United States v. Simmonds

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

12-19-2000

United States v. Simmonds
Precedential or Non-Precedential:

Docket 99-3524

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Filed December 14, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3524

UNITED STATES OF AMERICA

v.

JOSEPH EMMETT SIMMONDS, III,

Appellant

Appeal from the District Court of the V irgin Islands
(Division of St. Thomas and St. John)
D.C. Criminal Action No. 98-cr-00238-1
District Judge: Honorable Thomas K. Moore

Argued April 11, 2000

Before: SLOVITER, ROTH and STAPLETON, Circuit Judges

(Opinion filed December 14, 2000)

James K. Robinson, Esquire
Assistant Attorney General
Mark Healey Bonner, Esquire
(Argued)
Trial Attorney, Criminal Division
United States Department of Justice
601 D Street, NW Suite 6500
Washington, DC 20530

Attorneys for Appellee
 John H. Benham, Esquire (Argued)
William J. Glore, Esquire
Watts & Benham, P.C.
No. 1 Frederiksberg Gade
P.O. Box 11720
Charlotte Amalie, St. Thomas
USVI, 00801-4720

Attorneys for Appellant

OPINION OF THE COURT

ROTH, Circuit Judge:

Joseph Emmett Simmonds, III, pled guilty in the District
Court of the Virgin Islands to one count of arson in
violation of federal law and to one count of bur glary in
violation of Virgin Islands territorial law. Simmonds
contends on appeal that the District Court: (1)
miscalculated the appropriate amount of r estitution by
including the value of the victims' lost insurance premium
discounts and the depreciation attributable to the victims'
furniture in its restitution or der, (2) abused its discretion
by ordering him to serve consecutive (rather than
concurrent) sentences for his crimes, and (3) committed
plain error by consulting the Pre-Sentence Investigation
Reports of his co-defendants before sentencing him. For the
reasons detailed below, we will reverse the District Court's
restitution order with respect to the inclusion of the victims'
lost insurance premium discounts, but we will affirm the
District Court's decision in all other respects.

I. FACTS

On September 16, 1998, Simmonds, along with five other
men, drove to the Peterborg area of St. Thomas, intending
to burglarize the house located at 11-22 Peterborg.
Simmonds and his five co-defendants cased the house and,
after concluding that the residents wer e not at home, cut
the alarm system wiring which activated both an audible
alarm within the home and an alert at ADT Security

2
Systems, the monitoring company. All but one of the men
then entered the house through a partially open window.1

While searching the house for items to steal, one of the
men, Adaryll Gumbs, came upon the credentials of
Assistant U.S. Attorney Curtis Gomez and r ealized that the
house belonged to Gomez. Gumbs recognized Gomez's
name because Gomez had prosecuted Gumbs in a r obbery
case that was still pending in the Vir gin Islands Territorial
Court. On discovering that the house belonged to Gomez,
Gumbs and Simmonds searched the house for documents
pertaining to the case against Gumbs. After an
unsuccessful search, Gumbs and Simmonds decided to set
the house on fire. Gumbs directed the other three men to
leave the house and turned on the gas stove without
igniting the burners. Gumbs and Simmonds then cut up a
couch and set the couch on fire. All six menfled the scene.
Gomez and St. Thomas police officers, responding to
notification of the alarm from ADT , arrived in time to
observe the suspects fleeing the scene.

All six suspects were eventually arrested. Simmonds was
arrested on November 9, 1998. During questioning,
Simmonds confessed to his involvement in the bur glary and
the arson and gave the police a statement implicating the
other five men. Simmonds was charged with arson in
violation of 18 U.S.C. S 844(i), carrying afirearm during the
commission of a violent crime in violation of 18 U.S.C.
S 924(c)(1), and possession of a fir earm by an unlawful user
of a controlled substance in violation of 18 U.S.C.
S 922(g)(3). He was also charged with burglary in violation
of territorial law, 14 V.I.C. S 444. In exchange for
Simmonds' pleading guilty to arson and burglary, the
government dropped the other char ges against him and
agreed to recommend to the sentencing court a downward
adjustment for acceptance of responsibility. On May 18,
1999, Simmonds was sentenced to 97 months in prison for
violation of 18 U.S.C. S 844(i) (arson) and a consecutive
sentence of 5 years in prison for violation of 14 V .I.C. S 444
_________________________________________________________________

1. At least two of the six men were ar med. Adaryll Gumbs was armed
with a .22 caliber handgun given to him by Simmonds, and Simmonds
himself was armed with a .38 caliber chr ome plated handgun.

3
(burglary). Simmonds was also order ed to pay restitution to
the victims in the amount of $20,000. Simmonds appealed
the sentence imposed.

II. JURISDICTION & STANDARD OF REVIEW

The District Court of the Virgin Islands had subject
matter jurisdiction in this case pursuant to 48 U.S.C.
S 1612, which grants the District Court for the Virgin
Islands concurrent jurisdiction over criminal matters that
involve violations of both federal and territorial law. We
have appellate jurisdiction pursuant to 28 U.S.C.S 1291
and 18 U.S.C. S 3742(a), which grant us the power to
review on appeal certain federal sentencing decisions.

