United States v. Dexter Deontate King

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 30, 2005
No. 04-14021
THOMAS K. KAHN
_____________ CLERK

D.C. Docket No. 03-00557-CR-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEXTER DEONTATE KING,

Defendant-Appellant.

______________

Appeal from the United States District Court
for the Northern District of Georgia
_____________

(June 30, 2005)

Before TJOFLAT and KRAVITCH, Circuit Judges, and MILLS*, District Judge.

PER CURIAM:

*
Honorable Richard Mills, United States District Judge for the Central District of Illinois,
sitting by designation.
On July 15, 2004, the district court sentenced appellant to prison terms

totaling 156 months for violations of 18 U.S.C. §§ 924(c)(1)(A)(iii), 1951,

2113(a), and 2113(d), all stemming from appellant’s involvement in an attempted

bank robbery. As part of the sentencing package, the court ordered appellant to

make restitution to the bank in the sum of $20,984.04. Appellant now appeals this

restitution order, contending that the court’s basing its order on facts neither

admitted by him nor found by a jury runs afoul of the Supreme Court’s decisions

in Blakely v. Washington, ___ U.S. ____, 124 S. Ct. 2531, 159 L. Ed. 2d 403

(2004), and United States v. Booker, ___ U.S. ____, 125 S. Ct. 738, 160 L. Ed. 2d

621 (2005).

The Government confesses error with respect to that part of the restitution

sum, $11,485.69, representing the bank’s (i.e., the victim’s) cost of providing grief

counseling to its employees, because restitution for that cost is not authorized by

the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. See

Appellee’s Brief at 6, 13 n.4. The question thus becomes whether the remaining

part of the order in the sum of $9,498.35—the bank’s cost in repairing property

damage appellant caused—should be vacated.

Because appellant did not make a constitutional objection to restitution in

the district court, he must satisfy the plain-error standard. “We have discretion to

2
correct an error under the plain error standard where (1) an error occurred, (2) the

error was plain, (3) the error affected substantial rights, and (4) the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” United

States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005) (citing United States v.

Olano, 507 U.S. 725, 732-36, 113 S. Ct. 1770, 1777-79, 123 L. Ed. 2d 508

(1993)). If the district court erred in imposing what remains of the restitution sum

after the Government’s confession of error, the error was not “plain”: neither this

court nor the Supreme Court has addressed whether Blakely and Booker apply to

restitution orders under the MVRA, and other circuits are, at best (from appellant’s

point of view), split as to whether they do.1 See United States v. Aguillard, 217

1
Recently, in United States v. Rana, No. 04-50791, 2005 WL 984220 (5th Cir. Apr. 28,
2005), the Fifth Circuit “vacate[d] and remand[ed] . . . for resentencing, because the district court
and not the jury determined the amount of restitution and loss, which was then used to calculate
[the defendant’s] sentence.” Id. at *2. It is thus unclear from this unpublished opinion whether
the court believed that a remand was necessary simply because the district judge determined the
amount of restitution/loss, or rather only because that amount was then used to calculate the
defendant’s sentence.
Every circuit that has addressed this issue directly has held that Blakely and Booker do
not apply to restitution orders. See United States v. George, 403 F.3d 470, 473 (7th Cir. 2005)
(“George’s contention that Booker requires juries rather than judges to assess restitution is
misguided. There is no ‘statutory maximum’ for restitution; indeed, it is not a criminal
punishment but instead is a civil remedy administered for convenience by courts that have
entered criminal convictions.” (citations omitted)); United States v. Gordon, 393 F.3d 1044, 1051
n.2 (9th Cir. 2004) (concluding that a Blakely challenge to a restitution order under the MVRA
was “foreclosed by our recent decision in United States v. DeGeorge, 380 F.3d 1203 (9th
Cir.2004), where we held that a ‘restitution order made by the district court pursuant to the
Victim and Witness Protection Act [(“VWPA”)],18 U.S.C. § 3663, is unaffected by Blakely’”);
United States v. Wooten, 377 F.3d 1134, 1144-45 & n.1 (10th Cir. 2004) (holding that Apprendi
and Blakely do not apply to restitution orders under the MVRA); see also United States v. Syme,
276 F.3d 131, 159 (3d Cir. 2002) (“The Apprendi rule . . . does not apply to restitution orders

3
F.3d 1319, 1321 (11th Cir. 2000) (“[W]here neither the Supreme Court nor this

Court has ever resolved an issue, and other circuits are split on it, there can be no

plain error in regard to that issue.”). Accordingly, appellant cannot pass the plain-

error test with respect to the remainder of the restitution order.

Given the foregoing, we vacate the restitution order to the extent of

$11,485.69, and we remand the case with the instruction that the court amend its

order to provide for restitution in the sum of $9,498.35.

SO ORDERED.

made pursuant to [the VWPA] because Apprendi applies only to criminal penalties that increase
a defendant’s sentence ‘beyond the prescribed statutory maximum.’” ). But see United States v.
McDaniel, 398 F.3d 540, 553 n.12 (6th Cir. 2005) (“Although courts have generally recognized
that . . . Apprendi does not render the [MVRA] invalid under the Sixth Amendment, we note that
there is some question as to whether Booker requires us to reconsider our analysis of criminal
defendants’ jury trial rights with respect to restitution orders.” (citation omitted)). We cite these
cases, of course, not to endorse their reasoning or conclusions, but only to demonstrate that the
district court’s error, if any, was not plain.