United States v. Robert Gerald Britton

Citations: 56 F.3d 69; 1995 U.S. App. LEXIS 25164; 1995 WL 322129Docket: 94-1830

Court: Court of Appeals for the Eighth Circuit; May 31, 1995; Federal Appellate Court

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Robert Gerald Britton appeals a final judgment from the District Court for the Western District of Arkansas, following his guilty plea for possession of a stolen Chevrolet pickup truck and interstate transportation of a stolen GMC pickup truck, violating 18 U.S.C. §§ 2312 and 2313. The district court sentenced him to 42 months imprisonment. 

Britton was arrested in April 1993 after being stopped while driving a stolen Cadillac. It was revealed that he had also left a stolen Chevrolet truck with a business partner in Arkansas. After being released on bond, he failed to appear for trial and was arrested in September 1993 while in possession of a GMC truck stolen from Kansas City.

The presentence report (PSR) indicated a total offense level of 14 and a criminal history category of VI, recommending a sentencing range of 37 to 46 months. It suggested restitution for $500 in insurance deductibles for the stolen trucks, with further restitution dependent on the insurance companies' sales of the vehicles and their reported net losses. The PSR noted the seizure of $2,500 in cash from Britton, but deemed him unable to pay a lump sum fine or restitution, instead recommending monthly payments during supervised release.

At sentencing, the parties agreed on the values of the stolen vehicles, totaling $71,397. Britton contested the inclusion of the Cadillac in the sentencing calculations and the PSR's approach to restitution, claiming violations of his due process rights. The district court rejected his objections, adopted the PSR's recommendations, and imposed two concurrent sentences of 42 months imprisonment, three years of supervised release, and ordered restitution as specified in the PSR. The court set conditions for the restitution based on the insurance companies' timelines for selling the vehicles and mandated immediate payment of a $4,000 fine and $500 to each truck dealer, with any unpaid balance to be addressed during the supervised release period.

Counsel for Britton argued on appeal that the district court erred by including the value of the Cadillac as relevant conduct and abused its discretion by delaying the restitution amount until after sentencing. Britton filed a pro se brief claiming that since his sentences were concurrent, the district court should not have combined the vehicle values. He contended the U.S. Attorney violated the plea agreement by not remaining silent at sentencing, asserted he did not commit any crime regarding the Cadillac, and claimed ineffective assistance of counsel, requesting to withdraw his plea.

On October 19, 1994, the district court amended its order, noting that insurance companies had sold the vehicles and reported losses within 60 days post-sentencing, ordering Britton to pay $2,896.19 to one company and $2,039 to another. Britton later claimed he could not pay restitution and that a state charge related to one vehicle had been improperly refiled against him.

The court referenced U.S.S.G. Sec. 1B1.3(a)(2), which states a defendant's base offense level must include all acts that are part of the same course of conduct as the conviction. The court found a similar modus operandi between Britton's truck thefts and the Cadillac theft, concluding that the district court did not err in this regard. It also ruled that the government did not breach the plea agreement by introducing evidence about the Cadillac, as it was permitted to present all relevant facts. The district court favored the government's version of events over Britton's claims regarding the Cadillac theft.

Regarding restitution, the court reiterated that sentencing courts have broad discretion to determine restitution amounts according to 18 U.S.C. Sec. 3663(b)(1)(A), which allows for compensation equivalent to the value of property lost or damaged. The court criticized the district court for not ordering restitution at sentencing, as required by law, but noted that the court allowed time for the insurance companies to minimize losses before determining Britton's financial responsibility. Ultimately, the appellate court found no abuse of discretion by the district court in its handling of the restitution order.

The district court amended its restitution order after the companies complied with requirements, and Britton did not contest the reasonableness of the eventual sale prices. Britton's pro se arguments were found to lack merit. In deciding on restitution, the court considered various factors, including the victim's loss, the defendant's financial resources, and any relevant circumstances. Britton claimed he had $33,000 in jewelry to pay restitution but was also provided a monthly payment plan during supervised release. The court did not abuse its discretion, and Britton's argument against aggregating vehicle losses was dismissed based on the sentencing guidelines, which allow for calculating aggregate harm to determine appropriate punishment. His claim regarding a refiled state charge violating his plea agreement was deemed more suitable for that specific case. Britton's ineffective-assistance claim, raised for the first time on appeal, should be pursued via a 28 U.S.C. Sec. 2255 motion. His request for copies of his plea agreement and sentencing transcript was granted due to his pro se status. The judgment of the district court was affirmed. The Presentence Report (PSR) noted Britton's criminal history and financial situation, recommending monitoring restitution needs due to uncertain losses from the stolen vehicles, while also highlighting his potential for monthly payments based on his skills as an auto mechanic. At sentencing, vehicle values were stipulated, totaling $71,397, despite Britton's objections regarding the Cadillac's relevance.

The probation officer's method for calculating restitution was contested by Britton, who claimed it infringed on his confrontation and due process rights. The district court accepted the Presentence Report (PSR) calculations, rejected Britton's objections, and sentenced him to two concurrent 42-month prison terms followed by three years of supervised release. Britton was ordered to pay restitution as outlined in the PSR, contingent upon insurance companies selling the vehicles within 60 days, or else forfeiting the restitution. Additionally, the court mandated he pay $500 to each of two truck dealers and a $4,000 fine, with immediate payment required and a structured monthly plan for any outstanding amounts during supervised release.

On appeal, Britton's counsel argued that the district court erred in including the Cadillac's value and abused discretion in setting the restitution amount at sentencing. Britton contended that since his sentences were concurrent, the vehicle values should not have been aggregated, and he claimed ineffective assistance of counsel, requesting to withdraw his plea. The district court later amended its order, confirming that the insurance companies sold the vehicles and establishing specific restitution amounts owed to each.

Regarding the Cadillac, the court noted that under the Guidelines, relevant conduct includes acts connected to the offense. The court found no clear error in linking Britton's thefts of the trucks and the Cadillac as part of a common scheme, affirming that the government did not breach the plea agreement by presenting evidence about the Cadillac, as it retained the right to disclose all relevant facts.

Britton's factual challenges regarding the theft of a Cadillac were dismissed by the district court, which favored the government's account over his testimony. The court emphasized that witness credibility findings are largely unreviewable on appeal. The district court has broad discretion in restitution decisions under 18 U.S.C. § 3663(b)(1), allowing it to order the return of property or payment equal to the greater of the property's value at the time of loss or at sentencing, minus any return value. The court's restitution order required insurance companies to minimize losses by selling vehicles within 60 days, with Britton liable for any difference in value only if they complied. The district court's decision was deemed appropriate, as the companies did comply and Britton did not contest the sale prices.

In determining restitution, the court considers the victim's loss, the defendant's financial resources, needs, and other relevant factors. The district court noted Britton's claimed $33,000 in jewelry assets while also allowing for a payment plan. Britton's arguments against aggregating vehicle losses were countered by guidelines that support calculating aggregate harm for appropriate punishment enhancement. His claim regarding a refiled state charge was deemed more suitable for that case. Additionally, Britton's ineffective assistance claim raised on appeal should be pursued through a 28 U.S.C. § 2255 motion. His request for copies of his plea agreement and sentencing transcript was granted due to his pro se status. The district court's judgment was affirmed.