United States v. Dorcely, Daniel

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 25, 2006 Decided July 21, 2006

No. 05-3130

UNITED STATES OF AMERICA,
APPELLEE

v.

DANIEL DORCELY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 01cr00454-04)

Melissa J. Stofko argued the cause for the appellant. Peter
M. Brody, appointed by the court, was on brief.

Florence Pan, Assistant United States Attorney, argued the
cause for the appellee. Kenneth L. Wainstein, United States
Attorney, and Roy W. McLeese, III and Daniel P. Butler,
Assistant United States Attorneys, were on brief. Suzanne C.
Nyland and Thomas J. Tourish, Jr., Assistant United States
Attorneys, entered appearances.

Before: SENTELLE, HENDERSON and GARLAND, Circuit
Judges.

Opinion for the court filed by Circuit Judge HENDERSON.
 2

KAREN LECRAFT HENDERSON, Circuit Judge: Daniel
Dorcely was convicted of making a false statement to the
Federal Bureau of Investigation (FBI) and acquitted of
conspiracy to commit money laundering and conspiracy to
defraud the government. Applying the sentencing regime
prescribed in United States v. Booker, 543 U.S. 220 (2005), the
district court sentenced Dorcely to 24 months’ incarceration and
ordered him to pay restitution in the amount of $63,315.51. In
sentencing Dorcely, the district court took into account
Dorcely’s role in the conspiracies, finding by a preponderance
of the evidence that he was involved in them notwithstanding his
acquittal on those offenses. Dorcely appeals his sentence. He
argues that the district court’s consideration of acquitted conduct
violated the Fifth and Sixth Amendments and in the alternative
was unreasonable. He also claims that the restitution order
impermissibly considered losses other than those caused by the
conduct of which he was convicted. We affirm in part and
vacate in part, concluding that his sentence of 24 months’
incarceration was neither unconstitutional nor unreasonable but
that the restitution order must be remanded for the district
court’s reconsideration.
I.
The appellant, Daniel Dorcely, owned and operated Dany
Enterprises, a struggling cellular telephone sales business. On
December 20, 1999, he opened a bank account at the Adelphi,
Maryland branch of Bank of America and deposited $110 into
the account. Dorcely thereafter enlisted in the U.S. Army and,
before leaving for basic training at Fort Benning, Georgia, made
“Tyrone Wallace,” the alias of his cousin, Stateson François, a
signatory on the Dany Enterprises bank account. On March 15,
Dorcely and François met with Albert Mundy, the Bank of
America Adelphi branch manager. According to Mundy,
Dorcely introduced François as “Tyrone Wallace” and advised
Mundy that a substantial sum of money from a school contract
 3

would be deposited into the Dany Enterprises account over the
next months.
On March 30, 2000, the Department of Education (DOE)
direct-deposited $906,705 into the Dany Enterprises account
with the annotation, “Bennett County School, Impact Aid.”
That same day, “Wallace” made a withdrawal of $60,600 from
the account. Of that amount, he obtained a cashier’s check for
$46,900 made out to Capitol Cadillac. François and John
Holmes, a co-conspirator, used the cashier’s check to purchase
a Cadillac Escalade in the name of “Timothy Robbins,”
Holmes’s alias.
On April 4, DOE direct-deposited another $18,368.43 into
the Dany Enterprises account. François and Dorcely’s brother-
in-law, Dominique Germain, obtained two cashier’s checks from
the Dany Enterprises account on that day: one for $50,000 made
out to Wilson Powell Lincoln Mercury and another for $48,000
made out to Lustine Chevrolet. François and Holmes purchased
a Lincoln Navigator with the former. They attempted to buy a
Chevrolet Corvette with the latter. The manager of the
Chevrolet dealership, suspicious of the duo, delayed the sale by
refusing the cashier’s check ostensibly because the dealership’s
name was misspelled. After François and Holmes left to obtain
a new cashier’s check, the manager contacted the FBI.
The FBI determined that the funds in the Dany Enterprises
account had been fraudulently obtained and froze the account on
April 5, 2000, at which time the account had a balance of
$766,473.43. The FBI discovered that the funds had been
obtained from DOE, which had earmarked them for under-
funded elementary and secondary schools in South Dakota under
a program called “Impact Aid.” Apparently an unknown DOE
employee conspired with the two and altered the school
districts’ bank account information in the DOE computer
system, diverting Impact Aid funds to the Dany Enterprises
account.
 4

