US v. Dennis Sutton
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:10-cr-00096-FL-1. Copies to all parties and the district court/agency. [999028598].. [12-4297]
Appeal: 12-4297
Doc: 50
Filed: 01/24/2013
Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4297
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS BRADLEY SUTTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:10-cr-00096-FL-1)
Submitted:
January 15, 2013
Decided:
January 24, 2013
Before MOTZ, SHEDD, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 12-4297
Doc: 50
Filed: 01/24/2013
Pg: 2 of 6
PER CURIAM:
Dennis Bradley Sutton appeals the 200-month sentence
and
restitution
order
imposed
following
his
guilty
plea
to
possession of a firearm by a convicted felon and aiding and
abetting the same, in violation of 18 U.S.C. §§
922(g)(1), 924,
2 (2006), and possession of a stolen firearm and aiding and
abetting the same, in violation of 18 U.S.C. §§ 922(j), 924, 2.
On
appeal,
contends
him
sentencing
Sutton
an
restitution.
as
armed
that
the
career
district
criminal
court
and
in
erred
in
imposing
We affirm in part and vacate in part.
Sutton
first
contends
that
the
district
court
erroneously relied on non-Shepard 1-approved sources to determine
that his prior breaking and entering convictions were distinct
violent felonies.
We conclude that Sutton expressly waived his
right to contest the armed career criminal designation.
See
United States v. Olano, 507 U.S. 725, 733 (1993) (“[W]aiver is
the intentional relinquishment or abandonment of a known right.”
(internal quotation marks omitted)); United States v. West, 550
F.3d 952, 958-59 (10th Cir. 2008) (finding that defendant waived
challenge to prior conviction as predicate offense for purposes
of
the
Armed
Career
Criminal
Act
by
affirmatively
conceding
issue in district court), partially overruled on other grounds
1
Shepard v. United States, 544 U.S. 13 (2005).
2
Appeal: 12-4297
Doc: 50
Filed: 01/24/2013
Pg: 3 of 6
as recognized by United States v. Smith, 652 F.3d 1244, 1246
(10th Cir. 2011); see also United States v. Taylor, 659 F.3d
339, 348 (4th Cir. 2011) (“[T]he defendant is deemed bound by
the
acts
of
his
lawyer-agent.”
(internal
quotation
marks
omitted)), cert. denied, 132 S. Ct. 1817 (2012).
Therefore, we
will
armed
not
consider
Sutton’s
challenge
criminal designation on appeal.
to
the
career
See United States v. Claridy,
601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When a claim of . . .
error has been waived, it is not reviewable on appeal.”).
Sutton also contends that the district court erred in
ordering restitution to two businesses. 2
Generally, “[w]e review
a district court’s restitution order for abuse of discretion.”
United States v. Leftwich, 628 F.3d 665, 667 (4th Cir. 2010).
None of the specific claims Sutton has raised on appeal were,
however, raised in the district court.
limited to plain error.”
421,
427
(4th
Cir.
United States v. Ubakanma, 215 F.3d
2000).
defendant must show that:
Thus, “our review is
To
demonstrate
plain
error,
a
(1) there was an error; (2) the error
2
Sutton does not challenge on appeal the restitution
payable to three individuals. Thus, he has forfeited appellate
review of that portion of the restitution order. See Edwards v.
City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)
(concluding that issues not raised in opening brief are deemed
abandoned).
3
Appeal: 12-4297
Doc: 50
Filed: 01/24/2013
Pg: 4 of 6
was plain; and (3) the error affected his “substantial rights.”
Olano, 507 U.S. at 732.
Under the Victim Witness Protection Act (VWPA), the
district
court
must
consider
imposing restitution:
the
following
factors
prior
to
“the amount of loss sustained by each
victim as a result of the offense; and . . . the financial
resources
of
the
defendant,
the
financial
needs
and
earning
ability of the defendant and the defendant’s dependents, and
such other factors as the court deems appropriate.”
§ 3663(a)(1)(B) (2006).
18 U.S.C.
After determining the amount owed to
each victim, the court must consider the defendant’s financial
resources and assets, projected earnings and income, and other
financial
obligations
in
setting
the
payment
schedule.
18
U.S.C. § 3664(f)(2); see United States v. Dawkins, 202 F.3d 711,
716 (4th Cir. 2000) (requiring district court to “find that the
manner of restitution ordered is feasible”).
The Government contends that the district court was
not required to consider the § 3663(a)(1)(B) factors because the
parties agreed to restitution in the plea agreement.
While the
VWPA does permit the district court to order restitution “to the
extent agreed to by the parties in a plea agreement,” 18 U.S.C.
§ 3663(a)(3), the parties here merely agreed that Sutton would
pay restitution “in whatever amount the Court may order.”
not
read
this
language
as
expressing
4
the
agreement
We do
of
the
Appeal: 12-4297
Doc: 50
Filed: 01/24/2013
Pg: 5 of 6
parties to free the district court from its statutory obligation
to make factual findings under § 3663(a)(1)(B) before imposing
restitution.
Here,
relevant
to
the
district
restitution.
court
made
Nonetheless,
no
“we
factual
have
findings
held
that
a
sentencing court satisfies its duty to make specific findings if
it adopts a presentence report that contains adequate factual
findings
to
allow
restitution.”
effective
appellate
review
of
record
adopted
reveals
by
the
that
the
district
factual
findings
capacity.
It
not,
to
restitution
§ 3663(a)(2)
does
determine
was
as
or
this
to
Sutton’s
were
“victim”
case
contain
the
“a
report
provides
future
sufficient
businesses
“victims.”
as
Our review of
investigation
in
however,
whether
ordered
(defining
presentence
court
relevant
findings
fine
United States v. Karam, 201 F.3d 320, 329 (4th
Cir. 2000) (internal quotation marks omitted).
the
the
See
person
earning
factual
to
18
some
which
U.S.C.
directly
and
proximately harmed as a result of the commission of an offense
for which restitution may be ordered”).
Thus, we conclude that
the district court’s failure to make sufficient factual findings
relevant to these businesses, as required by the VWPA, was plain
error that affected Sutton’s substantial rights.
Accordingly, while we affirm Sutton’s convictions and
sentence of imprisonment, we vacate the restitution order and
5
Appeal: 12-4297
Doc: 50
Filed: 01/24/2013
Pg: 6 of 6
remand to the district court for additional factual findings
consistent with this opinion.
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 IN PART,
VACATED IN PART,
AND REMANDED
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?