U.S.A. v. Simmonds III

• Decision Date: 14 December 2000
• Docket Number: No. 99-3524,99-3524
• Citation: 235 F.3d 826
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. JOSEPH EMMETT SIMMONDS, III, APPELLANT
• Court: U.S. Court of Appeals — Third Circuit

Page 826

235 F.3d 826 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. JOSEPH EMMETT SIMMONDS, III, APPELLANT

No. 99-3524

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued April 11, 2000

Filed December 14, 2000

Appeal from the District Court of the Virgin Islands (Division of St. Thomas and St. John) D.C. Criminal Action No. 98-cr-00238-1 District Judge: Honorable Thomas K. Moore

[Copyrighted Material Omitted]

James K. Robinson, Esquire Assistant Attorney General Mark Healey Bonner, Esquire (Argued) Trial Attorney, Criminal Division United States Department of Justice 601 D Street, NW Suite 6500 Washington, DC 20530 Attorneys for Appellee

John H. Benham, Esquire (Argued) William J. Glore, Esquire Watts & Benham, P.C. No. 1 Frederiksberg Gade P.O. Box 11720 Charlotte Amalie, St. Thomas Usvi, 00801-4720 Attorneys for Appellant

Before: Sloviter, Roth and Stapleton, Circuit Judges

OPINION FOR THE COURT

Roth, Circuit Judge

Joseph Emmett Simmonds, III, pled guilty in the District Court of the Virgin Islands to one count of arson in violation of federal law and to one count of burglary in violation of Virgin Islands territorial law. Simmonds contends on appeal that the District Court: (1) miscalculated the appropriate amount of restitution by including the value of the victims' lost insurance premium discounts and the depreciation attributable to the victims' furniture in its restitution order, (2) abused its discretion by ordering him to serve consecutive (rather than concurrent) sentences for his crimes, and (3) committed plain error by consulting the Pre-Sentence Investigation Reports of his co-defendants before sentencing him. For the reasons detailed below, we will reverse the District Court's restitution order with respect to the inclusion of the victims' lost insurance premium discounts, but we will affirm the District Court's decision in all other respects.

I. FACTS

On September 16, 1998, Simmonds, along with five other men, drove to the Peterborg area of St. Thomas, intending to burglarize the house located at 11-22 Peterborg. Simmonds and his five co-defendants cased the house and, after concluding that the residents were not at home, cut the alarm system wiring which activated both an audible alarm within the home and an alert at ADT Security Systems, the monitoring company. All but one of the men then entered the house through a partially open window. ¹

While searching the house for items to steal, one of the men, Adaryll Gumbs, came upon the credentials of Assistant U.S. Attorney Curtis Gomez and realized that the house belonged to Gomez. Gumbs recognized Gomez's name because Gomez had prosecuted Gumbs in a robbery case that was still pending in the Virgin Islands Territorial Court. On discovering that the house belonged to Gomez, Gumbs and Simmonds searched the house for documents pertaining to the case against Gumbs. After an unsuccessful search, Gumbs and Simmonds decided to set the house on fire. Gumbs directed the other three men to leave the house and turned on the gas stove without igniting the burners. Gumbs and Simmonds then cut up a couch and set the couch on fire. All six men fled the scene. Gomez and St. Thomas police officers, responding to notification of the alarm from ADT, arrived in time to observe the suspects fleeing the scene.

All six suspects were eventually arrested. Simmonds was arrested on November 9, 1998. During questioning, Simmonds confessed to his involvement in the burglary and the arson and gave the police a statement implicating the other five men. Simmonds was charged with arson in violation of 18 U.S.C. §§ 844(i), carrying a firearm during the commission of a violent crime in violation of 18 U.S.C. §§ 924(c)(1), and possession of a firearm by an unlawful user of a controlled substance in violation of 18 U.S.C. §§ 922(g)(3). He was also charged with burglary in violation of territorial law, 14 V.I.C. §§ 444. In exchange for Simmonds' pleading guilty to arson and burglary, the government dropped the other charges against him and agreed to recommend to the sentencing court a downward adjustment for acceptance of responsibility. On May 18, 1999, Simmonds was sentenced to 97 months in prison for violation of 18 U.S.C. §§ 844(i) (arson) and a consecutive sentence of 5 years in prison for violation of 14 V.I.C. §§ 444 (burglary). Simmonds was also ordered to pay restitution to the victims in the amount of $20,000. Simmonds appealed the sentence imposed.

