United States of America v.  JOSHUA BRENT SQUIRREL, a/k/a Cubby

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4150 
JOSHUA BRENT SQUIRREL, a/k/a
Cubby,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4151 
MICHAEL EDWARD SLEE,
Defendant-Appellant. 
Appeals from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(2:06-cr-00004-LHT-DLH-2; 2:06-cr-00004-LHT-DLH-3)
Argued: October 15, 2009
Decided: December 7, 2009
Before TRAXLER, Chief Judge, WILKINSON,
Circuit Judge, and HAMILTON, Senior Circuit Judge.

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Vacated and remanded by published opinion. Senior Judge
Hamilton wrote the opinion, in which Chief Judge Traxler and
Judge Wilkinson joined.
COUNSEL
ARGUED: Randolph Marshall Lee, Charlotte, North Caro-
lina, for Appellants. Jennifer A. Youngs, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee. ON BRIEF: William C. Ingram, Jr., OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Greensboro,
North Carolina, for Appellant Michael Edward Slee. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Car-
olina, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
The issue presented in this appeal is whether the district
court erred when it held appellants Joshua Brent Squirrel
(Squirrel) and Michael Edward Slee (Slee) jointly and sever-
ally liable for additional restitution to the Estate of Tamara
Susan Seay in the amount of $1,459,854.22. Concluding that
the district court so erred, we vacate the appellants’ judgments
and remand with instructions to amend the judgments by
omitting the $1,459,854.22 amount.
I
On February 8, 2006, a federal grand jury in the Western
District of North Carolina returned a five-count indictment
against Terence Howard Roach (Roach), Squirrel, and Slee.
Roach was charged with first degree murder, 18 U.S.C.
§ 1111; kidnapping, id. § 1201(a)(2); and use of a firearm
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during and in relation to a crime of violence, id.
§ 924(c)(1)(A). Squirrel and Slee were charged in separate
counts as accessories-after-the-fact to first degree murder, id.
§§ 3, 1111. All three defendants entered into plea agreements
with the government, with Roach agreeing to plead guilty to
both the first degree murder and § 924(c) counts, and Squirrel
and Slee agreeing to plead guilty to their respective
accessory-after-the-fact counts.
On August 4 and 11, 2006, Roach, Squirrel, and Slee, along
with their respective counsel, appeared before a United States
Magistrate Judge for a Rule 11 hearing to formally enter their
guilty pleas. As to each respective defendant, the magistrate
judge found that the guilty plea was knowingly and voluntar-
ily made, and that the defendant understood the charges,
potential penalties, and consequences of the plea.
Prior to sentencing, a United States Probation Officer pre-
pared a Presentence Report (PSR) for each defendant. The
PSRs summarized the facts surrounding the charges in this
case as follows.1
On January 15, 2006, a church youth group from Florida
was hiking in the Deep Creek area of the Great Smoky Moun-
tains National Park2 and discovered the dead body of a
female, later identified as the victim, eighteen-year-old
Tamara Susan Seay (Seay), an enrolled member of the East-
ern Band of the Cherokee Indians (the Tribe).3 Seay was
clothed and lying on her back in a pool of blood with visible
wounds to her face and head. An autopsy revealed two gun-
shot wounds to the head as the cause of death. One gunshot
1The district court ultimately adopted the findings in the PSRs as its
own.
2The Deep Creek area is located approximately three miles from Bryson
City, North Carolina and thirteen miles from Cherokee, North Carolina.
3Roach, Squirrel, and Slee also were enrolled members of the Tribe.
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wound was to the frontal area of the forehead, the other to the
lower lip.
Two days earlier, around 9:30 p.m. on January 13, 2006,
Seay was seen getting into a car with Roach and Slee. Seay
was intoxicated and had passed out, so she had to be carried
into the car. Earlier in the evening, Seay had been drinking
with Roach and Squirrel at the home of Glen David Jumper
(Big Dave) in Cherokee. Friends reported that Seay, Roach,
and Squirrel went into a back room of the home, and they
believed the three were engaging in sex. The friends described
what they believed as "bad screaming." Roach and Squirrel
left the home shortly after coming out of the back room.
