United States of America v. Davis, 98 F.3d 141, 144 4th Cir. 1996 . Manna argues that without proof of death or…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5191
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RALPH MANNA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-05-71-WDQ)
Submitted: August 30, 2006 Decided: September 28, 2006
Before WILKINSON, WILLIAMS, and KING, Circuit Judges.
Affirmed in part; reversed in part by unpublished per curiam
opinion.
James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Rod
J. Rosenstein, United States Attorney, Deborah A. Johnston,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Ralph Manna appeals his 240-month sentence imposed
following his jury conviction for solicitation to commit a crime of
violence, in violation of 18 U.S.C. § 373 (2000). Manna raises two
issues on appeal: whether the statutory language of 18 U.S.C.
§ 373 establishes a maximum sentence of twenty years’ imprisonment
for soliciting another to travel interstate to commit murder-for-
hire and whether the district court abused its discretion under the
Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C.A.
§ 3663A(a)(1), (c)(1)(A)(ii) (West 2000 & Supp. 2006), when it
ordered restitution for counseling expenses and travel expenses
absent bodily injury. For the reasons stated below, we affirm the
240-month incarceration sentence, but reverse the restitution
order.
Manna’s indictment charged him with solicitation to
commit a crime of violence, in violation of 18 U.S.C. § 373(a), and
identified the crime of violence solicited as 18 U.S.C. § 1958
(2000), use of interstate commerce facilities in the commission of
murder-for-hire. The indictment did not charge that personal
injury or death resulted. The jury found Manna guilty as charged
in the single-count indictment, and Manna was sentenced to 240
months’ imprisonment. The court also imposed restitution to the
victims in the amount of $815 to cover the costs of counseling
expenses and travel expenses related to counseling. The parties

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dispute the applicable statutory maximum penalty and the authority
to compensate victims for costs and expenses related to counseling,
absent physical injury.
Manna first questions whether the statutory language of
18 U.S.C. § 373 establishes a maximum sentence of twenty years’
imprisonment for soliciting another to travel interstate to commit
murder-for-hire. Two statutes are at issue here: § 373, the
“solicitation” statute, and 18 U.S.C. § 1958 (2000), the “murder-
for-hire” statute. The pertinent language of § 373 reads:
Whoever . . . solicits, commands, induces, or otherwise
endeavors to persuade such other person to engage in such
conduct, shall be imprisoned not more than one-half the
maximum term of imprisonment . . . of the crime solicited
. . . or if the crime solicited is punishable by life
imprisonment or death, shall be imprisoned for not more
than twenty years.
18 U.S.C. § 373. Section 1958 provides for graduated maximum
penalties depending upon the harm suffered by the victim: a
maximum sentence of ten years’ imprisonment for the use of
interstate commerce facilities in the commission of murder-for-hire
without resulting injury; a maximum sentence of twenty years’
imprisonment for the use of interstate commerce facilities in the
commission of murder-for-hire resulting in personal injury; and a
maximum sentence of death or life imprisonment for the use of
interstate commerce facilities in the commission of murder-for-hire
resulting in death. 18 U.S.C. § 1958(a). We review questions of

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statutory construction de novo. See United States v. Davis, 98
F.3d 141, 144 (4th Cir. 1996).
Manna argues that without proof of death or serious
bodily injury, the maximum penalty for solicitation to violate the
murder-for-hire statute must be one-half of the ten-year maximum
for a violation of § 1958 that does not result in any injury. The
reference point when analyzing § 373, however, is the “crime
solicited,” not the sentence of the resulting crime. See United
States v. Devorkin, 159 F.3d 465, 467 (9th Cir. 1998). For
example, § 373 imposes a maximum sentence of twenty years if “the
crime solicited” is punishable by life imprisonment or death, while
the maximum prison term “for all other solicitations” prohibited
under § 373 is one-half of the prison term for “the crime
solicited.” Id. (emphasis added). Thus, § 373 does not instruct
courts to look to the actual sentence that would be imposed for the
underlying violation according to the particular facts of each
case. Based on the statutory language, we conclude the district
court did not err when it imposed the maximum sentence for
solicitation to travel interstate to commit murder-for-hire.
Manna next contends that the district court erred in
ordering him to pay $815 to the victims, his ex-wife and son, to
cover the costs of counseling and travel expenses. The MVRA, 18
U.S.C. § 3663A, governs here, because Manna was convicted of a
crime of violence. Section 3663A(b)(2)(A) requires proof of bodily

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injury to a victim before a court may order restitution for
counseling. It is undisputed that the victims of the solicitation
sustained no bodily injury; the solicitation never proceeded beyond
the point of a discussion between Manna and the undercover agent.
In the absence of bodily injury, Manna correctly argues that
restitution could not be ordered pursuant to § 3663A(b)(2)(A). See
United States v. Follet, 269 F.3d 996, 1001 (9th Cir. 2001).
Likewise, under the particular facts here, we conclude that
restitution was not authorized by either § 3663A(b)(1) or
§ 3663A(b)(4). We therefore reverse the court’s restitution order.
Based on the foregoing, we affirm Manna’s sentence of
incarceration and reverse the restitution order. 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

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