We review a restitution order"under a bifurcated
standard: plenary review as to whether r estitution is
permitted by law, and abuse of discretion as to the
appropriateness of the particular award." United States v.
Crandon, 173 F.3d 122, 125 (3d Cir . 1999). With respect to
Simmonds's claim that the District Court err ed by awarding
the "replacement value" of the destr oyed furniture, we
apply plenary review to the issue of whether"value"
includes "replacement value." See United States v. Shugart,
176 F.3d 1373, 1375 (11th Cir. 1999). If we determine that
"replacement value" is permitted under the statute, we then
review the District Court's factual basis for choosing
"replacement value," as opposed to "market value," for
abuse of discretion. See id.

With respect to Simmonds's contention that as a matter
of law the District Court erred by including in its restitution
order the value of the victims' lost "clean renewal discount"
and "no claim discount" from their insurance premiums, we
exercise plenary review. See Crandon , 173 F.3d at 125.

We review the District Court's decision to impose a
consecutive, rather than a concurrent, sentence for abuse
of discretion. See, e.g., United States v. Spiers, 82 F.3d
1274, 1277 (3d Cir. 1996). The issue underlying that
decision, however, i.e., whether the Sentencing Guidelines
apply to the overall sentence imposed when a defendant is
sentenced simultaneously for a territorial and a federal
offense, is an issue of law and our review is plenary.

4
Finally, because Simmonds did not contemporaneously
object to the District Court's decision to consult his co-
defendants' Pre-Sentence Investigation Reports at
sentencing, our review is for plain err or. See, e.g., United
States v. Knobloch, 131 F.3d 366, 370 (3d Cir. 1997).

III. DISCUSSION

A. The District Court's Restitution Or der

Pursuant to the Mandatory Victims Restitution Act (the
"MVRA"), codified at 18 U.S.C. S 3663A, the District Court
ordered Simmonds to pay $20,000 as his share of the
restitution owed to the victims and to the victims'
insurance company. The District Court concluded that the
total loss resulting from the criminal acts in question was
$76,454. The court arrived at this sum based on
information contained in Simmonds's Pr e-Sentence
Investigation Report. The victims' insurance company paid
a total of $65,939 for the loss caused by the fir e. In
addition, the court ordered restitution in the amount of
$2,000 to cover the insurance deductible paid by the
victims, $7,000 representing the depr eciation attributable
to the furniture destroyed in thefire, and $1,516
representing the "clean renewal discount" and "no claim
discount" lost as a result of the insurance claim filed by the
victims. Simmonds argues that the District Court erred by
requiring him to compensate the victims for the
depreciation attributable to furnitur e destroyed in the fire
and for the value of the lost "clean renewal discount" and
"no claim discount" because the District Court is prohibited
by statute from awarding this type of r estitution.

As its name suggests, the Mandatory Victims Restitution
Act, which was enacted by Congress in 1996, mandates
that defendants who are convicted of or plead guilty to
certain crimes pay restitution to their victims. See 18
U.S.C. S 3663A(a)(1). The parties agree that Simmonds is
subject to the provisions of the MVRA by virtue of his guilty
plea to the federal offense of arson. Under the MVRA, a
defendant must either return the pr operty damaged during
commission of the crime in question or, if the defendant
cannot do so, pay "an amount equal to the gr eater of the

5
value of the property on the date of the damage, loss, or
destruction; or the value of the property on the date of
sentencing, less the value (as of the date the pr operty is
returned) of any part of the property that is returned." 18
U.S.C. S 3663A(b)(1)(B) (emphasis added). Because the
property at issue in this case was destr oyed, returning it is
impossible. Therefore, we must deter mine whether the
District Court's inclusion of the depreciation attributable to
furniture destroyed in the fir e and of the value of the
victims' lost insurance premium discounts was proper
under the statute. We will consider each of the items in
turn.

1. The Depreciation Attributable to the Victims' Furniture

We first consider whether the District Court erred in
calculating the value of the victims' furnitur e destroyed in
the fire under S 3663A at its "r eplacement value" rather
than at its "market value." "Market value" refers to the
actual price that the furniture in question would have
commanded on the open market on the date of destruction.
"Replacement value," in contrast, refers to the amount of
money necessary to replace the furnitur e. "Replacement
value" exceeds "market value" by an amount equal to the
depreciation attributable to the furnitur e. Depreciation
represents a decrease in the value of the victims' furniture
due to use and reflects the fact that the victims' furniture
was no longer new when destroyed.

Pursuant to the victims' homeowners insurance policy,
their insurance company, Lloyd's of London, compensated
the victims for the market value of their destr oyed
furniture. The District Court, in opting for the "replacement
value," ordered Simmonds to pay r estitution to Lloyd's of
London in an amount equal to the market value of the
furniture and to pay restitution to the victims in an amount
equal to the depreciation attributable to their furniture. The
sum of these two amounts, the market value of the
furniture and the depreciation attributable to the furniture,
is equal to the replacement value of the fur niture.

Simmonds argues that by including the depr eciation
attributable to the furniture in its r estitution order, the
District Court exceeded its statutory authority to order

6
restitution in an amount equal to "the value of the property
on the date of . . . destruction." 18 U.S.C.
S 3663A(b)(1)(B)(i)(I). We must, ther efore, determine whether
the District Court's decision to order r estitution in an
amount equal to the "replacement value," rather than equal
to the "market value," of the destroyed furniture was proper
under S 3663A.