When Seay came out, she was agitated and threatened to call
her uncle to "take care of" Roach and Squirrel. Not wanting
any trouble at his home, Big Dave "call[ed] around" trying to
get in touch with Roach and Squirrel to ask them to return and
pick up Seay and take her home. Eventually, Roach and Slee
arrived at Big Dave’s home and picked up Seay.
After Seay’s body was found on January 15, 2006, Seay’s
friends and family members reported that Roach, Squirrel,
and Slee had told people that Roach and Slee had driven onto
a gravel road and met an unknown male individual in a silver
car and that Seay had left with this individual. Roach and Slee
claimed they had not seen Seay since that time.
Around the same time, another individual approached the
Cherokee Police Department and turned over a black .38 cali-
ber revolver. It was later determined that Squirrel had given
the revolver to this individual, asking the individual to hold
it for him. Suspicious of this request, the individual turned the
revolver over to the police.
On January 20, 2006, Roach, Squirrel, and Slee were inter-
viewed separately by agents of the Federal Bureau of Investi-
gation (FBI). Squirrel was the first to be interviewed. Initially,
he falsely told the agents that he had last seen Seay when she
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entered the silver car. Thereafter, he admitted seeing Roach
and Slee at approximately 11:00 p.m. on January 13, 2006
when they arrived at his home in Slee’s car. Roach told Squir-
rel he had shot Seay. Squirrel, in disbelief, asked Slee if
Roach was telling the truth, and Slee confirmed that Roach
had shot Seay. Roach then handed Squirrel a .38 caliber
revolver and told him to get rid of the weapon. Subsequently,
Squirrel threw the revolver into the woods for the night,
recovered it the next morning, and gave it to another individ-
ual to hold for him. Squirrel identified the .38 caliber revolver
in police custody as the one he received from Roach.
Slee was interviewed next. During his interview, Slee con-
firmed that he and Roach had picked up Seay at Big Dave’s
home on the night of January 13, 2006. On the way to pick
up Seay, Roach told Slee that Seay had stolen drugs from him
and owed him a lot of money. After Seay was placed in the
car, Roach instructed Slee to drive towards Bryson City and
directed him through the Deep Creek area and onto a gravel
road.
Upon stopping on the gravel road, Roach picked up Seay,
who was still passed out in the backseat, and carried her into
the woods. Roach then set Seay down in a small creek, and
the cold water awakened her. Slee saw Seay stand up, then,
when he was not looking, heard her scream. Slee turned back
and saw Seay fall back to the ground. As Seay was trying to
get up, Slee saw Roach "fiddling with something in his waist-
band." He then saw Roach shoot Seay. Slee ran to his car, but
turned around and observed Roach walking towards Seay and
pointing the revolver at her as she was lying on her back. As
he was getting into his car, Slee heard a second shot. When
Roach entered the car, he told Slee to drive to Squirrel’s resi-
dence. Upon arriving, Slee confirmed to Squirrel that Roach
had shot Seay.
Roach gave Slee money that night to keep quiet about the
shooting and later provided him with cocaine as a further
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inducement. Roach instructed Slee to tell only the "silver car"
story. Slee also identified the revolver in police custody as the
weapon used to shoot Seay.
Roach was the last defendant to be interviewed by the FBI
agents. After initially denying his involvement, he recanted
and admitted to shooting Seay. Roach said that he shot Seay
because she had been stealing drugs from him for the past
year. Roach admitted to having sex with Seay at Big Dave’s
home, but claimed it was consensual. Roach said that, after
leaving Big Dave’s home, he met up with Slee, who offered
to give him a ride home. Once they received word that Big
Dave wanted them to pick up Seay, they returned to Big
Dave’s home and picked up Seay.
Once in the car, Roach said he wanted to meet someone in
the Deep Creek area of the national park to buy some drugs.
Upon reaching the gravel road, Roach carried Seay out of the
car and into the woods. Roach stated that Seay woke up in the
woods and began to say she "would have some drugs when
they arrived." Roach told her she "would not get any," and in
response, Seay attempted to grab him. After pushing her
away, Seay attempted to grab Roach again. It was during this
time that Roach stated he decided to kill Seay.