During its investigation, the FBI contacted Dorcely at Fort
Benning, Georgia. Special Agent Thomas Chadwick telephoned
Dorcely on April 18, 2000. During their conversation, Dorcely
informed Chadwick that “Tyrone Wallace” was a “buddy,”
denying that “Wallace” was related to him. 1/27/2004 Tr. at 85.
Dorcely further stated that he had met “Wallace” only seven or
eight months before and that “Wallace,” who had expressed an
interest in cellular telephone sales, was running Dany
Enterprises in his absence. Id. Chadwick later met with
Dorcely face-to-face. Dorcely at that time falsely stated that
“Tyrone Wallace” and François were two different people. Id.
at 86–87.
The government charged Dorcely with one count of
conspiracy to defraud the United States in violation of 18 U.S.C.
§ 371, one count of conspiracy to commit money laundering in
violation of 18 U.S.C. § 1956(h) and one count of making a false
statement to the FBI in violation of 18 U.S.C. § 1001.
Following trial, the jury convicted Dorcely of making a false
statement to the FBI and acquitted him of both conspiracy
charges.
The district court conducted Dorcely’s first sentencing
hearing on June 4, 2004, applying the then-mandatory U.S.
Sentencing Guidelines (Guidelines). The Guidelines specified
a sentencing range of zero to six months for the false statement
conviction. The government argued for a sentencing range of 24
to 30 months because, it maintained, it had proved by a
preponderance of the evidence that Dorcely had participated in
the conspiracy, which constituted “relevant conduct” under the
Guidelines. Over Dorcely’s objection, the district court agreed
with the government and sentenced Dorcely to 24 months’
incarceration. The government also sought restitution, which
the district court ordered in the amount of $63,315.51.
Following Dorcely’s sentencing, the United States Supreme
Court decided Blakely v. Washington, 524 U.S. 296 (2004). In
 5

light of Blakely, Dorcely moved for reconsideration of his
sentence. After the High Court granted certiorari in Booker,
supra, the district court stayed the execution of the sentence to
“await a decision by the Supreme Court as to whether its
decision in Blakely v. Washington applies to the United States
Sentencing Guidelines.” United States v. Dorcely, No. 01–454,
slip op. at 1 n.2 (D.D.C. filed Aug. 6, 2004) (citation omitted).
Dorcely also appealed his sentence to this court and asked us to
hold the appeal in abeyance pending Booker. We granted his
motion. Following the Supreme Court’s decision in Booker,
Dorcely moved this court to vacate his sentence and remand for
resentencing, which motion we granted. See United States v.
Dorcely, 2005 WL 583132, *1 (D.C. Cir. March 11, 2005).
The district court held Dorcely’s resentencing hearing on
July 19, 2005. Over Dorcely’s objection, it concluded that
Booker did not affect its authority to consider Dorcely’s
participation in the conspiracies under the preponderance of the
evidence standard and again sentenced Dorcely to 24 months’
incarceration. It also reimposed the order of restitution in the
amount of $63,315.51.
II.
A.
Dorcely first contends that his sentence, based in part on
acquitted conduct, violated his Sixth Amendment right to trial
by jury and his Fifth Amendment right to due process of law.
We review issues of law relating to sentencing de novo. See,
e.g., United States v. Alexander, 331 F.3d 116, 130 (D.C. Cir.
2003); United States v. Gaviria, 116 F.3d 1498, 1518 (D.C. Cir.
1997) (per curiam). Applying this standard of review, we find
no constitutional error in Dorcely’s sentence.
We were recently presented with the same question this case
presents: whether a sentence based on acquitted conduct violates
the Sixth Amendment. See United States v. Edwards, 424 F.3d
 6

