United States v. Joseph Emmett Simmonds, III

abuse of discretion fair, see no and we

that determination. de- entry of the consent

We affirm

cree. America, STATES of

UNITED SIMMONDS,

Joseph Emmett

III, Appellant.

No. 99-3524. Appeals, Court of

United States Circuit.

Third 11, 2000.

Argued April 14, 2000.

Filed Dec. wiring which activat- system alarm Robinson, Attorney- cut the Assistant K. James alarm within the home Bonner, an audible (Argued), ed both General, Healey Mark Security Systems, the Division, at and an alert ADT Attorney, Trial Criminal All but one Justice, monitoring company. Washington, Department of through a the house men then entered DC, Attorneys Appellee. for open window.1 partially Benham, J. (Argued), William H. John Benham, P.C., Attorneys Glore, Watts & for items to searching the house While Appellant. Gumbs, men, steal, Adaryll one credentials of Assistant upon came SLOVITER, and ROTH Before: and realized Attorney Gomez U.S. Curtis STAPLETON, Judges. Circuit belonged to Gomez. the house name because recognized Gomez’s Gumbs THE COURT OPINION OF robbery in a prosecuted had Gumbs Gomez ROTH, Judge: Virgin Circuit in the pending still case was discovering Islands Territorial On Court. Simmonds, III, pled Joseph Emmett Gomez, belonged to Gumbs that the house Virgin in the District Court guilty house for doc- and Simmonds searched in violation of to one count of arson Islands against the case pertaining uments burglary law and to count federal one search, unsuccessful After an Gumbs. law. territorial violation of Islands to set the and decided Gumbs Simmonds appeal on contends Simmonds directed the other house on fire. Gumbs (1) ap- District Court: miscalculated the house and turned three men to leave by includ- propriate amount of restitution igniting the burn- gas on the stove without the victims’ lost insurance ing the value of up cut a and then ers. Gumbs Simmonds depreciation premium discounts and All six and set the couch on fire. couch furniture in its to the attributable victims’ and Thom- men fled the scene. Gomez St. (2) order, abused its discretion officers, police responding notifica- (rath- consecutive by ordering him to serve ADT, alarm from arrived in tion of the concurrent) for his than sentences er fleeing suspects time to observe (3) crimes, by error and committed scene. Investigation consulting the Pre-Sentence sen- Reports of his co-defendants before eventually suspects All six were arrest- detailed be-