Roach pushed Seay to the ground, with her falling flat on
her back. He encountered a problem with his revolver as he
tried to shoot Seay, describing that he had to open the wheel
of the revolver to determine whether the wheel spun to the
right or to the left, and had to line up a bullet so that when he
closed the wheel of the revolver it would spin in the correct
direction to fire. He stated he only had three or four bullets
in the revolver. Roach was approximately eight to ten feet
from Seay when he shot her the first time as she was begin-
ning to stand. She fell backwards, flat onto her back, and he
heard her moan. He decided to shoot her again and opened the
wheel of the gun to load a "good" bullet from his pocket.
Roach loaded the bullet into the wheel of the revolver and ori-
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ented the wheel so it would fire correctly. Roach shut the
wheel of the revolver and fired a second shot into Seay.
Roach said he could not leave anyone in that much pain, so
"I just made sure."
After shooting Seay, Roach returned to Slee’s car and
described reloading the revolver and taking out two spent
shell casings. Roach recounted the remaining events as
described above (returning to Squirrel’s residence, telling him
he shot Seay, and giving the gun to Squirrel), adding that he
threw the two spent casings out of the window on his way to
Squirrel’s home. The .38 caliber revolver in police custody
was identified by Roach as the weapon he used to kill Seay.
The district court conducted Squirrel’s sentencing hearing
on June 7, 2007, Slee’s on June 18, 2007, and Roach’s on
August 31, 2007. Each defendant stipulated that the facts set
forth in the PSR provided a factual basis to support his
respective guilty plea. These stipulations allowed the district
court to adopt the findings in the PSRs for purposes of sen-
tencing. The district court sentenced Squirrel to seventy
months’ imprisonment; Slee to fifty-seven months’ imprison-
ment; and Roach to two consecutive life terms. The district
court also ordered that each defendant be jointly and severally
liable for restitution in the amount of $5,645.00 for necessary
funeral and related expenses, but directed that the following
paragraph be added to each judgment:
This restitution does not include restitution which
the court will order paid for the use and benefit of
[Jailyn] Byrd, infant daughter of the deceased mur-
der victim. The amount and schedule for payment of
same will be determined by the Court after consider-
ing a recommended report to be filed by the U.S.
Probation Office within the next ninety (90) days.
The Probation Officer will contact Tribal Authori-
ties, defense counsel for the three (3) co-defendants
and the U.S. Attorney for recommendations.
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On October 24, 2007, a United States Probation Officer
filed a "Memorandum" and "Supplement to the Presentence
Report." Attached to that supplement were the parties’ respec-
tive positions regarding restitution for the benefit and use of
Seay’s infant child.
The district court held a hearing regarding restitution on
November 19, 2007. On January 16, 2008, the district court
issued an order amending the judgment of all three defendants
to mandate that, in addition to the $5,645.00 restitution figure,
each were jointly and severally liable for restitution to Seay’s
estate in the amount of $1,459,854.22. Using a remaining life
expectancy of fifty-nine years, the district court based this
$1,459,854.22 figure on: (1) lost per capita income to which
Seay was entitled as a member of the Tribe; and (2) Seay’s
estimated lost future earnings.4
Each defendant filed a timely notice of appeal from his
respective amended judgment. The defendants filed a com-
bined brief, raising the following four arguments challenging
the $1,459,854.22 restitution award: (I) the $1,459,854.22 res-
titution award as to all three defendants was unlawful because
it was speculative; (II) the district court erred in finding that
Fourth Circuit jurisprudence sufficiently allowed for the
imposition of the $1,459,854.22 restitution award against
Squirrel and Slee in their capacities as accessories-after-the-
fact to Roach’s murder of Seay; (III) the district court erred
when it found that the plea agreements of Squirrel and Slee
allowed for the imposition of the $1,459,854.22 restitution
award; and (IV) the provisions of the Mandatory Victims Res-
titution Act of 1996 (MVRA), 18 U.S.C. §§ 3663A-3664,
4As an enrolled member of the Tribe, Seay received two per capita pay-
ments each year from gaming revenues generated by the Tribe, one in
June and the other in December, and would have received such payments
for the remainder of her life.
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which allows the district court to determine restitution, vio-
lates Roach’s Seventh Amendment right to trial by jury.5
The government moved to dismiss the entire appeal, based
on the appeal waiver provisions in each plea agreement. On
December 9, 2008, we granted the government’s motion in
part and denied it in part. Specifically, we held that Argu-
ments I and IV fell within the scope of the appeal waivers, but
that Arguments II and III did not. Accordingly, we dismissed
the appeal with respect to Arguments I and IV, but denied the
government’s motion with respect to Arguments II and III.
