UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4307

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARSHALL DAILEY,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. David A. Faber, Chief

District Judge. (CR-03-172)

Submitted: June 21, 2006 Decided: July 10, 2006

Before WILKINS, Chief Judge, and MICHAEL and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,

Appellate Counsel, Edward H. Weis, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West

Virginia, for Appellant. Kasey Warner, United States Attorney,

Steven I. Loew, Assistant United States Attorney, Charleston, West

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

PER CURIAM:

Marshall Dailey (“defendant Dailey” or “Dailey”) challenges

the sentence of imprisonment and the restitution order imposed on

him in the Southern District of West Virginia on his convictions

for two controlled substance offenses and a firearms offense. He

does not challenge his three convictions, which resulted from a

jury trial. As explained below, we affirm defendant Dailey’s

sentence of seventy-eight months imprisonment, but we vacate the

restitution order and remand.

I.

On May 1, 2002, while working for the Trilateral Drug

Enforcement Network Team Drug and Violent Crime Task Force

(“TRIDENT”), Detectives John Dunn, Dustin Joynes, and Marvin

Robinson used David Hess, a confidential informant, in an attempt

to make a controlled purchase of prescription painkillers from

defendant Dailey. The detectives equipped Hess with an audio

recording and transmitting device (the “recording device”), and

dropped him off near Dailey’s home in Raleigh County, West

Virginia.

While at defendant Dailey’s home, Hess discussed the cost of

buying Percocet and Lorcet tablets with Dailey and his brother,

Orlando Dailey (“Orlando”). During that conversation, Orlando

asked Hess “if [he] was wired,” and then tore Hess’ shirt off of
3

him. Consequently, Orlando discovered the recording device and

ripped the microphone off Hess. When Detective Dunn, who was

listening in, recognized that the device had been discovered, he

called for backup support from Detectives Joynes and Robinson, and

rushed to the scene of the incident. When he arrived, he found

Hess, beaten and lying on the sidewalk. Defendant Dailey was

present and was holding the top portion of the recording device.

When Detectives Joynes and Robinson arrived, they called for

additional support from the local police, who arrested both Dailey

and Orlando. 

The police officers and detectives then obtained search

warrants for the house and two safes inside the house. In carrying

out the searches, the officers seized both safes, which contained

numerous firearms, ammunition, and an assortment of controlled

substances. During the searches, the detectives attempted to

recover the broken recording device, but could not find all of its

components. The device was damaged in the sum of $1300.

On July 29, 2003, a federal grand jury in Beckley, West

Virginia, returned a three-count indictment against defendant

Dailey, charging him with: distribution of hydrocodone, in

contravention of 21 U.S.C. § 841(a)(1) (Count One); distribution of

oxycodone, in violation of 21 U.S.C. § 841(a)(1) (Count Two); and

possession of a firearm in furtherance of a drug trafficking

offense, in contravention of 18 U.S.C. § 924(c)(1)(A)(I) (Count
1Dailey objected to the PSR’s recommendations, contending that

due process, informed by constitutional ex post facto principles,

precluded the sentencing court from imposing a sentence greater

than it could have imposed under the mandatory Guidelines scheme in

effect at the time of his offenses. Additionally, Dailey asserted

that his final offense level should be 12, and that the facts

supporting any enhancement applied against him had to be proven

beyond a reasonable doubt. However, the court overruled Dailey’s

objections to the PSR at his sentencing hearing.

4

Three). On April 30, 2004, after a one-day trial in Beckley, a

jury convicted Dailey of all three offenses. 

Dailey’s presentence report (the “PSR”) was submitted to the

district court on July 16, 2004. The PSR recommended a base

offense level of 12 on Counts One and Two, and a two-level

enhancement for obstruction of justice, for a total offense level

of 14. The PSR further calculated Dailey’s criminal history

category as II, yielding an advisory Guidelines sentencing range

for Counts One and Two of eighteen to twenty-four months. Pursuant

to the statute of conviction for Count Three (18 U.S.C.

§ 924(c)(1)(A)(I)), the PSR advised that the court was obliged to

impose a sentence of at least sixty months on Count Three, to run

consecutively to the sentence imposed on Counts One and Two.1 

Defendant Dailey’s sentencing hearing was conducted in the

district court on February 24, 2005. At that hearing, the court

calculated Dailey’s Guidelines sentencing range on Counts One and

Two as eighteen to twenty-four months. The court then asked

counsel for their positions on whether an order of restitution with

respect to the damaged recording device would be appropriate.
2

Our citations to “J.A. ” refer to the contents of the Joint

Appendix filed by the parties in this appeal. 