tencing him. For reasons was arrested on November ed. Simmonds low, Court’s we will reverse the District Simmonds During questioning, to the inclu- restitution order with burgla- to his confessed involvement premium victims’ insurance sion of the lost police a ry gave and the arson and discounts, but we will affirm the other five men. implicating statement respects. in all other Court’s decision with arson in vio- charged 844(i), carrying of 18 a lation I. FACTS during the of violent firearm commission 924(c)(1), 16, 1998, Simmonds, crime violation of 18 U.S.C. September On men, a firearm an unlawful possession drove to the along with five other Thomas, in violation intending to user of a controlled substance Peterborg area of St. 922(g)(3). He was also at 11-22 Pe- of 18 U.S.C. burglarize the house located burglary in violation of terri- charged five co-defen- with terborg. Simmonds and his and, law, exchange § 444. 14 V.I.C. the house after conclud- torial dants cased home, pleading guilty arson not at for Simmonds’ ing that the residents were armed with a .38 Simmonds himself was cali- 1. At of the six men were armed. least two Adaryll handgun. a .22 caliber plated Gumbs was ber chrome armed Simmonds, handgun given to him government dropped the burglary, value of the victims’ lost “clean renew- agreed him and charges against al discount” and “no claim other discount” from recommend to the court premiums, their insurance we exercise ple- adjustment acceptance Crandon, downward nary review. See 173 F.3d at 125. 18, 1999, May responsibility. On Sim- We review the District Court’s in pris- monds was sentenced to 97 months consecutive, impose decision to rather 44(i) (arson) for violation on of U.S.C. concurrent, than a sentence for abuse of years and a consecutive sentence of 5 See, e.g., discretion. v. Spi United States (bur- of 14 prison for violation V.I.C. ers, (3d Cir.1996). glary). Simmonds was also ordered to decision, however, underlying issue pay restitution to the in the victims i.e., whether the ap $20,000. appealed amount of Simmonds ply to the overall imposed sentence when a imposed. the sentence defendant is simultaneously sentenced offense, a territorial and a federal is an II. JURISDICTION & STANDARD issue of law and our plenary. review is OF REVIEW Finally, because Simmonds did not Virgin The District of the Islands object contemporaneously to the District jurisdiction in subject had matter this case Court’s decision to consult his co-defen 1612, pursuant grants to 48 U.S.C. which Investigation Reports dants’ Pre Sentence the District Court for the Islands at sentencing, our review is for error. jurisdiction concurrent over criminal mat- See, e.g., Knobloch, United States v. 131 ters that involve violations of both federal (3d Cir.1997). F.3d appellate and territorial law. We have jurisdiction pursuant to 28 U.S.C. III. DISCUSSION 3742(a), grant and 18 U.S.C. which us A. The District Court’s Restitution Or- power appeal to review on certain fed- der eral decisions. Mandatory Pursuant to the Victims Res- We review a restitution order (the “MVRA”), titution Act codified at 18 “under a bifurcated standard: re plenary 3663A, or- as to permitted view whether restitution is $20,000 dered Simmonds to pay as his law, by and abuse of to discretion as share of the restitution owed to the victims appropriateness particular award.” company. and to the victims’ insurance Crandon, States v. 173 F.3d The District Court concluded the total (3d Cir.1999). respect With to Sim- resulting loss from the criminal acts claim monds’s the District Court $76,454. question was The court arrived by “replacement awarding erred value” at this sum based on information contained furniture, destroyed apply plena we Investigation Simmonds’s Pre-Sentence ry review to the issue whether “value” Report. company The victims’ insurance “replacement includes value.” See United $65,939 paid a total of loss caused v. Shugart, addition, by the fire. the court ordered (11th Cir.1999). If we determine that “re $2,000 restitution the amount of to cover placement permitted value” is under the by paid the insurance deductible the vic- statute, we then review the District $7,000 tims, representing depreciation factual for choosing “replace Court’s basis destroyed attributable to the furniture value,” value,” opposed ment to “market fire, $1,516 representing the “clean for abuse discretion. See id. renewal discount” and “no claim discount” With to Simmonds’s contention lost as a result of the insurance claim filed that as a by argues matter of law the District Court the victims. Simmonds by including by erred in its restitution order him requiring District Court erred trast, money nec- to the amount of deprecia- refers victims for the compensate the “Replace- destroyed in the furniture. essary replace furniture tion attributable by value” an value of the lost “clean value” exceeds “market and for the ment the fire attribut- depreciation “no claim discount” equal discount” and amount renewal prohibited repre- Depreciation the District Court the furniture. because able to of restitu- awarding type this value of the vic- statute from a decrease in the sents tion. furniture due to use and reflects tims’ furniture was no fact the victims’ Mandatory suggests, name As its destroyed. when longer new Act, which was enacted Victims Restitution 1996, mandates that defen- by Congress in in- homeowners Pursuant to the victims’ plead guilty of or dants who are convicted company, their insurance policy, surance to their pay to certain crimes London, the vic- Lloyd’s compensated 3663A(a)(l). victims. See their de- the market value of tims for is sub- agree parties Court, in The District stroyed furniture. of the MVRA ject provisions to the value,” or- opting “replacement plea to the federal guilty of his virtue pay restitution to dered Simmonds MVRA, a arson. Under the offense of equal amount Lloyd’s of London property return the defendant must either of the furniture and to the market value of the crime damaged during commission amount to the victims in an pay restitution or, cannot do if the defendant question depreciation to the attributable to equal so, greater to the of equal “an amount pay The sum of these two their furniture. property the on the date the the value of of amounts, furniture the market value of the loss, destruction; or value damage, or to depreciation attributable and the sentencing, on the date of property furniture, equal replacement is to the value (as property of the date the less the value of the furniture. returned) property any part of of is by including that argues returned.” 18 U.S.C. to the furniture depreciation attributable added). 3663A(b)(l)(B) (emphasis § Be- order, in its the District Court restitution in this case property at issue cause the statutory authority to order exceeded its destroyed, returning impossible. it is equal amount to “the val- Therefore, whether the we must determine of ... property ue of the on the date deprecia- inclusion of the District Court’s destruction.” destroyed to furniture tion attributable 3663A(b)(l)(B)(i)(I). must, § there- We value of the victims’ lost the fire and of the fore, determine whether proper discounts was premium insurance in an decision to order restitution Court’s will consider each under the statute. We value,” equal “replacement amount of the items in turn. value,” of equal rather than to the “market destroyed proper furniture was under Depreciation 1. The Attributable to § 3663A. Victims’ Furniture impression first question the Dis This is one of We first consider whether In that the calculating arguing the value of in the Third Circuit. trict Court erred restitution order was destroyed furniture in the fire District Court’s the victims’ on proper, government primarily § relies “replacement under 3663A at its value” history of the MVRA and legislative its “market value.” “Market rather than at (the Act price that the Witness Protection value” refers to the actual the Victim 3663(b)(1), “VPWA”), as well question would have com furniture interpreting language open market on the date of as case law manded on the value,” VPWA,2 all of which indicate “Replacement con- destruction. (the (the VWPA) 3663A(b)(l) 3663(b)(1) portion relevant language 2. The value,” placement and the MVRA neither does it both the VPWA define purpose of fact, is, possible, to make victims to the extent value as “market value.” the stat- whole, for their fully compensate victims ute is silent as which of these two losses, origi- and to restore victims to their measures should be used to determine the See, well-being. e.g., nal state of Ultimately, value of the victims’ furniture. (3d Kress, (the 159-60 presented pri- we are with a statute 104-179, Cir.1991); 12-13, No. at Rep. S. mary overarching of which goal (1996) reprinted whole, fully make victims crime com- 924, 925-26, Thus, 930-35. U.S.C.C.A.N. pensate these victims for their losses and solely against backdrop when viewed original to restore these victims to their congressional intent as set forth state of well-being) expressly directs legislative history, relevant judge sentencing to award restitution order with Court’s restitution in an amount “the equal to value of the appears appro- the victims’ furniture to be loss, property damage, on the date of the Court, however, has inter- priate. This or destruction.” preted narrowly more these broad state- yet Although we have to decide whether congressional ments of intent: the term “value” as used 3663A con- does is no doubt that the VWPA [T]here templates a restitution order based on “re- necessarily authorize a placement value” rather than “fair market in an amount court to order restitution value,” recently the Eleventh Circuit ad- represents a victim’s entire loss. very question, concluding dressed this States, Hughey v. United 495 U.S. See “value” in “contemplates 3663A a resti- 411, 413, L.Ed.2d 110 S.Ct. replacement tution order based on cost (1990). Congress simply did not where actual cash value is unavailable fully satisfy the VWPA to write Shugart, 176 F.3d at unreliable.” See purpose expressed in more ambitious Moreover, Shugart court con- reports which legislative upon [the -that, situations, replace- cluded in some government] relies. The and un- appropriate ment value is an measure of 3663(b)(1) § ambiguous language of § “value” under 3663A. Id. clearly limits the amount of restitution property.

