U.S. v. Sharp, s. 90-5491

• Decision Date: 04 March 1991
• Docket Number: Nos. 90-5491,90-5492,s. 90-5491
• Citation: 927 F.2d 170
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allen Ray SHARP, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Danny Howard FOUT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 170

927 F.2d 170

UNITED STATES of America, Plaintiff-Appellee, v. Allen Ray SHARP, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Danny Howard FOUT, Defendant-Appellant.

Nos. 90-5491, 90-5492.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 7, 1990.

Decided March 4, 1991.

John Joseph Cowan, Charleston, W.Va., argued (Jerome J. McFadden, Gibson, McFadden & Ash, Princeton, W.Va., on brief), for defendants-appellants.

Dwane Lamont Tinsley, Asst. U.S. Atty., argued (Michael W. Carey, U.S. Atty., Charleston, W.Va., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, NIEMEYER, Circuit Judge, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

ERVIN, Chief Judge:

Danny Howard Fout and Allen Ray Sharp were convicted of causing property damage by use of explosives and conspiracy in connection with the bombing of a coal mine. Both appealed their sentences, contending that they were denied reductions or departures to which they were entitled. In addition, each appealed from an order of restitution entered by the court, on the ground that the order was entered in violation of 18 U.S.C. Sec. 3663. We affirm the sentences of both defendants except that portion relating to the order of restitution. We reverse the restitution and vacate the order of the district court, so that the district court may reconsider that issue in light of this opinion.

I.

This case began with a dispute between coal miners and the mine where they used to work. Nine former miners conspired to bomb the mine. They had previously worked at the mine as union members, but had gone on strike in October 1984. In May 1989, the mine was leased to Mountain Minerals after having been idle for 5 years. Mountain Minerals hired non-union miners to work there. The union members' strike continued.

On June 21, 1989, a homemade pipe-bomb was set off at the entrance to the mine site. On July 12, 1989, a fire was set which destroyed the Milburn Colliery tipple and processing plant. On September 22, 1989, a second bomb was placed under the mine's exhaust ventilation fan near an entrance to the mine; the bomb exploded, destroying the fan and damaging the mine. In addition, another bomb device was placed on a power pole near the power transformers of the mine; it did not detonate. No persons were injured as a result of the above occurrences.

The Bureau of Alcohol, Tobacco and Firearms ("ATF") began an investigation which led to Danny Fout. Fout's house was searched pursuant to a warrant. The agents found: an illegal 12 gauge single barrel shotgun and a 14.223 caliber rifle which had been converted to a fully automatic weapon; marijuana plants; and material used to make "jack-rocks" for mine-related strike activities. Fout was given Miranda warnings and was taken to the ATF office. Fout was not represented by counsel at this time. He met with the United States Attorney and an Assistant United States Attorney to discuss a possible plea agreement, still unrepresented by counsel. Fout was told that if he cooperated with the government, including wearing a body wire to implicate others in the conspiracy, the government would help him with the guidelines.

There is disputed testimony over exactly what Fout was promised. He says that the United States attorneys and agents told him that (1) they would help him to lessen the guidelines; (2) they would help him in every way possible if he cooperated; and (3) that he would be better off than any of the group. The government agents testified that they never made a specific promise that the government would make a motion for substantial assistance.

Fout signed a standard plea agreement form. ¹ He then wore a body wire on three separate occasions to help the government obtain evidence against his co-conspirators. At about the same time, an attorney was appointed for Fout. The attorney was informed by the government of its intent to file a motion for substantial assistance for Fout.

On the morning of the sentencing hearing, the government told Fout's counsel that it would not file a motion for substantial assistance. Apparently the government was displeased with Fout because of his failure to tell them that he had placed a bomb in the tipple which was the subject of an arson case. Fout was testifying in that case against Larry Massey, who was accused of setting the tipple on fire. The government was concerned about last minute surprises concerning Fout's testimony and repeatedly asked him if he had told them everything about his involvement. He said that he had. However, the government later learned from another source that Fout had placed a bomb in the same tipple. Confronted with this evidence shortly before trial, Fout conceded that he had done so.