II. JURISDICTION & STANDARD OF REVIEW

The District Court of the Virgin Islands had subject matter jurisdiction in this case pursuant to 48 U.S.C. §§ 1612, which grants the District Court for the Virgin Islands concurrent jurisdiction over criminal matters that involve violations of both federal and territorial law. We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 18 U.S.C. §§ 3742(a), which grant us the power to review on appeal certain federal sentencing decisions.

We review a restitution order "under a bifurcated standard: plenary review as to whether restitution is permitted by law, and abuse of discretion as to the appropriateness of the particular award." United States v. Crandon, 173 F.3d 122, 125 (3d Cir. 1999). With respect to Simmonds's claim that the District Court erred by awarding the "replacement value" of the destroyed furniture, we apply plenary review to the issue of whether "value" includes "replacement value." See United States v. Shugart, 176 F.3d 1373, 1375 (11th Cir. 1999). If we determine that "replacement value" is permitted under the statute, we then review the District Court's factual basis for choosing "replacement value," as opposed to "market value," for abuse of discretion. See id.

With respect to Simmonds's contention that as a matter of law the District Court erred by including in its restitution order the value of the victims' lost "clean renewal discount" and "no claim discount" from their insurance premiums, we exercise plenary review. See Crandon, 173 F.3d at 125.

We review the District Court's decision to impose a consecutive, rather than a concurrent, sentence for abuse of discretion. See, e.g., United States v. Spiers, 82 F.3d 1274, 1277 (3d Cir. 1996). The issue underlying that decision, however, i.e., whether the Sentencing Guidelines apply to the overall sentence imposed when a defendant is sentenced simultaneously for a territorial and a federal offense, is an issue of law and our review is plenary.

Finally, because Simmonds did not contemporaneously object to the District Court's decision to consult his co-defendants' Pre-Sentence Investigation Reports at sentencing, our review is for plain error. See, e.g., United States v. Knobloch, 131 F.3d 366, 370 (3d Cir. 1997).

III. DISCUSSION

A. The District Court's Restitution Order

Pursuant to the Mandatory Victims Restitution Act (the "MVRA"), codified at 18 U.S.C. §§ 3663A, the District Court ordered Simmonds to pay $20,000 as his share of the restitution owed to the victims and to the victims' insurance company. The District Court concluded that the total loss resulting from the criminal acts in question was $76,454. The court arrived at this sum based on information contained in Simmonds's Pre-Sentence Investigation Report. The victims' insurance company paid a total of $65,939 for the loss caused by the fire. In addition, the court ordered restitution in the amount of $2,000 to cover the insurance deductible paid by the victims, $7,000 representing the depreciation attributable to the furniture destroyed in the fire, and $1,516 representing the "clean renewal discount" and "no claim discount" lost as a result of the insurance claim filed by the victims. Simmonds argues that the District Court erred by requiring him to compensate the victims for the depreciation attributable to furniture destroyed in the fire and for the value of the lost "clean renewal discount" and "no claim discount" because the District Court is prohibited by statute from awarding this type of restitution.

As its name suggests, the Mandatory Victims Restitution Act, which was enacted by Congress in 1996, mandates that defendants who are convicted of or plead guilty to certain crimes pay restitution to their victims. See 18 U.S.C. §§ 3663A(a)(1). The parties agree that Simmonds is subject to the provisions of the MVRA by virtue of his guilty plea to the federal offense of arson. Under the MVRA, a defendant must either return the property damaged during commission of the crime in question or, if the defendant cannot do so, pay "an amount equal to the greater of the value of the property on the date of the damage, loss, or destruction; or the value of the property on the date of sentencing, less the value (as of the date the property is returned) of any part of the property that is returned." 18 U.S.C. §§ 3663A(b)(1)(B) (emphasis added). Because the property at issue in this case was destroyed, returning it is impossible. Therefore, we must determine whether the District Court's inclusion of the depreciation attributable to furniture destroyed in the fire and of the value of the victims' lost insurance premium discounts was proper under the statute. We will consider each of the items in turn.

1. The Depreciation Attributable to the Victims' Furniture

We first consider whether the District Court erred in calculating the value of the victims' furniture destroyed in the fire under §§ 3663A at its "replacement value" rather than at its "market value." "Market value" refers to the actual price that the furniture in question would have commanded on the open market on the date of destruction. "Replacement value," in contrast, refers to the amount of money necessary to replace the furniture. "Replacement value" exceeds "market value" by an amount equal to the depreciation attributable to the furniture. Depreciation represents a decrease in the value of the victims' furniture due to use and reflects the fact that the victims'...