to the value of the lost court, in Shugart attempting appropriate to determine the measure of Islands v. Government of 3663A(b)(l) (3d Cir.1994). Davis, Thus, § “value” under church defendants, burned down the two rea simply sweeping we cannot defer to the that: language legislative history in the MVRA’s soned deciding whether the District Court ex- 3663A(b)(l) requires the de- Section statutory authority by ordering ceeded its pay restitution an amount fendants equal restitution in an amount to the “re- equal the “value” of the Church on furniture. placement value” victims’ it For fun- day they burned down. commodities, however, easy de- Looking, plain language gible at value is n value, 3663A, § it that a court termine: it’s the actual cash or states district n fairmarket value, is, judge award of the item-—that must restitution victims price cash equal prop- an amount to “the value of the fair or reasonable “[t]he loss, erty property which could sold damage, on the date of the or be ordinary course of busi- destruction.” market 3663A(b)(1)(B)(i)(I). § ness.” BlacK’s Law DictionaRY While the statute 1990). defendants, According ed. to the expressly does not define “value” as “re- none, MVRA) interpreting respects. cases in all relevant is Third Circuit identical Therefore, 3663(b)(1) unique highly persua- language control in this absent legislative history, sive of which there case. MVRA legislative limits restitution to ac- and with the clear intent always ing § 3663A disagree. MVRA, We tual cash value.... with behind the but also the U.S. value Although fair market will often and with other of the value of accurate measure be an addressing cases the issues of restitution always will not be so. property, it and loss valuation where value is difficult value is difficult to actual cash Where Moreover, interpreta- to ascertain.3 this unique, an item is or ascertain —because tion of “value” is consistent with 18 U.S.C. there is not a broad and active because statutory provision immediate- may cost be replacement market for it— 3663A, ly following permits which a sen- of value. a better measure tencing court to “in-kind” order restitution Id. While there is no indication that replacement property.” “in the form of destroyed furniture in this case was 3664(f)(4)(B) (emphasis add- “unique,” personal furniture often has a ed). hold, therefore, that the District We captured cannot value to its owners that be properly “replacement considered accurately simply estimated deter- value” a measure of and that mining the market value furniture. it under did abuse its discretion Replacing upon the armchair one sits each choosing circumstances of this case then evening sleeps night or the bed one each applicable it as the measure in its award. already with furniture that others have may accept. used difficult to This be by noting We conclude the rule of however, necessary, would be if the house- lenity inapplicable this case. As the replaced hold furniture is at its market Shugart court stated: damaged value because furniture cannot when, lenity We invoke the rule of market with replaced equiva- be at value considering after pur structure and reason, lent new items. For that when statute, pose aof criminal we are left evaluating personal items of furniture in nothing guess more than a as to residence, that replacement one’s we find what Congress intended. See United may value an appropriate be measure of Wells, 3663A(b)(l). 482, 498-99, 519 U.S. “value” under In these cir- cumstances, (1997). the market value or cash val- S.Ct. 137 L.Ed.2d 107 inadequate ue is an or inferior case, measure of ambigui this see no “grievous we “value.” ty” require application sufficient to of Chapman v. United lenity. rule the of “value,” interpretation