Thus, Arguments II and III are before us in the present appeal.6
II
Squirrel and Slee argue that the district court erred when it
found them jointly and severally liable for additional restitu-
tion to the Seay’s estate in the amount of $1,459,854.22.
Before addressing the specifics of this argument, it is helpful
to set forth the relevant provisions of the MVRA, the current
state of our case law concerning under what circumstances an
order of restitution under the MVRA is appropriate when the
underlying offense is for accessory-after-the-fact, and the rea-
soning offered by the district court in support of its decision.
A
1
The MVRA provides that for crimes of violence, certain
offenses against property, and crimes related to tampering
with consumer products due to which a victim has suffered
either a physical or pecuniary loss, "the court shall order, in
5In this appeal, there is no challenge to the restitution award of
$5,645.00 imposed by the district court.
6Because Arguments II and III only concern Slee and Squirrel, Roach’s
appeal was dismissed.
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addition to . . . any other penalty authorized by law, that the
defendant make restitution to the victim of the offense or, if
the victim is deceased, to the victim’s estate." 18 U.S.C.
§ 3663A(a)(1).7 The MVRA defines a victim as
a person directly and proximately harmed as a result
of the commission of an offense for which restitution
may be ordered including, in the case of an offense
that involves as an element a scheme, conspiracy, or
pattern of criminal activity, any person directly
harmed by the defendant’s criminal conduct in the
course of the scheme, conspiracy, or pattern.
Id. § 3663A(a)(2).8
An order of restitution under the MVRA or the VWPA is
issued and enforced in accordance with 18 U.S.C. § 3664,
which sets forth the procedures for calculating and ordering
restitution. Id. § 3663A(d). Section 3664(f)(1)(A) provides
that "the court shall order restitution to each victim in the full
amount of each victim’s losses as determined by the court and
without consideration of the economic circumstances of the
defendant." Id. § 3664(f)(1)(A). "We . . . have interpreted this
language to require that an order of restitution be based on
‘actual loss,’ rather than ‘intended loss.’" Harvey, 532 F.3d at
339. However, in cases involving multiple defendants, 18
U.S.C. § 3664(h) explicitly gives a district court discretion as
to whether joint and several liability should apply or whether
liability should be apportioned among the defendants based
on their economic circumstances and their respective contri-
7In contrast to the MVRA, the Victim and Witness Protection Act
(VWPA) "permits, but does not require, a court to order restitution when
there is an identifiable victim." United States v. Harvey, 532 F.3d 326, 339
(4th Cir. 2008).
8The government apparently concedes, correctly in our view, that the
accessory-after-the-fact offenses in this case do not have as an element a
scheme, conspiracy, or pattern of criminal activity.
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butions to the victim’s losses.9 Finally, under the MVRA, a
district court must "order, if agreed to by the parties in a plea
agreement, restitution to persons other than the victim of the
offense." Id. § 3663A(a)(3).
The government bears the burden of demonstrating by a
preponderance of the evidence the amount of actual loss sus-
tained by the victim. id. § 3664(e); Harvey, 532 F.3d at 340.
In determining the amount of actual loss for purposes of
imposing restitution under the MVRA, the district court is the
trier of fact. United States v. Davenport, 445 F.3d 366, 373
(4th Cir. 2006); United States v. Dawkins, 202 F.3d 711, 716
(4th Cir. 2000).
2
Although there is no published Fourth Circuit case address-
ing the issue of whether an order of restitution under the
MVRA is appropriate when the underlying offense is for
accessory-after-the-fact, one unpublished Fourth Circuit case
exists, on which the district court relied in holding Squirrel
and Slee jointly and severally liable with Roach for the full
amount of Seay’s lost future income from the Tribe and her
lost future wages. The case is United States v. Quackenbush,
9 Fed. Appx. 264, 2001 WL 574649 (4th Cir. May 29, 2001)
(per curiam) (unpublished).
In that case, Daniel Quackenbush was convicted of being
an accessory-after-the-fact to a bank robbery after he assisted
9Section 3664(h) provides:
If the court finds that 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 liabil-
ity among the defendants to reflect the level of contribution to the
victim’s loss and [the] economic circumstances of each defen-
dant.
