United States of America v. Prentice Harold Dawkins

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4240
PRENTICE HAROLD DAWKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-98-200)
Argued: December 3, 1999
Decided: February 4, 2000
Before WILKINS and MICHAEL, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge
for the District of South Carolina, sitting by designation.
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Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Wilkins wrote the opinion, in which Judge Michael and
Judge Seymour joined.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Norman Cochran, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Harry L. Hob-
good, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attor-
ney, Greensboro, North Carolina, for Appellee.

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OPINION
WILKINS, Circuit Judge:
Prentice Harold Dawkins was convicted by a jury of two counts of
making a false statement to obtain federal employee's compensation
in violation of 18 U.S.C.A. § 1920 (West Supp. 1999). He was sen-
tenced to 15 months incarceration and was ordered to pay $64,536 in
restitution. Dawkins appeals both his convictions and sentence; we
affirm the convictions but vacate the sentence and remand for resen-
tencing.
I.
Dawkins worked for the United States Postal Service from 1966
until he was injured during the course of his employment in 1979. He
was subsequently determined to be totally disabled and began receiv-
ing federal employee's compensation benefits pursuant to 5 U.S.C.A.
§ 8105 (West 1996).
As a condition of continuing to receive the benefits, the Depart-
ment of Labor required Dawkins to periodically fill out and sign
"1032 forms" concerning his employment and income. In signing the
forms, Dawkins certified that "all the statements made in response to
questions on this form are true, complete and correct to the best of my
knowledge and belief." J.A. 166, 171. Dawkins also acknowledged
that fraudulently concealing or failing to report required information
that could impact his benefits, or making a false statement or misrep-
resenting a material fact on the form, could subject him to criminal
prosecution.
Dawkins completed one 1032 form in February 1997 and another
in December 1997.1 On both forms, he denied having been either self-
employed or involved in any business enterprise during the preceding
15 months. However, in January 1997 Dawkins was arrested in Texas
_________________________________________________________________
1 The 1032 form filed in February 1997 actually was completed and
signed by Dawkins' wife after the two consulted by telephone; Dawkins
was incarcerated at the time. He has adopted the statements in the Febru-
ary 1997 form and does not dispute that any false statements are his.
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after having smuggled 85 pounds of marijuana from Mexico into the
United States in secret compartments in his vehicle. Dawkins claimed
that he expected to be paid $1,500 for delivering the drugs to South
Carolina. Dawkins pled guilty to a state felonious possession charge
and was sentenced to ten years probation.
The Government indicted Dawkins for failing to disclose his
employment in the illegal drug business on the 1032 forms filed in
February and December 1997. A jury found Dawkins guilty of two
counts of making a false statement on the forms--one count for each
1032 form. At sentencing, the district court determined that the loss
amount was the amount of the benefits Dawkins had received during
the period covered by the two forms, or $64,536. The court sentenced
Dawkins to 15 months incarceration and ordered him to pay restitu-
tion in the full amount of the loss.
II.
A.
Dawkins first contests his convictions, arguing that while the
Department of Labor clearly has the authority to require recipients of
partial disability benefits to complete 1032 forms, there is no corre-
sponding authority for the Government to obligate total disability
claimants to file these statements. Dawkins asserts that he cannot be
convicted of making a false statement on a form that he was not law-
fully required to submit. Whether a district court has jurisdiction over
a criminal offense is a question of law that we review de novo. See
United States v. Walczak, 783 F.2d 852, 854 (9th Cir. 1986).
Dawkins supports his argument by pointing to differences in statu-
tory language. The statute concerning partial disability benefits
expressly provides that "[t]he Secretary of Labor may require a par-
tially disabled employee to report his earnings from employment or
self-employment, by affidavit or otherwise, in the manner and at the
times the Secretary specifies." 5 U.S.C.A. § 8106(b) (West 1996).
The statute concerning total disability benefits, in contrast, does not
include similar language, or indeed any language implying an ongo-
ing reporting requirement. See 5 U.S.C.A.§ 8105. Dawkins contends
that the absence of such language indicates that Congress must have
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intended to omit from § 8105 the reporting requirement found in
§ 8106(b).