This question is one of first impression in the Third
Circuit. In arguing that the District Court's restitution
order was proper, the gover nment relies primarily on the
legislative history of the MVRA and the Victim Witness
Protection Act (the "VPWA"), 18 U.S.C. S 3663(b)(1), as well
as case law interpreting the language of the VPWA,2 all of
which indicate that the purpose of both the VPW A and the
MVRA is, to the extent possible, to make victims whole, to
fully compensate victims for their losses, and to r estore
victims to their original state of well-being. See, e.g., United
States v. Kress, 944 F.2d 155, 159-60 (3d Cir. 1991); S.
Rep. No. 104-179, at 12-13, 17-22 (1996) r eprinted in 1996
U.S.C.C.A.N. 924, 925-26, 930-35. Thus, when viewed
solely against the backdrop of congressional intent as set
forth in the relevant legislative history, the District Court's
restitution order with respect to the victims' furniture
appears to be appropriate. This Court, however , has
interpreted more narrowly these br oad statements of
congressional intent:

[T]here is no doubt that the VWPA does not necessarily
authorize a sentencing court to order r estitution in an
amount that represents a victim's entir e loss. See
Hughey v. United States, 495 U.S. 411, 413 (1990).
Congress simply did not write the VWPA to fully satisfy
the more ambitious purpose expressed in the legislative
reports upon which [the government] relies. The plain
and unambiguous language of S 3663(b)(1) clearly
limits the amount of restitution to the value of the lost
property.
_________________________________________________________________

2. The language of S 3663(b)(1) (the VWP A) and S 3663A(b)(1) (the
relevant portion of the MVRA) is identical in all relevant respects.
Therefore, absent unique and highly persuasive MVRA legislative history,
of which there is none, Third Circuit cases interpreting the language of
the S 3663(b)(1) control in this case.

7
Government of the Virgin Islands v. Davis, 43 F.3d 41, 46
(3d Cir. 1994). Thus, we cannot simply defer to the
sweeping language in the MVRA's legislative history in
deciding whether the District Court exceeded its statutory
authority by ordering restitution in an amount equal to the
"replacement value" of the victims' fur niture.

Looking, however, at the plain language ofS 3663A, it
states that a district court judge must awar d restitution to
victims in an amount equal to "the value of the property on
the date of the damage, loss, or destruction." 18 U.S.C.
S 3663A(b)(1)(B)(i)(I). While the statute does not expressly
define "value" as "replacement value," neither does it define
value as "market value." In fact, the statute is silent as to
which of these two measures should be used to determine
the value of the victims' furniture. Ultimately, we are
presented with a statute (the primary and overarching goal
of which is to make victims of crime whole, to fully
compensate these victims for their losses and to r estore
these victims to their original state of well-being) that
expressly directs the sentencing judge to award restitution
in an amount equal to "the value of the pr operty on the
date of the damage, loss, or destruction."

Although we have yet to decide whether the ter m "value"
as used in S 3663A contemplates a restitution order based
on "replacement value" rather than "fair market value," the
Eleventh Circuit recently addressed this very question,
concluding that "value" in S 3663A "contemplates a
restitution order based on replacement cost where actual
cash value is unavailable or unreliable." See Shugart, 176
F.3d at 1375. Moreover, the court in Shugart concluded
that, in some situations, replacement value is an
appropriate measure of "value" underS 3663A. Id.

The Shugart court, in attempting to deter mine the
appropriate measure of "value" underS 3663A(b)(1) for a
church burned down by the two defendants, reasoned that:

Section 3663A(b)(1) requires the defendants to pay
restitution in an amount equal to the "value" of the
Church on the day they burned it down. For fungible
commodities, value is easy to determine: it's the actual
cash value, or fair market value, of the item--that is,

8
 "[t]he fair or reasonable cash price for which the
property could be sold in the market in the or dinary
course of business." BLACK'S LAW DICTIONARY 35 (6th ed.
1990). According to the defendants, S 3663A always
limits restitution to actual cash value. . . . We disagree.

Although fair market value will often be an accurate
measure of the value of property, it will not always be
so. Where actual cash value is difficult to ascertain--
because an item is unique, or because there is not a
broad and active market for it--replacement cost may
be a better measure of value.

Id. While there is no indication that the destroyed furniture
in this case was "unique," furnitur e often has a personal
value to its owners that cannot be captured or accurately
estimated by simply determining the market value of the
furniture. Replacing the armchair one sits upon each
evening or the bed one sleeps in each night with fur niture
that others have already used may be difficult to accept.
This would be necessary, however, if the household
furniture is replaced at its market value because damaged
furniture cannot be replaced at market value with
equivalent new items. For that reason, when evaluating
personal items of furniture in one's r esidence, we find that
replacement value may be an appropriate measure of
"value" under S 3663A(b)(1). In these circumstances, the
market value or cash value is an inadequate or inferior
measure of "value."