5

Defendant Dailey responded that restitution was not appropriate

because the damage to the recording device was not directly caused

by the conduct constituting his offenses of conviction. He

asserted that “the offenses of conviction are possessing a gun and

distributing drugs. They have nothing to do with destruction of

Government property.” J.A. 273.2 The Government, on the other

hand, contended that, although it did not “know any case law that

goes one way or the other,” the court was authorized to order

restitution under the drug and firearms offenses, because “[i]t’s

clearly related to these counts. It was during the drug offense

that [defendant Dailey] . . . ripped off the wire and damaged the

property.” J.A. 274. Consequently, the Government maintained, a

restitution order for the damaged recording device, in the sum of

$1300, would be appropriate. The court thereafter concluded that

the damage to the recording device was sufficiently related to the

offenses of conviction to allow for an order of restitution. 

The court then sentenced defendant Dailey to concurrent terms

of eighteen months each on Counts One and Two, and a consecutive

term of sixty months on Count Three, for a total of seventy-eight

months in custody. The court further ordered Dailey to pay $1300

in restitution to TRIDENT. Dailey has timely noted this appeal,

and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
6

II.

We review a district court’s order of restitution for abuse of

discretion. United States v. Vinyard, 266 F.3d 320, 325 (4th Cir.

2001). By definition, however, a court abuses its discretion when

it makes an error of law. EEOC v. Navy Federal Credit Union, 424

F.3d 397, 405 (4th Cir. 2005). We review questions of law, such as

statutory interpretation issues, de novo. United States v. Turner,

389 F.3d 111, 119 (4th Cir. 2004). And we review for

reasonableness a sentence imposed under the advisory Sentencing

Guidelines regime. United States v. Booker, 543 U.S. 220, 261

(2005).

III.

A.

In his first contention on appeal, Dailey maintains that the

district court erred in ordering him to pay $1300 in restitution to

TRIDENT for the damage caused to the recording device. We are

constrained to agree. The federal sentencing courts possess no

inherent authority to order restitution, and they may do so only

when explicitly authorized by statute. See United States v.

Donaby, 349 F.3d 1046, 1052 (7th Cir. 2003). The Victim and

Witness Protection Act of 1982 (the “VWPA”) provides, in relevant

part, that a court, in sentencing a defendant convicted of an

offense under 21 U.S.C. § 841 (the statute of conviction on Counts
7

One and Two), may order the defendant to make restitution to any

victim of the offense. See 18 U.S.C. § 3363. Additionally, the

Mandatory Victims Restitution Act (the “MVRA”) provides, as

pertinent, that a sentencing court shall award restitution to

victims of certain categories of offenses, including “a crime of

violence, as defined in [18 U.S.C. §] 16.” 18 U.S.C. § 3663A. We

have recognized that the use or possession of a firearm in

furtherance of a drug offense, in violation of 18 U.S.C. § 924(c)

(the statute of conviction on Count Three), is a crime of violence

as defined in 18 U.S.C. § 16(b), thereby making restitution

mandatory to a victim under the MVRA. See United States v. Myers,

280 F.3d 407, 416-17 (4th Cir. 2002). The district court therefore

possessed discretion, under the VWPA, to order restitution to the

victims of Dailey’s Counts One and Two offenses, and it was

required, under the MVRA, to award restitution to the victims of

the Count Three offense. 

TRIDENT, the Drug and Violent Crimes Task Force, was not,

however, a “victim” of any of defendant Dailey’s offenses in this

case. Under both the VWPA and the MVRA, a “victim” is defined as

a person directly and proximately harmed as a result of

the commission of an offense for which restitution may be

ordered including, in the case of an offense that

involves as an element a scheme, conspiracy, or pattern

of criminal activity, any person directly harmed by the

defendant’s criminal conduct in the course of the scheme,

conspiracy, or pattern.
3

The VWPA and MVRA also authorize a sentencing court to award

restitution if the parties have so agreed in a plea agreement. See

18 U.S.C. § 3663(a)(3); 18 U.S.C. § 3663A (a)(3). These statutory

provisions are irrelevant here as defendant Dailey was convicted

after a jury trial, rather than pursuant to a guilty plea. 

8

§ 3663(a)(2), § 3663A(a)(2). In our decision in United States v.

