United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-4015

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Larry James Reynolds, *

*

Defendant - Appellant. *

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Submitted: June 21, 2005

Filed: December 23, 2005

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Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.

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LOKEN, Chief Judge.

In late 2003, Larry James Reynolds made two phone calls to his stepfather, R.

G. Edmondson, threatening harm unless Edmondson paid money he owed Reynolds’s

mother from a divorce settlement. In between the two calls, a residence and 250 bales

of hay owned by Edmondson were destroyed by suspicious fires. After Reynolds was

charged in a three-count superseding indictment, he entered into a plea agreement in

which he pleaded guilty to making a willful threat by telephone in violation of 18

U.S.C. § 844(e). The government then dismissed the two more serious charges. The

district court sentenced Reynolds to 24 months in prison and ordered him to pay

Edmondson $45,000 in restitution. Reynolds appeals his sentence. The most difficult

issue is whether the district court improperly ordered restitution because Edmondson’s
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losses did not result from the offense of conviction. We reverse the award of

restitution and otherwise affirm. 

I. The Restitution Issue

Reynolds pleaded guilty to Count Two of the three-count indictment, which

charged that on December 2, 2003, by use of a telephone, he “willfully threatened to

intimidate R.G. Edmondson and to unlawfully destroy real property belonging to R.G.

Edmondson, by means of fire, in violation of” 18 U.S.C. § 844(e). In exchange for

his plea, the government dismissed two charges calling for greater punishment -- using

extortionate means to collect credit in violation of 18 U.S.C. § 894 and using fire to

commit a felony in violation of 18 U.S.C. § 844(h). In the Plea Agreement, Reynolds

acknowledged that an order of restitution was part of the maximum sentence that

could be imposed for his violation of Count Two. The Presentence Investigation

Report recommended that “restitution is required” pursuant to 18 U.S.C. § 3663 and

U.S.S.G. § 5E1.1. Reynolds objected to that recommendation.

At sentencing, Edmondson testified that the reasonable value of the property

destroyed by fire was $45,000. The district court ordered Reynolds to pay this amount

in restitution. On appeal, Reynolds does not contest the amount of restitution

awarded. Rather, he argues that no loss resulted from his threatening phone call,

which was made after the fires, and restitution may only be awarded “for the loss

caused by the specific conduct that is the basis of the offense of conviction.” Hughey

v. United States, 495 U.S. 411, 413 (1990). We review this issue of law de novo. See

United States v. Bush, 252 F.3d 959, 962 (8th Cir. 2001).

The Victim and Witness Protection Act provides that a sentencing court may

order “that the defendant make restitution to any victim of such offense.” 18 U.S.C.

§ 3663(a)(1)(A). In Hughey, the Supreme Court held that “such offense” does not

include other charges dismissed by the government in exchange for a guilty plea. In
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response to Hughey, Congress amended the statute to provide that the term “victim”

includes, “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.” 18 U.S.C. § 3663(a)(2).

In addition, the statute provides that the court may order restitution “to the extent

agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3). 

Reynolds’s offense of conviction was a phone threat that violated 18 U.S.C. §

844(e). That statute provides in relevant part:

(e) Whoever, through the use of the . . . telephone . . . willfully

makes any threat . . . concerning an attempt or alleged attempt being

made, or to be made, to . . . intimidate any individual or unlawfully to

damage or destroy any . . . real or personal property by means of fire or

an explosive shall be imprisoned for not more than 10 years . . . .

At oral argument, the government argued that the scheme or pattern described in 18

U.S.C. § 3663(a)(2) is implicit in § 844(e) offenses, noting the protection schemes

perpetrated by urban mobsters early in the twentieth century -- demand money from

a shopkeeper to protect his stores; if money is not paid, blow up store #1 and demand

money to protect other stores; if money still is not paid, blow up store #2 and demand

money; and so forth. We agree that the threats in this hypothetical scenario violate

§ 844(e). We also agree that the demands describe “a scheme . . . or pattern of

criminal activity.” Of course, not all § 844(e) threat offenses involve this type of

underlying scheme. See, e.g., United States v. Spruill, 118 F.3d 221, 227-28 (4th Cir.)

(threat to blow up federal building), cert. denied, 522 U.S. 1006 (1997). More

significantly, in our view, proof of an underlying scheme or pattern of criminal

activity is not an element of a § 844(e) offense, as 18 U.S.C. § 3663(a)(2) requires,

just as proof of a scheme or pattern was not an element of the larceny offense at issue

in United States v. Fogg, 409 F.3d 1022, 1028 (8th Cir. 2005). Therefore, under

Hughey, restitution may be awarded only for the amount of loss caused by the
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The result would be no different under the Mandatory Victim Restitution Act.

