Case: 12-12708   Date Filed: 04/17/2013   Page: 1 of 12


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12708
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 4:11-cr-00033-CDL-MSH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

LANCE BROWN,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                              (April 17, 2013)



Before HULL, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
                Case: 12-12708       Date Filed: 04/17/2013       Page: 2 of 12


       Lance Brown appeals his conviction and sentence on three grounds. First,

Brown argues his conviction followed an incorrect jury instruction. Second,

Brown claims the custodial and halfway house components of his sentence are

substantively unreasonable. Third, Brown argues the order directing him to make

immediate restitution in the amount of $1,450 was factually and legally

unsupported. After careful review of the record and the parties’ briefs, we dismiss

as moot Brown’s challenge to his completed prison term and affirm the district

court as to all other issues.1

                           I.     The Supplemental Jury Charge

       Brown was indicted for malicious mischief, in violation of 18 U.S.C.

§ 1361, for throwing a brick through the glass doors of the United States

Courthouse and Post Office in Columbus, Georgia. To convict Brown of the

offense as charged in the indictment, the Government needed to prove he “willfully

injure[d] and commit[ed] a depredation against any property of the United

States . . . resulting in more than $1,000 in damages.” According to undisputed

testimony at trial, the glass doors—which Brown admitted destroying—cost

$1,437 to replace.


       1
         We deny Brown’s Motion to Strike the Government’s Supplemental Expanded Record
Excerpts and References Thereto. The challenged excerpts recite post-conviction facts that
speak solely to whether this Court retains jurisdiction over Brown’s challenge to his prison term.
The excerpts do not introduce new legal issues, but rather show that one ever-present,
unavoidable issue—mootness—divests this Court of jurisdiction. Given these unique
circumstances, we deny Brown’s motion to strike.
                                                2
              Case: 12-12708     Date Filed: 04/17/2013   Page: 3 of 12


      During deliberations, the jury sent a question to the court, asking whether

“damage” meant “what was damaged” or whether the term meant “replacement

cost and/or labor.” After a colloquy with counsel, in which defense counsel

objected but offered no constructive alternative, the court instructed the jury that

“damage” meant “the reasonable cost of repairing the damaged property.”

Thereafter, the jury unanimously found Brown guilty as charged.

      Brown argues the district court committed reversible error in its

supplemental instruction defining “damage,” because the ordinary meaning of that

term includes a great deal more than simply the reasonable cost of repair. Brown’s

argument is meritless. Although this Court reviews jury instructions de novo,

“[o]ur practice is not to nitpick the instructions for minor defects.” Holland v. Gee,

, 1067 (11th Cir. 2012). Supplemental charges are reviewed “as part

of the entire jury charge, in light of the indictment, evidence presented and

argument of counsel.” United States v. Lopez, 

, 1248 (11th Cir.

2009). So long as the instructions, “taken together, properly express the law

applicable to the case, there is no error even though an isolated clause may be

inaccurate, ambiguous, incomplete, or otherwise subject to criticism.” Holland,

677 F.3d at 1067.

      The district court did not err in issuing the supplemental charge defining

“damage” under 18 U.S.C. § 1361. When a statutory term is undefined, courts


                                           3
               Case: 12-12708        Date Filed: 04/17/2013      Page: 4 of 12


give it its “ordinary meaning,” and may look to dictionaries when doing so. Lopez,

590 F.3d at 1248. In this case, the district court did not explicitly rely on

dictionaries, but its supplemental instruction comports with legal and non-legal

dictionary definitions of “damage” or “damages.”2 Thus, when viewing the

instructions holistically, we have no doubt “the jury was properly guided in its

deliberations,” id., even if the supplemental charge did not encompass every

variant meaning of the term “damage,” cf. United States v. Williams, 

,

140 (5th Cir. 1981) (stressing that jury instructions should “reasonably relate to the

factual situation of the case”). 3

       Equally meritless is Brown’s contention the supplemental charge somehow

created a conclusive presumption of guilt. In this case, “no reasonable juror could