18 U.S.C. § 3664(h).
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three bank robbers, post-robbery, by driving them to and from
various locations, harboring them, and helping them travel
and spend the proceeds of the robbery. Id. at *1. Quackenbush
was also convicted of possessing $1,000.00 or less of stolen
bank money. Id. at *1 n.1. The district court held Quacken-
bush jointly and severally liable under the MVRA for restitu-
tion in the amount of $26,343.99 based upon the losses to the
bank ($22,681.53), a pre-robbery carjacking victim ($952.86),
and the carjacking victim’s insurers ($849.89 and $1,859.71).
Id. at *1.
On appeal, Quackenbush conceded that his possession of
stolen bank money conviction allowed the district court to
impose restitution for that conviction, but not in an amount
that exceeded $1,000.00. Id. at *2 n.3. Moreover, we agreed
with the government’s concession that the portion of the dis-
trict court’s restitution order which held Quackenbush jointly
and severally liable for restitution to the pre-robbery carjack-
ing victim and the carjacking victim’s insurers could not be
sustained because "the losses to those victims were not linked
to Quackenbush’s offenses." Id. at *2 n.2 (citation and inter-
nal quotation marks omitted). Accordingly, the bulk of our
opinion addressed only the question of "whether the district
court erred in imposing restitution against Quackenbush in the
full amount of the bank’s losses where the basis for Quacken-
bush’s conviction was his conduct as an accessory-after-the-
fact." Id. at *2.
In addressing this question, we first agreed with the govern-
ment that there is no per se rule against imposing restitution
on persons based on their convictions for being accessories-
after-the-fact. Id. at *3. Next, we identified the "relevant ques-
tion" under the MVRA as
whether the victims’ losses were proximately caused
by the specific conduct for which Quackenbush was
convicted, i.e., being an accessory-after-the-fact by
virtue of his acts of driving the bank robbers to and
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from various locations following the bank robbery,
harboring them, helping them count and spend the
money, and helping them hide from the police.
Id. We upheld Quackenbush’s joint and several liability to the
bank on the basis that "the district court very well could have
found that the bank’s inability to recover the stolen money
was directly attributable to Quackenbush’s act of helping the
bank robbers hide after the robbery." Id. at *4. In other words,
unlike the pre-robbery carjacking victim and the carjacking
victim’s insurers, there was a direct causal link between
Quackenbush’s offense conduct as an accessory-after-the-fact
and the bank’s losses.
3
In the case presently before us, the district court provided
alternative bases to hold Squirrel and Slee jointly and sever-
ally liable to Seay’s estate for Seay’s lost future income from
the Tribe and her lost future wages. First, the district court
relied on Quackenbush, reasoning as follows:
The facts here are similar to those in Quackenbush.
Although Slee did not plan or actively participate in
Seay’s murder, he did witness Roach shoot and kill
her and then drove Roach from the murder scene.
Slee PSR, supra, at 6. He also received money and
drugs from Roach as inducements to keep quiet
about the murder. Id. Roach admitted to Squirrel that
he murdered Seay and ordered Squirrel to take the
murder weapon and get rid of it; Squirrel complied.
Id. at 5. Squirrel threw the gun into the woods that
night, recovered it the next morning, and then gave
it to another person to hold for him. Id. Both Slee
and Squirrel joined Roach in the fabricated story that
Seay was last seen getting into a silver car with an
unknown male. Id. at 5-6. These actions of Slee and
Squirrel deliberately obstructed the murder investi-
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gation by authorities and delayed the apprehension
of Roach. The Court, therefore, finds that Slee and
Squirrel, as accessories, are liable for full restitution
to Seay’s estate under the MVRA.
Second, and in the alternative, the district court relied upon
Squirrel’s and Slee’s plea agreements as a basis for its deci-
sion. According to the district court, because both Squirrel
and Slee agreed in their respective plea agreement that the
district court could in its discretion order restitution, they
understood that any restitution order could cover liability to
Seay’s estate for her lost future income from the Tribe and her
lost future wages.
