Judges: Manion
Filed: Oct. 19, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-3077 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID L. PRICE, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12-cr-0587-1 — Harry D. Leinenweber, Judge. _ ARGUED SEPTEMBER 27, 2018 — DECIDED OCTOBER 19, 2018 _ Before FLAUM, MANION, and SYKES, Circuit Judges. MANION, Circuit Judge. David Price was convicted of 13 criminal charges related
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-3077 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID L. PRICE, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12-cr-0587-1 — Harry D. Leinenweber, Judge. _ ARGUED SEPTEMBER 27, 2018 — DECIDED OCTOBER 19, 2018 _ Before FLAUM, MANION, and SYKES, Circuit Judges. MANION, Circuit Judge. David Price was convicted of 13 criminal charges related t..
More
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3077
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DAVID L. PRICE,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12‐cr‐0587‐1 — Harry D. Leinenweber, Judge.
____________________
ARGUED SEPTEMBER 27, 2018 — DECIDED OCTOBER 19, 2018
____________________
Before FLAUM, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. David Price was convicted of 13
criminal charges related to a heroin distribution conspiracy he
operated in Chicago. The district court sentenced Price to 37
years’ imprisonment and ordered him to pay over $11,000 in
restitution. The primary issue on appeal is whether the statu‐
tory provision that prohibits ordering restitution to a partici‐
pant in the defendant’s offense also prohibits ordering resti‐
tution to the participant’s family members. We hold that the
2 No. 17‐3077
statute does not prohibit such a restitution order in cases in
which the family members are victims in their own right,
whose losses are not merely derivative of the participant’s
losses. We therefore affirm the district court’s order.
I
A jury convicted Price of 13 criminal charges including
conspiracy to distribute heroin, money laundering, and fel‐
ony firearm possession. At trial, the government offered evi‐
dence showing Price conducted a large‐scale heroin distribu‐
tion operation in Chicago from 2005 until 2011. This conspir‐
acy was incredibly lucrative for Price and he profited to the
tune of millions of dollars, which he used to support a lavish
and opulent lifestyle. The government presented evidence
that there were at least six co‐conspirators involved in the con‐
spiracy. One of those co‐conspirators was Greg Holden.
During the course of a two‐day sentencing hearing, the
government presented evidence that Price was responsible
for the murder of Holden. Through the testimony of three wit‐
nesses—a co‐conspirator, an IRS Special Agent, and Holden’s
fiancée Roshunda King—the government sought to establish
that Holden had been collaborating with the police and that
Price murdered him to prevent him from testifying.
King, Holden’s longtime girlfriend and fiancée, testified
that Holden had been arrested and then released on bond fol‐
lowing the filing of federal charges. Holden had told King that
he feared for his life because Price wanted him dead and had
placed a hit on him. On the day of the murder, King left the
apartment she shared with Holden to go to work, while
Holden stayed home with two of their three children. Around
mid‐morning, King learned from her mother that something
No. 17‐3077 3
was wrong, and she returned home to find Holden dead in
the apartment.
The government played a recorded 911 call from Holden’s
seven‐year‐old daughter, in which she described her father
bleeding on the floor and not breathing. Videotaped inter‐
views of Holden’s two daughters on the day of the murder
were also presented, in which his three‐year‐old daughter de‐
scribed seeing a “monster” in a “mask” hurt her father. The
girls’ victim impact statements described how they watched
their father die as they tried to stop the bleeding of his gun‐
shot wounds with paper towels.
After reviewing these statements and the testimony of two
other witnesses that connected Price to the murder, the dis‐
trict court found by a preponderance of the evidence that
Price murdered Holden. The court connected Holden’s mur‐
der to Price’s underlying crimes by applying the enhance‐
ment for obstruction of justice, since Price’s purpose for kill‐
ing Holden was to prevent him from testifying. At a separate
restitution hearing, the district court ordered Price to pay
$11,693 in restitution to reimburse Holden’s family members
for their out‐of‐pocket funeral expenses. This amount in‐
cluded $4,720 to King (including $1,070 for the future pur‐
chase of a headstone), $4,050 to Holden’s mother, and $2,923
to Ferguson Funeral Service, Inc., for the unpaid balance of
funeral expenses.
At sentencing, the district court assigned Price a criminal
history category of II. This was based on the calculations of
the supplemental presentence investigation report, which
added two criminal history points for two misdemeanor con‐
victions of driving on a suspended or revoked license. One of
those convictions had resulted in a sentence of 12 months’
4 No. 17‐3077
non‐reporting probation, and the second resulted in a sen‐
tence of four months’ supervised probation. The Guidelines
provide that misdemeanor convictions for this kind of offense
resulting in a sentence of probation for one year or less are not
to be counted toward the criminal history score. U.S.S.G.
