UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4959
EDWARD WAYNE MAYORGA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CR-97-38-F)
Argued: April 8, 1999
Decided: May 13, 1999
Before WILKINS, WILLIAMS, and KING, Circuit Judges.
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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. John Stuart Bruce, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: William Arthur Webb, Federal Public Defender, Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Thomas
B. Murphy, Assistant United States Attorney, Janet L. Mingin, Third
Year Law Student, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Edward Wayne Mayorga appeals his conviction and sentence for
theft or embezzlement from an employee benefit plan, see 18
U.S.C.A. § 664 (West Supp. 1999), arguing primarily that the district
court erred in ordering restitution to individuals other than victims of
the offense of conviction. We affirm in part, vacate in part, and
remand.
I.
From March 1993 to December 1994, Mayorga's business, R&E
Electronics ("R&E"), failed to remit employee contributions to its
401(k) plan in a timely manner and also failed to remit employer con-
tributions to the plan. Additionally, in 1994, Mayorga misappropri-
ated funds from R&E's employee medical plan.
Mayorga was charged with four counts of theft or embezzlement
from an employee benefit plan. See 18 U.S.C.A. § 664. Pursuant to
a plea agreement, Mayorga pled guilty to Count One of the indict-
ment, which charged him with embezzling $31,105 from the medical
plan, and the remaining charges--which addressed Mayorga's actions
with respect to the 401(k) plan--were dismissed. The district court
sentenced Mayorga to 30 months imprisonment and three years super-
vised release. The court also ordered payment of restitution pursuant
to the Victim and Witness Protection Act (VWPA) of 1982, as
amended, 18 U.S.C. §§ 3663-3664 (1994). Although the single victim
of Mayorga's embezzlement from the medical plan suffered a loss of
only $31,105, the district court found that Mayorga had agreed in his
plea agreement to make restitution not only to victims of the offense
of conviction, but also to victims of the other offenses charged in the
indictment. Accordingly, the court ordered payment of $13,445.16 to
victims of Mayorga's alleged 401(k) plan embezzlement in addition
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to ordering payment of $31,105 in restitution to the victim of the
medical plan embezzlement.
II.
Although Mayorga raises several allegations of error, only his con-
tention that the district court erred in requiring him to pay restitution
to individuals who were not victims of the offense of conviction war-
rants discussion.
The relevant portion of the VWPA states as follows:
(a)(1) The court, when sentencing a defendant convicted
of an offense under [Title 18] ..., may order, in addition to
... any other penalty authorized by law, that the defendant
make restitution to any victim of such offense.
(2) For the purposes of restitution, a victim of an offense
that involves as an element a scheme, a conspiracy, or a pat-
tern of criminal activity means any person directly harmed
by the defendant's criminal conduct in the course of the
scheme, conspiracy, or pattern.
(3) The court may also order restitution in any criminal
case to the extent agreed to by the parties in a plea agree-
ment.
18 U.S.C. § 3663(a)(1)-(3). This court has held that when, as here, the
offense of conviction does not include "`as an element' a scheme,
conspiracy, or pattern of criminal activity," the term "victim" in
§ 3663(a)(1) refers only to victims of the offense of conviction.
United States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996).
Although recognizing that Mayorga's offense of conviction--theft
or embezzlement from an employee benefit plan--did not include a
scheme, conspiracy, or pattern of criminal activity as an element, the
district court ordered restitution to individuals who were not victims
of the offense of conviction based upon the following language in
Mayorga's plea agreement:
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The Defendant agrees:
a. To plead guilty to Count One of the Indictment herein.
b. To make restitution to any victim in whatever amount
the Court may order, pursuant to 18 U.S.C. § 3663.
J.A. 9. Although a defendant can agree to restitution beyond the limits
of § 3663(a)(1) and (2), see 18 U.S.C.§ 3663(a)(3), here the language
of the plea agreement is at best ambiguous concerning whether the
parties intended that restitution could be awarded to victims of
offenses other than the offense of conviction. And, since there is no
extrinsic evidence of intent, the ambiguity must be resolved against
the Government. See United States v. Harvey, 791 F.2d 294, 303 (4th
Cir. 1986). Therefore, the district court erred in ordering restitution
to individuals who were not victims of the offense of conviction.
While we do not favor this result, we are compelled to reach it
because of the narrow language of the VWPA. See Blake, 81 F.3d at
506-07. The remedy to this restrictive language may be provided only
by an amendment enacted by Congress. In the meantime, we note that
properly drafted plea agreements may provide relief to those victims
to whom the VWPA denies relief.
III.
After careful consideration, we conclude that Mayorga's remaining
allegations of error are without merit. Accordingly, we affirm his con-
viction, sentence of imprisonment, and term of supervised release;
vacate the restitution order; and remand for further proceedings con-
sistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED
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