1106, 1108 (D.C. Cir. 2005). There we observed that the
Supreme Court “has not, however, determined whether the
practice violates the Sixth Amendment,”1 but we did not
address the issue because we remanded the case in accordance
with United States v. Coles, 403 F.3d 764, 771 (D.C. Cir. 2005)
(per curiam). We now reach the question and decide that a
sentencing court may base a sentence on acquitted conduct
without offending the defendant’s Sixth Amendment right to
trial by jury. In so holding, we agree with every circuit that has
considered the question post-Booker. See United States v.
Ashworth, 139 F. App’x 525, 527 (4th Cir.), cert. denied, 126 S.
Ct. 765 (2005); United States v. Duncan, 400 F.3d 1297,
1304–05 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005); United
States v. Magallanez, 408 F.3d 672, 684–85 (10th Cir.), cert.
denied, 126 S. Ct. 468 (2005); United States v. Price, 418 F.3d
771, 787–88 (7th Cir. 2005); United States v. Vaughn, 430 F.3d
518, 525–27 (2d Cir. 2005).
Before Booker, we had held that a sentencing court may
consider conduct of which the defendant was acquitted provided
the conduct was proved by a preponderance of the evidence.
See, e.g., United States v. Yelverton, 197 F.3d 531, 535 n.3 (D.C.
Cir. 1999) (citing United States v. Thomas, 114 F.3d 228, 261
(D.C. Cir. 1997); United States v. Dozier, 162 F.3d 120, 125
(D.C. Cir. 1998)). Nothing in Booker undermines our precedent.
Under Booker, consideration of acquitted conduct violates the
Sixth Amendment only if the judge imposes a sentence that
exceeds what the jury verdict authorizes. Booker, 543 U.S. at
244 (“Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum

1
In United States v. Watts, 519 U.S. 148 (1997), the Supreme
Court had earlier rejected a challenge to the sentencing court’s
consideration of acquitted conduct based on the double jeopardy
clause.
 7

authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.”). Here, Dorcely’s conviction on
the false statement count authorized a sentence of
“imprison[ment] not more than 5 years.” 18 U.S.C. § 1001(a).
His sentence of 24 months’ incarceration plainly falls within the
authorized sentence.
We find two aspects of the Booker holding instructive here.
First, the Court noted that “when a trial judge exercises his
discretion to select a specific sentence within a defined range,
the defendant has no right to a jury determination of the facts
that the judge deems relevant,” further noting that a sentencing
court has “broad discretion in imposing a sentence within a
statutory range.” Booker, 543 U.S. at 233. While the Court did
not expressly address the sentencing court’s consideration of
acquitted conduct, we believe its language is broad enough to
allow consideration of acquitted conduct so long as the court
“deems [it] relevant.” Second, the Booker remedial opinion
expressly endorsed 18 U.S.C. § 3661, concluding that it poses
no Sixth Amendment problem. See id. at 251. Section 3661
provides, “No limitation shall be placed on the information
concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate
sentence” and permits a sentencing court to consider acquitted
conduct. See United States v. Watts, 519 U.S. 148, 151 (1997).
Dorcely next contends that the district court’s consideration
of acquitted conduct violated his due process right under the
Fifth Amendment. We disagree. The Supreme Court has
instructed that “[h]ighly relevant—if not essential—to [the
judge’s] selection of an appropriate sentence is the possession of
the fullest information possible concerning the defendant’s life
and characteristics.” Williams v. New York, 337 U.S. 241, 247
(1949). It has therefore found that a sentencing court may
 8