This of as the States, 453, 463, 1919, 3663A(b)(l), § 500 U.S. only term is used in is not S.Ct. (1991) Shugart Huddle (quoting consistent with the court’s reason- 114 L.Ed.2d 524 Sharp, ably relying upon See United States v. 927 F.2d the contract between (4th Cir.1991) (holding replace employer developer, Comstock’s and the the destroyed fan ment cost of ventilation when only parties with an immediate interest in the properly two defendants bombed a mine was awarded as restitution to victims of the bomb value.”); drawings, as an indication of U.S. 2B1.1, Sentencing § ap- Guidelines Manual 3663(b)(1)); ing § under 18 U.S.C. cf. ("Where (1990) plication note the market Akbani, (8th States v. 151 F.3d 779-80 inadequate value is difficult to ascertain or to Cir.1998) damage cases that result in to C‘[I]n victim, may measure harm to the the court property, or loss or ... destruction of [t]he way, measure loss some other such as language of the Victim and Witness Protec victim.”); replacement reasonable cost to the ('VWPA') tion Act ... restricts restitution ... 2Q2.1, § U.S. Guidelines Manual replacement property.”) the value of the (1995) ("Where application note 4 the fair- 3663(b)(1)); (citing United States ascertain, price market retail is difficult to Pemberton, Cir. may using court make a reasonable estimate 1990) ("Being unique, drawings were not information, any reliable such as the reason- fungible items for which there was a broad replacement market; able or cost or restitution and active absence of such a [i]n market, acquisition preservation (e.g., taxidermy) supplied readily which would have cost.”). price, ascertainable the court acted reason- 814, 831, States, ordering erred restitution for the value 415 U.S. ston v. United (1974)). 1262, 39 L.Ed.2d 782 premium 94 S.Ct. of the victims’ lost insurance dis- counts, Simmonds contends that the Similarly, at 1376. Shugart, 176 F.3d statute, language controlling of the case, left with we are not present 3663A(b)(l), allows the District guess more than a as to what “nothing statutory only Both the to award restitution Congress intended.” history legislative of language representing property amount the value of clearly indicate and the MVRA destroyed VWPA lost or as a result of the defen- victims of crime Congress’s intent to make activity. dant’s criminal fur- whole, fully compensate these victims ther contends neither the victims’ losses, vic- and to restore these for their “clean renewal discount” nor their “no well-being. original of tims their state lost, claim discount” property was clear, overarching goal light In damaged destroyed as a result of Sim- 3663A, “grievous no there is not monds’ crimes. in- respect Congress’s ambiguity” with previously interpreted As we have tent, conclude there also no reason to 3663A(b)(l), term it does “property” abused its discre- that the District Court consequential damages. include See by opting replacement tion here Islands v. Government than value of the victims’ furniture rather (3d Cir.1994). Davis, Davis, 43 F.3d 41 market value. defendant, who pled guilty federal Renewal Discount” and 2. The “Clean charges conspiracy district court to “No Claim Discount” fraud, forgery, perjury, commit ar- concluded that the District Having im- gued appeal on that the district court properly depreciation included the amount properly ordered as restitution the furniture in its attributable to the victims’ legal fees incurred the victim to order, we must now determine fraudulently property recover obtained by in whether the District Court erred In reviewing the defendant. the district order the amount cluding its restitution order, Court, court’s restitution the Davis victims’ “clean lost renewal dis highlighting controlling statutory lan- discount.” Because count” and “no claim 3663(b)(1) concluded that ex- guage, premium lost dis the victims’ insurance pressly limits restitution to the value of “property” do not constitute counts damaged, that was lost or property damaged destroyed by lost or destroyed during or as a direct result of criminal acts of Simmonds and his co-de Relying on question. the criminal acts fendants, will we reverse Fourth, Fifth, Seventh, opinions from the Court’s restitution order holding Ninth and Tenth Circuits these amounts. in- “restitution under the VWPA cannot The victims’ “clean renewal discount” consequential damages,”4 clude the Davis “no claim discount” refer to the and damages, consequential Court held that (in money amount of the form of lower fees, attorneys’ are not recoverable such as premiums) homeowners insurance 3663(b)(1). Davis, § in under restitution they saved had victims would have 43 F.3d at 46. forced to file an insurance claim for been Davis, we holding Consistent with our damage resulting from the arson the fire conclude that the District Court erred and his co-defen- committed Simmonds including value of the victims’ “clean arguing that the District Court dants. Mullins, 1138, Cir.1989); Patty, States v. 992 F.2d 4. See United States v. 971 F.2d United (4th Cir.1992); 1045, (10th Cir.1993); 1147 United States v. Arvani v. 1049 United States tis, 489, (7th Cir.1990); Mitchell, 1178, (5th Cir.1989). 902 F.2d 497 876 F.2d 1184 1255, Barany, F.2d 3553(a), vacated § his sentence must be claim discount” and “no discount” renewal lost The victims’ and his case remanded to order. in its restitution unques- are premium re-sentencing. discounts insurance Court crimi- the defendant’s tionably a result of However, § as under 3663A