See 18 U.S.C. § 3663A(a)(2). Therefore, we need not consider whether a § 844(e)

offense is a “crime of violence” within the meaning of 18 U.S.C. § 3663A(c)(1)(A)(i).

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threatening phone call that violated § 844(e), which was zero, unless Reynolds agreed

to pay restitution in the plea agreement. Although Reynolds acknowledged in the plea

agreement the possibility that restitution might be awarded, that acknowledgment fell

well short of agreement. Accordingly, the award of restitution was beyond the district

court’s authority under 18 U.S.C. § 3663(a).1

II. Other Issues 

A. The mandatory guidelines sentencing range that led to Reynolds’s twentyfour month prison term included a six level enhancement under U.S.S.G.

§ 2A6.1(b)(1), which applies when a threat offense “involved any conduct evidencing

an intent to carry out such threat.” Reynolds argues that the enhancement violated his

Sixth Amendment rights as construed in United States v. Booker, 125 S. Ct. 738

(2005). However, in the Plea Agreement, Reynolds expressly agreed “not to appeal

or otherwise challenge the constitutionality or legality of the Sentencing Guidelines.”

This appeal waiver plainly included the Booker issue Reynolds now seeks to raise on

appeal. See United States v. Amburn, 412 F.3d 909, 918 (8th Cir. 2005); United

States v. Reeves, 410 F.3d 1031, 1035 (8th Cir.), cert. denied, 126 S. Ct. 469 (2005).

We enforce an appeal waiver that is reflected in a plea agreement so long as the

defendant knowingly and voluntarily waived his right to appeal and the waiver does

not result in a miscarriage of justice. See United States v. Andis, 333 F.3d 886, 889

(8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003). Reynolds acknowledged in the

Plea Agreement and again at sentencing that his appeal waiver was knowing and

voluntary. Booker did not render the plea involuntary or unintelligent. Reeves, 410

F.3d at 1035. Enforcing the waiver will not result in a miscarriage of justice as
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Reynolds’s sentence is within the statutory range authorized for the offense of

conviction. See Andis, 333 F.3d at 892.

B. Reynolds further argues that the district court erred in imposing the

§ 2A6.1(b)(1) enhancement. This contention is not barred by his appeal waiver,

which covered only the legality of the Guidelines and matters agreed to in the Plea

Agreement. The district court found that “sufficient facts are admitted [in the Plea

Agreement] to support the six-[level] enhancement.” Reynolds argues that the “only

possible basis” for the enhancement was the fire damage to Edmondson’s property

charged in Count III, which was dismissed, and no evidence was presented at

sentencing or in the PSR proving that Reynolds was somehow involved in the fires.

In Paragraph 2 of the Plea Agreement, Reynolds admitted that he called

Edmondson on November 16, 2003 and said, “I’m going to put you down,” unless

Edmondson paid money owed to Reynolds’s mother within two weeks. Fifteen days

later, Edmondson’s property was destroyed by fire. The Missouri State Fire Marshal

suspected arson, began a criminal investigation, and advised Edmondson to put a

recording device on his telephone. The day after the fires, Reynolds called

Edmondson and said in a recorded conversation, “give her what you owe her or you’ll

have nothing left,” and “You got a week, bye.” In applying this enhancement, the

district court may consider “conduct that occurred prior to the offense [that is]

substantially and directly connected to the offense, under the facts of the case taken

as a whole,” including multiple threats. U.S.S.G. § 2A6.1, comment. (n.1); see United

States v. Bellrichard, 62 F.3d 1046, 1051 (8th Cir. 1995), cert. denied, 517 U.S. 1137

(1996). Even if multiple threats alone are not enough to support the six-level

enhancement -- an issue we did not decide in United States v. Rose, 315 F.3d 956, 958

(8th Cir.), cert. denied, 538 U.S. 1067 (2003), and need not decide here -- the district

court did not clearly err in finding that the facts admitted in the Plea Agreement

reflected “conduct evidencing an intent to carry out” Reynolds’s repeated threats

within the meaning of U.S.S.G. § 2A6.1(b)(1). 
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 The judgment of the district court is reversed in part and the case is remanded

with directions to strike the $45,000 Total Restitution award from the Judgment in a

Criminal Case dated December 1, 2004.

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