“consider[ ] a defendant’s past criminal behavior, even if no
conviction resulted from that behavior,” without violating due
process. Nichols v. United States, 511 U.S. 738, 747 (1994)
(citing McMillan v. Pennsylvania, 477 U.S. 79 (1986)); cf. BMW
of North America, Inc. v. Gore, 517 U.S. 559, 573 n.19 (1996)
(“A sentencing judge may even consider past criminal behavior
which did not result in a conviction.”).
Furthermore, we reject Dorcely’s claim that a sentencing
court’s use of acquitted conduct must be based not on a
preponderance of the evidence but instead evidence beyond a
reasonable doubt. In Watts, the Supreme Court held that “a
jury’s verdict of acquittal does not prevent the sentencing court
from considering conduct underlying the acquitted charge, so
long as that conduct has been proved by a preponderance of the
evidence.” Watts, 519 U.S. at 157. Dorcely characterizes the
Watts language as relating solely to the double jeopardy clause.
The Court’s discussion of the preponderance of the evidence
standard, however, also plainly encompasses the due process
clause. The Court upheld the Guidelines’ application of the
preponderance of the evidence standard to a sentencing court’s
consideration of relevant conduct, including acquitted conduct,
explaining that the application of “the preponderance standard
at sentencing generally satisfies due process.” Id. at 156.2
Moreover, before Booker, we rejected the argument that facts at
sentencing must be proved by a more stringent standard than
preponderance of the evidence, see, e.g., United States v. Long,
328 F.3d 655, 670–71 (D.C. Cir. 2003), including findings that
the defendant engaged in conduct of which he was acquitted,

2
The Court left open the question whether a higher standard of
proof might be necessary if relevant conduct dramatically increased
the sentence. See Watts, 519 U.S. at 156–57. Dorcely does not press
this argument.
 9

see, e.g., Yelverton, 197 F.3d at 535 n.3. Nothing in Booker
suggests a contrary result.
B.
Dorcely argues in the alternative that his 24-month
imprisonment sentence was unreasonable. The Booker Court
directed the circuit courts of appeal to review sentences for
reasonableness, see Booker, 543 U.S. at 260–61, but it did not
expressly describe the jurisdictional basis therefor. Section
3742(a)(1) of Title 18 provides us with jurisdiction to review a
sentence that “was imposed in violation of law” and we believe
our jurisdiction to review for reasonableness must come from
this provision.3 The government contends that section
3742(a)(1) does not give us jurisdiction to review a sentence
within a properly calculated Guidelines range, relying on our
pre-Booker precedent. See United States v. Hazel, 928 F.2d 420,
423–24 (D.C. Cir. 1991) (review of within Guidelines sentence
is limited to “determin[ing] whether the guidelines were
correctly applied”). We disagree, concluding that the Booker
decision has overruled our precedent on this point.4

3
18 U.S.C. § 3742(a)(3), providing jurisdiction to review a
sentence that “is greater than the sentence specified in the applicable
guideline range to the extent that the sentence includes a greater . . .
term of imprisonment . . . than the maximum established in the
guideline range,” is inapplicable because Dorcely challenges neither
the application of the Guidelines nor the calculation of his Guidelines
range.
4
Because our conclusion—that section 3742(a)(1) provides us with
jurisdiction to review any sentence for reasonableness—conflicts with
Circuit precedent, it has been considered separately and approved by
the full court. See Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C.
Cir. 1981). An Irons footnote is appropriate because we are
 10

The government cites no post-Booker case law supporting its
position—nor could it. Every circuit that has considered the
issue has decided that section 3742(a)(1) provides appellate
jurisdiction to review any sentence for reasonableness. See
United States v. Chavez-Diaz, 444 F.3d 1223, 1228–29 (10th
Cir. 2006); United States v. Cooper, 437 F.3d 324, 327–28 (3d
Cir. 2006); United States v. Fernandez, 443 F.3d 19, 25–26 (2d
Cir. 2006); United States v. Jiménez-Beltre, 440 F.3d 514, 517
(1st Cir. 2006) (en banc); United States v. Martinez, 434 F.3d
1318, 1321–22 (11th Cir. 2006); United States v. McBride, 434
F.3d 470, 475–76 (6th Cir. 2006); United States v. Mickelson,
433 F.3d 1050, 1052–55 (8th Cir.2006); United States v.
Montes-Pineda, 445 F.3d 375, 377 (4th Cir. 2006); United States
v. Plouffe, 445 F.3d 1126, 1127–29 (9th Cir. 2006); United
States v. Vaughn, 433 F.3d 917, 923–24 (7th Cir. 2006). We,
too, conclude that an unreasonable sentence is a sentence
“imposed in violation of law.” Cf. In re Sealed Case, 449 F.3d
118, 123 (D.C. Cir. 2006) (“Booker . . . appears to assume there
is jurisdiction to hear an appeal to consider the reasonableness
of a sentence without regard to the merits of the claim.”). The
Booker remedial opinion is unequivocal on this point, declaring
that “the [Sentencing Reform] Act continues to provide for
appeals from sentencing decisions (irrespective of whether the
trial judge sentences within or outside the Guidelines range in
the exercise of his discretionary power under § 3553(a)).” 543
U.S. at 260 (emphasis added) (citing 18 U.S.C. § 3742(a)–(b)).
Justice Scalia’s dissent accurately characterizes the remedial
opinion’s effect on appellate review: the reasonableness
standard now “appl[ies] across the board to all sentencing

