UNPUBLISHED

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Affirmed in part, vacated in part, and remanded by unpublished 

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-McKinney, 

Assistant United States Attorneys, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Dennis Bradley Sutton appeals the 200-month sentence 

and restitution order imposed 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-Shepard1-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).
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as recognized by United States v. Smith, 652 F.3d 1244, 1246 

(10th Cir. 2011); see also United States 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, it 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, raised 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 error, 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 raised in opening brief are deemed 

abandoned).
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was plain; and (3) the error affected 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 result 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). After 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 States v. Dawkins, 202 F.3d 711, 

716 (4th Cir. 2000) (requiring district court to “find that the 

manner of restitution ordered is feasible”).

The Government contends that the district court was 

not required to consider the § 3663(a)(1)(B) factors because the 

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 would 

pay restitution “in whatever amount the Court may order.” We do 

not read this language as expressing the agreement of the 
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parties to free the district court from its statutory obligation 

to make factual findings under § 3663(a)(1)(B) before imposing 

restitution.

Here, the 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 

findings 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 district court in this case provides 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 findings

relevant to these 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 and 
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remand to the district 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.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED