S.C. § 1341 and filing false claims in violation
of 18 U.S.C. § 287 in the United States District Court for the
District of Maryland. He does not contest his convictions but
appeals from the district court’s judgment requiring him to
make restitution to the United States in the amount of
$2,404,087. For the reasons set forth below, we vacate the
restitution order and remand to the district court for further
proceedings consistent with this opinion.
I.
On December 22, 2008, Leftwich pled guilty, pursuant to
a plea agreement, to charges of mail fraud and filing false
claims. The stipulation of facts in the plea agreement estab-
lished that Leftwich engaged in a multi-year scheme to
defraud the United States through the submission of fraudu-
lent tax returns to the Internal Revenue Service ("IRS"). The
tax returns claimed that he or corporations owned by him or
his co-conspirators paid taxes on fuel which had been used for
non-taxable purposes, thus entitling them to refunds in excess
of $4 million. However, these claims were all false. Of the
more than $4 million claimed on the false returns, the IRS
issued $2,404,087 in refund payments to Leftwich and his co-
conspirators before the scheme was detected.
The plea agreement gave notice to Leftwich that the court
"may also order him to make restitution pursuant to 18 U.S.C.
§§ 3663, 3663A, and 3664." (J.A. 54). During the plea collo-
UNITED STATES v. LEFTWICH 3
quy, the district court made clear that it had the authority to
order restitution, yet it did not mention the statutory basis
under which it would act. Leftwich later filed a memorandum
in aid of sentencing in which he argued that 18 U.S.C.
§ 3663A, the Mandatory Victims Restitution Act ("MVRA"),
was inapplicable to his case. Even though Leftwich did not
contest that restitution under 18 U.S.C. § 3663, the Victim
Witness Protection Act ("VWPA"), could be considered by
the district court, he argued that the statutory factors under the
VWPA negated an award of restitution. The government did
not respond to this argument.1
In ordering restitution at the sentencing hearing, the district
court simply stated: "I’m going to make an order of restitution
in the amount of $2,404,087, based upon the information
that’s been provided by the government at sentencing, and as
well as in the presentence report and the plea agreement."
(J.A. 113). The district court’s written judgment identified
only the amount of restitution, $2,404,087, and provided no
statutory basis for the award. Thus, neither the court’s state-
ment from the bench nor its written order reflected the statute
under which the restitution was imposed or that the court had
considered any of the statutory factors it is to review in mak-
ing a restitution award.2
1
The government never argued in the district court that restitution was
mandatory or what factors the court should address in ordering restitution.
In fact, the government never addressed the MVRA or VWPA and
appeared to assert restitution in some type of generic form. The govern-
ment failed in its duty to bring the issue for decision before the district
court which would have likely avoided the necessity of a costly and time-
consuming remand. The government should take care to better present
such an issue in future cases.
2
Leftwich does not contest on appeal that $2,404,087 is the amount of
restitution that could be awarded, subject only to the statutory payment
factors under the MVRA or VWPA, whichever is determined to apply.
Thus, the $2,404,087 restitution amount is established as the law of the
case. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999) (noting that a party abandons issues not raised in its opening brief).
4 UNITED STATES v. LEFTWICH
Leftwich noted a timely appeal, and we have jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
Leftwich contends that the district court failed to make suf-
ficient findings of fact to support a restitution order under the
VWPA. Specifically, he argues that the district court did not
adequately consider his financial condition and ability to pay
when deciding whether to order restitution as required by the
VWPA. This argument depends upon the premise that the dis-
trict court applied the VWPA in ordering restitution. The gov-
ernment now contends that restitution in the full amount of
$2,404,087 was mandatory under the MVRA, which does not
require the district court to make the specific findings that
Leftwich contends were necessary.3
We review a district court’s restitution order for abuse of
discretion.4 United States v. Llamas, 599 F.3d 381, 387 (4th
Cir. 2010). Discretion in ordering restitution "is circumscribed
by the procedural and substantive protections" of the statute
authorizing restitution. United States v. Henoud, 81 F.3d 484,
487 (4th Cir. 1996) (quotations omitted). The restitution stat-
utes, the VWPA and the MVRA, impose different require-
3
Leftwich does not discuss the application of the MVRA until his reply
brief. This is understandable as the government raised application of the
MVRA for the first time in its brief in this Court. While Leftwich raises
a waiver argument as to the MVRA, since this case must be remanded for
the district court to identify the proper restitution statute and to proceed
under that statute, we do not find the waiver argument applicable.
4
We reject the government’s contention that the clear error standard of
review is appropriate here. The only decision of this Court cited by the
government is both unsupportive of its claim and unpublished. In that
case, this Court applied the clear error standard when reviewing the "dis-
trict court’s determination of the amount of loss for restitution purposes,"
United States v. Ziadeh, 104 F. App’x 869, 875 (4th Cir. 2004) (unpub-
lished) (emphasis added), not when reviewing the district court’s decision
to order restitution in the first place.
UNITED STATES v. LEFTWICH 5
ments on the district court when it determines an award of
restitution. The failure of the district court in this case to spec-
ify the statute under which it ordered restitution prevents us
from effectively determining whether the court properly exer-
cised its discretion in fashioning that restitution order. In other
words, without identifying the statutory basis upon which res-
titution was awarded, the district court’s order cannot be prop-
erly reviewed on appeal. United States v. Stuver, 845 F.2d 73,
75 (4th Cir. 1988).
Under the VWPA, a district court "may order . . . that the
defendant make restitution to any victim" of the offense. 18
U.S.C. § 3663(a)(1)(A); thus, an award of restitution under
the VWPA is not mandatory. In determining whether to order
restitution, the VWPA requires a court to consider "the finan-
cial resources of the defendant, the financial needs and earn-
ing ability of the defendant and the defendant’s dependents,
and such other factors as the court deems appropriate." 18
U.S.C. § 3663(a)(1)(B)(i)(II). This provision requires the dis-
trict court to make specific findings on the record pertaining
to each of these factors and "failure to make the required find-
ings necessitates remand." United States v. Blake, 81 F.3d
498, 505 (4th Cir. 1996) ("Such findings must tie the amount
and type of restitution ordered to the financial resources,
financial needs, and earning ability of the defendant." (citing
United States v. Molen, 9 F.3d 1084, 1086 (4th Cir. 1993))).
If the VWPA applies in this case, it is clear the district court
failed to make the § 3663(a)(1)(B)(i)(II) findings which are a
necessary condition precedent to an order of restitution under
that statute.
In contrast, the MVRA mandates that the sentencing court
order restitution in the full amount of the victim’s loss when
the defendant has been convicted of certain specified
offenses. "In each order of restitution, the court shall order
restitution to each victim in the full amount of each victim’s
losses . . . and without consideration of the economic circum-
stances of the defendant." 18 U.S.C. § 3664(f)(1)(A) (empha-
6 UNITED STATES v. LEFTWICH
sis added); see United States v. Roper, 462 F.3d 336, 338 (4th
Cir. 2006) ("When a defendant is convicted of a crime speci-
fied in the MVRA . . . Congress has mandated that the defen-
dant’s sentence include full restitution to the victim."). This
Court has interpreted the MVRA to "dictate that a district
court cannot remit a mandatorily imposed restitution order."
Id. at 339. Thus, the district court is precluded from ordering
restitution in any amount less than the full amount of the vic-
tim’s loss, see id. ("In United States v. Alalade, . . . [w]e held
that the MVRA did not grant district courts discretion to
award partial restitution . . . ." (citing United States v. Alalade,
204 F.3d 536, 540 (4th Cir. 2000))).
Although the MVRA does not permit the sentencing court
to adjust the amount of restitution, it does require the court to
set a payment schedule "in consideration of— (A) the finan-
cial resources and other assets of the defendant, including
whether any of the assets are jointly controlled; (B) projected
earnings and other income of the defendant; and (C) any
financial obligations of the defendant; including obligations to
dependents." 18 U.S.C. § 3664(f)(2). This Court has inter-
preted this provision as requiring the district court to make
factual findings keying the payment schedule to these factors
and demonstrating the feasibility of the schedule. United
States v. Dawkins, 202 F.3d 711, 717 (4th Cir. 2000). If the
MVRA applies in this case, it is clear that the district court
failed to make the § 3664(f)(2) findings which are a necessary
condition precedent to an order of restitution under § 3663A.
III.
Where "the statutory basis for the restitution order [is] criti-
cal to its validity," ensuring effective appellate review
requires that sentencing courts "specify in the record the pre-
cise statute under which they act in imposing restitution." Stu-
ver, 845 F.2d at 75. In light of the substantially different
requirements of the MVRA and the VWPA, the failure of the
district court to indicate which statute it was applying pre-
UNITED STATES v. LEFTWICH 7
vents this Court from effectively conducting appellate review
of the district court’s exercise of discretion. We cannot review
the district court’s exercise of discretion over the unknown.
This is particularly evident in this case where the differing
statutory criteria of the VWPA and the MVRA require spe-
cific findings by the district court; none of which were made
regardless of which statute applies. We repeat what we said
in Stuver, "admonishing sentencing judges to specify in the
record the precise statute under which they act in imposing
restitution . . . . Only so can effective appellate review of res-
titution orders be ensured." Id.
Accordingly, we vacate the restitution order and remand to
the district court for further proceedings to identify the statute
under which restitution is awarded and to make the required
findings under that statute.
VACATED AND REMANDED