nal conduct. that previously have held We it, the lost victims’ interpreted have we Sentencing apply do not Guidelines are conse- discounts premium insurance Virgin for violations of Islands sentences any way and do not damages quential Government territorial law. See “the value represent constitute Virgin Dowling, Islands v. lost, destroyed as a damaged or property” (3d Cir.1989). Sentencing The District crimes. result of Simmonds’s only to sentences for fed apply Guidelines statutory authorization its exceeded Court apply criminal violations and do not eral lost for the victims’ ordering territorial criminal violations sentences for and “no claim “clean renewal discount” such sentences are regardless whether will, therefore, discount,” reverse and we the Vir by the District Court for imposed grant of restitution the District Court’s Virgin or the Islands Territori gin Islands to these items. with case, present In the al Court. See id. however, upon to address a we are called Imposition Consecutive Sen- B. deter question. more nuanced We must tences factors, set forth at 18 mine whether the that the District argues next Simmonds § § of the Sentenc 5G1.2 by ordering his Court abused its discretion Guidelines, ing apply when federal and consecutively, run territorial sentence to joined for charges territorial criminal are concurrently, his federal than rather sentencing in the District trial and Court contends sentence. Simmonds below, Virgin for the Islands.6 As detailed determine required District Court a matter of law neither we conclude imposed on the whether “the sentence § applies § such a situa 3553 or 5G1.2 highest statutory maxi- carrying count therefore, hold, tion. that the District We pun- total adequate mum to achieve the properly apply did not the Guide Court ishment,” Man- U.S. imposition lines its the sentence 5G1.2(c) (2000),5 § and to consider the ual that, the territorial offense and when the § factors enumerated 18 U.S.C. District ordered Simmonds to serve Court deterrence, including punish- the need for consecutive rather than concurrent sen restitution, the nature and seri- ment and tences for his crimes without reference to offense, the kinds of sen- ousness of the 5G1.2, 3553 or it did not abuse its question tences available for the crime discretion. crimes, protect similar the need to argument, urged At oral Simmonds public, the need for criminal rehabili- 1614(b) (which mandates 48 U.S.C. tation, territorial sen- ordering before his (rather procedures ap- certain federal criminal be than consecutively tence to run plied the District Court concurrently) to federal sentence. See his Islands) (2000). required that the District Court §§ Simmonds consider at the factors set forth District contends that because the 3553(a). disagree. and to in 18 U.S.C. We As apply failed to 5G1.2 U.S.S.G. concedes, if enumerated consider factors 5G1.2(c) Sentencing Guidelines Manual provides § that law.” U.S. "[i]f 5. U.S.S.G. 5G1.2(c) (2000). § carrying imposed the count sentence on highest adequate statutory is to maximum punishment, apply the sen- Sentencing achieve the total then Guidelines do of 6. The imposed concurrently, computing the for tences on all counts shall run course in sentence except required by federal conviction. to the extent arson otherwise

835 for his conviction on the territo pursuant to 48 U.S.C. Simmonds required, were 1614(b), forth consider the factors set offense, § to rial the District Court would also 3553(a) deciding § when whether his § required to apply have been 5G1.2 of the should run consecu- burglary sentence Sentencing impose and to a to Guidelines sen- concurrently to his federal tively or range tal sentence within established arson, District Court then the tence adjusted offense level. combined required apply to the Sen- also be would However, pursuant holding to our Dowl deciding when this is- tencing Guidelines ing, Sentencing ap do not 3553(a)(4)(A), (a)(5), § sue. See 18 U.S.C. ply with to criminal of territorial 3553(a)(4) (b). Specifically, and sections fenses tried the District Court of the 3553(a)(5) sentencing and state that a Dowling, Virgin Islands. See 866 F.2d at “the kinds of court must consider both 615. range estab- sentencing and the sentence applicable category ... of lished for Guidelines, Moreover, § 5G1.2 of the en- by applicable cate- offense committed “Sentencing Multiple on of titled Counts guide- forth in the gory of defendant as set Conviction,” applicable to on by Sentencing Commission lines issued multiple counts of conviction. That federal 944(a)(1) 28,” § of title 18 pursuant to limited can this section is so be ascertained 3553(a)(4), “any pertinent § U.S.C. Chapter reference to Part D of from its Sentencing issued policy statement Counts,” Guidelines, “Multiple which ... in effect on the that Commission Introductory in turn it clear in its makes the defendant is sentenced.” date 3553(a)(5). Moreover, Commentary establishing that Part D is § 18 U.S.C. 3553(b) § introduces additional factors determining single a offense methods be considered: offenses of multiple level when there are impose a sentence of the

