### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3077

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D AVID L. P RICE

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12

‐ cr

‐ 0587

‐ 1

— Harry D. Leinenweber

, Judge

.

____________________

A RGUED S EPTEMBER 27, 2018

— D ECIDED O CTOBER 19, 2018

____________________

Before F LAUM

, M ANION

, and S YKES

, Circuit Judges

.

M ANION

, Circuit Judge

. David Price was convicted of 13

criminal charges related to a heroin distribution conspiracy he

operated in Chicago. The district court sentenced Price to 37

years’ imprisonment and ordered him to pay over $11,000 in

restitution. The primary issue on appeal is whether the statu

‐

tory provision that prohibits ordering restitution to a partici

‐

pant in the defendant’s o ff ense also prohibits ordering resti

‐

tution to the participant’s family members. We hold that the2 No. 17

‐ 3077

statute does not prohibit such a restitution order in cases in

which the family members are victims in their own right,

whose losses are not merely derivative of the participant’s

losses. We therefore a ffi rm the district court’s order.

I

A jury convicted Price of 13 criminal charges including

conspiracy to distribute heroin, money laundering, and fel

‐

ony fi rearm possession. At trial, the government o ff ered evi

‐

dence showing Price conducted a large

‐ scale heroin distribu

‐

tion operation in Chicago from 2005 until 2011. This conspir

‐

acy was incredibly lucrative for Price and he pro fi ted to the

tune of millions of dollars, which he used to support a lavish

and opulent lifestyle. The government presented evidence

that there were at least six co

‐ conspirators involved in the con

‐ spiracy. One of those co

‐ conspirators was Greg Holden.

During the course of a two

‐ day sentencing hearing, the

government presented evidence that Price was responsible

for the murder of Holden. Through the testimony of three wit

‐

nesses—a co

‐ conspirator, an IRS Special Agent, and Holden’s

fi ancée Roshunda King—the government sought to establish

that Holden had been collaborating with the police and that

Price murdered him to prevent him from testifying.

King, Holden’s longtime girlfriend and fi ancée, testi fi ed

that Holden had been arrested and then released on bond fol

‐ lowing the fi ling of federal charges. Holden had told King that

he feared for his life because Price wanted him dead and had

placed a hit on him. On the day of the murder, King left the

apartment she shared with Holden to go to work, while

Holden stayed home with two of their three children. Around

mid

‐ morning, King learned from her mother that somethingNo. 17

‐ 3077 3

was wrong, and she returned home to fi nd Holden dead in

the apartment.

The government played a recorded 911 call from Holden’s

seven

‐ year

‐ old daughter, in which she described her father

bleeding on the fl oor and not breathing. Videotaped inter

‐

views of Holden’s two daughters on the day of the murder

were also presented, in which his three

‐ year

‐ old daughter de

‐

scribed seeing a “monster” in a “mask” hurt her father. The

girls’ victim impact statements described how they watched

their father die as they tried to stop the bleeding of his gun

‐

shot wounds with paper towels.

After reviewing these statements and the testimony of two

other witnesses that connected Price to the murder, the dis

‐

trict court found by a preponderance of the evidence that

Price murdered Holden. The court connected Holden’s mur

‐

der to Price’s underlying crimes by applying the enhance

‐

ment for obstruction of justice, since Price’s purpose for kill

‐ ing Holden was to prevent him from testifying. At a separate

restitution hearing, the district court ordered Price to pay

$11,693 in restitution to reimburse Holden’s family members

for their out

‐ of

‐ pocket funeral expenses. This amount in

‐

cluded $4,720 to King (including $1,070 for the future pur

‐

chase of a headstone), $4,050 to Holden’s mother, and $2,923

to Ferguson Funeral Service, Inc., for the unpaid balance of

funeral expenses.

At sentencing, the district court assigned Price a criminal

history category of II. This was based on the calculations of

the supplemental presentence investigation report, which

added two criminal history points for two misdemeanor con

‐

victions of driving on a suspended or revoked license. One of

those convictions had resulted in a sentence of 12 months’4 No. 17

‐ 3077

non

‐ reporting probation, and the second resulted in a sen

‐

tence of four months’ supervised probation. The Guidelines

provide that misdemeanor convictions for this kind of o ff ense

resulting in a sentence of probation for one year or less are not

to be counted toward the criminal history score. U.S.S.G.

§ 4A1.2(c)(1). Although both of Price’s sentences were terms

of probation for one year or less, the presentence report con

‐

tained a typographical error that mistakenly identi fi ed the

four

‐ month sentence as having been for more than one year.

Despite the inclusion of these convictions, defense counsel

agreed with the criminal history calculation at the hearing.