B
With regard to the district court’s interpretation of Quack-
enbush, Squirrel and Slee contend that the district court’s
interpretation is faulty because none of their offense conduct
"contributed to or exacerbated any lost income that might
potentially have been earned by the victim had she not been
killed by Defendant Roach." Appellants’ Br. at 28. In so con-
tending, Squirrel and Slee distinguish Quackenbush on the
facts. In Quackenbush, there was evidence from which the
district court could have found that Quackenbush’s offense
conduct contributed to the bank’s losses by hindering law
enforcement efforts to recover the money taken during the
robbery, while in the present case there is no evidence to even
suggest that Squirrel’s and Slee’s conduct as accessories-
after-the-fact caused the financial losses to Seay’s estate to be
any greater than they already were as the result of Seay’s
murder. Squirrel and Slee reason that any delay they caused
in the recovery of Seay’s body or the murder weapon, or in
the apprehension of Roach did not add one dime to the finan-
cial loss suffered by Seay’s estate due to her lost future
income from the Tribe or her lost future wages.
In response, the government concedes that only Roach
caused the murder of Seay, and that "[n]either Squirrel nor
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Slee directly caused her to be ‘more dead’ than she already
was." Appellee’s Br. at 4. Nonetheless, the government
argues, like Quackenbush, Squirrel and Slee impeded law
enforcement from seeking Seay’s killer and attempted to help
such killer escape apprehension, and therefore, are each
jointly and severally liable under the MVRA for the full
financial loss to Seay’s estate caused by her death.
According to the government, Squirrel impeded law
enforcement by throwing the murder weapon into the woods
overnight, retrieving it the next day, and giving it to a third
party for safekeeping from law enforcement. Additionally, the
government states that Squirrel impeded law enforcement by
propagating the false silver car story. The government argues
that Slee went even further than Squirrel, in that he not only
aided in the escape phase of Roach’s crime, but also trans-
ported the victim and her murderer to the murder site. Simply
put, the government argues that the bank loss facts in Quack-
enbush are similar to the facts in the present case and demon-
strate that restitution can, and should, be ordered where
defendants are convicted of being an accessory-after-the-fact
and where their actions further the underlying criminal activ-
ity.
Unfortunately for the government, the facts of this case
simply do not line up with the bank loss facts in Quacken-
bush, because Squirrel’s and Slee’s respective criminal activ-
ity occurred after Seay’s murder, not before, and because their
criminal activity, unlike Quackenbush’s (which did increase
the financial harm to the bank), did nothing to cause or
increase the financial harm to Seay’s estate.10
10The government argues that Slee’s criminal activity began before
Seay’s murder, in that on the way to the Deep Creek area "Roach told
[Slee] he planned to kill Ms. Seay," Roach "showed Slee the gun he
intended to use," and nevertheless Slee continued to drive to the area "at
Roach’s direction." Appellee’s Br. at 5. We reject this argument. First, the
argument is inconsistent with the government’s position at sentencing that
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To be sure, the MVRA, its legislative history, and our case
law make clear that, unless a plea agreement provides other-
wise (an issue we discuss in Part II(C) of this opinion), an
order of restitution under the MVRA is to be based upon the
loss directly and proximately caused by the defendant’s
offense conduct. 18 U.S.C. § 3663A(a)(1)-(2); S. Rep. No.
104-179, at 19, reprinted in 1996 U.S.C.C.A.N. 924, 932
(Judiciary Committee Report on MVRA explaining that,
unless a plea agreement provides otherwise, the "mandatory
restitution provisions apply only in those instances where a
named, identifiable victim suffers a physical injury or pecuni-
ary loss directly and proximately caused by the course of con-
duct under the count or counts for which the offender is
convicted"); see also Hughey v. United States, 495 U.S. 411,
413 (1990) (holding that under identical language in the
VWPA, district court is authorized to make "an award of res-
titution only for the loss caused by the specific conduct that
is the basis of the offense of conviction"), superseded by stat-
ute on other grounds, 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2);
United States v. Newsome, 322 F.3d 328, 341 (4th Cir. 2003)
("[T]he focus of the court in applying the MVRA must be on
the losses to the victim caused by the offense."); United States
v. Blake, 81 F.3d 498, 506 (4th Cir. 1996) ("For a person to
be considered a victim under the [VWPA], the act that harms
the individual must be either conduct underlying an element
of the offense of conviction, or an act taken in furtherance of
a scheme, conspiracy, or pattern of criminal activity that is
specifically included as an element of the offense of convic-
tion.").