have interpreted the words of the” supplemental charge “to require a certain

ultimate conclusion upon the finding of a subsidiary evidentiary fact.” United

States v. Gaines, 

, 853 (11th Cir. 1982). The jury was clearly entitled

to find that, although $1,437 was the actual cost of replacing the doors, it was
       2
          See, e.g., Black’s Law Dictionary (9th ed. 2009) (defining “damages” as “an amount
awarded to a complainant to compensate for a proven injury or loss; damages that repay actual
losses”); Webster’s Third New International Dictionary 571 (1993) (defining “damages” as “the
loss due to injury; the estimated reparation in money for detriment or injury sustained:
compensation or satisfaction imposed by law for a wrong or injury”); IV Oxford English
Dictionary 224 (2d ed. 1989) (defining “damages” as the “value, estimated in money, of
something lost or withheld; the sum of money claimed or adjudged to be paid in compensation
for loss or injury sustained”).
       3
          In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
                                               4
             Case: 12-12708     Date Filed: 04/17/2013   Page: 5 of 12


nonetheless not a reasonable cost of repairing the damaged property. Simply

because the jury found the actual replacement costs persuasive evidence of

damages, or reasonable repair costs, does not mean they were mandated to do so in

an unconstitutional sense. Cf. United States v. Dean, 

, 1231 (11th

Cir. 2008). There simply is no “reasonable likelihood” this jury thought they were

required to find a particular elemental fact—i.e., damages or reasonable cost of

repairs over $1,000—based solely on proof of an evidentiary fact—i.e., $1,437 in

replacement costs. See Waddington v. Sarausad, 

, 191 (2009).

Accordingly, because the Government was required to, and did, carry its burden of

proving Brown’s guilt beyond a reasonable doubt, we affirm Brown’s conviction.

                  II.    The Prison Term and Supervised Release

      Next, Brown challenges his sentence. Among other things, the district court

sentenced Brown to a 329-day prison term followed by two years of supervised

release including six months in a halfway house. Brown argues his sentence was

substantively unreasonable and that the district court extended his prison term for

impermissible reasons.

      As a threshold matter, we must determine whether we have jurisdiction over

Brown’s challenges. Pursuant to Article III of the United States Constitution,

federal courts have authority to hear only live cases and controversies. Hernandez

v. Wainwright, 

, 390 (11th Cir. 1986). A dispute is no longer live


                                          5
             Case: 12-12708     Date Filed: 04/17/2013   Page: 6 of 12


when it becomes moot—that is, when the Court can no longer provide meaningful

relief to the claimant. United States v. Al-Arian, 

, 1189 (11th Cir.

2008). Completion of a prison term moots a challenge to the term of confinement,

United States v. Farmer, 

, 1568 (11th Cir. 1991), unless a claimant

shows the completed term has collateral legal consequences, Spencer v. Kemna,

, 7–14 (1998).

      In this case, Brown’s challenges to the 329-day prison term are moot.

Brown completed that prison term in June 2012 and has not identified any

collateral legal consequences that would flow from it. Although Brown was

subsequently sentenced to 24 months’ imprisonment for violating the supervised

release, Brown has pursued no remedy in relation to the 329-day prison term that

would impact his current or future circumstances. Even vacating Brown’s

completed prison term would not vacate or reduce the supervised release he

violated, nor would it vacate or reduce the term of confinement he is currently

serving. Because federal courts are not “in the business of pronouncing that past

actions which have no demonstrable continuing effect were right or wrong,”

Spencer, 523 U.S. at 18, this Court cannot grant Brown meaningful relief as to his

completed 329-day prison term. Brown’s challenges to that component of his

sentence are therefore dismissed as moot.

