US v. Keith Dillard, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00178-WO-2 Copies to all parties and the district court/agency. [999776404].. [15-4056]

Appeal: 15-4056

Doc: 52

Filed: 03/17/2016

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4056

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH DARNELL DILLARD, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00178-WO-2)

Submitted:

February 29, 2016

Decided:

March 17, 2016

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed and remanded by unpublished per curiam opinion.

Stephen F. Wallace, WALLACE LAW FIRM, High Point, North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Frank
J.
Chut,
Jr.,
Assistant
United
States
Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-4056

Doc: 52

Filed: 03/17/2016

Pg: 2 of 5

PER CURIAM:
Keith

Darnell

Dillard,

Jr.,

pled

guilty

pursuant

to

a

written plea agreement, to wire fraud, in violation of 18 U.S.C.
§ 1343

(2012),

aggravated

identity

theft,

in

violation

of

18 U.S.C. § 1028A(a)(1) (2012), and aiding in the preparation of
and

filing

§ 7206(2)

of

false

(2012).

tax
The

returns,
district

in

violation

court

of

imposed

an

26

U.S.C.

aggregate

sentence of 25 months’ imprisonment and further ordered Dillard
to pay $29,238 in restitution.

In accordance with Anders v.

California, 386 U.S. 738 (1967), Dillard’s counsel filed a brief
certifying that there were no meritorious grounds for appeal.
We directed supplemental briefing on the issue of whether the
district

court

plainly

erred

by

imposing

joint

and

several

liability on Dillard and his codefendants in its restitution
order.

We affirm Dillard’s convictions and sentence but remand

for the district court to correct the written judgment.
Because

Dillard

did

not

object

to

the

restitution order, we review for plain error.
Moore, 810 F.3d 932, 939 (4th Cir. 2016).

district

court’s

United States v.
“[W]e may reverse

only on a finding that (1) there was error, (2) that was plain,
(3) that affected substantial rights, and (4) that seriously
affected

the

fairness,

judicial proceedings.”

integrity,

or

public

reputation

of

Id. (alterations and internal quotation

marks omitted).
2

Appeal: 15-4056

Doc: 52

Under
§§ 3663A

Filed: 03/17/2016

the
to

Mandatory

3664

(2012),

Pg: 3 of 5

Victim
“a

Restitution

sentencing

Act,

court

18 U.S.C.

must

‘order

restitution to each victim in the full amount of each victim’s
losses as determined by the court.’”
715

F.3d

552,

554

§ 3664(f)(1)(A)).

(4th

Cir.

United States v. Grant,

2013)

(quoting

18

U.S.C.

Where “more than 1 defendant has contributed

to the loss of a victim, the court may make each defendant
liable for payment of the full amount of restitution or may
apportion liability among the defendants to reflect the level of
contribution

to

the

victim’s

loss.”

18

U.S.C.

§ 3664(h).

However, “a restitution award must be tied to the loss caused by
the

offense

of

conviction

and

does

not

permit

a

victim

to

recover for losses stemming from all conduct attributable to the
defendant.”

United States v. Ocasio, 750 F.3d 399, 412 (4th

Cir. 2014) (internal quotation marks omitted), cert. granted on
other grounds, 135 S. Ct. 1491 (2015).
In their supplemental briefs, the parties agree that, while
the district court ordered Dillard jointly and severally liable
with his codefendants for their restitution, Dillard’s liability
is

capped

at

$29,238.

Two

of

our

sister

circuits

have

considered the issue and have similarly concluded that such a
restitution

order

court’s discretion.

is

a

permissible

exercise

of

the

district

United States v. Scott, 270 F.3d 30, 52-53

(1st Cir. 2001); United States v. Trigg, 119 F.3d 493, 501 (7th
3

Appeal: 15-4056

Doc: 52

Cir. 1997).

Filed: 03/17/2016

Pg: 4 of 5

Moreover, requiring joint and several liability in

a multi-defendant case such as this may be necessary to ensure
that the grand total of compensation ultimately paid pursuant to
the

various

restitution

orders

does

not

exceed

the

victim’s

losses.

See United States v. Klein, 476 F.3d 111, 114 (2d Cir.

2007).

Thus,

plainly

err

we

in

conclude

ordering

among the codefendants.

that

the

restitution

district
to

be

court

joint

did

and

not

several

See United States v. Maxwell, 285 F.3d

336, 342 (4th Cir. 2002) (“In the absence of [Supreme Court or
Fourth Circuit] authority, decisions by other circuit courts of
appeals are pertinent to the question of whether an error is
plain.” (internal quotation marks omitted)).
Dillard

further

argues

that

the

district

court

plainly

erred in failing to include Ronald Hairston in Dillard’s written
judgment

when

it

orally

ordered

Hairston

to

severally liable for Dillard’s restitution.

be

jointly

We agree.

and

It is

well settled in this circuit that, where the oral pronouncement
of

the

sentence

and

the

pronouncement controls.

written

judgment

conflict,

the

oral

Rakes v. United States, 309 F.2d 686,

687-88 (4th Cir. 1962).
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no other meritorious grounds
for

appeal.

Accordingly,

although

we

affirm

Dillard’s

convictions and sentence, we remand to the district court with
4

Appeal: 15-4056

Doc: 52

Filed: 03/17/2016

Pg: 5 of 5

instructions to correct the written judgment to reflect that
Hairston

is

restitution.

also

jointly

and

severally

liable

for

Dillard’s

See United States v. Morse, 344 F.2d 27, 29 n.1,

30-31 (4th Cir. 1965).

This court requires that counsel inform

Dillard, in writing, of the right to petition the Supreme Court
for further review.
filed,

but

counsel

If Dillard requests that a petition be
believes

that

such

a

petition

would

be

frivolous, then counsel may move in this court for leave to
withdraw from representation.

Counsel’s motion must state that

a copy thereof was served on Dillard.
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 AND REMANDED

5