Here, neither Squirrel’s nor Slee’s offense conduct as an
Slee had no criminal culpability prior to Seay’s murder. Second, there
simply is no evidence in the record to support a finding that Slee knew that
Roach intended to murder Seay, and indeed, the district court never made
a finding to this effect, either independently or through its adoption of the
PSRs.
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accessory-after-the-fact to Roach’s murder of Seay directly or
proximately caused any financial loss to Seay’s estate.11
Indeed, the district court as the trier of fact regarding the
underlying facts in determining if Squirrel and/or Slee should
be ordered to pay restitution to Seay’s estate found that nei-
ther Squirrel nor Slee planned or actively participated in
Seay’s murder. Moreover, the facts set forth in Squirrel’s and
Slee’s PSRs, which the district court adopted as the factual
bases for their respective pleas of guilty to being accessories-
after-the-fact, did not contain any facts to the effect that
Squirrel or Slee planned or knowingly participated in Seay’s
murder. Notably, while the district court expressly found that
Squirrel’s and Slee’s offense conduct deliberately obstructed
the murder investigation by law enforcement authorities and
delayed the apprehension of Roach, the district court never
made a finding that Squirrel’s or Slee’s offense conduct
directly and proximately caused loss to Seay’s estate, under-
standably because Squirrel’s and Slee’s criminal activity
occurred after Seay’s murder, not before. In sum, the district
court erred in holding Squirrel and Slee jointly and severally
liable to Seay’s estate under the MVRA for her lost future
income from the Tribe and her lost future wages. See
Davenport, 445 F.3d at 374 (in case where defendant pleaded
guilty to credit card fraud, vacating restitution order under the
MVRA because it required defendant to pay sums to persons
whose credit cards were stolen, but who did not suffer actual
loss as the direct and proximate cause of defendant’s offense
conduct; only the credit card company or companies liable for
the fraudulent charges made were directly harmed by the
offense conduct).
11We are only concerned here with conduct underlying the elements of
an accessory-after-the-fact to first-degree murder offense. As noted supra
in Footnote 8, such an offense does not involve acts taken in furtherance
of a scheme, conspiracy, or pattern of criminal activity.
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C
Squirrel and Slee also challenge the district court’s reliance
upon their respective plea agreements as an alternative basis
for its restitution order holding them jointly and severally lia-
ble to Seay’s estate for her lost future income from the Tribe
and her lost future wages.
In Squirrel’s and Slee’s respective plea agreements, each
agreed to:
pay full restitution, regardless of the resulting loss
amount, which restitution will be included in the
Court’s Order of Judgment. The defendant agrees
that such restitution will include all victims directly
or indirectly harmed by the defendant’s "relevant
conduct," including conduct pertaining to any dis-
missed counts or uncharged conduct, as defined by
U.S.S.G. § 1B1.3, regardless of whether such con-
duct constitutes an "offense" under 18 U.S.C. § 3663
or 3663A.
Section 1B1.3 of the Sentencing Guidelines defines "rele-
vant conduct" as:
(1)(A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced,
procured, or willfully caused by the defen-
dant; and
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor,
or enterprise undertaken by the defendant in
concert with others, whether or not charged
as a conspiracy), all reasonably foreseeable
acts and omissions of others in furtherance
of the jointly undertaken criminal activity,
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that occurred during the commission of the offense
of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or
responsibility for that offense . . . .
U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(A)-(B).
In its decision, the district court stated that during the Rule
11 plea hearing before the magistrate judge, Squirrel and Slee
specifically understood that, in their respective plea agree-
ments, they each agreed that "in the Court’s discretion, resti-
tution may be ordered paid to any victim of the offense." With
essentially no analysis, the district court then held that Squir-
rel and Slee "are bound by the terms of their respective plea
agreements to pay restitution under the MVRA." With these
observations, the district court held Squirrel’s and Slee’s plea
agreements provided an alternative basis to support its deci-
sion holding them jointly and severally liable to Seay’s estate
for her lost future income from the Tribe and her lost future
wages.
