### IN THE UNI TED STAT ES COURT OF APPEALS FOR THE FIF TH CIRCU IT

No. 11-50369

UNITED STATES OF AMERICA, Plaintiff–Appellee,
v. NICHOLAS ESPINOZA, also known as Nick Espinoza, Defendant–Appellant.

Appeal from the United States District Court for the Western District of Texas

Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge. Defendant Nicholas Espinoza appeal s f rom his sentence after pleading guilty to being a felon in possession o f a firearm in violation of 18 U.S.C. § 9 2 2 ( g ). Because restitution to a pawn shop to which Espinoza sold stole n firearms that he unlawfully possessed was not authorized by 18 U.S.C. § 3663 under the facts of t h i s case, we vacate and remand for resentencing. We additionally conclude that the district court plainly err e d in calculating Espinoza’s criminal history but do not reach the question of whether that error affected Espinoza’s substantial rights since resentencing will occur. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D April 17 , 20 12 Lyle W . Cayce Clerk Case: 11-50369 Document: 00511823819 Page: 1 Date Filed: 04/17/2012No. 11-50369
I In late January 2010, the Fredericksburg, Texas Police Department received a report that four firearms had been stolen from a hom e
. I n e a r l y February, a detective received a phone call from a confide n t i al informant who reported that Espinoza and his wife, Pamla Meier, had be e n p a w n i ng stolen property in S a n Antonio and Austin. Investigators subsequently learned that three o f t h e four stolen firearms had been pawned at Cash America Pawn in Austin (Cash America) by Espinoza for a total of $525. A criminal record check revealed that Espinoza had b e e n convicted of two prior felonies in Texas. Espinoza was subsequently indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Espinoza pleaded guilty

. E s p i n o z a ’ s c o u n s e l m a d e clear that Espinoza was admitting to possessing and pawning the firearms but not stealing them. The court accepted Espinoza’s plea, and a Pre sentence Investigation Report (PSR)

was prepared. The total offense level was calculated to be fifteen. In addition, the PSR attributed five criminal history points to Espinoza for three countable offenses and added two more because the instant offense was committed while

on probation. Consequently, the PSR calculated Espino z a ’ s G u idelines range of imprisonment to be thirty to thirty-seven months. It also recommended that Espinoza be ordered to pay $525 in restitution to Cash America, as the sto len firearms were seized and returned to their owner. Espinoza only objected to the recommendation that he be required to pay restitution. The district court overruled that objection and adopted the findings and r ecommendations of the PSR. The district court subsequently sentenced Espino z a to thirty months of imprisonment and three years of supervised

r e l e a s e. The district court also ordered that Espinoza pay restitution in the amount of $525 to Cash America.

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II Espinoza objected to the award of restitution at his sentencing, and the issue is therefore preserved. Whether the law permits restitution to be imposed as part of a sentence in a particular case is reviewed de novo. 1 “A federal court cannot order restitution ‘except when autho r i z e d by statute.’” Under the Victim and Witness Protection Act (VWPA), a district court

2
may order a defendant to pay restitution to any victim of an offense under Title 18 of the United States Code as well as victims of a number of other enumerated offenses. Under the Mandatory Victims Restitution Act (MVRA) , a district

3
court is required to order a defendant to pay restitution to a victim under certain circumstances, which include those in which the victim suffered a pecuniary loss as a result of a crime of violence or an offense against property under Title 18, including any such offense committed by fraud or deceit. Under both statutes, 4 restitution can b e a w a r d e d to a “victim,” defined as “a person directly and proximately harmed as a result 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 perso n directly harmed by the defenda n t ’ s c r iminal conduct in the course of the scheme, conspiracy, or pattern.” Relying on the Supreme Court’s decision in Hughey v. United States ,

5 6

we have held that “a district court can award restitution to victims of the offense,

Uni ted States v. Ar le dge , 553 F.3d 881, 897 (5t h Cir. 2008) (c itin g Uni ted States v. 1 Ada ms , 363 F.3d 363 , 365 (5t h Cir

. 2004) ).

