UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4056
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH DARNELL DILLARD, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00178-WO-2)
Submitted: February 29, 2016 Decided: March 17, 2016
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Stephen F. Wallace, WALLACE LAW FIRM, High Point, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Frank J. Chut, Jr., Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Darnell Dillard, Jr., pled guilty pursuant to a
written plea agreement, to wire fraud, in violation of 18 U.S.C.
§ 1343 (2012), aggravated identity theft, in violation of
18 U.S.C. § 1028A(a)(1) (2012), and aiding in the preparation of
and filing of false tax returns, in violation of 26 U.S.C.
§ 7206(2) (2012). The district court imposed an aggregate
sentence of 25 months’ imprisonment and further ordered Dillard
to pay $29,238 in restitution. In accordance with Anders v.
California, 386 U.S. 738 (1967), Dillard’s counsel filed a brief
certifying that there were no meritorious grounds for appeal.
We directed supplemental briefing on the issue of whether the
district court plainly erred by imposing joint and several
liability on Dillard and his codefendants in its restitution
order. We affirm Dillard’s convictions and sentence but remand
for the district court to correct the written judgment.
Because Dillard did not object to the district court’s
restitution order, we review for plain error. United States v.
Moore, 810 F.3d 932, 939 (4th Cir. 2016). “[W]e may reverse
only on a finding that (1) there was error, (2) that was plain,
(3) that affected substantial rights, and (4) that seriously
affected the fairness, integrity, or public reputation of
judicial proceedings.” Id. (alterations and internal quotation
marks omitted).
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Under the Mandatory Victim Restitution Act, 18 U.S.C.
§§ 3663A to 3664 (2012), “a sentencing court must ‘order
restitution to each victim in the full amount of each victim’s
losses as determined by the court.’” United States v. Grant,
715 F.3d 552, 554 (4th Cir. 2013) (quoting 18 U.S.C.
§ 3664(f)(1)(A)). Where “more than 1 defendant has contributed
to the loss of a victim, the court may make each defendant
liable for payment of the full amount of restitution or may
apportion liability among the defendants to reflect the level of
contribution to the victim’s loss.” 18 U.S.C. § 3664(h).
However, “a restitution award must be tied to the loss caused by
the offense of conviction and does not permit a victim to
recover for losses stemming from all conduct attributable to the
defendant.” United States v. Ocasio, 750 F.3d 399, 412 (4th
Cir. 2014) (internal quotation marks omitted), cert. granted on
other grounds, 135 S. Ct. 1491 (2015).
In their supplemental briefs, the parties agree that, while
the district court ordered Dillard jointly and severally liable
with his codefendants for their restitution, Dillard’s liability
is capped at $29,238. Two of our sister circuits have
considered the issue and have similarly concluded that such a
restitution order is a permissible exercise of the district
court’s discretion. United States v. Scott, 270 F.3d 30, 52-53
(1st Cir. 2001); United States v. Trigg, 119 F.3d 493, 501 (7th
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Cir. 1997). Moreover, requiring joint and several liability in
a multi-defendant case such as this may be necessary to ensure
that the grand total of compensation ultimately paid pursuant to
the various restitution orders does not exceed the victim’s
losses. See United States v. Klein, 476 F.3d 111, 114 (2d Cir.
2007). Thus, we conclude that the district court did not
plainly err in ordering restitution to be joint and several
among the codefendants. See United States v. Maxwell, 285 F.3d
336, 342 (4th Cir. 2002) (“In the absence of [Supreme Court or
Fourth Circuit] authority, decisions by other circuit courts of
appeals are pertinent to the question of whether an error is
plain.” (internal quotation marks omitted)).
Dillard further argues that the district court plainly
erred in failing to include Ronald Hairston in Dillard’s written
judgment when it orally ordered Hairston to be jointly and
severally liable for Dillard’s restitution. We agree. It is
well settled in this circuit that, where the oral pronouncement
of the sentence and the written judgment conflict, the oral
pronouncement controls. Rakes v. United States, 309 F.2d 686,
687-88 (4th Cir. 1962).
In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious grounds
for appeal. Accordingly, although we affirm Dillard’s
convictions and sentence, we remand to the district court with
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instructions to correct the written judgment to reflect that
Hairston is also jointly and severally liable for Dillard’s
restitution. See United States v. Morse, 344 F.2d 27, 29 n.1,
30-31 (4th Cir. 1965). This court requires that counsel inform
Dillard, in writing, of the right to petition the Supreme Court
for further review. If Dillard requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Dillard.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED AND REMANDED
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