In United States v. Jordan, 509 F.3d 191 (4th Cir. 2007),
we summarized Fourth Circuit law regarding how we inter-
pret plea agreements in the context of our de novo review of
the district court’s interpretation of a plea agreement:
In interpreting plea agreements, we draw upon con-
tract law as a guide to ensure that each party receives
the benefit of the bargain. Applying standard con-
tract law, we enforce a plea agreement’s plain lan-
guage in its ordinary sense, and do not write the
contracts of the parties retroactively, but merely con-
strue the terms of the contract the parties have previ-
ously signed. Whether a written agreement is
ambiguous or unambiguous on its face should ordi-
narily be decided by the courts as a matter of law. If
the plea agreement is unambiguous as a matter of
law, and there is no evidence of governmental over-
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reaching, we should interpret and enforce the agree-
ment accordingly.
Because a defendant’s fundamental and constitu-
tional rights are implicated when he is induced to
plead guilty by reason of a plea agreement, we ana-
lyze a plea agreement with greater scrutiny than we
would apply to a commercial contract. We thus hold
the Government to a greater degree of responsibility
than the defendant for imprecisions or ambiguities in
plea agreements.
Id. at 195-96 (internal quotation marks, citations, ellipses, and
alteration marks omitted).
Squirrel and Slee acknowledge that the MVRA permits a
plea agreement to broaden the scope of a defendant’s conduct
which would subject him to an order of restitution, see 18
U.S.C. § 3663A(a)(3) (providing that a district court must
"order, if agreed to by the parties in a plea agreement, restitu-
tion to persons other than the victim of the offense"), but con-
tend that the restitution provision contained in their respective
plea agreements in no way, shape, or form supports the dis-
trict court’s order that they each are jointly and severally lia-
ble to Seay’s estate for her lost future income from the Tribe
and her lost future wages. In this regard, Squirrel and Slee
rely, in part, upon the same causation analysis as they offer
in support of their position in Part II(B) of this opinion. Addi-
tionally, they point out that at the restitution hearing, the gov-
ernment told the district court:
I’ll be honest with you, it hadn’t even occurred to me
to ask for this amount of restitution when engaging
in the plea discussions, and certainly not engaging in
the charges. I was waiting for the presentence report,
just like everybody else, and was expecting it to
cover minimal expenses. It was the Court that asked
us to engage in this exercise. And upon looking at
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the case law and the statutes, I think not only is the
Court right to do this, but I actually need to be doing
this in future cases.
So this is not an issue that was raised by the govern-
ment. The court raised it at the outset.
In response to Squirrel and Slee’s argument, the govern-
ment first asserts that its admission at the restitution hearing
that it did not originally think to request restitution be paid to
Seay’s estate is irrelevant to the question of whether Squirrel
and Slee are obligated under the MVRA and their respective
plea agreements to pay restitution to Seay’s estate. Second,
the government asserts that "[c]ertainly the decedent, and thus
her estate, was the victim directly harmed by defendants’ con-
duct." Appellee’s Br. at 9.
In our view, the district court’s reliance on the plea agree-
ments in ordering Squirrel and Slee to pay the additional resti-
tution fares no better than its reliance on the MVRA alone.
The one distinction between the MVRA and the restitution
provided in the plea agreements is that the MVRA does not
permit reliance on a defendant’s relevant conduct for purposes
of a causation analysis. Here, the distinction is without a dif-
ference, because even considering the broader scope of con-
duct that may be considered under the definition of relevant
conduct as set forth in the Sentencing Guidelines, the conduct
of Squirrel and Slee did not directly and proximately cause
any financial loss to Seay’s estate. No acts and omissions
committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by Squirrel or Slee that occurred
during the commission of their respective accessory-after-the-
fact offenses, in preparation for that offense, or in the course
of attempting to avoid detection or responsibility for that
offense can reasonably be said to have directly and proxi-
mately caused financial loss to Seay’s estate.
In sum, the restitution paragraphs in Squirrel’s and Slee’s
respective plea agreements do not provide a valid basis for the
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district court’s decision holding Squirrel and Slee jointly and
severally liable to Seay’s estate in the additional amount of
$1,459,854.22.
III
For the reasons stated herein, we vacate the appellants’
judgments and remand with instructions to amend their
respective judgments by deleting the award of additional resti-
tution in the amount of $1,459,854.22.
VACATED AND REMANDED
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