The court shall Chapter of the Guide- conviction under kind, range, referred to and within the Chapter All lines. offenses under are (a)(4) court in subsection unless the of state or terri- violations of federal —not aggravating an finds that there exists torial —statutes.7 kind, of a or to mitigating circumstance 1614(b) Moreover, § although 48 U.S.C. adequately taken into con- degree, appropriate, provi- states that “[w'Jhere sideration Commis- guidelines formulating sion II of Title 18 Pro- part [Criminal sions in a sentence different should result apply of Title 28 ... shall cedure] and from that described. therefrom,” appeals district court and 3553(b). § applicability part II of Title 18 is set “Except following forth terms: If, therefore, applicable § 3553 had been specifically provided, defen- being imposed on otherwise when a sentence pled guilty territory, Although argues in a he would have the Government 5G1.3, burglary and in to the state offense “Imposition a Sentence on a De- state court Undischarged to the federal arson offense Subject term of federal court fendant applicable to deter- Imprisonment,” applicable case 5G1.3 would have been is not in this federal should run con- should be mine if the sentence to determine whether the sentences concurrent, consecutively currently to the state with or consecutive or it would seem Brown, 920 appropriate sentence. See United States v. fact 5G1.3 would be the Sen- Cir.1991) (holding tencing Guideline section to consult when F.2d require a federal district court can its and for sentences for federal state/territorial consecutively yet example, served conduct. For sentence to be offenses cover related sentence). imposed It is be state Application 5G1.3 discusses how Note Virgin Islands a de- may uniquely because in the compute a federal sentence which take Conduct, account, federal convicted of both the conduct fendant can be into as Relevant at the same time in and the territorial offenses for which a defendant has been convicted application of 5G1.3 federal court that the court. If Simmonds had sentenced in state even in such a situation is debatable. committed his offenses in a state rather than guilty regard who has been found of to the sentence for the territorial dant any offense, in Virgin offense described Federal statute the laws of the Islands do impose express ... be sentenced accordance a sen- shall not limitations on provision chapter.” the of this tencing impose court’s discretion to con- 3551(a). Thus, II scope part the of of criminal secutive sentences territorial Title 18 defined in terms of sentences Furthermore, the laws of the offenses. law, imposed for violations of not require not fac- Virgin specific Islands do federal imposed in federal terms of sentences con- imposing tors be considered when courts. secutive sentences for territorial criminal offenses. Sentencing conclusion that the

Our and the factors set forth in 18 Here, in deciding impose consecutive apply do in this not case sentences, the District Court stated at the by policy reinforced the considerations ad- sentencing hearing that it did not believe In Dowling. rejecting sug- dressed in the that the 97 months on federal arson gestion Sentencing Guidelines and adequately pun- count achieved “the total Sentencing apply Reform Act to sen- necessary appropriate ishment that is by imposed tences for territorial violations 57). Moreover, (App. this case.” at Virgin the District Court of the Islands discussing aspects other of its but not to sentences for territorial viola- decision, emphasized the District Court by Virgin imposed tions Islands Terri- responsible that Simmonds was for re- Court, “if Dowling torial we noted Gumbs, that a cruiting Simmonds carried [Sentencing] Guidelines must be used gun during burglary, that Simmonds other, but one court not gave gun carry during Gumbs a prosecutor have the option would of choos- burglary, commission of the and that Sim- ing range punishment what could be only monds and Gumbs were the individu- imposed particular simply crime” stayed als who behind to set the fire. by selecting appropriate court in which 28-30). addition, (App. at In the District bring charges. Dowling, 866 F.2d at explicitly addressed the seriousness 613. We reasoned that it “would be an of the offense: situation, anomalous out of the mainstream very It is a just -entering someone’s — administration,” law permit criminal house, you they’re and even when think shopping. such forum Id. Because we con- just not enough, regular there is bad Sentencing cluded that the Guidelines and burglary. Sentencing apply Reform Act did not to sentences handed Virgin down then, house, But when inside the it is Court, ultimately Islands Territorial we found out that it’s owned a federal they held that not apply likewise did official federal law enforcement imposed by sentences official, prosecutor, and because of that Virgin Islands for violations of role, job, the burglars escalate the (in Islands territorial law contrast to feder- arson, they crime to one of don’t law). al id. at See just place, they set fire to the ... set a bomb, essence, by setting fire to a Because the Sentencing Guide piece turning gas of furniture and lines and the Reform Act do on, it was a matter of time that apply this case to the territorial explo- there would have been a massive violation, they cannot be reintroduced into sion. sentencing process by requiring computation chance, total only by sentence for the And it is grace God, federal and territorial you offenses be deter however wish to characterize it, mined under the Guidelines. We must that someone ... in ... first went consider the separately. gas attempted two sentences turned the off and [and] upon the firefighters tation of or reliance PSPs the fire until the fight