Uni ted States v. Love , 431 F.3d 477, 479 (5t h Cir. 2005) (quo ting Uni ted States v. Bok , 2 156 F.3d 157 , 166 (2d Cir

. 1998) ).
18 U. S. C. § 3 663( a)( 1)( A). 3
Id. § 3663A( a)( 1), ( c) (1)

. 4
Id. §§ 366 3(a) (2) , 3663A( a)( 2). 5

495 U .S

. 411 (199 0). 6
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but the restitution award can encompass only those losses that resulted directly from the offense for which the defendant was convicted.” 7 The record reflects that restitution was imposed pursuant to § 3663. We first note that the probation officer appears to have re c ommended, and the district court appears to have imposed, restitution partially because Espinoza’s possession of the firearms was part of a scheme in which he would steal and then sell property, including firearms. However, acts in furtherance of a conspiracy, scheme, or pattern of cr i m i n a l a ctivity can only support restitution if the scheme, conspiracy, or pattern is an element of the offense. Espinoza was charged and 8 pleaded guilty to being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g). This offense does not “involve[] as an element a scheme, conspiracy, or pattern of criminal activity.” Therefore, the only ground for a restitution award 9 pursuant to § 3663 is if Cash America was directly and proximately harmed as a result of Espinoza’s possession of the firearms. Espinoza was co n v i c ted only of possessing firearms, not stealing or illegally transferring firearms. In United States v. Mancillas , the defendant pleaded guilty to “know i n g l y p o s s e s s i n g c o u n t e r f e i t e d s e c u r i t i e s” and “knowingly possessing implements designed to m a k e c o u n t e r f e i t e d s e c urities with the intent

Uni ted States v. Ma turin , 488 F.3d 657, 660- 61 (5t h Cir. 2007) (c itin g Hu ghey , 495 7 U. S. at 413) ; see al so Uni ted States v. Ma nci ll as , 172 F.3d 341, 343 (5t h Cir. 1999) (p er cur iam ) (“ We ther efo re hold that a def enda nt se nten c e d unde r the pr ovis ions of the MVRA is only
res p o nsi ble for res tit utio n for the cond uct unde rlying the off ens e for wh ich he has been convic ted .” ).
18 U. S. C. § 3 663( a)( 2). 8
See id. ; Uni ted States v. Yba rra , 70 F.3d 362, 365 (5t h Cir. 1995) (“ In ord er to convic t 9
one for fel on in pos se ss ion of a fir earm , the governm ent mus t pr ove that the def enda nt (1) has been convic ted of a fel ony; (2) pos se ss ed a fir earm in or aff ect ing inte rs tat e com me rce ; and (3) kn ew that he wa s in pos se ss ion of the fir earm .” (c itin g Uni ted States v. Da ncy , 861 F.2d 77, 81 ( 5th Cir. 198 8))

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that they be so used.” The district court ordere d t h a t the defendant pay 1 0 restitution to five check-cashing entities. We reversed th e r e s titution order, 1 1 holding that “[the defendant’s] possession of the implements with the intent to

use them in the future can in no way be said to directly and proximately have caused a previous harm, s pecifically, the harm to the check-cashing companies.” Because the restitution order was not for conduct underlying the

1 2 offense for which the defendant had been convicted, we held that restitution was not proper. Similarly, in United States v. Hayes , the defendant pleaded guilty

1 3
to possession of stolen mail “on or about” March 31, 1989. The stolen mail was 1 4 three credit cards. The district court ord e r e d that the defendant pay 1 5 restitution to the credit card companies for charges he had made in the months prior to March 31. We vacated the restitution order, observing that “Hayes 1 6 pleaded guilty to an indictment charging him with mere possession on one day, not with conduct or a scheme that resulted in losses to any victims.” We noted 1 7 that the loss was not from Hayes’s possession of the cards bu t from Hayes’s unauthorized use of the cards. 1 8

Ma nci ll as , 172 F.3d at 341

. 1 0
Id. at 341 -42. 1 1
Id

. at 343. 1 2
Id. 1 3

32 F.3d 171 , 172 (5t h Cir

. 1994)