“overruling a more recent precedent which, due to an intervening
Supreme Court decision . . . a panel is convinced is clearly an
incorrect statement of current law.” Policy Statement on En Banc
Endorsement of Panel Decisions 2–3 (Jan. 17, 1996).
 11

appeals, even to sentences within ‘the applicable guideline
range,’ where there is no legal error or misapplication of the
Guidelines.” Id. at 311 (Scalia, J., dissenting in part).
Accordingly, we now review any sentence, whether within the
Guidelines range or not, “to ensure that it is reasonable in light
of the sentencing factors that Congress specified in 18 U.S.C.
§ 3553(a).” United States v Price, 409 F.3d 436, 442 (D.C. Cir.
(2005).5

5
18 U.S.C. § 3553(a) provides:
Factors to be considered in imposing a sentence.--The court
shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the particular
sentence to be imposed, shall consider--
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense,
to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
 12

established for--
(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines--
(i) issued by the Sentencing
Commission pursuant to section
994(a)(1) of title 28, United States
Code, subject to any amendments
made to such guidelines by act of
Congress (regardless of whether
such amendments have yet to be
incorporated by the Sentencing
Commission into amendments
issued under section 994(p) of title
28); and
(ii) that, except as provided in
section 3742(g), are in effect on the
date the defendant is sentenced; or
(B) in the case of a violation of probation or
supervised release, the applicable guidelines
or policy statements issued by the
Sentencing Commission pursuant to section
994(a)(3) of title 28, United States Code,
taking into account any amendments made
to such guidelines or policy statements by
act of Congress (regardless of whether such
amendments have yet to be incorporated by
the Sentencing Commission into
amendments issued under section 994(p) of
title 28);
(5) any pertinent policy statement--
(A) issued by the Sentencing Commission
pursuant to section 994(a)(2) of title 28,
 13

The government argues that the Booker language on which
we rely is only dictum. We disagree. The Booker Court
remanded for resentencing, adding that “if the sentence comes
before the Court of Appeals for review, the Court of Appeals
should apply the review standards set forth in this opinion,” that
is, review for reasonableness. 543 U.S. at 267. Furthermore,
even if the language were dictum, “carefully considered
language of the Supreme Court, even if technically dictum,
generally must be treated as authoritative.” Sierra Club v. EPA,
322 F.3d 718, 724 (D.C. Cir. 2003) (quoting United States v.
Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) (internal quotation
marks and citation omitted); citing Bangor Hydro-Elec. Co. v.
FERC, 78 F.3d 659, 662 (D.C. Cir. 1996) (“It may be dicta, but
Supreme Court dicta tends to have somewhat greater force-
particularly when expressed so unequivocally.”)).

