AGEE, Circuit Judge:
June Orlando Leftwich was convicted of mail fraud in violation of 18 U.S.C. § 1341 and filing false claims in violation of 18 U.S.C. § 287 in the United States District Court for the District of Maryland. He does not contest his convictions but appeals from the district court's judgment requiring him to make restitution to the United States in the amount of $2,404,087. For the reasons set forth below, we vacate the restitution order and remand to the district court for further proceedings consistent with this opinion.
On December 22, 2008, Leftwich pled guilty, pursuant to a plea agreement, to charges of mail fraud and filing false claims. The stipulation of facts in the plea agreement established that Leftwich engaged in a multi-year scheme to defraud the United States through the submission of fraudulent tax returns to the Internal Revenue Service ("IRS"). The tax returns claimed that he or corporations owned by him or his co-conspirators paid taxes on fuel which had been used for non-taxable purposes, thus entitling them to refunds in excess of $4 million. However, these claims were all false. Of the more than $4 million claimed on the false returns, the IRS issued $2,404,087 in refund payments to Leftwich and his coconspirators before the scheme was detected.
The plea agreement gave notice to Leftwich that the court "may also order him to make restitution pursuant to 18 U.S.C. §§ 3663, 3663A, and 3664." (J.A. 54). During the plea colloquy, the district court made clear that it had the authority to order restitution, yet it did not mention the statutory basis under which it would act. Leftwich later filed a memorandum in aid of sentencing in which he argued that 18 U.S.C. § 3663A, the Mandatory Victims Restitution Act ("MVRA"), was inapplicable to his case. Even though Leftwich did not contest that restitution under 18 U.S.C. § 3663, the Victim Witness Protection Act ("VWPA"), could be considered by the district court, he argued that the statutory factors under the VWPA negated an award of restitution. The government did not respond to this argument.
Leftwich noted a timely appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
Leftwich contends that the district court failed to make sufficient findings of fact to support a restitution order under the VWPA. Specifically, he argues that the district court did not adequately consider his financial condition and ability to pay when deciding whether to order restitution as required by the VWPA. This argument depends upon the premise that the district court applied the VWPA in ordering restitution. The government now contends that restitution in the full amount of $2,404,087 was mandatory under the MVRA, which does not require the district court to make the specific findings that Leftwich contends were necessary.
We review a district court's restitution order for abuse of discretion.
In contrast, the MVRA mandates that the sentencing court order restitution in the full amount of the victim's loss when the defendant has been convicted of certain specified offenses. "In each order of restitution, the court shall order restitution to each victim in the full amount of each victim's losses . . . and without consideration of the economic circumstances of the defendant." 18 U.S.C. § 3664(f)(1)(A) (emphasis added); see United States v. Roper, 462 F.3d 336, 338 (4th Cir.2006) ("When a defendant is convicted of a crime specified in the MVRA . . . Congress has mandated that the defendant's sentence include full restitution to the victim."). This Court has interpreted the MVRA to "dictate that a district court cannot remit a mandatorily imposed restitution order." Id. at 339. Thus, the district court is precluded from ordering restitution in any amount less than the full amount of the victim's loss, see id. ("In United States v. Alalade, . . . [w]e held that the MVRA did not grant district courts discretion to award partial restitution. . . ." (citing United States v. Alalade, 204 F.3d 536, 540 (4th Cir.2000))).
Although the MVRA does not permit the sentencing court to adjust the amount of restitution, it does require the court to set a payment schedule "in consideration of— (A) the financial resources and other assets of the defendant, including whether any of the assets are jointly controlled; (B) projected earnings and other income of the defendant; and (C) any financial obligations of the defendant; including obligations to dependents." 18 U.S.C. § 3664(f)(2). This Court has interpreted this provision as requiring the district court to make factual findings keying the payment schedule to these factors and demonstrating the feasibility of the schedule. United States v. Dawkins, 202 F.3d 711, 717 (4th Cir.2000). If the MVRA applies in this case, it is clear that the district court failed to make the § 3664(f)(2) findings which are a necessary condition precedent to an order of restitution under § 3663A.
Where "the statutory basis for the restitution order [is] critical to its validity," ensuring effective appellate review requires that sentencing courts "specify in the record the precise statute under which they act in imposing restitution." Stuver, 845 F.2d at 75. In light of the substantially different requirements of the MVRA and the VWPA, the failure of the district court to indicate which statute it was applying prevents this Court from effectively
Accordingly, we vacate the restitution order and remand to the district court for further proceedings to identify the statute under which restitution is awarded and to make the required findings under that statute.
VACATED AND REMANDED