. 1 4
Id. 1 5
Id. 1 6
Id. 1 7
Id. at 173

. 1 8
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The harm to the pawn shop in this case is not based on the conduct underlying Espinoza’s offense—possess i o n o f a f i r e a r m

—

b u t r a t h e r t h e t heft and subsequent sale of stolen firearms. Espinoza was not charged with or convicted of possession and transfer of stolen firearms. Mere possession of a firearm is not the equivalent of transferring stolen firearms. The Government argues that the harm to Cash America would not have occurred “but for” Espinoza’s possession of the firearm s
. A ssuming, without deciding, that a rel evant inquiry is whether the harm was a reasonably foreseeable result of the offense, the fact remains that Espinoza was not charged either with stealing firearms or illegally transferring firearms. It may be that 1 9 2 0 the harm here would be a foreseeable result of stealing firearms, and it is even

more l i k e l y that it would be a foreseeable result of illegally transferring firearms. However, there is nothing inherent in the possess i o n of firearms by

a felon that would make one foresee that those firearms were stolen and would later be transfer r e d , c a u s i ng financial harm to the transferee. Accordingly, Cash America was not a “victim” within the meaning of the VWPA. The district court erred in or d e ring restitution, and the portion of the sentence imposin g r estitution must be vacated. It is unclear whether the

r e m ainder of the sentence should be vacated. Our court has in s o m e c a s e s

See 18 U. S. C. § 922( u) (“ It sha ll be unlaw ful for a per so n to steal or unlaw full y tak e 1 9
or car ry aw ay fr om the per so n or the pr em ise s o f a p e r so n wh o is lice nse d to engage in the bus i n es s of im por ting, man ufac tur ing, or dea ling in fir earm s, any fir earm in the lice nse e's bus ines s invent ory that has been shi pp ed or tra nsp ort ed in inte rs tat e or for eign com me rce .” ).

See 18 U. S. C. § 922(

j ) (“ It sha ll be unlaw ful for any per so n to rec eive, pos se ss , 2 0
conc eal, st ore , bart er, se ll, or dis pos e of any st olen fir earm or st olen amm uniti on, or ple dge or acc ept as se cur ity for a loan any st olen fir earm or st olen amm uniti on, w h i c h i s m o v i ng as, wh ich is a par t of, wh ich cons tit utes , or wh ich has been shi pp ed or tra nsp ort ed in, inte rs tat e or for eign com me rce , eit her bef ore or aft er it wa s st olen, kn ow ing or having reas onable caus e to belie ve t hat the fir earm or am mun itio n w as st olen. ”)
6 Case: 11-50369 Document: 00511823819 Page: 6 Date Filed: 04/17/2012No. 11-50369

v a c a t ed the entire sentence when an order of restitution was vacated, but in 2 1 other cases, our court has vacated only the restitution order and left in place a term of imprisonment that was also included in the sentence. We conclude that 2 2

See, e. g. , Uni ted States v. Hi ckm an , 331 F.3d 439, 448 (5t h Cir. 2003) (“ Becaus e the 2 1 dis tri ct cour t im pos ed the sam e amo unt of res tit utio n
. . . to run conc urr entl y in both cas es and beca use the ord er for res tit utio n is par t and par cel of each overa ll se nten ce, both se nten ces are VACATED and the cas e is REMAN DED for res ente ncing not inco nsi st ent wi th this opi nion. ” (c itin g Ha

yes , 32 F.3d at 173) ); Uni ted States v. Jim ene z , 77 F.3d 95, 100 (5t h Cir. 1996) (“ We ther efo re v acat e the sente nce and rem and for res ente ncing ke epi ng in mi nd that the dist ric t
cour t im pos ed no fine in light of the res tit utio n o rd er. ” (c itin g Ha yes , 32 F. 3d at 173; Uni ted States v. Agui rr e , 926 F.2d 409 (5t h Cir. 1991) )) ; Ha yes , 32 F.3d at 173 (“ Sinc e the ord er for
res tit utio n rep res ents only one com pone nt of the se nten cing cour t’s balanc e of san cti ons , the
e n t i r e s e n tenc e is VACATED and the cas e is REMAN DED for res ente ncing. ”) ; Agui rre , 92 6 F.2d at 410 (rec ognizing that som e cas es me rely v acat e the order of re st itut ion, but dec idi ng to va c a t e t h e enti re se nten ce in light of the fac t that the dis tri ct cour t did not fine the def enda nt beca use of the res tit utio n ord er, rec ognizing that “[ t] o vacat e the res tit utio n ord er and allow the rem aind er of the se nten ce to st and mi ght unde rm ine the det err ent and puni tive eff ect that the origi nal, albei t illegal , se nten ce wa s inte nded to achie ve”) ; see al so Uni ted States
v. Chane

