**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 12**  **- 4297** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. DENNIS BRADLEY SUTTON , Defendant

- Appellant
.

Appeal from the United States District Court for the Eastern District of North Carolina , at Greenville
. Louise W. Flanagan , District Judge. ( 4:10

- cr - 00096

- FL

- 1 )

Submitted : January 15, 2013 Decided: January 24, 2013

Before MOTZ, SHEDD, and THACKER , Circuit Judges.

Affirmed in part, vacated in part, and remanded by un published per curiam opinion
.
Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May

- Parker, Yvonne V. Watford

- McKinn ey, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Dennis Bradley Sutton appeals the 200

- month sentence and restitution order im posed following his guilty plea to possession of a firearm by a convicted felon and aiding and abetting the same, in violation of 18 U.S.C. §§ 922(g)(1), 924, 2 (2006), and possession of a stolen firearm and aiding and abetting the same, in violation of 18 U.S.C. §§ 922(j), 924, 2
. On appeal, Sutton contends that the district court erred in sentencing him as an armed career criminal and in imposing restitution. We affirm in part and vacate in part.
Sutton first contends that the district court erroneously relied on non

- Sh epard 1

- approved sources to determine that his prior breaking and entering convictions were distinct violent felonies. We conclude that Sutton expressly waived his right to contest the armed career criminal designation. See United States v. Olano , 507 U.S . 725, 733 (1993) ( “ [W] aiver is the intentional relinquishment or abandonment of a known right
. ” (internal quotation marks omitted)); United States v. West , 550 F.3d 952, 958

- 59 (10th Cir. 2008) (finding that defendant waived challenge to prior conviction as predicate offense for purposes of the Armed Career Criminal Act by affirmatively conceding issue in district court), partially overruled on other grounds

1 Shepard v. United States , 544 U.S. 13 (2005)
.3 as recognized by United States v. Smith , 652 F.3d 1244, 1246 (10th Cir. 2011); see also United Sta tes v. Taylor , 659 F.3d 339, 348 (4th Cir. 2011) (“[T]he defendant is deemed bound by the acts of his lawyer

- agent.” (internal quotation marks omitted) ) , cert. denied , 132 S. Ct. 1817 (2012). Therefore, we will not consider Sutton’s challenge to the armed career criminal designation on appeal. See United States v. Claridy , 601 F.3d 276, 284 n. 2 (4th Cir. 2010 ) ( “When a claim of . . . error has been waived, i t is not reviewable on appeal.”). Sutton also contends that the district court erred in ordering restitution to two businesses. 2 Generally, “[w]e review a district court’s restitution order for abuse of discretion.” United States v. Leftwich , 628 F.3d 665, 667 (4th Cir. 2010). None of the specific claims Sutton has raised on appeal were, however, r aised in the district court. Thus, “our review is limited to plain error.” United States v. Ubakanma , 215 F.3d 421, 427 (4th Cir. 2000). To demonstrate plain erro r, a defendant must show that: (1) there was an error; (2) the error

2 Sutton does not challenge on appeal the restitution payable to three individuals. Thus, he has forfeited appellate review of that portion of the restitution order. See Edwards v. City of Goldsboro , 178 F.3d 231, 241 n.6 (4th Cir. 1999) (concluding that issues not ra ised in opening brief are deemed abandoned)
.4 was plain; and (3) th e error affe cted his “substantial rights.” Olano , 507 U.S. at 732
. Under the Victim Witness Protection Act (VWPA) , the district court must consider the following factors prior to imposing restitution: “the amount of loss sustained by each victim as a r esult of the offense; and . . . the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’ s dependents, and such other factors as the court deems appropriate .” 18 U.S.C. § 3663(a)(1)(B) (2006) . A fter determining the amount owed to each victim, the court must consider the defendant’s financial resources and assets, projected earnings and income, and other financial obligations in setting the payment schedule. 18
U.S.C. § 3664(f)(2); see United Sta tes v. Dawkins , 202 F.3d 711, 716 (4th Cir. 2000) (requiring district court to “find that the manner of rest itution ordered is feasible”). The Government contends that the district court was not required to consider the § 3663(a)(1)(B) factors because th e parties agreed to restitution in the plea agreement. While the VWPA does permit the district court to order restitution “to the extent agreed to by the parties in a plea agreement, ” 18 U.S.C. § 3663(a)(3) , the parties here merely agreed that Sutton woul d pay restitution “in whatever amount the Court may order.” We do not read this language as expressing the agreement of the5 parties to free the district court from its statutory obligation to make factual findings under § 3663(a)(1)( B) before imposing

res titution. Here, t he district court made no factual findings relevant to restitution. Nonetheless, “ we have held that a sentencing court satisfies its duty to make specific findings if it adopts a presentence report that contains adequate factual finding s to allow effective appellate review of the fine or restitution.” United States v. Karam , 201 F.3d 320, 329 (4th Cir. 2000) (internal quotation marks omitted). Our review of the record reveals that the presentence investigation report adopted by the dis trict court in this case provide s some relevant factual findings as to Sutton’s future earning capacity . It does not, however, contain sufficient factual findings to determine whether the businesses to which restitution was ordered were “victims
. ” See 18 U.S.C.
§ 3663(a)(2) (defining “victim” as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered”). Thus, we conclude that the district court’s failure to make sufficient factual find ings relevant to the se businesses , as required by the VWPA , was plain error that affected Sutton’s substantial rights. Accordingly, while we affirm Sutton’s convictions and sentence of imprisonment, we vacate the restitution order and6 remand to the distr ict court for additional factual findings consistent with this opinion . We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
A FFIRMED IN PART , VACATED IN PART , AND REMANDED