United States v. Gutierrez-Avascal

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 9, 2008

No. 07-40779 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

ARNOLDO GUTIERREZ-AVASCAL aka Armando Gutierrez-Abascal

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas

Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Having pleaded guilty to conspiring to possess marijuana with the intent
to distribute, in violation of 21 U.S.C. § 846, Arnoldo Gutierrez-Avascal contests
being required to pay restitution. Primarily at issue is whether restitution is
statutorily authorized for a conspiracy conviction under 21 U.S.C. § 846.
AFFIRMED.
I.
Gutierrez was indicted on one count of conspiring to possess marijuana
with intent to distribute, in violation of 21 U.S.C. § 846, and on one count of
possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841
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and 18 U.S.C. § 2. The indictment alleged that the conspiracy occurred on or
about 5 February 2007. Gutierrez pleaded guilty to the conspiracy count.
The Presentence Investigation Report (PSR) recommended that Gutierrez’
base offense level was 26. It also recommended a two-level enhancement for
reckless endangerment during flight, based on Gutierrez’ 5 February attempt to
avoid apprehension by law enforcement officers. The PSR stated: Agents, while
conducting surveillance regarding suspected drug-trafficking activity, attempted
to follow a vehicle driven by Gutierrez; during the pursuit, Gutierrez—whose
vehicle contained 135.5 kilograms of marijuana—drove at approximately 50
miles per hour in a residential area during heavy traffic and failed to observe
traffic signals; and Gutierrez’ vehicle struck a vehicle occupied by Gilberto and
Flora Trevino (the Trevinos), resulting in injuries to Gilberto Trevino that were
treated at a hospital. The PSR recommended restitution of $4,062.46 for the
Trevinos.
Gutierrez filed a memorandum opposing restitution. He contended:
restitution was not authorized by statute; and the Trevinos were not “victims”,
as defined by statute, because their losses did not arise as a result of conduct
underlying the offense of conviction. In response, the Government maintained
restitution was authorized under 18 U.S.C. § 3663 (providing for discretionary
restitution). The probation officer’s restitution recommendation, however, was
changed to recommend no restitution because of the statutes at issue.
The court stated at sentencing that, unless persuaded otherwise by
permitted supplemental briefing, it would order restitution, overruling
Gutierrez’ objection (and not following the probation officer’s altered position).
Subsequently, as reflected in the judgment, Gutierrez was sentenced, inter alia,
to a 70-month term of imprisonment and ordered to pay $4,062.46 in restitution
to the Trevinos.

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II.
“A federal court cannot order restitution except when authorized by
statute.” United States v. Love, 431 F.3d 477, 479 (5th Cir. 2005) (citation and
internal quotation marks omitted). The legality of a restitution order is
reviewed de novo. United States v. Onyiego, 286 F.3d 249, 256 (5th Cir. 2002).
If it is determined that restitution is authorized by statute, “the propriety of a
particular award [is reviewed] for an abuse of discretion”. Id. (citation and
internal quotation marks omitted).
Regarding those standards of review, Gutierrez maintains: the district
court was not authorized by statute to order restitution; and, in the alternative,
even if authorized, the district court abused its discretion by requiring
restitution.
A.
Our first task is to determine whether restitution was authorized by
statute. Under 18 U.S.C. § 3556, “[t]he court, in imposing a sentence on a
defendant who has been found guilty of an offense shall order restitution in
accordance with section 3663A, and may order restitution in accordance with
section 3663”. (Emphasis added.) Restated, § 3556 governs restitution under
the discretionary Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663,
and the mandatory Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §
3663A. Love, 431 F.3d at 479-80. The district court did not identify the
statutory basis for its restitution award.
Simply stated, restitution was not authorized under the MVRA. The
Government contends restitution, instead, was permissible under the VWPA,
which provides the district court with authority to order that a defendant
convicted of certain offenses provide restitution to the victim. 18 U.S.C. §
3663(a)(1)(A). The list of offenses for which restitution may be ordered under the
VWPA includes “an offense under this title, section 401, 408(a), 409, 416, 420,