The presentence report also calculated a total o ff ense level

of 54 under the Sentencing Guidelines, but Price’s o ff ense

level was treated as 43 because of the cap provided in the sen

‐ tencing table. U.S.S.G. § 5A cmt. n.2. The district court ac

‐ cepted the calculations of the presentence report. According

to the Guidelines, Price’s sentencing range at o ff ense level 43

was life imprisonment, regardless of what criminal history

category applied. See U.S.S.G. § 5A. Price was then sentenced

to concurrent sentences amounting to 37 years’ imprisonment

and ten years’ supervised release.

Price appeals both the restitution order and the criminal

history category score. He argues that (1) the district court

lacked statutory authority to order restitution reimbursing

Holden’s family for funeral expenses, and (2) the misde

‐

meanor convictions listed in the presentence report were in

‐ eligible to be counted as prior convictions for sentencing pur

‐

poses.No. 17

‐ 3077 5

II

Price failed to object to either the order of restitution or the

criminal history score calculation. We therefore review both

for plain error. F ED

. R. C RIM

. P. 52(b); United States v. Walker

,

746 F.3d 300, 308 (7th Cir. 2014). In the context of a criminal

sentence appeal, plain

‐ error review requires the appellant to

show that the district court (1) commi tt ed an error that was

(2) plain and obvious and that (3) a ff ects the appellant’s sub

‐

stantial rights in the sense that it made a di ff erence in his sen

‐

tence. United States v. Kruger

, 839 F.3d 572, 578 (7th Cir. 2016).

Even if the appellant meets those three criteria, we will only

exercise our discretion to reverse if the error “seriously a ff ects

the fairness, integrity, or public reputation of judicial pro

‐ ceedings.” Id. (quoting United States v. Olano

, 507 U.S. 725, 732

(1993)).

A

Price asserts that the district court erred by ordering resti

‐

tution to be paid to Holden’s family. When sentencing a de

‐

fendant in a criminal case for certain listed o ff enses (including

the o ff ense for which Price was convicted under the Con

‐

trolled Substances Act, 21 U.S.C. § 841(a)(1)), the district court

is authorized by statute to order restitution to any victim of

the o ff ense or to the victim’s estate if deceased. 18 U.S.C.

§ 3663(a)(1)(A). The statute goes on to de fi ne a “victim” of a

conspiracy as “any person directly harmed by the defendant’s

criminal conduct in the course of the scheme, conspiracy, or

pa tt ern” of criminal activity. Id. § 3663(a)(2).

The statute, however, also states that “in no case shall a

participant in [a listed o ff ense] be considered a victim of such6 No. 17

‐ 3077

o ff ense under this section.” Id. § 3663(a)(1)(A). Thus, Price ar

‐

gues, Holden cannot qualify as a victim because he was a co

‐ conspirator and participant in the drug conspiracy, and there

‐

fore the district court had no statutory authority to order res

‐

titution to reimburse Holden’s funeral expenses. Price con

‐

tends that this is plain error because, he asserts, the court

clearly acted without authority under the plain language of

the statute. Therefore, by requiring him to pay restitution

which the court had no statutory authority to order, the error

a ff ected his substantial rights. See United States v. Randle

, 324

F.3d 550, 558 (7th Cir. 2003) (“In requiring [the defendant] to

pay several thousand dollars in restitution, without a statu

‐

tory basis for doing so, the error a ff ects [the defendant’s] sub

‐

stantial rights.”).

Price’s argument rests on an unnatural construction of the

statute that would extend the o ff ense participant prohibition

to prohibit restitution to a participant’s family members who

are victims in their own right. That reading of the statute is

incorrect. Although Holden may have been a participant

within the meaning of the statute, the district court did not

order restitution be paid to Holden or to his estate. Rather, it

ordered the restitution be paid to his family members who

were directly harmed by his murder and thus were victims of

Price’s criminal conduct in the course of the conspiracy. 1

1 In its brief and at oral argument, the government argued in the alter

‐

native that Holden was no longer a participant in the offense at the time

of his murder because he had withdrawn from the conspiracy by cooper

‐ ating with the police investigation. We need not decide that question be

‐

cause, in any event, the restitution was ordered to Holden’s family and

not to Holden or his estate. Thus the restitution award does not come un

‐

der the statutory prohibition.No. 17

‐ 3077 7

King and her daughters were undoubtedly directly

harmed by Price’s criminal conduct. The testimony and evi

‐

dence provided at the sentencing hearing established that

Holden was murdered in the apartment he shared with King

and their children; that his two young daughters were present

in the apartment when the murder occurred; and that King

discovered his body. King and her daughters su ff ered this in

‐ credibly traumatic event as a direct result of Price’s criminal

conduct in furtherance of the underlying conspiracy. The dis

‐

trict court therefore acted within its statutory authority by

awarding restitution to King to reimburse Holden’s funeral

expenses that King paid out of pocket. Part of the restitution

payment went to Holden’s mother, Linda Holden, who also

paid a portion of the funeral expenses out of pocket. As

Holden’s mother and one of the fi nancers of the funeral, Ms.