§ 4A1.2(c)(1). Although both of Price’s sentences were terms
of probation for one year or less, the presentence report con‐
tained a typographical error that mistakenly identified the
four‐month sentence as having been for more than one year.
Despite the inclusion of these convictions, defense counsel
agreed with the criminal history calculation at the hearing.
The presentence report also calculated a total offense level
of 54 under the Sentencing Guidelines, but Price’s offense
level was treated as 43 because of the cap provided in the sen‐
tencing table. U.S.S.G. § 5A cmt. n.2. The district court ac‐
cepted the calculations of the presentence report. According
to the Guidelines, Price’s sentencing range at offense level 43
was life imprisonment, regardless of what criminal history
category applied. See U.S.S.G. § 5A. Price was then sentenced
to concurrent sentences amounting to 37 years’ imprisonment
and ten years’ supervised release.
Price appeals both the restitution order and the criminal
history category score. He argues that (1) the district court
lacked statutory authority to order restitution reimbursing
Holden’s family for funeral expenses, and (2) the misde‐
meanor convictions listed in the presentence report were in‐
eligible to be counted as prior convictions for sentencing pur‐
poses.
No. 17‐3077 5
II
Price failed to object to either the order of restitution or the
criminal history score calculation. We therefore review both
for plain error. FED. R. CRIM. P. 52(b); United States v. Walker,
746 F.3d 300, 308 (7th Cir. 2014). In the context of a criminal
sentence appeal, plain‐error review requires the appellant to
show that the district court (1) committed an error that was
(2) plain and obvious and that (3) affects the appellant’s sub‐
stantial rights in the sense that it made a difference in his sen‐
tence. United States v. Kruger, 839 F.3d 572, 578 (7th Cir. 2016).
Even if the appellant meets those three criteria, we will only
exercise our discretion to reverse if the error “seriously affects
the fairness, integrity, or public reputation of judicial pro‐
ceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 732
(1993)).
A
Price asserts that the district court erred by ordering resti‐
tution to be paid to Holden’s family. When sentencing a de‐
fendant in a criminal case for certain listed offenses (including
the offense for which Price was convicted under the Con‐
trolled Substances Act, 21 U.S.C. § 841(a)(1)), the district court
is authorized by statute to order restitution to any victim of
the offense or to the victim’s estate if deceased. 18 U.S.C.
§ 3663(a)(1)(A). The statute goes on to define a “victim” of a
conspiracy as “any person directly harmed by the defendant’s
criminal conduct in the course of the scheme, conspiracy, or
pattern” of criminal activity. Id. § 3663(a)(2).
The statute, however, also states that “in no case shall a
participant in [a listed offense] be considered a victim of such
6 No. 17‐3077
offense under this section.” Id. § 3663(a)(1)(A). Thus, Price ar‐
gues, Holden cannot qualify as a victim because he was a co‐
conspirator and participant in the drug conspiracy, and there‐
fore the district court had no statutory authority to order res‐
titution to reimburse Holden’s funeral expenses. Price con‐
tends that this is plain error because, he asserts, the court
clearly acted without authority under the plain language of
the statute. Therefore, by requiring him to pay restitution
which the court had no statutory authority to order, the error
affected his substantial rights. See United States v. Randle, 324
F.3d 550, 558 (7th Cir. 2003) (“In requiring [the defendant] to
pay several thousand dollars in restitution, without a statu‐
tory basis for doing so, the error affects [the defendant’s] sub‐
stantial rights.”).
Price’s argument rests on an unnatural construction of the
statute that would extend the offense participant prohibition
to prohibit restitution to a participant’s family members who
are victims in their own right. That reading of the statute is
incorrect. Although Holden may have been a participant
within the meaning of the statute, the district court did not
order restitution be paid to Holden or to his estate. Rather, it
ordered the restitution be paid to his family members who
were directly harmed by his murder and thus were victims of
Price’s criminal conduct in the course of the conspiracy.1
1 In its brief and at oral argument, the government argued in the alter‐
native that Holden was no longer a participant in the offense at the time
of his murder because he had withdrawn from the conspiracy by cooper‐
ating with the police investigation. We need not decide that question be‐
cause, in any event, the restitution was ordered to Holden’s family and
not to Holden or his estate. Thus the restitution award does not come un‐
der the statutory prohibition.
No. 17‐3077 7
King and her daughters were undoubtedly directly
harmed by Price’s criminal conduct. The testimony and evi‐
dence provided at the sentencing hearing established that
Holden was murdered in the apartment he shared with King
and their children; that his two young daughters were present
in the apartment when the murder occurred; and that King
discovered his body. King and her daughters suffered this in‐
credibly traumatic event as a direct result of Price’s criminal
conduct in furtherance of the underlying conspiracy. The dis‐
trict court therefore acted within its statutory authority by
awarding restitution to King to reimburse Holden’s funeral
expenses that King paid out of pocket. Part of the restitution
payment went to Holden’s mother, Linda Holden, who also
paid a portion of the funeral expenses out of pocket. As
Holden’s mother and one of the financers of the funeral, Ms.