While this difference in statutory language is notable, we neverthe-
less conclude that Congress has conferred on the Department of Labor
the authority to require recipients of total disability benefits to com-
plete periodic 1032 forms. We find this authority in sections 8145 and
8149 of Title 5 of the United States Code. See 5 U.S.C.A. §§ 8145,
8149 (West 1996). Section 8145 mandates that the Secretary of Labor
"administer, and decide all questions arising under" the federal
employee's compensation scheme. 5 U.S.C.A. § 8145. Section 8149
authorizes the Secretary of Labor to "prescribe rules and regulations
necessary for the administration and enforcement of" the relevant por-
tion of that scheme. 5 U.S.C.A. § 8149. Requiring total disability
claimants to file periodic statements concerning their employment and
income is part of administering the federal employee's compensation
program. And, the Secretary of Labor has exercised this authority to
enact a regulation requiring total disability claimants to file periodic
reports with the Department. See 20 C.F.R.§ 10.525 (1999). Accord-
ingly, we conclude that Dawkins was lawfully required to file the
1032 forms, and we affirm his convictions. Cf. United States v.
Fitzgerald, 147 F.3d 1101, 1103-04 (9th Cir. 1998) (rejecting argu-
ment that Department of Labor lacked authority to require total dis-
ability beneficiaries to file periodic statements, because such authority
was implicit in § 8105 and because recent amendments to 18
U.S.C.A. § 1920 indicated congressional intent for total disability
beneficiaries to file such updates).
B.
Dawkins next challenges the loss amount calculated by the district
court. See U.S. Sentencing Guidelines Manual§ 2F1.1(b)(1) (1998).
The district court found that the loss for sentencing purposes was the
total amount of benefits paid to Dawkins during the time covered by
the February and December 1997 1032 forms, or $64,536. We review
the factual findings of the district court for clear error, and we review
its legal interpretation of the Sentencing Guidelines de novo. See
United States v. Parsons, 109 F.3d 1002, 1004 (4th Cir. 1997).
"[L]oss is the value of the money ... unlawfully taken." U.S.S.G.
§ 2F1.1 comment. (n.8); see also U.S.S.G. § 2F1.1 comment. (n.8(d))
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("In a case involving diversion of government program benefits, loss
is the value of the benefits diverted from intended recipients or
uses."). In describing how the Sentencing Guidelines define loss, we
recently stated that "[t]he general rule is that loss is determined by
measuring the harm to the victim." United States v. Ruhe, 191 F.3d
376, 391 (4th Cir. 1999). The Government bears the burden of prov-
ing the amount of the loss. See 18 U.S.C.A.§ 3664(e) (West Supp.
1999); United States v. Reddeck, 22 F.3d 1504, 1512 (10th Cir. 1994).
The Government maintains that by making a false statement on the
1032 forms Dawkins disentitled himself to all federal employee's
compensation benefits. See 5 U.S.C.A. § 8148(a) (West Supp. 1999);
20 C.F.R. § 10.529 (1999). It argues that it therefore lost the entire
amount of benefits Dawkins received during the period of time cov-
ered by the two relevant 1032 forms.
Our reasoning in United States v. Parsons, 109 F.3d 1002 (4th Cir.
1997), forecloses this argument. Parsons involved the direct appeal
of a postal service worker convicted of making false statements on a
travel voucher in violation of 18 U.S.C.A. § 1001 (West Supp. 1999).
See Parsons, 109 F.3d at 1003. The district court determined that the
loss was the total amount claimed in the vouchers. See id. We dis-
agreed, and held that the loss was only the amount fraudulently
claimed. See id. at 1006. As is relevant here, we stated that even if
automatic forfeiture of the entire voucher amount were required as a
result of the false statement,
this does not mean that the amount forfeited by a defendant
constitutes a loss to the Government for guidelines pur-
poses. Forfeiture is a penalty imposed on a criminal inde-
pendent of any loss to the crime victim. As Chief Judge
Wilkinson recently explained, the "procedures for forfeiture
are set forth in a comprehensive statutory framework of
their own, one which is separate and apart from the sentenc-
ing guidelines." United States v. Weinberger , 91 F.3d 642,
644 (4th Cir. 1996).
