UNITED STATES of America, Plaintiff-Appellee, v. Anthony Charles BROWN, Defendant-Appellant.
No. 09-4092.
United States Court of Appeals, Fourth Circuit.
Submitted: June 21, 2011. Decided: July 13, 2011.
439 Fed.Appx. 203
These provisions make clear that an order of restitution under the MVRA or the VWPA, as amended, is expressly non-punitive and the equivalent of a civil judgment against a criminal defendant requiring that he compensate his victims for the specific harms he has done to them by his offenses. See United States v. Bach, 172 F.3d 520, 523 (7th Cir.1999) (stating that the MVRA requires that “definite persons are to be compensated for definite losses just as if the persons were successful tort plaintiffs“). Because orders of restitution under the MVRA, like their VWPA predecessors, are meant to compensate victims of crime, they do not abate with the death of a convicted criminal defendant pending appeal. See Dudley, 739 F.2d at 177-78. We thus reject counsel‘s second claim and instruct the district court on remand to leave unaffected the order of restitution.
IV.
Accordingly, the Government‘s motion to dismiss the appeal is granted and the appeal is dismissed as moot. The case is remanded to the district court with instructions to vacate DiBruno‘s convictions and sixty-six month prison sentence, dismiss the second superseding indictment as to him, and leave unaffected the order of restitution and any paid portion of the special assessment. 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.
DISMISSED AND REMANDED WITH INSTRUCTIONS.
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On July 27, 1999, Anthony Charles Brown was charged in state court in Danville, Virginia with transporting one ounce or more of cocaine into Virginia with the intent to distribute. After his release on $50,000 bond, Brown failed to appear for a hearing on September 14, 1999, and a warrant was issued for his arrest. On November 18, 1999, a federal grand jury sitting in Roanoke, Virginia, indicted Brown on one count of knowingly and intentionally possessing with intent to distribute more than five grams of cocaine base, in violation of
Following Brown‘s apprehension, the federal grand jury issued a superseding indictment charging him with knowingly and intentionally possessing with intent to distribute more than fifty grams of cocaine base, in violation of
On appeal, Brown raises four arguments. First, he argues that the district court erred in denying his motion to dismiss the indictment as time-barred. This court reviews de novo a motion to dismiss an indictment as time-barred when the motion is based upon a question of law, rather than on the existence of the facts
The statute of limitations for non-capital crimes is five years.
Next, Brown argues that the district court erred in denying Brown‘s motion to suppress. We review the factual findings underlying the denial of a motion to suppress for clear error and the court‘s legal conclusions de novo. United States v. Branch, 537 F.3d 328, 337 (4th Cir.2008). The evidence is construed in the light most favorable to the prevailing party below. United States v. Foster, 634 F.3d 243, 246 (4th Cir.2011).
The Fourth Amendment does not prohibit all searches and seizures, merely those found to be unreasonable. Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Although a warrantless search generally is “per se unreasonable,” one of the established exceptions to this rule is a “search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In determining the scope of the consent, the court uses an objective reasonableness standard. Jimeno, 500 U.S. at 251, 111 S.Ct. 1801. In other words, the court considers what “the typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Id. “The scope of a search is generally defined by its expressed object.” Id. A suspect may also impose limits on the scope of the search to which he consents. Id.
Here, a reasonable person would have understood that Brown consented to the search of his bags. Accordingly, the district court did not clearly err in so determining.
We also reject Brown‘s remaining two grounds for appeal. Brown argues that the court erred in both adopting the presentence report‘s recommendation denying a three-level reduction for acceptance of responsibility and in imposing a two-level enhancement for obstruction of justice. This court reviews the district court‘s decision for clear error. United States v. Kise, 369 F.3d 766, 771 (4th Cir.2004) (acceptance of responsibility); United States v. Kiulin, 360 F.3d 456, 460 (4th Cir.2004) (obstruction of justice). Given Brown‘s fugitive status and inconsistent testimony, the district court did not clearly err in denying Brown the acceptance of responsibility reduction or in imposing a two-level enhancement for obstruction of justice.
Accordingly, we affirm the judgment of the district court. 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.