US v. Howard Blevins

Filing 920090605

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4867

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. HOWARD GLEN BLEVINS, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. Glen M. Williams, Senior District Judge. (1:07-cr-00065-gmw-pms-1)

Submitted:

April 23, 2009

Decided:

June 5, 2009

Before MICHAEL, TRAXLER, and AGEE, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Joel Assistant Federal Public Defender, Charlottesville, for Appellant. Julia C. Dudley, United States Jennifer R. Bockhorst, Assistant United States Abingdon, Virginia, for Appellee.

C Hoppe, Virginia, Attorney, Attorney,

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Howard Glen Blevins pled guilty to five counts of

possessing, transporting, and selling wildlife valued at more than $350 in interstate commerce, in violation of state law, 16 U.S.C. § 3372(a)(2)(A) (2006). In sentencing Blevins, the

district court rejected Blevins' request that he be sentenced to probation, and instead, the district court sentenced Blevins to six months' imprisonment on each count to be served

concurrently. $6970 in

The district court also ordered Blevins to pay to the Virginia Department of Game and

restitution

Inland Fisheries to reimburse the agency for its investigation of Blevins. We affirm the district court's order with respect

to Blevins' sentence of imprisonment, but vacate the order with respect to restitution and remand to the district court. This court reviews a sentence imposed by a district court under a deferential abuse of discretion standard. States v. Evans, 526 F.3d 155, 161 (4th Cir. United In

2008).

reviewing a sentence, we must first ensure that the district court committed or no procedural error, such the as failing to

calculate

improperly

calculating

Guidelines

range,

treating the Guidelines as mandatory, failing to consider the factors set forth in 18 U.S.C. § 3553(a) (2006), selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence. 2

Gall v. United States,

128 S. Ct. 586, 597 (2007).

If there are no procedural errors,

we then consider the substantive reasonableness of the sentence. Id. A substantive reasonableness review entails taking into United States v. (quotations this and

account the totality of the circumstances. Pauley, citation presumes 511 F.3d 468, In 473 (4th Cir. this the 2007)

omitted). a sentence

making

assessment,

court to be

within

guidelines

range

reasonable. We have reviewed the record and find that the district court did not commit procedural error in sentencing Blevins, nor was Blevins' sentence substantively unreasonable. Because

Blevins' sentence fell within his advisory guidelines range, we presume it is reasonable. Rita v. United States, 551 U.S. 338, Blevins offers no persuasive Accordingly, we affirm the

___, 127 S. Ct. 2456, 2459 (2007). argument to rebut this presumption.

prison term imposed by the district court. Blevins also argues on appeal that the district court erred in imposing restitution, arguing that the Virginia

Department of Game and Inland Fisheries is not a victim entitled to restitution under 18 U.S.C. §§ 3663 (2006), 3663A (2006) or 18 U.S.C. §§ 3583(d) (2006), 3563(b)(2) (2006). The Government

concurs that the district court erred in its order regarding

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Blevins' restitution.

We agree. *

Accordingly, we vacate the

district court's judgment with respect to the restitution order and remand for further proceedings consistent with this opinion. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Although this court has never addressed in a published opinion whether a state law enforcement agency that expends funds in the course of an investigation can be a "victim" of an offense entitled to be awarded restitution, our sister circuits that have considered this question appear to be unanimous in concluding that restitution is not appropriate in such circumstances. See United States v. Cottman, 142 F.3d 160, 169 (3d Cir. 1998); United States v. Khawaja, 118 F.3d 1454, 1460 (11th Cir. 1997); United States v. Meacham, 27 F.3d 214, 218-19 (6th Cir. 1994); United States v. Gibbens, 25 F.3d 28, 29 (1st Cir. 1994); United States v. Salcedo-Lopez, 907 F.2d 97, 98-99 (9th Cir. 1990).

*

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