United States v. Blevins , 327 F. App'x 446 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4867
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOWARD GLEN BLEVINS,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen M. Williams, Senior
District Judge. (1:07-cr-00065-gmw-pms-1)
Submitted: April 23, 2009 Decided: June 5, 2009
Before MICHAEL, TRAXLER, and AGEE, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
Larry W. Shelton, Federal Public Defender, Joel C Hoppe,
Assistant Federal Public Defender, Charlottesville, Virginia,
for Appellant. Julia C. Dudley, United States Attorney,
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Glen Blevins pled guilty to five counts of
possessing, transporting, and selling wildlife valued at more
than $350 in interstate commerce, in violation of state law,
16 U.S.C. § 3372(a)(2)(A) (2006). In sentencing Blevins, the
district court rejected Blevins’ request that he be sentenced to
probation, and instead, the district court sentenced Blevins to
six months’ imprisonment on each count to be served
concurrently. The district court also ordered Blevins to pay
$6970 in restitution to the Virginia Department of Game and
Inland Fisheries to reimburse the agency for its investigation
of Blevins. We affirm the district court’s order with respect
to Blevins’ sentence of imprisonment, but vacate the order with
respect to restitution and remand to the district court.
This court reviews a sentence imposed by a district
court under a deferential abuse of discretion standard. United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). In
reviewing a sentence, we must first ensure that the district
court committed no procedural error, such as failing to
calculate or improperly calculating the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
factors set forth in 18 U.S.C. § 3553(a) (2006), selecting a
sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence. Gall v. United States,
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128 S. Ct. 586, 597 (2007). If there are no procedural errors,
we then consider the substantive reasonableness of the sentence.
Id. A substantive reasonableness review entails taking into
account the totality of the circumstances. United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quotations and
citation omitted). In making this assessment, this court
presumes a sentence within the guidelines range to be
reasonable.
We have reviewed the record and find that the district
court did not commit procedural error in sentencing Blevins, nor
was Blevins’ sentence substantively unreasonable. Because
Blevins’ sentence fell within his advisory guidelines range, we
presume it is reasonable. Rita v. United States, 551 U.S. 338,
___, 127 S. Ct. 2456, 2459 (2007). Blevins offers no persuasive
argument to rebut this presumption. Accordingly, we affirm the
prison term imposed by the district court.
Blevins also argues on appeal that the district court
erred in imposing restitution, arguing that the Virginia
Department of Game and Inland Fisheries is not a victim entitled
to restitution under 18 U.S.C. §§ 3663 (2006), 3663A (2006) or
18 U.S.C. §§ 3583(d) (2006), 3563(b)(2) (2006). The Government
concurs that the district court erred in its order regarding
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Blevins’ restitution. We agree. * Accordingly, we vacate the
district court’s judgment with respect to the restitution order
and remand for further proceedings consistent with this opinion.
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,
AND REMANDED
*
Although this court has never addressed in a published
opinion whether a state law enforcement agency that expends
funds in the course of an investigation can be a “victim” of an
offense entitled to be awarded restitution, our sister circuits
that have considered this question appear to be unanimous in
concluding that restitution is not appropriate in such
circumstances. See United States v. Cottman, 142 F.3d 160, 169
(3d Cir. 1998); United States v. Khawaja, 118 F.3d 1454, 1460
(11th Cir. 1997); United States v. Meacham, 27 F.3d 214, 218-19
(6th Cir. 1994); United States v. Gibbens, 25 F.3d 28, 29 (1st
Cir. 1994); United States v. Salcedo-Lopez, 907 F.2d 97, 98-99
(9th Cir. 1990).
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