This interpretation of "value," as the term is used in
S 3663A(b)(1), is not only consistent with the Shugart
court's reasoning and with the clear legislative intent
behind the MVRA, but also with the U.S. Sentencing
Guidelines and with other cases addressing the issues of
restitution and loss valuation where value is difficult to
ascertain.3 Moreover , this interpretation of "value" is
_________________________________________________________________

3. See United States v. Sharp, 927 F .2d 170, 173 (4th Cir. 1991) (holding
that the replacement cost of a ventilation fan destroyed when two
defendants bombed a mine was properly awar ded as restitution to
victims of the bombing under 18 U.S.C. S 3663(b)(1)); cf. United States v.
Akbani, 151 F.3d 774, 779-80 (8th Cir. 1998) ("[I]n cases that result in

9
consistent with 18 U.S.C. S 3664, the statutory provision
immediately following S 3663A, which per mits a sentencing
court to order "in-kind" restitution"in the form of
replacement of property." 18 U.S.C. S 3664(f)(4)(B)
(emphasis added). We hold, therefor e, that the District
Court properly considered "replacement value" as a
measure of restitution and that it did not abuse its
discretion under the circumstances of this case in then
choosing it as the applicable measure in its award.

We conclude by noting that the rule of lenity is
inapplicable in this case. As the Shugart court stated:

We only invoke the rule of lenity when, after
considering the structure and purpose of a criminal
statute, we are left with nothing more than a guess as
to what Congress intended. See United States v. Wells,
519 U.S. 482, 498-99 (1997). In this case, we see no
"grievous ambiguity" sufficient to r equire application of
the rule of lenity. Chapman v. United States, 500 U.S.
453, 463 (1991) (quoting Huddleston v. United States,
415 U.S. 814, 831 (1974)).

Shugart, 176 F.3d at 1376. Similarly, in the present case,
we are not left with "nothing more than a guess as to what
_________________________________________________________________

damage to or loss or destruction of property, .. . [t]he language of the
Victim and Witness Protection Act("VWPA") . . . restricts restitution . .
.
to the replacement value of the property." (citing 18 U.S.C. S
3663(b)(1));
United States v. Pemberton, 904 F.2d 515, 516-17 (9th Cir. 1990) ("Being
unique, the drawings were not fungible items for which there was a
broad and active market; [i]n the absence of such a market, which would
have supplied a readily ascertainable price, the court acted reasonably in
relying upon the contract between Comstock's employer and the
developer, the only parties with an immediate interest in the drawings,
as an indication of value."); U.S. Sentencing Guidelines Manual S 2B1.1,
application note 2 (1990) ("Where the market value is difficult to
ascertain or inadequate to measure harm to the victim, the court may
measure loss in some other way, such as r easonable replacement cost to
the victim."); U.S. Sentencing Guidelines ManualS 2Q2.1, application
note 4 (1995) ("Where the fair-market retail price is difficult to
ascertain,
the court may make a reasonable estimate using any reliable
information, such as the reasonable r eplacement or restitution cost or
the acquisition and preservation (e.g., taxider my) cost.").

10
Congress intended." Both the statutory language and the
legislative history of the VWPA and the MVRA clearly
indicate Congress's intent to make victims of crime whole,
to fully compensate these victims for their losses, and to
restore these victims to their original state of well-being. In
light of the clear, overarching goal ofS 3663A, there is not
only no "grievous ambiguity" with respect to Congress's
intent, there is also no reason to conclude that the District
Court abused its discretion here by opting for the
replacement value of the victims' furniture rather than the
market value.

2. The "Clean Renewal Discount" and"No Claim Discount"

Having concluded that the District Court properly
included the depreciation attributable to the victims'
furniture in its restitution or der, we must now determine
whether the District Court erred by including in its
restitution order the amount of the victims' lost "clean
renewal discount" and "no claim discount." Because the
victims' lost insurance premium discounts do not
constitute "property" that was damaged lost or destroyed by
the criminal acts of Simmonds and his co-defendants, we
will reverse the District Court's restitution order with
respect to these amounts.

The victims' "clean renewal discount" and"no claim
discount" refer to the amount of money (in the form of
lower home owners insurance premiums) that the victims
would have saved had they not been forced tofile an
insurance claim for the fire damage r esulting from the
arson committed by Simmonds and his co-defendants. In
arguing that the District Court erred in ordering restitution
for the value of the victims' lost insurance pr emium
discounts, Simmonds contends that the plain language of
the controlling statute, 18 U.S.C. S 3663A(b)(1), allows the
District Court to award restitution only in an amount
representing the value of property lost or destroyed as a
result of the defendant's criminal activity. Simmonds
further contends that neither the victims' "clean renewal
discount" nor their "no claim discount" is property that was
lost, damaged or destroyed as a result of Simmonds'
crimes.