      This Court retains jurisdiction, however, over Brown’s claim that a two-year


                                         6
              Case: 12-12708     Date Filed: 04/17/2013    Page: 7 of 12


period of supervised release was substantively unreasonable. See Dawson v. Scott,

, 886 n.2 (11th Cir. 1995). This Court reviews substantive

unreasonableness claims for abuse of discretion. Gall v. United States, 

, 41 (2007). To prevail, Brown must establish unreasonableness, United States

v. Pugh, 

, 1189 (11th Cir. 2008), based on the factors enumerated

under 18 U.S.C. § 3553(a)—retribution, deterrence, incapacitation, and

rehabilitation, see Tapia v. United States, 

, 2387 (2011). Remand is

warranted only when, based on a totality of the circumstances pertinent to

sentencing, we are “left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” Pugh, 515 F.3d at 1191.

      Brown has not shown his sentence is substantively unreasonable or that the

district court abused its discretion in imposing supervised release. In imposing the

term of supervised release, the district court appropriately weighed the § 3553(a)

factors, concluding Brown needed treatment and rehabilitation. Brown’s history is

dotted with violent, threatening, and recalcitrant behavior: two convictions for

bank robbery involving threats of mass casualties; failure to attend court-ordered

mental health treatment; termination from mental health treatment after threatening

a counselor; and an arrest for physically attacking his mother. The district court


                                           7
                Case: 12-12708          Date Filed: 04/17/2013     Page: 8 of 12


did not abuse its discretion in considering such rehabilitative concerns when

imposing supervised release. See 18 U.S.C. § 3583(c); see also United States v.

Johnson, 

, 59 (2000) (“Congress intended supervised release to assist

individuals in their transition to community life. Supervised release fulfills

rehabilitative ends, distinct from those served by incarceration.”). Accordingly, we

dismiss as moot Brown’s challenge to his completed prison term and affirm

Brown’s sentence as to supervised release.

                                 III.     The Restitution Order

       Finally, Brown challenges the district court’s $1,450 restitution order.

Brown first contends the order should be vacated because the district court did not

factually account for the $13 difference between the restitution amount and the

evidence of loss adduced at trial. Second, Brown argues that, in ordering

immediate payment of restitution, the district court impermissibly overlooked his

financial resources and inability to pay.

       Ordinarily, the legality of a restitution order is reviewed de novo and its

factual findings are reviewed for clear error. United States v. Valladares, 

, 1269 (11th Cir. 2008). But when, as here, a defendant fails to object to the

restitution order at sentencing, we review only for plain error.4 United States v.


       4
         In this case, defense counsel failed to object with adequate specificity. Although trial
counsel registered his objection “to the sentence,” he did not specify which component of the
sentence he was objecting to, nor did he specify the grounds for his objection. Merely
                                                 8
                Case: 12-12708        Date Filed: 04/17/2013        Page: 9 of 12


Odom, 

, 1299 (11th Cir. 2001). Under plain error review, the burden

is on the defendant to establish: (1) error, (2) that is plain, and (3) that affects

substantial rights. United States v. Rodriguez, 

, 1298 (11th Cir.

2005). If all three conditions are met, a court may exercise its discretion to notice

a forfeited error, but only if (4) the error “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id.

       Brown has not shown plain error as to either of his challenges to the

restitution order. First, Brown accurately observes the restitution amount exceeds

the Government’s proven losses by $13. But Brown has not shown, among other

things, that this purported error seriously affected the fairness, integrity, or public

reputation of judicial proceedings. The Mandatory Victims Restitution Act

(MVRA) obligates district courts to order restitution for offenses against property,

18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii), based on “the full amount of each victim’s

losses as determined by the court,” 18 U.S.C. § 3664(f)(1)(A). The amount of



“object[ing] to the sentence” is insufficient; objections are intended to alert a court to the actual
basis of asserted error. See Fed. R. Crim. P. 51(b) (“A party may preserve a claim of error by
informing the court—when the court ruling or order is made or sought—of the action the party
wishes the court to take, or the party’s objection to the court’s action and the grounds for that
objection.”); see also United States v. Sorondo, 

, 948–49 (11th Cir. 1988) (stressing
the importance of contemporaneous objections). As Judge Wilkinson of the Fourth Circuit
recently noted, the need to object with specificity “is not a meaningless ritual.” United States v.
Bennett, 

, 199 (4th Cir. 2012). Much to the contrary, a “clear objection” is essential
to allowing “a trial court to correct possible error in short order and without the need for an
appeal.” Id.; see also United States v. Pielago, 

, 709 (11th Cir. 1998) (emphasizing
the need for clear, on-the-record objections so that trial courts may correct errors “before
substantial judicial resources are wasted on appeal”).
                                                  9
               Case: 12-12708        Date Filed: 04/17/2013       Page: 10 of 12


restitution “must be supported by specific factual findings,” United States v.

