US v. Howard Blevins, No. 08-4867 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4867 UNITED STATES OF AMERICA, Plaintiff Appellee, v. HOWARD GLEN BLEVINS, Defendant Appellant.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 Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.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 Assistant Federal Public Defender, Charlottesville, for Appellant. Julia C. Dudley, United States Jennifer R. Bockhorst, Assistant United States Abingdon, Virginia, for Appellee. C Hoppe, Virginia, Attorney, Attorney, Unpublished opinions are not binding precedent in this circuit.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 concurrently. $6970 in on each count to be served The district court also ordered Blevins to pay 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. States v. Evans, 526 F.3d 155, 161 (4th Cir. United 2008). In reviewing a sentence, we must first ensure that the district court committed calculate or no procedural improperly error, calculating such the as failing Guidelines to 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 adequately explain the chosen sentence. 2 facts, or failing to Gall v. United States, 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. Pauley, 511 F.3d citation omitted). presumes a 468, 473 In sentence (4th making within Cir. this the United States v. 2007) (quotations assessment, guidelines this range and court 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). argument to rebut this presumption. Blevins offers no persuasive 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 3 We agree. * Blevins restitution. 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). 4

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