11
As we have previously interpreted the ter m "property" in
S 3663A(b)(1), it does not include consequential damages.
See Government of the Virgin Islands v. Davis, 43 F.3d 41
(3d Cir. 1994). In Davis, the defendant, who pled guilty in
federal district court to charges of conspiracy to commit
fraud, forgery, and perjury, argued on appeal that the
district court improperly ordered as restitution the amount
of legal fees incurred by the victim to r ecover property
fraudulently obtained by the defendant. In r eviewing the
district court's restitution order , the Davis Court,
highlighting the controlling statutory language, concluded
that S 3663(b)(1) expressly limits r estitution to the value of
the property that was damaged, lost or destr oyed during or
as a direct result of the criminal acts in question. Relying
on opinions from the Fourth, Fifth, Seventh, Ninth and
Tenth Circuits holding that "r estitution under the VWPA
cannot include consequential damages,"4 the Davis Court
held that consequential damages, such as attor neys' fees,
are not recoverable in restitution under S 3663(b)(1). Davis,
43 F.3d at 46.

Consistent with our holding in Davis, we conclude that
the District Court erred by including the value of the
victims' "clean renewal discount" and"no claim discount" in
its restitution order. The victims' lost insurance premium
discounts are unquestionably a result of the defendant's
criminal conduct. However, under S 3663A as we have
interpreted it, the victims' lost insurance pr emium
discounts are consequential damages and do not in any
way constitute or represent "the value of the property" lost,
damaged or destroyed as a result of Simmonds's crimes.
The District Court exceeded its statutory authorization in
ordering restitution for the victims' lost"clean renewal
discount" and "no claim discount," and we will, therefore,
reverse the District Court's grant of r estitution with respect
to these items.
_________________________________________________________________

4. See United States v. Mullins, 971 F .2d 1138, 1147 (4th Cir.1992);
United States v. Arvanitis, 902 F.2d 489, 497 (7th Cir.1990); United
States v. Barany, 884 F.2d 1255, 1261 (9th Cir. 1989); United States v.
Patty, 992 F.2d 1045, 1049 (10th Cir .1993); United States v. Mitchell,
876 F.2d 1178, 1184 (5th Cir.1989).

12
B. Imposition of Consecutive Sentences

Simmonds next argues that the District Court abused its
discretion by ordering his territorial sentence to run
consecutively, rather than concurrently, with his federal
sentence. Simmonds contends that the District Court was
required to determine whether "the sentence imposed on
the count carrying the highest statutory maximum is
adequate to achieve the total punishment," U.S. Sentencing
Guidelines Manual S 5G1.2(c) (2000),5 and to consider the
factors enumerated in 18 U.S.C. S 3553, including the need
for deterrence, punishment and restitution, the nature and
seriousness of the offense, the kinds of sentences available
for the crime in question and similar crimes, the need to
protect the public, and the need for criminal r ehabilitation,
before ordering his territorial sentence to run consecutively
(rather than concurrently) to his federal sentence. See 18
U.S.C. SS 3584, 3553 (2000). Simmonds contends that
because the District Court failed to apply U.S.S.G.S 5G1.2
and to consider the factors enumerated in S 3553(a), his
sentence must be vacated and his case remanded to the
District Court for re-sentencing.

We have previously held that the Sentencing Guidelines
do not apply to sentences for violations of V irgin Islands
territorial law. See Government of the V irgin Islands v.
Dowling, 866 F.2d 610, 613-15 (3d Cir . 1989). The
Sentencing Guidelines apply only to sentences for federal
criminal violations and do not apply to sentences for
territorial criminal violations regardless of whether such
sentences are imposed by the District Court for the Virgin
Islands or the Virgin Islands T erritorial Court. See id. In the
present case, however, we are called upon to address a
more nuanced question. We must deter mine whether the
factors, set forth at 18 U.S.C. S 3553 andS 5G1.2 of the
Sentencing Guidelines, apply when federal and territorial
criminal charges are joined for trial and sentencing in the
_________________________________________________________________

5. U.S.S.G. S 5G1.2(c) provides that"[i]f the sentence imposed on the
count carrying the highest statutory maximum is adequate to achieve
the total punishment, then the sentences on all counts shall run
concurrently, except to the extent otherwise r equired by law." U.S.
Sentencing Guidelines Manual S 5G1.2(c) (2000).

13
District Court for the Virgin Islands. 6 As detailed below, we
conclude that as a matter of law neither S 3553 or S 5G1.2
applies in such a situation. We hold, ther efore, that the
District Court properly did not apply the Guidelines in its
imposition of the sentence for the territorial of fense and
that, when the District Court ordered Simmonds to serve
consecutive rather than concurrent sentences for his
crimes without reference to S 3553 or S 5G1.2, it did not
abuse its discretion.

At oral argument, Simmonds urged that 48 U.S.C.
S 1614(b) (which mandates that certain federal criminal
procedures be applied in the District Court for the Virgin
Islands) required that the District Court consider at
sentencing the factors set forth in 18 U.S.C. S 3553(a). We
disagree. As Simmonds concedes, if the District Court were
required, pursuant to 48 U.S.C. S 1614(b), to consider the
factors set forth in S 3553(a) when deciding whether his
sentence for burglary should run consecutively or
concurrently to his federal sentence for arson, then the
District Court would also be required to apply the
Sentencing Guidelines when deciding this issue. See 18
U.S.C. S 3553(a)(4)(A), (a)(5), and (b). Specifically, sections
3553(a)(4) and 3553(a)(5) state that a sentencing court
must consider both "the kinds of sentence and the
sentencing range established for . . . the applicable category
of offense committed by the applicable category of
defendant as set forth in the guidelines issued by the
Sentencing Commission pursuant to S 944(a)(1) of title 28,"
18 U.S.C. S 3553(a)(4), and "any pertinent policy statement
issued by the Sentencing Commission . . . that is in effect
on the date the defendant is sentenced." 18 U.S.C.
S 3553(a)(5). Moreover, 18 U.S.C.S 3553(b) introduces
additional factors to be considered:

The court shall impose a sentence of the kind, and
within the range, referred to in subsection (a)(4) unless
the court finds that there exists an aggravating or
mitigating circumstance of a kind, or to a degr ee, not
adequately taken into consideration by the Sentencing
_________________________________________________________________

6. The Sentencing Guidelines do apply of course in computing the
sentence imposed for the federal arson conviction.

14
 Commission in formulating the guidelines that should
result in a sentence different fr om that described.

18 U.S.C. S 3553(b).

If, therefore, S 3553 had been applicable when a sentence
was being imposed on Simmonds for his conviction on the
territorial offense, the District Court would also have been
required to apply S 5G1.2 of the Sentencing Guidelines and
to impose a total sentence within the range established for
the adjusted combined offense level. However , pursuant to
our holding in Dowling, the Sentencing Guidelines do not
apply with respect to territorial criminal of fenses tried in
the District Court of the Virgin Islands. See Dowling, 866
F.2d at 615.

Moreover, S 5G1.2 of the Guidelines, entitled "Sentencing
on Multiple Counts of Conviction," is applicable to
sentencing on multiple federal counts of conviction. That
this section is so limited can be ascertained fr om its
reference to Part D of Chapter 3 of the Guidelines, "Multiple
Counts," which in turn makes it clear in its Introductory
Commentary that Part D is establishing methods of
determining a single offense level when there are multiple
offenses of conviction under Chapter 2 of the Guidelines.
All offenses under Chapter 2 are violations of federal -- not
of state or territorial -- statutes.7
_________________________________________________________________

7. Although the Government argues that S 5G1.3, "Imposition of a
Sentence on a Defendant Subject to an Undischar ged term of
Imprisonment," is not applicable in this case to determine whether the
sentences should be consecutive or concurrent, it would seem that in
fact S 5G1.3 would be the appropriate Sentencing Guideline section to
consult when sentences for federal and for state/territorial offenses
cover
related conduct. For example, Application Note 2 to S 5G1.3 discusses
how to compute a federal sentence which may take into account, as
Relevant Conduct, conduct for which a defendant has been convicted
and sentenced in state court. If Simmonds had committed his offenses
in a state rather than in a territory, he would have pled guilty in state
court to the state burglary offense and in federal court to the federal
arson offense and S 5G1.3 would have been applicable to determine if
the federal sentence should run concurrently with or consecutively to the
state sentence. See United States v. Brown, 920 F.2d 1212, 1216-17 (5th
Cir. 1991) (holding that a federal district court can require its sentence

15
Moreover, although 48 U.S.C. S 1614(b) states that
"[w]here appropriate, the pr ovisions of part II of Title 18
[Criminal Procedure] and of T itle 28 . . . shall apply to the
district court and appeals therefrom," the applicability of
part II of Title 18 is set forth in the following terms: "Except
as otherwise specifically provided, a defendant who has
been found guilty of an offense described in any Federal
statute . . . shall be sentenced in accordance with the
provision of this chapter." 18 U.S.C.S 3551(a). Thus, the
scope of part II of Title 18 is defined in terms of sentences
imposed for violations of federal law, not in terms of
sentences imposed in federal courts.

Our conclusion that the Sentencing Guidelines and the
factors set forth in 18 U.S.C. S 3553 do not apply in this
case is reinforced by the policy considerations addressed in
Dowling. In rejecting the suggestion that the Sentencing
Guidelines and the Sentencing Reform Act apply to
sentences for territorial violations imposed by the District
Court of the Virgin Islands but not to sentences for
territorial violations imposed by the Vir gin Islands
Territorial Court, we noted in Dowling that "if the
[Sentencing] Guidelines must be used in one court but not
in the other, the prosecutor would have the option of
choosing what range of punishment could be imposed for
the particular crime" simply by selecting the appropriate
court in which to bring charges. Dowling , 866 F.2d at 613.
We reasoned that it "would be an anomalous situation, out
of the mainstream of criminal law administration," to
permit such forum shopping. Id. Because we concluded
that the Sentencing Guidelines and the Sentencing Reform
Act did not apply to sentences handed down by the V irgin
Islands Territorial Court, we ultimately held that they
likewise did not apply to sentences imposed by the District
Court of the Virgin Islands for violations of Virgin Islands
territorial law (in contrast to federal law). See id. at 615.
_________________________________________________________________

to be served consecutively with a yet to be imposed state sentence). It is
only because uniquely in the Virgin Islands a defendant can be convicted
of both the federal and the territorial offenses at the same time in
federal
court that the application of S 5G1.3 in such a situation is even
debatable.

