United States v. Glisson , 405 F. App'x 714 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4290
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOYCE GAYNELL GLISSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00459-PMD-2)
Submitted: November 9, 2010 Decided: December 16, 2010
Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Guy J. Vitetta, VITETTA LAW GROUP, Daniel Island, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joyce Gaynell Glisson pleaded guilty to embezzlement
from a federally-insured bank, in violation of 18 U.S.C. § 656(2006). After Glisson embezzled the funds from her employer,
Citizen’s Bank, she obtained a loan from a third party, Robert
Player, and used that money to repay some of the embezzled funds
to the bank. The district court sentenced Glisson to fifteen
months of imprisonment and ordered that she pay restitution to
the bank and to Player. Glisson appeals, arguing that the
district court erred in ordering restitution to the third party.
For the reasons that follow, we affirm the conviction, but
vacate the order of restitution with instructions that the
district court modify the order.
Glisson first argues that the district court erred in
awarding restitution to Player as he was not a victim of her
offense. We review a restitution order for abuse of discretion.
United States v. Hoyle, 33 F.3d 415, 520 (4th Cir. 1994). Under
the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C.
§§ 3663A-3664 (2006), the district court must order the
defendant to make restitution to victims of an offense against
property. 18 U.S.C. § 3663A(a), (c)(1)(A)(ii). A victim is
defined 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
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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.
18 U.S.C. § 3663A(a)(2). Moreover, the MVRA “‘authorize[s] an
award of restitution only for the loss caused by the specific
conduct that is the basis of the offense of conviction.’”
United States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996).
Here, the offense of conviction was embezzlement under
§ 656. Section 656 makes it a crime for an employee of a
federally-insured bank to embezzle, abstract, or misapply any
funds of the bank. 18 U.S.C. § 656.
For a violation of § 656 to be proved, the Government
must show, in addition to the status of both the bank
and the defendant, that the defendant acted willfully,
that [she] misapplied [or embezzled] funds, . . .
belonging to or intrusted to the custody of the bank
and that [she] did so with the intent to injure or
defraud the bank.
United States v. Duncan, 598 F.2d 839, 858 (4th Cir. 1979).
Accordingly, as Glisson’s embezzlement was complete prior to her
obtaining funds from Player, and as embezzlement does not
contain as an element a scheme, conspiracy, or pattern of
criminal activity, see Blake, 81 F.3d at 506 (“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
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offense of conviction”), Player was not a victim within the
meaning of the MVRA.
However, the Government correctly argues that Player
is entitled to restitution under 18 U.S.C. § 3664(f)(1) (2006).
If a victim has received compensation from insurance
or any other source with respect to a loss, the court
shall order that restitution be paid to the person who
provided or is obligated to provide the compensation,
but the restitution order shall provide that all
restitution of victims required by the order be paid
to the victims before any restitution is paid to such
a provider of compensation.
18 U.S.C. § 3664(f)(1). Here, as Player compensated Citizen’s
Bank for some of the loss resulting from Glisson’s embezzlement,
the district court properly awarded restitution to Player. See
United States v. Smith, 395 F.3d 316, 319 (4th Cir. 2005) (this
court may affirm on any grounds apparent from the record).
However, as the statute unambiguously directs that victims be
paid the full amount of restitution to which they are due before
restitution is paid to persons who provide compensation to
victims for their loss, the order of restitution should have
specified that the restitution must be fully paid to Citizen’s
Bank before any restitution is paid to Player.
Glisson next argues that the court erred in failing to
examine the statutory factors regarding her ability to pay
before ordering restitution. We disagree. Under § 3663A(d),
the district court must issue an order of restitution in
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accordance with § 3664. 18 U.S.C. § 3663A(d). Section 3664(a)
provides that, for restitution orders, the court shall order
that the probation officer must include information in the
presentence report sufficient for the court to determine
restitution, including, “to the extent practicable, a complete
accounting of the losses to each victim, any restitution owed
pursuant to a plea agreement, and information relating to the
economic circumstances of each defendant.” 18 U.S.C. § 3664(a).
Moreover, although a district court must make factual
findings with regard to the statutory factors, see United
States v. Davenport, 445 F.3d 366, 373 (4th Cir. 2006),
overruled on other grounds, Irizarry v. United States, 553 U.S.
708 (2008), “[t]he district court may satisfy this requirement
by announcing its findings on the record or by adopting adequate
proposed findings contained within a presentence report.”
Blake, 81 F.3d at 505 (citation omitted). Here, the probation
officer included the necessary information in the presentence
report, and the district court explicitly adopted those findings
at the sentencing hearing. Therefore, the court did not fail to
consider the statutory factors prior to awarding restitution.
Accordingly, we affirm the judgment of the district
court in part, but also vacate the judgment in part and remand
with instructions that the district court modify the order of
restitution to provide that Citizen’s Bank be paid in full prior
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to restitution being paid to Player. 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;
VACATED AND REMANDED IN PART
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