Holden was also a victim in her own right. Put another way,

King and Ms. Holden’s losses are not derivative of Holden’s

losses: these women assert their claims standing in their own

shoes, not Holden’s. Cf. Rock Island Bank v. Aetna Cas. & Sur.

Co.

, 692 F.2d 1100, 1106 (7th Cir. 1982) (describing in insur

‐

ance context a derivative remedy as being subject to whatever

defenses may be asserted against the original claimant, in con

‐

trast to independent claims not subject to such defenses).

Although a portion of the restitution payment went to Fer

‐

guson Funeral Service, this was ultimately for the bene fi t of

King and Ms. Holden as well. The funeral home, in a sense,

subsidized a portion of the funeral costs because King and

Ms. Holden did not have the means to pay in full. 2 The resti

‐

2 The funeral home also provided the family with a $2,000 discount

for the funeral costs, but that amount was not included in the restitution8 No. 17

‐ 3077

tution statute speci fi cally contemplates restitution orders pur

‐ posed to reimburse funeral expenses. See 18 U.S.C.

§ 3663(b)(3). It would make li tt le sense to conclude that Con

‐

gress intended only to empower a district court to reimburse

those victims who are able to pay for the funeral in full and

not those who do not have the means to pay the bill. Further

‐

more, the statute elsewhere contemplates reimbursing third

parties, such as insurance companies, for compensation that a

victim has already received. Id. § 3664(j)(1). Given this statu

‐

tory basis, the district court did not plainly err by awarding

restitution to the funeral home for expenses still owed by King

and Ms. Holden.

Finally, Price argued in his reply brief that even if the re

‐

imbursement for past funeral expenses was proper, the dis

‐

trict court commi tt ed plain error by including in the restitu

‐

tion order the cost of the future purchase of a headstone. Price

asserts that this cost, since it had not yet been paid, was not

an “actual loss” that can be remedied through restitution, cit

‐ ing United States v. Dokich

, 614 F.3d 314, 319–20 (7th Cir. 2010),

for the proposition that restitution is limited to actual loss.

There are multiple problems with this argument. First and

foremost, Price has waived the issue by not raising it until his

reply brief. See Mendez v. Perla Dental

, 646 F.3d 420, 423–24

(7th Cir. 2011). Furthermore, we note that Dokich is inapposite

because that case was concerned with distinguishing between

the intended loss of a perpetrator of fraud and the actual loss

su ff ered by the victim; it has nothing to say about future

order: the $2,923 ordered to the funeral home was solely the unpaid

amount of the total funeral costs after the $2,000 discount had been ap

‐ plied. (Doc. 143, Gov’t’s Mot. for Restitution, at 2; Appellant’s Br. App. at

9.)No. 17

‐ 3077 9

losses a tt ributable to the defendant’s criminal conduct. See

Dokich

, 614 F.3d at 318–20. Because the issue was waived,

however, we decline to decide here whether a restitution

award for a future expense a tt ributable to the defendant’s

criminal conduct is proper.

B

The second issue on appeal presents an unusual situation

in which the litigants on both sides are in substantial agree

‐

ment on the merits. Price appeals the district court’s assign

‐

ment of criminal history category II as a plain error, but con

‐

cedes that it is unlikely the error a ff ected his sentence, and

thus remand is unnecessary. He states that he appeals this is

‐

sue only to preserve it in the possible event of resentencing.

The government agrees that an error was commi tt ed: Price’s

two misdemeanor convictions, both of which resulted in a

sentence of probation for one year or less, should not have

been included in the criminal history calculation, and thus he

should have been assigned criminal history category I. See

U.S.S.G. § 4A1.2(c)(1) (stating that a misdemeanor conviction

for driving with a suspended/revoked license resulting in

probation only counts toward the criminal history calculation

if the probation was for more than one year).

We agree that the inclusion of the misdemeanor convic

‐

tions in the criminal history calculation was an error. But be

‐

cause the advisory sentence at Price’s o ff ense level was life

imprisonment regardless of the applicable criminal history

category, and because the district judge departed downward

from the Guidelines with a sentence of 37 years’ imprison

‐

ment, the error did not a ff ect Price’s substantial rights. Kruger

,

839 F.3d at 580 ( fi nding defendant was not prejudiced by10 No. 17

‐ 3077

criminal history calculation error when the defendant’s re

‐ sulting advisory sentence would have been the same even if

the correct criminal history category had been applied).

Therefore, remand is not necessary. Id. at 580–81.

III

Because the restitution awards to King, Ms. Holden, and

Ferguson Funeral Service do not fall within the o ff ense partic

‐ ipant prohibition of 18 U.S.C. § 3663(a)(1)(A), and because any

error in calculating Price’s criminal history category had no

e ff ect on his sentence, we AFFIRM Price’s sentence and the

district court’s restitution order.