16
Because the Sentencing Guidelines and the Sentencing
Reform Act do not apply in this case to the territorial
violation, they cannot be reintroduced into the sentencing
process by requiring that computation of the total sentence
for the federal and territorial offenses be determined under
the Guidelines. We must consider the two sentences
separately. In regard to the sentence for the territorial
offense, the laws of the Virgin Islands do not impose
express limitations on a sentencing court's discretion to
impose consecutive sentences for territorial criminal
offenses. Furthermore, the laws of the Virgin Islands do not
require specific factors to be consider ed when imposing
consecutive sentences for territorial criminal of fenses.

Here, in deciding to impose consecutive sentences, the
District Court stated at the sentencing hearing that it did
not believe that the 97 months on the federal arson count
adequately achieved "the total punishment that is
necessary and appropriate in this case." (App. at 57).
Moreover, in discussing other aspects of its sentencing
decision, the District Court emphasized that Simmonds was
responsible for recruiting Gumbs, that Simmonds carried a
gun during the burglary, that Simmonds gave Gumbs a
gun to carry during the commission of the bur glary, and
that Simmonds and Gumbs were the only individuals who
stayed behind to set the fire. (App. at 28-30). In addition,
the District Court explicitly addressed the seriousness of
the offense:

It is a very just--entering someone's house, and even
when you think they're not there is bad enough, just a
regular burglary.

But then, when inside the house, it is found out that
it's owned by a federal official and a federal law
enforcement official, a prosecutor , and because of that
role, that job, the burglars escalate the crime to one of
arson, and they don't just set fire to the place, they . . .
set a bomb, in essence, by setting fire to a piece of
furniture and turning the gas on, it was only a matter
of time that there would have been a massive
explosion.

And it is only by chance, the grace of God, however you
wish to characterize it, that someone . . . first went in

17
 . . . [and] turned the gas off and attempted to fight the
fire until the firefighters arrived.

And that's what makes this crime so particularly
disturbing and so particularly an heinous one, and
deserving of a level of punishment for one such as Mr.
Simmonds who played a managerial or supervisory r ole
in the arson itself, as well as, of course, the initial
enterprise of the burglary.

(App. at 55-56). The District Court also noted that
Simmonds tried to elude the police after fleeing the scene of
the crime. (App. at 56).

In sum, the District Court clearly articulated r easons
supporting its conclusion that the sentences should run
consecutively. As such, we hold that the District Court did
not abuse its discretion in its sentencing decision.

C. Consultation of Other Pre-Sentence Investigation
Reports

Simmonds finally argues that "[t]he trial court violated
[his] right to due process by taking into account material
included in the Pre-Sentence Investigation Reports ("PSI's")
of other participants." Simmonds contends that these
reports were not provided to him and that "he had no
opportunity to respond" to the infor mation contained in
these reports prior to the District Court's decision to make
a three-point upward adjustment in his base offense level
for playing a leadership, managerial and/or or ganizational
role in the crimes to which he pled guilty.

Although Simmonds contends that he objected to the
District Court's decision to consult his co-defendants' PSI's,
our careful review of the sentencing transcript belies this
contention. While Simmonds did object to the District
Court's decision to impose a three-point upwar d
adjustment in his base offense level for playing a leadership
role in the crimes to which he pled guilty, it is clear from
the sentencing transcript that neither Simmonds nor his
lawyer objected to the District Court's consultation of or
reliance upon the PSI's of Simmonds's co-defendants.

Simmonds does not contend that the information in his
PSI or in the PSI's of his co-defendants was unr eliable or

18
untrustworthy. Instead, Simmonds contends only that the
District Court violated his due process rights by consulting
his co-defendants' PSI's prior to sentencing him and that
the facts presented in these PSI's, when considered together
with the facts in Simmonds's own PSI, demonstrate that
Simmonds "was not a leader, organizer, manager or
supervisor."

We note, however, that the following sections of the PSI's
of all five defendants are identical: Related Cases, The
Offense Conduct, Defendants' Statement Regar ding the
Planning of the Offense, Defendants' Statement Regarding
the Burglary, Defendants' Statement Regar ding the Arson,
and Victim Impact Statement. Therefor e, any error in
reviewing the co-defendants' PSI's would be har mless
because the relevant information is the same in each of
them. Moreover, even a cursory r eview of Simmonds's own
PSI provides ample support for the District Court's
conclusion that Simmonds acted as a leader, manager
and/or organizer.

In arguing, furthermore, that the District Court violated
his due process rights by denying him access to his co-
defendants' PSI's, Simmonds acknowledges that, as a
general rule, criminal defendants have no right to see or
examine the PSI's of their co-defendants. See, e.g., United
States v. Blanco, 884 F.2d 1577, 1577-78 (3d Cir. 1989)
(citing United States Dep't of Justice v. Julian , 486 U.S. 1
(1988)). Furthermore, as Simmonds concedes in his brief,
"the scope of what a trial court may consider in
determining a[n appropriate] criminal sentence is
breathtakingly broad." Not only have we held that a federal
district court judge has almost unlimited discr etion in
determining the appropriate sentence in a criminal case,
see, e.g., United States v. Stephens, 198 F.3d 389, 391 (3d
Cir. 1999), such discretion is a part of federal statutory law.
See 18 U.S.C. S 3661 ("No limitation shall be placed on the
information concerning the backgr ound, 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."); see also
U.S. Sentencing Guidelines S 1B1.4 (2000) ("In determining
the sentence to impose within the guideline range, or

19
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.").

