NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0626n.06 No. 11-1421 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. BI L L Y OWENS, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : BOG GS and COL E, Circuit J udg es; OL I VER, Chief District J udg e. *

P E R CURI AM. Billy Owens appea ls his conviction for conspiring to alter, remove , an d obliterate vehicle identification numbers as well as the district court’s restitution order

. We aff irm Owens’ s conviction, vaca te the restitution order , and rema nd for further proce eding s consistent with this opini on. I n 2009, a fede ral g rand jury char g ed Owens and eleve n other defe ndants with conspiring to alter, remove , and obliterate vehicle information numbers (“V I Ns”) in violation of 18 U.S.C. §§ 371 and 511. Following a bench trial in which three co-de fenda nts testified ag ainst Owens, the district court found him g uilty

. The dist rict court sentenc ed Owens to three y ear s of probation, including 180 day s of home confine ment, and order ed him to pay restitution jointly and sever ally with his coThe Honor able Solomon Oliver, Jr., Chi ef U nited States District J udg e for the Northe rn * District of Ohio, sitting by desig nation.No. 11-1421 - 2 - d ef endants in the amount of $70,000. Owens timely appea led, challeng ing the sufficie ncy of the evidenc e to support his conviction and the r estitution order. “When a defe ndant challeng es his conviction afte r a bench trial based on insufficienc y of the evidenc e, we must deter

mine whether afte r revie wing the evidenc e in the light most favor able to the prosec ution, any

rational trier

of fa ct could have found the essential elements of the crime be y ond

a rea sonable do u bt.” United States v. Bronzino , 598 F.3d 276, 278 (6th Cir. 2010) (citation and quotation marks omitted); see also Jack son v. Virginia , 443 U.S. 307, 319 (1979). I n revie wing the sufficie ncy of the evidenc e, we do not weig h the evidenc e, assess the cre dibilit y of the witnesses, or substitut e our judgm en t fo r that of the trier of fac t, but instead draw all rea sonable infere nces in support of the ve rdict. United States v. Paige , 470 F.3d 603, 608 ( 6th Cir. 2006). To convict Owens of the char g ed conspirac y , the g overnme nt was require d to prove: (1) that two or more persons conspired to alter, remove , and obliterate VI Ns; (2) that Owens willfully joined the conspirac y ; (3) that one or more co-c onspirators did at least one of the overt acts descr ibed in the indictment; a

nd (4) that the overt act was done in f urthera nce of the conspirac y . See United States

v. Fisher , 648 F.3d 442, 447 (6th Cir. 2011) (setting forth elements of conspirac y char g e). “[P] roof of a formal ag ree ment is not nece ssary ; a tacit or materia l understanding among the parties will suffice .” United States v. Martinez , 430 F.3d 317, 330 (6th Cir. 2005) (citation and quotation marks omitted). Her e, the g overnme nt produce d eviden ce that Owens, the owner of a junky ard, provided VI Ns to J ames Wallace, who then used the VI Ns to “re tag ” stolen vehicles. Co-conspirator s David J ones and Wil liam J ablonski testified that they assisted Wallace in stealing vehicles. Wallace would then repla ce the s t o len vehicle’ s VI N with the VI

N from a wre cked vehicle. J ones and J ablonski testified that they acc ompanied Wallace to Owens’ s junky ard to obtain VI Ns on multipl e occa sions.No. 11-1421 - 3 - Acc ording to Wallace, he informed Owens that the VI Ns that he obtained from him wer e to be used for stolen proper

ty

. Wallace further testified that Owens purcha sed a stolen and reta g g ed tow truck from him in exchang e for three VI Ns an d ap p ro x i mately $1400. This testimony prese nted by the g overnme nt was sufficie nt for the district court to conclude beyond a rea sonable doubt that Owens was guilty

of the c harg ed conspira cy . Owens contends that there was insufficient evide n ce t o support the conspirac y conviction based on the district court’s rema rk in denying his motion for judgme nt of acquittal that “the proof of alteration, obliteration, remova l o f vehicle identification numbers is thin and probably not adequate to support a substantive char g e of doing that activity .” But as the district court pointed out: “This is a char g e of conspirac y , it’s not a char g e of altering , removing, o bliterating vehicle identification numbers

. . . . ” S ee United States v. Fife , 573 F.2d 369, 373 (6th Cir. 1976) (“The commission of a substantive offe nse and a conspirac y to commit it are separ ate and distinct crimes

. . . .”). “The essenc e of a conspirac y i s t h e agr ee m en t to commit the offe nse and not the commission of the substantive offe nse.” United States v. Hughes , 505 F.3d 578, 588 (6th Cir. 2007). There was suff

icient evidenc e of suc h an ag ree ment in this case. Ow en s al so argues that the district court err ed by rese rving decision on his motion for judgme nt of acquittal made at the conclusion of the g overnme nt’s case . See United States v. Reifsteck, 841 F.2d 701, 703 (6th Cir. 1988). The d i s trict court’s err or was harmless beca use, as discussed above, the evidence p re s en t ed by the g overnme nt was sufficie nt to support Owens’ s conviction. See id

. Be cause Owens did not object to the district court’s restitution order at sentenc ing, we revie w for plain err or. United States v. Reaume , 338 F.3d 577, 5 8 5 (6th Cir. 2003). The g overnme nt

conce des that the district court’s restitution order must be vacated beca use the order failed to complyNo. 11-1421 - 4 - with the proce dural require me nts o f th e M a n d a to r y Victims Restituti on Act (“MVRA” ). The MVRA require s the district court to “orde r the probation office r to obtai n an d i n cl u de in its prese ntence repor t

. . . information sufficie nt to exercise its discretion in fashioning a restitution order ,” including “a complete acc ounting of the losses to eac h victim.” 18 U.S.C. § 3664(a)

. The g overnme nt bear s the burden of demonstrating the amount of victim loss and, upon the probation office r’s reque st, must provide a listi ng of the amounts subject to restitution. Id

. § 3 6 6 4 (d )( 1 ), (e)

. Owens’ s prese ntence repor

t stated that victim informati o n h a d n o t b e en rec eived, y et rec ommended restitution in the amount of $70,000. The district cour t ordere d restitution based upon that re commendation, noting that the g overnme nt was to provide the names and ad d re s s es of the pay ees. Be cause the district court plainly err ed by enter ing the restitution orde r wi thout any victim information, in violation of the MVRA’s require ments, we vacate the restitution order and rema nd the case to allow the g overnme nt to provide the probation office and the district court with the nece ssary information. The dist rict court is direc ted t o enter any restitution order within ninety day s of our mandate. See 18 U.S.C. § 3664(d)(5); United States v. Re ano , 298 F.3d 1208, 1212- 13 (10th Cir. 2002). For the fore g oing r easons, we AFF I RM Ow ens’s conviction, VACATE the district c ourt’s restitution order, a

nd REMAND for

proce eding s consistent with this opi nion.