y , 964 F.2d 437, 451 (5t h Cir. 1992) (“ Rest itut ion unde r the VWPA i s a c r i mi nal pena lty and a c om pone nt of the def enda nt’ s se nten ce. ”)

. See , e
. g ., Uni ted States v. Ar le dge , 553 F.3d 881, 898- 99, 901 (5t h Cir. 2008) (vac ating 2 2
a res tit utio n ord er unde r the MVRA for rec alcul atio n of the act ual l o s s b u t a f f irm ing the dis tri ct cour t’s use of the 2006 Sent enci ng Gu ide lines and the ter m of im pr iso nme nt im pos ed unde r thos e Gu ide lines ); Uni ted Sta te s v
. M a turin , 488 F.3d 657, 663- 64 (5t h Cir. 2007) (vac ating only the res tit utio n ord er and rem andi ng aft er hold ing that the dis tri ct cour t plai nly
err ed in ord erin g res tit utio n f o r l o s s e s c aus ed by cond uct othe r than that for wh ich the def enda nt wa s convic ted ); Uni ted States v. Aus tin , 479 F.3d 363, 373 (5t h Cir. 2007) (vac ating the res tit utio n ord er and rem andi ng for res ente ncing but aff irm ing the ter m of im pr ison ment) ; Uni ted States v. Beydo un , 469 F.3d 102, 107- 09 (5t h Cir. 2006) (af fir mi ng the def

enda nt’ s se nten ce of im pr iso nme nt beca use ther e wa s suf fic ient evide nce to sup por t the enhanc em ent, but vacat ing t he res tit utio n o rd er unde r the MVRA and rem andi ng f or det erm inati on of the act ual los s) ; Uni ted States v. Ada ms , 363 F.3d 363, 368 (5t h Cir. 2004) (vac ating only the
res tit utio n ord er and rem andi ng for rec alcul atio n); Uni ted States v. Nor ri s , 217 F.3d 262, 275 (5t h Cir. 2000) (vac ating only the res tit utio n ord er and aff irm ing the s ente nce in all othe r res pec ts wi thou t rem and) ; Uni ted States v. Cam pbe ll , 106 F.3d 64, 7 0 ( 5 th Cir. 1997) (af fir mi ng the se nten ce of im pr iso nme nt, but rever sin g and vacat ing the cour t’s res tit utio n ord er wi thou t rem and) ; Uni ted States v. Up ton , 91 F.3d 677, 689 (5t h Cir. 1996) (vac ating tw o def enda nts ’ res tit utio n ord er s a nd rem andi ng for rec alcul atio n, but aff irm ing the se nten ces in all othe r res pec ts ); Uni ted Sta tes v. Stout , 32 F.3d 901, 904- 05 (5t h Cir. 1994) (f indi ng an err oneo us upw ard dep art ur e t o b e harm les s, vacat ing only the res tit utio n aw ard , and
rem andi ng for res ente ncing) ; Uni ted States v. Ho ll ey , 23 F.3d 902, 915 (5t h Cir. 1994) (vac ating the res tit utio n ord er and rem andi ng); Uni ted Sta tes v. Ree se , 998 F.2d 1275, 1286 (5t h Cir. 1993) (vac at i n g t h e por tio n of the dis tri ct cour t’s judgm ent as to the amo unt of
res tit utio n and rem andi ng); Uni ted States v. Cocke rha m , 919 F.2d 286, 287 (5t h Cir. 1990)
7 Case: 11-50369 Document: 00511823819 Page: 7 Date Filed: 04/17/2012No. 11-50369