Singletary, 

, 1222 (11th Cir. 2011), but it need not be calculated with

precision, United States v. Futrell, 

, 1291–92 (11th Cir. 2000). The

amount of restitution may be approximated “so long as the basis for reasonable

approximation is at hand.” Id. at 1292.

       Even assuming the district court had no “basis for reasonable

approximation,” Brown has not shown the $13 discrepancy seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Such a finding is

generally reserved for cases of actual innocence or where a miscarriage of justice

would otherwise result. See United States v. Olano, 

, 736–37 (1993).

Here, however, the district court—without objection from defense counsel—relied

on the pre-sentence investigation report’s (PSI) recommendation of $1,450 in

restitution. Defense counsel’s failure to object to that recommendation constitutes

an admission that $1,450 was the correct amount of restitution. See United States

v. Wade, 

, 1277 (11th Cir. 2006). Put simply, when based on the

undisputed facts in a PSI, a purported discrepancy of less than 1% of the total

restitution order does not result in a miscarriage of justice or plain error. 5


       5
          On appeal, the Government agrees with Brown that no specific factual findings support
the additional $13 in restitution. The Government asks this Court to vacate the restitution order
and instruct that it be reduced by $13. Although the Government’s candor is laudable, plain
error is a matter for the courts to determine independently, and therefore “the concession of a
point on appeal . . . is by no means dispositive of a legal issue.” Roberts v. Galen of Va., Inc.,

, 253 (1999); see also United States v. Lee, 

, 866 (11th Cir. 2009)
                                                10
               Case: 12-12708      Date Filed: 04/17/2013       Page: 11 of 12


       Brown has similarly failed to show the district court plainly erred in ordering

immediate payment of restitution. As a default, the MVRA requires immediate

payment, “unless, in the interest of justice,” the court decides another method of

payment specified in § 3664(f)(3)(A) is more appropriate. See 18 U.S.C.

§§ 3664(f)(2)–(3) and 3572(d). In making that determination, a sentencing court

considers (A) the defendant’s “financial resources and other assets,” (B) the

defendant’s “projected earnings and other income,” and (C) “any financial

obligations of the defendant.” § 3664(f)(2)(A)–(C). After considering the above,

the court “may direct the defendant to make nominal periodic payments” if the

defendant proves by a preponderance that his “economic circumstances . . . do not

allow the payment of any amount of a restitution order, and do not allow for the

payment of the full amount of a restitution order in the foreseeable future under

any reasonable schedule of payments.” § 3664(f)(3)(B); see also § 3664(e)

(providing that the defendant bears the burden of proving his financial resources).

       Brown claims the court plainly erred in not ordering nominal periodic

payments. Brown’s argument is meritless. The text of the MVRA clearly states

that even when a defendant shows a lack of financial resources, district courts are

not required to impose anything other than immediate payment. See




(noting courts are not required to accept the Government’s concessions). We decline to accept
the Government’s position for the reasons stated above.
                                              11
               Case: 12-12708    Date Filed: 04/17/2013   Page: 12 of 12


§ 3664(f)(3)(B) (providing that the court “may direct the defendant to make

nominal periodic payments” (emphasis added)). Because the district court was

under no obligation to set a periodic payment schedule, ordering Brown to pay

immediate restitution was not plain error. We affirm the district court’s restitution

order.

                                   IV.   Conclusion

         For the foregoing reasons, Brown’s conviction is affirmed, his challenge to

the completed prison term is dismissed as moot, and the remainder of his sentence

is affirmed.

         AFFIRMED IN PART and DISMISSED AS MOOT IN PART.




                                           12