United States Code, subject to any
amendments made to such policy statement
by act of Congress (regardless of whether
such amendments have yet to be
incorporated by the Sentencing Commission
into amendments issued under section
994(p) of title 28); and
(B) that, except as provided in section
3742(g), is in effect on the date the
defendant is sentenced.
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of
the offense.
 14

Exercising our jurisdiction, we consider the merits of
Dorcely’s claim that his sentence was unreasonable. He makes
two arguments: first, he argues that “any substantial increase in
a sentence based on acquitted conduct should be deemed
unreasonable per se, regardless whether such an increase is
determined to violate the accused’s constitutional rights,”
Appellant’s Br. at 24 (emphasis added); and, second, Dorcely
contends that even if we reject a per se rule, we should
nonetheless find that “the sentence imposed in this case plainly
is” unreasonable because it results in a fourfold increase in his
term of incarceration. Id. at 24–25. We reject both arguments.
We easily dispose of Dorcely’s categorical challenge to the
reasonableness of a sentencing court’s consideration of acquitted
conduct. Section 3661 of Title 18, which allows a sentencing
court to consider any information regarding a defendant’s
background, character and conduct, “codifies the longstanding
principle that sentencing courts have broad discretion to
consider various kinds of information.” Watts, 519 U.S. at 151.
The Supreme Court has interpreted the language of section 3661
to authorize the court’s consideration of acquitted conduct in
sentencing. See id. at 151–52.
The Guidelines also permit the sentencing court to consider
acquitted conduct. In the post-Booker world, the court must
calculate and consider the applicable Guidelines range but is not
bound by it.6 Under the Guidelines, “the sentencing range for a
particular offense is determined on the basis of all ‘relevant
conduct’ in which the defendant was engaged and not just with
regard to the conduct underlying the offense of conviction.”
Witte v. United States, 515 U.S. 389, 393 (1995) (citing U.S.S.G.

6
Booker has not changed how the Guidelines range is to be
calculated. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).
 15

§ 1B1.3). Section 1B1.3 details the conduct the sentencing court
may consider in determining the applicable Guidelines range
and the commentary to that section states, “Conduct that is not
formally charged or is not an element of the offense of
conviction may enter into the determination of the applicable
guideline sentencing range.” U.S.S.G. § 1B1.3, comment.,
backg’d. We have held that section 1B1.3 “is certainly broad
enough to include acts underlying offenses of which the
defendant has been acquitted.” United States v. Boney, 977 F.2d
624, 635 (D.C. Cir. 1992). Not only may the sentencing court
consider acquitted conduct in calculating the appropriate
Guidelines range but it may also consider that conduct in
determining the sentence within the range. Section 1B1.4 of the
Guidelines provides: “In determining the sentence to impose
within the guideline range, or whether a departure from the
guidelines is warranted, the court may consider, without
limitation, any information concerning the background,
character and conduct of the defendant, unless otherwise
prohibited by law. See 18 U.S.C. § 3661.” U.S.S.G. § 1B1.4.
We turn to Dorcely’s more circumscribed challenge to the
reasonableness of the fourfold increase in his sentence based on
acquitted conduct. The sentencing transcript reveals that the
district court considered both the Guidelines and the section
3553(a) factors, as Booker requires. See 7/19/05 Tr. at 31–37.
As noted earlier, Dorcely does not argue that his sentence was
improperly calculated under the Guidelines. We agree with our
sister circuits that a sentence within a properly calculated
Guidelines range is entitled to a rebuttable presumption of
reasonableness. See Alonzo, 435 F.3d at 554; United States v.
Green, 436 F.3d 449, 457 (4th Cir. 2006); United States v.
Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); United States v.
Lincoln, 413 F.3d 716, 717 (8th Cir. 2005); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United States v.
Williams, 436 F.3d 706, 708 (6th Cir. 2006). Dorcely does not
 16

come close to rebutting this presumption. The district court’s
explanation for Dorcely’s 24-month incarceration
sentence—that “a part of any sentence . . . is a component of
retribution,” 7/19/05 Tr. at 31, that “the Guidelines . . . set a
bench mark for what is reasonable,” id. at 36, to prevent “vast
disparit[ies] between what somebody would get going before
one judge as compared to what somebody would get when [he]
would go before another judge,” id. at 35, and that Dorcely
“was, in fact, responsible or a played a role, at least, in causing
those monies to then be diverted from that account and used for
illegal purposes,” id. at 36—was reasonable.
C.
Finally, Dorcely contests the restitution order, arguing that
it was impermissibly based on conduct other than that of which
he was convicted. The district court ordered Dorcely to pay
restitution in the amount of $63,315.51 “as indicated in the
presentence report [PSR].” Id. at 37. The PSR provided that
“[u]nder 18 U.S.C. § 3663A(a)(1) and (3), the Court shall enter
an order for restitution.” PSR ¶ 77. Section 3663A(a)(1)
requires the district court to order restitution if the defendant is
convicted of an “offense described in subsection (c).”7 Because