Blake, we recognized that, in order to qualify as a victim under

the VWPA, one must be directly and proximately harmed by either:

(1) the conduct underlying an element of the offense of conviction;

or (2) an act taken in furtherance of a scheme, conspiracy, or

pattern of criminal activity, which is an element of the offense of

conviction. See 81 F.3d 498, 506 (4th Cir. 1996); accord United

States v. Davenport, 445 F.3d 366, 373-74 (4th Cir. 2006)

(construing “victim” under the MVRA). A person who has been harmed

by conduct not falling within one of these scenarios is not

entitled to an award of restitution by a sentencing court. Blake,

81 F.3d at 506.3 Since none of Dailey’s offenses of conviction

have as an element a scheme, conspiracy, or criminal pattern, the

only inquiry left to us is whether the damage suffered by the

recording device was “conduct underlying an element of the offense

of conviction.” See Davenport, 445 F.3d at 373-74; Blake, 81 F.3d

at 506. 

The Government contends that TRIDENT is a victim of Dailey’s

offenses because his destruction of the recording device was “part

of the ongoing commission of” his drug and firearm offenses of

conviction and was “inextricable” from those offenses. Appellee’s
9

Br. at 8-9. Unfortunately for the Government and this contention,

however, we have heretofore rejected the proposition that

restitution may be ordered for conduct “inextricably intertwined”

with the offense of conviction, merely because of a factual

connection between the two. See United States v. Broughton-Jones,

71 F.3d 1143, 1149 (4th Cir. 1995). We cannot, therefore, extend

Dailey’s drug and firearms offenses to include his destruction of

the recording device, simply because of a temporal proximity

between the events. 

Moreover, Blake proscribes us from concluding that Dailey’s

damage to the recording device, insofar as it evidenced his

consciousness of guilt, constitutes conduct underlying any

knowledge or intent element of his drug and firearms offenses. In

Blake, the defendant, who had pleaded guilty to the use of

unauthorized credit cards, was ordered to make restitution to the

card owners as part of his sentence. See 81 F.3d at 502. Blake’s

offense of conviction had four elements, including the intent to

defraud. See id. at 506. We there determined that, although his

stealing of credit cards was evidence of Blake’s intent to defraud,

the specific conduct underlying the intent element did not include

theft of the credit cards. See id. The restitution order against

Blake was therefore deemed inappropriate. See id. at 507; accord

Davenport, 445 F.3d at 373-74 (concluding that conduct underlying

elements of fraudulent use of credit card offense did not include
10

theft of card, and restitution was therefore inappropriate). By

analogy, we are foreclosed from concluding that the damage to the

recording device in Dailey’s case (although evidence of

consciousness of guilt), is conduct underlying a knowledge or

intent element of an offense of conviction. TRIDENT was therefore

not, under these facts, a “victim” of any of Dailey’s offenses of

conviction, and the sentencing court erred in ordering Dailey to

make restitution to TRIDENT.

B.

Defendant Dailey further contends that his sentence was

unreasonable under the standards set forth in United States v.

Booker, 543 U.S. 220 (2005). We are obliged to disagree. First,

the district court, in imposing sentence, properly followed the

procedures we established in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), by calculating Dailey’s sentencing range under

the Guidelines and then considering the factors provided in 18

U.S.C. § 3553(a). Second, the sentence imposed fell within the

advisory Guidelines range and is thus “entitled to a rebuttable

presumption of reasonableness.” United States v. Moreland, 437

F.3d 424, 433 (4th Cir. 2006). In attempting to rebut this

presumption, Dailey asserts only that his sentence is unreasonable

because of his need for medical care. Although his medical needs

may have justified a variant sentence, see § 3553(a)(1) (providing
4We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before us and

argument would not aid in the decisional process. 

11

that sentencing courts must consider “the nature and circumstances

of the offense and the history and characteristics of the

defendant”) and § 3553(a)(2)(D) (providing that sentencing courts

must consider “the need for the sentence imposed . . . to provide

the defendant with needed . . . medical care”), the district court

properly weighed each of these factors. As a result, it sentenced

at the bottom of the Guidelines range and recommended that Dailey

be assigned to a facility which would be able to treat his medical

condition. In these circumstances, the fact that the court did not

impose a sentence below the advisory Guidelines range, is not,

standing alone, sufficient to rebut the presumption of

reasonableness.

IV.

Pursuant to the foregoing, we affirm the district court’s

sentence of imprisonment, but we vacate its restitution order and

remand for such other and further proceedings as may be

appropriate.4

 AFFIRMED IN PART,

 VACATED IN PART,

 AND REMANDED