Holden was also a victim in her own right. Put another way,
King and Ms. Holden’s losses are not derivative of Holden’s
losses: these women assert their claims standing in their own
shoes, not Holden’s. Cf. Rock Island Bank v. Aetna Cas. & Sur.
Co., 692 F.2d 1100, 1106 (7th Cir. 1982) (describing in insur‐
ance context a derivative remedy as being subject to whatever
defenses may be asserted against the original claimant, in con‐
trast to independent claims not subject to such defenses).
Although a portion of the restitution payment went to Fer‐
guson Funeral Service, this was ultimately for the benefit of
King and Ms. Holden as well. The funeral home, in a sense,
subsidized a portion of the funeral costs because King and
Ms. Holden did not have the means to pay in full.2 The resti‐
2 The funeral home also provided the family with a $2,000 discount
for the funeral costs, but that amount was not included in the restitution
8 No. 17‐3077
tution statute specifically contemplates restitution orders pur‐
posed to reimburse funeral expenses. See 18 U.S.C.
§ 3663(b)(3). It would make little sense to conclude that Con‐
gress intended only to empower a district court to reimburse
those victims who are able to pay for the funeral in full and
not those who do not have the means to pay the bill. Further‐
more, the statute elsewhere contemplates reimbursing third
parties, such as insurance companies, for compensation that a
victim has already received. Id. § 3664(j)(1). Given this statu‐
tory basis, the district court did not plainly err by awarding
restitution to the funeral home for expenses still owed by King
and Ms. Holden.
Finally, Price argued in his reply brief that even if the re‐
imbursement for past funeral expenses was proper, the dis‐
trict court committed plain error by including in the restitu‐
tion order the cost of the future purchase of a headstone. Price
asserts that this cost, since it had not yet been paid, was not
an “actual loss” that can be remedied through restitution, cit‐
ing United States v. Dokich, 614 F.3d 314, 319–20 (7th Cir. 2010),
for the proposition that restitution is limited to actual loss.
There are multiple problems with this argument. First and
foremost, Price has waived the issue by not raising it until his
reply brief. See Mendez v. Perla Dental, 646 F.3d 420, 423–24
(7th Cir. 2011). Furthermore, we note that Dokich is inapposite
because that case was concerned with distinguishing between
the intended loss of a perpetrator of fraud and the actual loss
suffered by the victim; it has nothing to say about future
order: the $2,923 ordered to the funeral home was solely the unpaid
amount of the total funeral costs after the $2,000 discount had been ap‐
plied. (Doc. 143, Gov’t’s Mot. for Restitution, at 2; Appellant’s Br. App. at
9.)
No. 17‐3077 9
losses attributable to the defendant’s criminal conduct. See
Dokich, 614 F.3d at 318–20. Because the issue was waived,
however, we decline to decide here whether a restitution
award for a future expense attributable to the defendant’s
criminal conduct is proper.
B
The second issue on appeal presents an unusual situation
in which the litigants on both sides are in substantial agree‐
ment on the merits. Price appeals the district court’s assign‐
ment of criminal history category II as a plain error, but con‐
cedes that it is unlikely the error affected his sentence, and
thus remand is unnecessary. He states that he appeals this is‐
sue only to preserve it in the possible event of resentencing.
The government agrees that an error was committed: Price’s
two misdemeanor convictions, both of which resulted in a
sentence of probation for one year or less, should not have
been included in the criminal history calculation, and thus he
should have been assigned criminal history category I. See
U.S.S.G. § 4A1.2(c)(1) (stating that a misdemeanor conviction
for driving with a suspended/revoked license resulting in
probation only counts toward the criminal history calculation
if the probation was for more than one year).
We agree that the inclusion of the misdemeanor convic‐
tions in the criminal history calculation was an error. But be‐
cause the advisory sentence at Price’s offense level was life
imprisonment regardless of the applicable criminal history
category, and because the district judge departed downward
from the Guidelines with a sentence of 37 years’ imprison‐
ment, the error did not affect Price’s substantial rights. Kruger,
839 F.3d at 580 (finding defendant was not prejudiced by
10 No. 17‐3077
criminal history calculation error when the defendant’s re‐
sulting advisory sentence would have been the same even if
the correct criminal history category had been applied).
Therefore, remand is not necessary. Id. at 580–81.
III
Because the restitution awards to King, Ms. Holden, and
Ferguson Funeral Service do not fall within the offense partic‐
ipant prohibition of 18 U.S.C. § 3663(a)(1)(A), and because any
error in calculating Price’s criminal history category had no
effect on his sentence, we AFFIRM Price’s sentence and the
district court’s restitution order.