Id. at 1005. Parsons thus instructs that we view the calculation of loss
for sentencing purposes differently than forfeiture. Therefore,
although the Government may be entitled to collect $64,536 via for-
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feiture, see 20 C.F.R. § 10.529, that is not necessarily the measure of
loss for sentencing purposes. See United States v. Henry, 164 F.3d
1304, 1311-12 (10th Cir.) (Henry, J., concurring in part and dissent-
ing in part) (stating that loss is "the magnitude of the crime at the time
it was committed," and reasoning that in this context loss should be
calculated as the amount of benefits received above what would have
been received "but for the violation" (internal quotation marks omit-
ted)), cert. denied, 119 S. Ct. 2381 (1999).
Accordingly, we vacate Dawkins' sentence and remand for the dis-
trict court to recalculate the loss amount. Guided by Parsons, we
advise the district court to consider loss as the difference between the
amount of benefits Dawkins actually received and the amount he
would have received had he truthfully and accurately completed the
1032 forms. See Parsons, 109 F.3d at 1004-05. But see Henry, 164
F.3d at 1310 (rejecting argument that loss amount in case involving
falsified 1032 form is difference between what was actually received
and what assertedly would have been received if defendant had truth-
fully reported his employment activity, on basis of jurisdictional lan-
guage contained in 18 U.S.C.A. § 1920).
C.
As we have ordered the district court to recalculate the loss amount
on remand, and the restitution amount depends on the amount of loss,
see 18 U.S.C.A. §§ 3663A(a)(1), (c)(1)(A)(ii), 3664(f)(1)(A) (West
Supp. 1999), the district court will necessarily have to reconsider the
matter of restitution. We nevertheless address Dawkins' challenges to
the present restitution order to guide the district court on remand.
The district court ordered Dawkins to pay restitution in the full
amount of the loss and a $200 special assessment, and stated that both
were immediately due and payable in full. The court also specially
instructed that:
If the defendant is unable to pay the special assessment and
the restitution owed immediately, the special assessment
may be paid through the Inmate Financial Responsibility
Program, and the restitution shall be paid in installments of
$200.00 per month to begin 60 days after the defendant's
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release from prison. At the time of the defendant's release,
the probation officer shall take into consideration the defen-
dant's economic status as it pertains to his ability to pay the
restitution ordered and shall notify the Court of any changes
that may need to be made to the payment schedule.
J.A. 202.
The parties agree that the provisions of the Mandatory Victim Res-
titution Act (MVRA) of 1996 apply to this case because Dawkins'
offense conduct occurred after the enactment of the MVRA. See Pub.
L. No. 104-132, §§ 201-211, 110 Stat. 1214, 1227-41, codified in rel-
evant part at 18 U.S.C.A. §§ 3663A, 3664 (West Supp. 1999).
As is relevant here, the MVRA mandates restitution in the full
amount of the victim's loss for "an offense against property under
[Title 18], including any offense committed by fraud or deceit." 18
U.S.C.A. § 3663A(c)(1)(A)(ii); see id.§§ 3663A(a)(1), 3664(f)(1)(A).
Although the sentencing court is required to order full restitution
"without consideration of the economic circumstances of the defen-
dant," 18 U.S.C.A. § 3664(f)(1)(A), the statute also mandates that the
court specify the manner and schedule by which the defendant is to
pay restitution:
Upon determination of the amount of restitution owed to
each victim, the court shall, pursuant to section 3572, spec-
ify in the restitution order the manner in which, and the
schedule according to which, the restitution is to be paid, in
consideration of--
(A) the financial resources and other assets of the defen-
dant, including whether any of these assets are jointly con-
trolled;
(B) projected earnings and other income of the defen-
dant; and
(C) any financial obligations of the defendant; including
obligations to dependents.
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18 U.S.C.A. § 3664(f)(2).2
Dawkins argues that the district court did not satisfy its statutory
obligation to specify the manner and schedule by which he was to pay
restitution because the court ordered the entire restitution amount
immediately due. We, however, consider the district court to have
effectively discharged its responsibility to set a payment schedule
when it instructed that if Dawkins were unable to pay the full restitu-
tion amount immediately, he could pay $200 per month beginning 60
days after his release. We therefore reject this assignment of error.