Given the District Court's broad discretion to consider
relevant information when sentencing a criminal defendant,
we conclude that the District Court's decision to consult
the PSI's of Simmonds's co-defendants did not constitute
plain error.

IV. CONCLUSION

In conclusion, we will affirm the District Court's
judgment of sentence except for the inclusion of the value
of the victims' lost insurance premium discounts in the
restitution order. We r emand this case to the District Court
so that Simmonds may be resentenced as to r estitution.

20
STAPLETON, Circuit Judge, concurring and dissenting:

I join all portions of the Court's opinion other than Part
III(A)(1). Because I conclude that the portion of the District
Court's restitution order regar ding the destroyed furniture
exceeded its authority, I would remand for r esentencing.

Because the victims' insurance company, in accor dance
with the terms of its policy, paid only the depreciated value
of the furniture, the District Court or dered that the
defendants pay the victims an amount equal to the
depreciation they failed to receive fr om the carrier. The
record does not explain how this depr eciation was
calculated, but my colleagues appear to assume that
receiving an amount equal to the depreciation would put
the victims in a position to replace the lost furniture with
new furniture at the time of the loss. They thus refer to this
as the victims receiving "replacement value."

Section 3663A(b)(1)(B) mandates restitution in the
amount of the greater of the value of the pr operty destroyed
at the time of the loss or at the time of sentencing. The
value of lost property is most commonly r egarded as being
the market value of the property, i.e., what a willing buyer
would pay. Compare BLACK'S LAW DICTIONARY 1549-50 (7th ed.
1999) (defining "value" as "the amount of goods, services, or
money that something will command in an exchange" and
both "market value" and "fair market value" as "[t]he price
that a seller is willing to accept and a buyer is willing to
pay on the open market and in an arm's-length transaction
. . . ." while making no reference to"replacement value"),
with id. at 349-50 (defining "replacement cost" as "[t]he cost
of acquiring an asset that is as equally useful or productive
as an asset currently held"). Thus, if the phrase is read
literally, the value of the lost furnitur e is not the same as
the value of new furniture.

Even if one assumes that the value of the new fur niture
is an acceptable reading of the value of the lost property,
there is at least an ambiguity here on the face of the
statute. The Court concedes that the ambiguity is not
specifically resolved by the legislative history. As the Court
acknowledges, this conclusion is requir ed by our holding in
Government of the Virgin Islands v. Davis, 43 F.3d 41, 46
(3d Cir. 1994).

21
The Court ultimately holds that the admitted ambiguity
is resolved by the general, overall purpose of the statute.1
This holding is in direct conflict, however , with the teaching
of the Supreme Court in Hughey v. United States, 495 U.S.
411 (1990). Pursuant to a plea agreement, Hughey pleaded
guilty to one count of fraud in exchange for the
government's agreement to dismiss the r emaining counts.
The government sought restitution pursuant to the Victim
and Witness Protection Act of 1982 ("VWPA"), 18 U.S.C.
SS 3579, 3580, for damages stemming fr om all crimes with
which Hughey had been charged, not simply the charge to
which he had pleaded guilty. The Supreme Court held that
the plain language of the VWPA limited r estitution orders to
the harms flowing only from the of fense of which the
defendant had been convicted. Most important for our
purposes, the Supreme Court held that no appeal to "the
expansive declaration of purpose accompanying VWP A," id.
at 420, was warranted because "[e]ven wer e the statutory
language regarding the scope of a court's authority to order
restitution ambiguous, longstanding principles of lenity,
which demand resolution of ambiguities in criminal
statutes in favor of the defendant . . . preclude our
resolution of the ambiguity against petitioner on the basis
of general declarations of policy in the statute and
legislative history," id. at 422.
_________________________________________________________________

1. The Court's references to various r estitution cases and to the
Sentencing Guidelines in its footnote 3 are inapposite. In United States
v. Sharp, 927 F.2d 170, 174 (4th Cir . 1991), the court held that lost
income and costs of repairing a damaged mine were included in the
restitution calculation. The defendants conceded that the replacement
cost of a fan was properly included in the r estitution order, and,
therefore, the court in Sharp did not have occasion to consider the
propriety of so doing. The court in United States v. Akbani, 151 F.3d
774, 779-80 (8th Cir. 1998), held that S 3663(b)(1) did not apply.
Therefore, any pronouncement on the permissibility of replacement value
in restitution orders is dictum. Sentencing Guidelines SS 2B1.1 & 2Q2.1
both calculate "value" to determine a crime's significance. Value in this
context is irrelevant to our effort to determine how much Congress is
requiring the defendant to pay the victims in r estitution. United States
v.
Pemberton, 904 F.2d 515 (9th Cir. 1990), a Guidelines case and not a
restitution case, is similarly irrelevant.

22
The rule of lenity, accordingly, would mandate that we
construe any ambiguity in S 3663A(b)(1)(B) in favor of
Simmonds. The Court's resolution of the ambiguity in favor
of a more, rather than less, expansive definition of "value"
is fundamentally inconsistent with the rationale behind the
rule of lenity.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

23