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November 21, 2017
  United States v. Diaz -- Fourth Circuit
"Crime of Violence" Must be a Violent Crime to Trigger Mandatory Restitution

Areas of Law: Statutory Interpretation, Criminal Law

Issue Presented: Whether the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A, is disjunctive, such that satisfying one of the two requirements under the MVRA would bring an offense that presumptively falls under the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. § 3663, instead within the scope of the MVRA.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the district court erred in interpreting the MVRA as disjunctive. The Fourth Circuit determined that because interference with flight crew members and attendants is not a "crime of violence" under 18 U.S.C. § 16, the more lenient provisions of the VWPA apply, and restitution is discretionary.

Extended Summary: The MVRA and the VWPA govern restitution for federal criminal offenses. Under the VWPA, the district court has discretion in imposing restitution. 18 U.S.C. § 3663(a)(1)(A). The VWPA applies when sentencing a defendant convicted of an offense under section 49 U.S.C. § 46504, unless the offense falls under section 3663A(c) of the MVRA. In contrast, the MVRA requires mandatory restitution. The MVRA applies when a defendant is convicted of any offense "(A) that is (i) a crime of violence, as defined in section 16 [of title 18] . . . and (B) in which an identifiable victim or victims has suffered a physical injury or pecuniary loss." 18 U.S.C. § 3663A(c)(1).

Appellant David Diaz rushed the cockpit of a flight shortly after takeoff. Diaz was convicted under 49 U.S.C. § 46504 of interference with flight crew members and attendants. The government argued that this offense fell within the scope of the MVRA, and that therefore, Diaz was required to pay the full amount of restitution. Additionally, the government argued that the court did not need to reach the question of whether this offense was a "crime of violence" because the MVRA applies to any offense in which an identifiable victim has suffered a pecuniary loss. Diaz argued that his offense instead fell within the scope of the VWPA and that the district court had discretion in determining whether to impose restitution. The district court agreed with the government and ordered Diaz to pay the full amount of restitution. The Fourth Circuit held that the district court erred in interpreting the MVRA as disjunctive.

On appeal, the Fourth Circuit first clarified that "the MVRA may apply in determining restitution for a defendant who interferes with a flight crew in violation of 49 U.S.C. § 46504, but only if it is determined that flight crew interference falls within the scope of 18 U.S.C. § 3663A(c)." 18 U.S.C. § 3663A(c)(1) provides in relevant part: "This section shall apply in all sentencing proceedings for convictions of . . . any offense that is a crime of violence . . . as defined in section 16 . . . and in which an identifiable victim or victims has suffered a physical injury or pecuniary loss."

The Fourth Circuit analyzed the relevant statutory provisions. First, the court determined that the statute should be interpreted as conjunctive, meaning that for an offense to fall within the MVRA, the offense must satisfy § 3663A(c)(1)(A), that the offense is a crime of violence, and also § 3663A(c)(1)(B), that the offense has an identifiable victim who suffered physical injury or a pecuniary loss. While the Fourth Circuit had not previously addressed this issue, in the instant case it adopted the conclusion of the D.C. Circuit, that the MVRA is conjunctive, not disjunctive.

Next, the Fourth Circuit determined that violation of 49 U.S.C. § 46504 is not a crime of violence, and therefore cannot satisfy 18 U.S.C. § 3663A(c)(1)(A). The court explained that an offense is a crime of violence under the MVRA if it is: "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The Supreme Court has previously interpreted "physical force" under 18 U.S.C. § 16(a) to mean "violent force." Johnson v. United States, 559 U.S. 133, 140 (2010). Employing a categorical approach that looked to the statutory definitions and elements and not to the specific facts, the Fourth Circuit determined that the term "assault," as used in the flight crew interference offense, required only "a forcible touching." There was no evidence it needed to rise to the level of "violent force" contemplated by the Supreme Court in Johnson. Therefore, the court found that flight crew interference, under 49 U.S.C. § 46504, is not a crime of violence under 18 U.S.C. § 16(a), and that the VWPA, instead of the MVRA, should have been applied to determine restitution. Accordingly, the Fourth Circuit vacated the order of restitution and remanded for redetermination of the issue of restitution.

To read the full opinion, click here.

Panel: Judges Floyd and Harris, and District Judge Bailey

Argument Date: 03/24/2017

Date of Issued Opinion: 07/26/2017

Docket Number: 16-4226

Decided: Vacated and remanded by published opinion.

Case Alert Author: Taylor McAuliffe, Univ. of Maryland Carey School of Law

Counsel:
Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jon Tyler McGaughey, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Brooke S. Rupert, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Author of Opinion: Judge Floyd

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 02:50 PM     4th Circuit  

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