7
18 U.S.C. § 3663A(c)(1) reads:
[The district court shall award restitution] in all sentencing
proceedings for convictions of, or plea agreements relating to
charges for, any offense--
(A) that is--
(i) a crime of violence, as defined in section 16;
(ii) an offense against property under this title, or
under section 416(a) of the Controlled Substances
Act (21 U.S.C. 856(a)), including any offense
committed by fraud or deceit; or
 17

Dorcely was not convicted of such an offense, restitution under
section 3663A was unwarranted.
Although the district court incorrectly ordered restitution
under section 3663A, we note that the order would also be
improper under the permissive restitution provisions of 18
U.S.C. § 3663.8 This provision permits (but does not require)
the district court to order “the defendant [to] make restitution to
any victim of such offense” “when sentencing a defendant
convicted of an offense under this title [title 18].” 18 U.S.C. §
3663(a)(1)(A). As Dorcely’s false statement conviction falls
under Title 18, he can be ordered to pay restitution but only for
the loss caused by “such offense.” In interpreting section 3663,
we are guided by the Supreme Court’s decision in Hughey v.

(iii) an offense described in section 1365 (relating to
tampering with consumer products); and
(B) in which an identifiable victim or victims has suffered a
physical injury or pecuniary loss.
18 U.S.C. § 3663A(c)(1) (emphasis added). Notwithstanding the
word “and,” the government invites us to read subsections (A) and (B)
in the disjunctive; under the government’s theory, see Appellee’s Br.
42 n.21, restitution applies if the defendant committed an offense
enumerated under (A) or if “an identifiable victim or victims has
suffered a physical injury or pecuniary loss” under (B). The
government’s interpretation does violence to the statutory text. Under
the plain terms of section 3663A, restitution is available only if the
defendant meets both (A) and (B).
8
18 U.S.C. § 3663 permits restitution if a defendant is convicted
of “an offense under this title [title 18] . . . other than an offense
described in section 3663A(c).” 18 U.S.C. § 3663(a)(1)(A). As noted
supra p. 16–17, Dorcely’s false statement conviction is not an offense
described in section 3663A(c). Moreover, his conviction under 18
U.S.C. § 1001 is plainly an “offense under this title [title 18].”
 18

United States, 495 U.S. 411 (1990), which interpreted section
3663’s predecessor, 18 U.S.C. § 3579(a)(1).9 The Court held
that under section 3579(a)(1) restitution may be ordered only
“for the loss caused by the specific conduct that is the basis of
the offense of conviction.” Hughey, 495 U.S. at 413. It made
clear that a defendant charged with multiple offenses but
convicted of only one offense cannot be ordered to pay
restitution for losses resulting from the other charged offenses.
Id. We believe the reasoning of Hughey applies with equal force
to section 3663 and conclude that restitution under 18 U.S.C. §
3663(a)(1) may be ordered only “for the loss caused by the
specific conduct that is the basis of the offense of conviction.”
Indeed, the government correctly concedes that “[a]lthough it is
unclear what the restitution amount of $63,315.51 represents, it
seems highly unlikely that it properly reflects the loss caused
solely by the false statement.” Appellee’s Br. 44.
For the foregoing reasons, we affirm Dorcely’s sentence of
24 months’ incarceration. We vacate the order of restitution,
however, and remand for further proceedings consistent with
this opinion.
So ordered.

9
Section 3579(a)(1) authorized the sentencing court to order “a
defendant convicted of an offense” to “make restitution to any victim
of such offense.” 18 U.S.C. § 3579(a)(1) (1982 ed., Supp. IV).