the entire sentence should be vacated in the present case because restitution is “only one component of the sentencing court’s balance of sanctions,” and as we 2 3 discuss below, there was other error in t h e sentencing process. Under these circumstances, we choose to follow the line of our decisio n s t h a t vacates the entire sentence when restitution was erroneously imposed. III Espinoza additionally a r g u e s t h a t t h e d i s t r i c t c o u r t e r red in calculating his criminal history. Because this issue is likely to recur follo w i n g r e mand, we consider it. Espinoza admits that he did not object when the d i strict court counted two of his prior convictions and sentences as separate sentences, and therefore we review h i s c h allenge to the district court’s application of § 4A1.2(a)(2) for plai n e r r o r
. When reviewing for plain error, we determine 2 4 whether the error is “clear or obvious, rather than subject to reasonable dispu t e , ” and if the error “a f

f e cted the appellant’s substantial rights.” Even if the 2 5 appellant can meet this standard, we will only reverse if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” 2 6 Espinoza argues that the district court plainly erred in assessing separate criminal history points for his two Texas convictions in 2006. He argues that the Sentencing Guidelines require those convictions to be treated as a single conviction, lowering his criminal history score and resulting in a Guidelines

(vac ating res tit utio n o rd er, but af fir mi ng ot her asp ect s of the se nten ce)

. See Ha yes , 32 F. 3d at 173. 2 3
Uni ted Sta tes v. Jo hn , 597 F.3d 263 , 282 (5t h Cir

. 2010)

. 2 4
Pucke tt v. Uni ted States , 556 U. S. 129, 135 (200 9) (c itin g Uni ted States v. Ol ano , 507 2 5 U. S. 725 , 734 (199 3))

.

Ol ano , 507 U. S. at 7 3 2 (quo ting Uni ted States v. Young , 470 U. S. 1, 15 (198 5)) 2 6 (int erna l q uota tio n m ark s om itt ed)

. 8 Case: 11-50369 Document: 00511823819 Page: 8 Date Filed: 04/17/2012No. 11-50369

range of twenty-four to thirty months of imprisonment instead of thirty to thirtyseven months as calculated by the district court. The Sentencing Guidelines in effect when Espinoza was sentenced state: If the defendant has multiple prior sentences, det e rmine whether thos e sentences are counted separately or as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening a rrest (i.e., the de f

e n d a n t is arrested for the first offense prior to committing the second offense). If t h e r e i s no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. 2 7 The PSR indicates, and neither party disputes, that Espinoza was sentenced for b o t h o f his 2006 Texas convictions on the same day. Thus, the Guidel i n e s , quoted above, state that if there was no intervening arrest between the first and second offenses, the sentences are not to be treated separately. The PSR indi c a t e s t hat Espinoza committed burglary on November 29, 2005. On February 3 , 2006, police found Espinoza in possession of cocaine, a state offense, and immediately arrested him. He was released on bond and was subsequently arrested on August 23, 2006, for his prior burglary. He was sentenced in state court for both offenses on November 9, 2006. Although we understand why a court might conclude that the intent of the Guidelines is to count sentences for demonstrably different offenses separately, the literal language of § 4A1.2(a)(2) does not permit that r e s u lt in the present

case. The Guidelines unambiguously direct that “[i]f there is n o intervening arrest, prior sentences are cou n t e d s e p a rately unless

. . . the sentences were imposed on the same day.” Under the Guidelines, offenses are separated by 2 8

an intervening arrest when “the defendant is arrested for the first offense prior