to Simmonds’s co-defendants. arrived. makes this crime so does not contend that

And that’s what Simmonds in so in his PSI or the PSPs of disturbing particular- information particularly one, or un- deserving of a his co-defendants was unreliable heinous ly an Instead, trustworthy. contends such as Mr. Simmonds punishment for one level of only that the District Court violated his managerial a or played who Simmonds itself, by consulting his process rights due co- arson as role supervisory him prior sentencing to course, defendants’ PSPs as, enterprise initial well presented that the facts in these burglary. PSI’s, with the together when considered 55-56). also (App. at The District Court PSI, own demonstrate facts Simmonds’s to elude the noted that Simmonds tried leader, organiz- a that Simmonds “was not of the crime. police fleeing after scene er, manager supervisor.” 56). (App. at note, however, following We sum, clearly articu- In the District Court of all five defendants sections PSI’s its conclusion supporting lated reasons Cases, are identical: Related The Offense run consecutive- that the sentences should Conduct, Regard- Defendants’ Statement- such, the District ly. As we hold Offense, ing Planning of the Defen- in its not abuse its discretion Court did Burglary, Regarding dants’ Statement sentencing decision. the Ar- Regarding Defendants’ Statement son, Impact and Victim Statement. Consultation of Other Pre-Sentence C. Therefore, any reviewing error the co- Investigation Reports be be- defendants’ PSI’s would harmless finally argues Simmonds the relevant information is the same cause right violated to due [his] trial court “[t]he Moreover, them. even a curso- each of into account material process by taking provides ry review of Simmonds’s own PSI Investigation included the Pre-Sentence the District Court’s con- ample support for (‘PSPs’) participants.” of other Reports leader, a clusion that Simmonds acted as reports contends these Simmonds manager organizer. and/or him and that “he had provided were not to furthermore, arguing, respond” to the informa opportunity no process violated his due District Court prior reports tion contained these co- by denying him access to his rights a District decision to make three- Court’s PSPs, acknowl Simmonds defendants’ adjustment in his base of point upward that, rule, criminal de edges general mana playing leadership, fense level right to see or examine fendants have no organizational role in the gerial and/or See, e.g., of their co-defendants. the PSPs pled guilty. he crimes to which Blanco, 884 F.2d States v. United contends that he Although (3d Cir.1989) (citing States objected Julian, to the District Court’s decision Dep’t Justice v. U.S. PSI’s, (1988)). care- his co-defendants’ our consult Fur L.Ed.2d 1 S.Ct. transcript be- sentencing thermore, ful review of the in his concedes as Simmonds did brief, may lies this contention. While Simmonds trial court scope “the of what a object appropriate] decision determining a[n Court’s consider adjustment breathtakingly broad.” impose three-point upward criminal sentence playing a leader- that a federal dis his base offense level for Not have we held dis pled has almost unlimited judge in the crimes to which he trict court ship role determining appropriate tran- cretion it is clear from guilty, see, case, e.g., Unit in a criminal nor his law- sentence script that neither Simmonds 389, 391 Stephens, ed objected Court’s consul- yer (3d Cir.1999), part is a receive from the carrier. The record does such discretion cal- statutory explain depreciation law. 18 U.S.C. not how this federal See (“No culated, placed my colleagues appear shall be on but to as- limitation concerning receiving equal the back- sume that an amount the information character, in a person depreciation put conduct of a the would the victims ground, position replace convicted of an offense which court of the the lost furniture of the loss. may receive and consider new furniture at the tune United States They an to this as the victims purpose imposing appropriate for the thus refer sentence.”); Sentencing receiving “replacement value.” see also U.S. (2000) (“In determining IB1.4 3663A(b)(l)(B) mandates Section restitu- impose guideline the sentence to within the greater tion the amount of the range, departure or whether a from the property destroyed value of at the time the warranted, guidelines may the court is of sentencing. of the loss or at the time consider, limitation, any informa- without most com- property value of lost concerning background, tion character monly regarded being the market value defendant, and conduct of the unless other- i.e., property, willing buyer what a law.”). prohibited by