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or 422(a) of the Controlled Substances Act (21 U.S.C. 841, 848(a), 849, 856, 861,
863)”. Id. A “victim” for VWPA purposes is defined as “a person directly and
proximately harmed as a result of the commission of an offense for which
restitution may be ordered”. 18 U.S.C. § 3663(a)(2).
As Gutierrez correctly notes, 21 U.S.C. § 846 (drug conspiracy), the statute
under which he was convicted, is not among the enumerated offenses for which
restitution is authorized under the VWPA. 18 U.S.C. § 3663(a)(1)(A). Gutierrez
contends, therefore, that the district court lacked authority to order restitution
under the VWPA. The Government, however, maintains restitution is
authorized by the VWPA because, although not enumerated in the restitution
statute, the statute of conviction (§ 846) provides: “Any person who attempts or
conspires to commit any offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense”. 21 U.S.C. § 846 (emphasis
added). The object of Gutierrez’ conspiracy—possession of a controlled substance
with the intent to distribute—is criminalized under 21 U.S.C. § 841, a provision
that is one of the enumerated offenses under the VWPA. See 18 U.S.C. §
3663(a)(1)(A). The Government contends, therefore, that the VWPA authorizes
restitution in this case, citing United States v. Daniel, 14 F. App’x 355, 365 (6th
Cir. 2001) (unpublished).
Relying on tools of statutory interpretation and legislative history,
Gutierrez characterizes as “overly simplistic” and erroneous the Government’s
rationale, as well as that of the Sixth Circuit in the above-referenced
unpublished opinion. We disagree. The language of § 846 is clear: those
convicted of a conspiracy are subject to the same punishment as the target of
that conspiracy. It is undisputed that a district court, in its discretion, has the
authority under the VWPA to order a defendant convicted under § 841 to pay
restitution. The same authority exists, under the express terms of § 846, against

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those who conspire to commit that crime. We need not look beyond this plain
language to conclude that the VWPA authorizes restitution in this case.
B.
Alternatively, Gutierrez contends: even if restitution is authorized for an
offense under § 846, the restitution order constitutes an abuse of discretion
because the losses suffered by the Trevinos fall outside the parameters of an
offense under § 846 and are “too attenuated from the offense of conviction to
support a restitution order”. We again disagree.
The VWPA authorizes the district court to order that the defendant
provide restitution to “any person directly harmed by the defendant’s criminal
conduct in the course of [an offense that involves as an element a scheme,
conspiracy, or pattern of criminal activity]”. 18 U.S.C. § 3663(a)(2). Our court
has held: “[W]here a fraudulent scheme is an element of the conviction, the
court may award restitution for ‘actions pursuant to that scheme’”. United
States v. Cothran, 302 F.3d 279, 289 (5th Cir. 2002) (quoting United States v.
Stouffer, 986 F.2d 916, 928 (5th Cir. 1993)).
Gutierrez was engaged in activity in furtherance of the marijuana
conspiracy charged in the indictment when the vehicle he was driving collided
with the Trevinos’ vehicle. The collision occurred on 5 February 2007, the date
alleged in the conspiracy count of the indictment, when Gutierrez, aided by
another person, attempted to flee from pursuing law enforcement officers. In
this regard, as the Agents pursued Gutierrez, a second vehicle pulled in front of
the Agents in an attempt both to slow them down and block them from following
Gutierrez. The vehicle driven by Gutierrez contained 135.5 kilograms of
marijuana, a quantity corresponding to the allegations of the conspiracy count
of the indictment. As stated, in attempting to flee, he collided with the Trevinos’
vehicle.

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We hold, therefore, that the restitution order was not an abuse of
discretion because the Trevinos were “directly harmed by [Gutierrez’] criminal
conduct in the course of the . . . conspiracy”. 18 U.S.C. § 3663(a)(2).
III.
For the foregoing reasons, the judgment is AFFIRMED.

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