U .S

. S E N T E N C IN G G U ID E L IN E S M A N U AL § 4 A1.2( a)( 2) (201 0). 2 7
Id

. 2 8
9 Case: 11-50369 Document: 00511823819 Page: 9 Date Filed: 04/17/2012No. 11-50369

to committing the second offense.” Espinoza was not arrested for the first 2 9 offense until six months after committing the second offense. Accordingly, there

w a s no intervening arrest between the first and second offenses. The distr i c t court should not have treated the offenses separately. Because the error is clear from the language of the Guidelines, the district court plainly erred in treating 3 0 Espinoza’s two 2006 convictions separately. The Government argues that the Februa r y 2 0 0 6 a r r est was an intervening arrest because it occurred after Espinoza had committed the burglary offense in November 2005. According to the Government, “It doesn’t matter whether the arrest comes after the commission of the second crime or the first crime.” This argument contravenes the plain language of the Guidelines. The Eighth Circuit

was faced with a similar a r gument under the predecessor to the current Guidelines and rejected it. The defendant in that case wa s arrested in July 3 1 2002 by state police for a drug offense. Federal authorities later arrested the 3 2 defendant in October 2002 for offenses occurring i n late 2001 and early 2002. 3 3 J u st as in this case, the Government argued that the two conviction s w e r e separated by an intervening ar r est because the defendant was arrested at different times. The Eighth Circuit held that “[t]he government’s arg u m e nt 3 4 overlooks the fact that the relevant ‘intervening arrest’ inquiry looks at whether

Id. 2 9
See Uni ted States v. Bl ocke r , 612 F.3d 413, 416 (5t h Cir. 2010) , cer t. deni ed , 131 S. 3 0 Ct. 623 (201 0) (“ As our conc lus ion is reac hed b y a st raight for wa rd app lica tio n of the guide lines , the err or wa s als o p lain. ”)

.

Uni ted Sta tes v. W

il li am s , 533 F.3d 673 , 676- 77 ( 8th Cir. 200 8). 3 1
Id. at 675

. 3 2
Id. 3 3
Id. at 676

. 3 4
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the defendan t c o m m itted the second offense before he was arrested for the first.” 3 5 The Government also argues that “the purpose of the guideline is to count convictions for related crimes committed during one crimin al episode together

a n d t o c o unt those separated by time that are not part of a single criminal episode separ a tely.” Prior to 2007, the Sentencing Guidelines required that prior sentences in unre l a ted cases were to be counted separately, while prior sentences in related cases were to be treated as one sentence. The comments 3 6 instructed that sentences were not considered related if they were separated by

an intervening a r rest. They were considered related, however, if the 3 7 corresponding offenses “(A) o c c u rred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” 3 8 The current Guidelines were amended in an effort to resolve p e r c e ived confusion. The comments to § 4A1.2 note that counting multiple prior

3 9

sen t e n c e s as a single sentence may underrepresent a defendant’s criminal history and therefore warrant an upward departure from the Guidelines. We 4 0
t h e r e f o r e conclude that the Government’s arguments regarding the intent of th i s section of the Guidelines find no support in the section’s provisions.

Id. 3 5
U .S

. S E N T E N C IN G G U ID E L IN E S M A N U AL§ 4A1.2 (a) (2) ( 2006)

. 3 6
Id. § 4A1.2 c mt

. n.3. 3 7
Id. 3 8
See United States v. Ma rl er , 527 F.3d 874, 877 n.1 (9th Cir. 2008) (“ The Sent enci ng 3 9 Com mi ss ion expla ined that § 4A1.2 need ed to be ame nded beca use the ‘re late d cas es ’ rule wa s too com ple x and had led to conf usi on and a ‘s ignif

icant amo unt o f l i t i g atio n.’ ” (c itat ion
om itt ed) ).
U .S

. S E N T E N C IN G G U ID E L IN E S M A N U AL§ 4A1.2 c mt

. n.3 (201 0). 4 0
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Espinoza contends that the district court’s error in calculating the Guidelines advisory sentencing range as thirty to thirty-seven months instead of twenty-f

o u r t o thirty months resulted in substantial harm because it is reasonably probable that had th e c orrect sentencing range been utilized the district court would have sentenced him to less than the t h i r ty months of imprisonment that was imposed. Because we are vacating the entire sentence for the reasons discussed above, we do n o t c onsider whether the error in calculating Espinoza’s criminal history affected his substantial rights. * * * For the foregoing reasons, the judgment of the district court is VACATED, and the case is REMANDED for resentencing.

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