wise pay. Compare would Law BláCK’s Diotio- naey the District Court’s broad discre- Given 1999) (defining ed. “val- tion to consider information relevant when services, goods, ue” as “the amount of defendant, criminal we con- money something command in an will clude that the District Court’s decision to exchange” and “market value” and both consult the PSI’s of Simmonds’s co-defen- “fair price market value” as that a “[t]he dants did not constitute error. willing accept buyer seller is and a willing pay on open market and ” IV. CONCLUSION .... arm’s-length an transaction while making “replacement no reference to val- conclusion, affirm the we will ue”), (defining “replace- with id. at 349-50 judgment except Court’s of sentence ment cost” as cost of acquiring “[t]he an the inclusion of the value of the victims’ equally produc- asset that is as useful or premium lost insurance discounts in the held”). Thus, currently tive as an asset if restitution order. We remand this case to phrase literally, is read the value of the may so that Court lost furniture is not the same as the value be resentenced as to restitution. of new furniture. STAPLETON, Judge, Circuit Even if one assumes that the value of concurring dissenting: acceptable new reading furniture is of the value of property, the lost there is at join

I portions opinion all of the Court’s an ambiguity least here on the face 111(A)(1). than other Part Because I con- statute. The concedes the am portion clude of the District biguity specifically by is not resolved Court’s restitution order regarding the de- legislative history. As the Court acknowl stroyed furniture its I authority, exceeded edges, required this conclusion is our resentencing. would remand for holding in Government Is Because the victims’ company, insurance (3d Davis, lands v. F.3d Cir. policy, accordance with the terms of its 1994). paid only depreciated fur- value of the niture, the District ultimately Court ordered that the The Court holds that the ad- pay defendants the victims an amount ambiguity gener- mitted is resolved equal al, depreciation they purpose failed to overall of the statute.1 This inapposite. The Court’s references to various footnote 3 are In United States v. (4th Cir.1991), Sharp, cases and to the Guidelines in its 3663A(b)(l)(B) conflict, however, in favor of Simmonds. with in in direct holding is ambiguity resolution of The Court’s in Hu Supreme teaching less, more, expan- rather than favor of States, 411, 110 495 U.S. v. United ghey fundamentally sive definition of “value” is (1990). Pur 1979, 109 L.Ed.2d 408 S.Ct. rationale behind the inconsistent with the plead Hughey plea agreement, to a suant lenity. rule of exchange of fraud to one count guilty ed to dismiss agreement government’s government The remaining counts. to the Victim pursuant sought restitution Act of 1982 Protection

and Witness 3579, 3580,

(“VWPA”), §§ crimes with stemming from all

damages charged, not sim had been Hughey

which pleaded which he had charge

ply held that the Supreme The

guilty. limited resti language of the VWPA ASSOCIATION OF PENNSYLVANIA flowing harms orders to the tution HEIRS, Pennsylvania a EDWARDS which the defendant the offense of from Appellant, non-profit corporation, important Most convicted. had been held that purposes, Supreme

our v. expansive to “the declaration appeal no RIGHTENOUR; Helen David Paul VWPA,” id. at accompanying purpose Douglas Wayne Rightenour; Ed warranted because S.Ct. wards; Dudley Edwards; Elea Carol statutory language re were the “[e]ven Longenecker; Par Bonnie Black nor authority a court’s scope garding individually sons; Wube, Don d/b/a ambiguous, longstanding order restitution "Basic"; Georgia, Bank Wachovia lenity, which demand resolu principles of in interest to First National successor ambiguities in criminal statutes tion of Atlanta, formerly the North Bank of ... our preclude Association, of the defendant Savings favor Georgia Loan & Bank; formerly Georgia Wa against peti North ambiguity resolution Corp., Georgia Holding a Cor chovia declarations general the basis of tioner on Recovery Specialists; Capita poration; his legislative in the statute and policy Video; Financial Investment Ser FIS 422, 110 at S.Ct. 1979. tory,” id. Inc.; Express; vices, Mid- Discount lenity, accordingly, Associates; would The rule of Phone Grace Atlantic Tabernacle; Rightenour Baptist & any ambiguity that we construe mandate dic- restitution orders is replacement value in and costs of re- held that lost income court pairing damaged §§ mine were included & 2B1.1 tum. 2Q2.1 < The defendants con- .restitution calculation. to determine calculate "value” both replacement a fan was cost of ceded significance. Value in this context crime's order, properly included in the restitution how our effort to determine irrelevant and, therefore, Sharp did not the court Congress requiring the defendant much propriety of so have occasion to consider pay in restitution. United States the victims Akbani, doing. States v. The court in United Cir.1990), Pemberton, (8th Cir.1998), held F.3d case, is and not a restitution Guidelines case Therefore, 3663(b)(1) apply. did not similarly irrelevant. permissibility of any pronouncement on the

Case Details

Case Name: United States v. Joseph Emmett Simmonds, III

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 14, 2000

Citation: 235 F.3d 826

Docket Number: 99-3524

Court Abbreviation: 3rd Cir.