Allen Sharp attended several meetings where discussions were held about bombing the mine. Sharp drove the conspirators to the mine on the night of a failed attempt to bomb the mine, as well as on September 21, 1989, when the group bombed the ventilation fan. Sharp and his son waited in the truck for the conspirators to set the explosives, and then drove the conspirators back to their place of meeting. The bomb in the fan exploded at 4:30 a.m.; another bomb failed to detonate.

Fout and Sharp were charged in a multiple count indictment. Both were charged in Count One with conspiracy in violation of 18 U.S.C. Sec. 371. The underlying offenses were violations of: 18 U.S.C Sec. 844(i) (property damage by use of explosives); 18 U.S.C. Sec. 1366 (destruction of an energy facility); and 26 U.S.C. Secs. 5861(d) and (f) (receiving and possessing an illegal firearm and making an illegal firearm). Both were charged in Count Two with violating 18 U.S.C. Secs. 844(i) and (h)(2).

Both Fout and Sharp entered pleas of guilty. Each was ordered to pay restitution in the amount of $112,058.40 and $100 in fines. ² The amount of restitution included: the replacement cost of a ventilation fan, the cost of supplies to repair the mine, payroll for workers who did the repairs including taxes on the payroll, and loss of income. Fout and Sharp appealed the inclusion of the loss of income as not allowed under 18 U.S.C. Sec. 3663(b).

At Fout's sentencing hearing, the government made no written motion for substantial assistance. Although a writing is not required for such a motion, in the district in question, the practice of the government when making such a motion was to make a written motion. Thus, the district court did not rule on a motion for substantial assistance because it did not believe it was presented with one.

Fout filed a motion to reconsider and correct sentence. A hearing was held on May 7, 1990. There, the district court denied Fout's motion. The court stated its reasons as follows:

The Government did not make a written motion for substantial assistance at the disposition of this matter and the court did not depart from the applicable guideline range. The Defendant asks this Court in the instant motion to resentence the Defendant on the basis of his substantial assistance to the Government.

The Government must make a motion for substantial assistance in order for the Court to depart for that reason. Sec. 5K1.1 of the Sentencing Guidelines. The evidence is clear that the Government has not and will not make such a motion.... The plain meaning of Sec. 5K1.1 is that this court does not have jurisdiction to downwardly depart from the guidelines absent a motion for substantial assistance.

Fout appealed his sentence.

At sentencing, Sharp asked for a reduction in his base offense level under Sec. 3B1.2 of the Sentencing Guidelines based on his minimal or minor role in the bombings. The district court found that Sharp was not a minimal or minor participant and did not adjust his base level. Sharp appealed this determination.

II.

Three issues are presented on this appeal. First, whether the district court erred in including loss of income in the order of restitution. Second, whether the district court erred by not granting a motion for substantial assistance for Fout. Third, whether the district court erred in finding that Sharp was not a minor or minimal participant in the bombings. We address each issue in turn.

A.

The district court imposed restitution upon all nine defendants involved in the bombings under the Victim and Witness Protection Act of 1982, 18 U.S.C. Sec. 3663 ("V.W.P.A."). The court imposed restitution in the amount of $112,058.40. This amount included: the replacement cost of the ventilation fan ($30,000); the cost of supplies for repairs of the mine ($12,303.95); payroll of miners who performed repairs on the mine ($36,080); taxes on the payroll ($4,874.41); and loss of income ($28,200).

Section 3663(b) of the V.W.P.A. provides for the types of restitution that may be given for offenses which result in "damage to or loss or destruction of property of a victim of the offense." 18 U.S.C. Sec. 3663(b). The court can require the defendant to return the property. Id. If return of the property is impossible, the court may require the defendant to pay an amount equal to the greater of: (1) the value of the property on the date of the damage; or (2) the value of the property on the date of sentencing. Id. Section 3663(b) does not provide for the recovery of lost profits.

Section 3663(a) does provide for lost income; however, this section only applies in the "case of an offense resulting in bodily injury to a victim." 18 U.S.C. Sec. 3663(a). There were no bodily injuries in this case; therefore, it appears that the granting of restitution for lost income was improper under the statute.

In United States v. Mitchell, 876 F.2d 1178 (5th Cir.1989), the Fifth Circuit held that restitution for lost income could not be awarded under 3663(a). There the defendant was in the possession of stolen trucks. The court ordered restitution, including lost income. The Fifth...