United States v. David Diaz
2017 U.S. App. LEXIS 13515
| 4th Cir. | 2017Background
- David Diaz, intoxicated, rushed toward a cockpit ~45 seconds after takeoff, yelled threats and claims (e.g., bomb, jihad); passengers restrained him; flight returned and was canceled; United incurred $22,151.77 in losses.
- Diaz pleaded guilty to 49 U.S.C. § 46504 (interference with flight crew). No plea agreement.
- U.S. Probation recommended restitution of $22,151.77; PSR noted Diaz’s inability to pay.
- At sentencing the government argued MVRA (18 U.S.C. § 3663A) applied; district court held restitution was mandatory under the MVRA and ordered full restitution without assessing Diaz’s ability to pay under the VWPA.
- Diaz appealed only the restitution order; Fourth Circuit vacated and remanded, holding the VWPA (18 U.S.C. § 3663) applies because § 46504 is not categorically a "crime of violence" under 18 U.S.C. § 16.
Issues
| Issue | Diaz's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether an offense enumerated in the VWPA (§ 46504) can nonetheless fall under the MVRA | § 46504 was deliberately placed under VWPA and thus MVRA should not apply | MVRA can apply if § 3663A(c) conditions are met | Yes; an offense enumerated in VWPA can fall under MVRA if § 3663A(c)(1)(A) and (B) are both satisfied (statute is conjunctive) |
| Whether § 3663A(c)(1) is conjunctive or disjunctive (i.e., must both (A) and (B) be met?) | N/A (Diaz relied on conjunctive reading) | Govt urged disjunctive reading to make MVRA apply when (B) satisfied | Conjunctive: both (A) and (B) required; district court erred in treating them disjunctively |
| Whether 49 U.S.C. § 46504 is divisible (so modified categorical approach applies) | § 46504’s "assaulting or intimidating" are alternative means, not elements; statute indivisible | Govt argued divisibility (elements) so record could be consulted under Mathis | Statute is indivisible; "assault or intimidate" are alternative means, so cannot resort to modified categorical approach |
| Whether § 46504 is a "crime of violence" under § 16 (so MVRA applies) | § 46504 does not require violent force; at minimum it criminalizes forcible touching which is not "violent force" under Johnson | Govt argued it satisfies the force clause and alternatively urged the residual clause | Held: § 46504 is not a crime of violence under § 16(a) (force clause); government waived residual clause argument; MVRA does not apply, so VWPA governs restitution |
Key Cases Cited
- United States v. Ocasio, 750 F.3d 399 (4th Cir.) (restitution review: legal questions de novo)
- United States v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006) (MVRA § 3663A subsections (A) and (B) must both be satisfied)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (categorical approach instruction)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing physical pain or injury)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (when to consult record for divisibility)
- United States v. Winston, 850 F.3d 677 (4th Cir. 2017) (indivisibility of statutes phrased with "or" like violence/intimidation)
- United States v. Alalade, 204 F.3d 536 (4th Cir. 2000) (MVRA/§ 3664 requires ordering full amount of victim loss)