Dawkins also asserts that the district court failed to make certain
factual findings. The MVRA clearly requires a sentencing court to
consider the factors listed in 18 U.S.C.A. § 3664(f)(2) when determin-
ing how restitution is to be paid. Additionally, a sentencing court
must make a factual finding keying the statutory factors to the type
and manner of restitution ordered; it must find that the manner of res-
titution ordered is feasible.3Cf. United States v. Bailey, 975 F.2d
1028, 1031-32 (4th Cir. 1992) (stating that, under predecessor to
MVRA, district court must make factual finding keying defendant's
financial condition to the restitution order and determining that the
defendant can feasibly comply with the order). Such fact-finding
requirements are necessary to facilitate effective appellate review. See
United States v. Molen, 9 F.3d 1084, 1086 (4th Cir. 1993); United
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2 A sentencing court can order"a single, lump-sum payment, partial
payments at specified intervals, in-kind payments, or a combination of
payments at specified intervals and in-kind payments." 18 U.S.C.A.
§ 3664(f)(3)(A). A court also may order nominal periodic payments if
"the economic circumstances of the defendant do not allow the payment
of any amount of a restitution order, and do not allow for the payment
of the full amount of a restitution order in the foreseeable future under
any reasonable schedule of payments." 18 U.S.C.A.§ 3664(f)(3)(B).
3 Dawkins argues that the factors listed in 18 U.S.C.A. § 3572(a) (West
Supp. 1999) also must be considered on the record by the district court
because 18 U.S.C.A. § 3664(f)(2) requires the court to specify the man-
ner of payment "pursuant to section 3572." 18 U.S.C.A. § 3664(f)(2).
However, Congress explicitly listed in § 3664(f) the factors that it
wanted sentencing courts to consider, and it did not include those factors
listed in § 3572(a).
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States v. Bruchey, 810 F.2d 456, 458 (4th Cir. 1987). A court may
comply with these requirements by "announcing its findings on the
record or by adopting adequate proposed findings contained within a
presentence report." United States v. Blake , 81 F.3d 498, 505 (4th Cir.
1996).
Our review of the record indicates that the district court did not
make all of the necessary factual findings. The court adopted the pro-
posed findings of the presentence report (PSR), which contained a
section concerning Dawkins' financial condition. The PSR adequately
described Dawkins' financial resources and assets, see 18 U.S.C.A.
§ 3664(f)(2)(A), and his projected earnings, see id. § 3664(f)(2)(B).
Although the PSR did not offer a tremendous breadth of information
regarding Dawkins' financial obligations, it did note that Dawkins
owed no money on his vehicles or the home in which he lived and
that he had no financial dependents; adopting these facts adequately
discharged the statutory obligation of the district court. See id.
§ 3664(f)(2)(C). However, the record is devoid of any factual finding
that keys Dawkins' financial situation to the restitution schedule
ordered or finds that the order is feasible. See Bailey, 975 F.2d at
1031-32. We therefore instruct the district court, when it reconsiders
the restitution order on remand, to make such a finding on the record.
See Blake, 81 F.3d at 505.
D.
Dawkins argues that the district court illegally delegated its judicial
authority by allowing the probation office to adjust the restitution
payment schedule after considering Dawkins' economic status.4
A district court may not delegate to the probation office the final
authority to establish the amount of a defendant's partial payment of
either restitution or a court-imposed fine. See United States v. Miller,
77 F.3d 71, 77-78 (4th Cir. 1996); United States v. Johnson, 48 F.3d
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4 Dawkins also maintains that the district court improperly delegated to
the Bureau of Prisons the authority to set the special assessment payment
schedule. However, the special assessment was paid in full before
Dawkins surrendered for service of his sentence. Accordingly, we need
not consider this issue.
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806, 808-09 (4th Cir. 1995). "[I]n every delegation, the court must
retain the right to review findings and to exercise ultimate authority."
Johnson, 48 F.3d at 809.
Here, the district court ordered the probation officer to take
Dawkins' financial situation into consideration and"notify the Court
of any changes that may need to be made to the payment schedule."
J.A. 202. Thus, the court retained both the right to review the proba-
tion officer's findings and to exercise ultimate authority regarding the
payment of restitution; the court therefore did not illegally delegate
its authority. See Miller, 77 F.3d at 77 (explaining that "[u]ltimate
authority can be retained by requiring the probation officer to recom-
mend restitutionary decisions for approval by the court"); Johnson, 48
F.3d at 809.
III.
Accordingly, we affirm Dawkins' convictions, vacate his sentence,
and remand for the district court to recalculate the loss amount and
resentence Dawkins in a manner not inconsistent with this opinion.
AFFIRMED IN PART; VACATED AND
REMANDED IN PART
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