United States v. Diaz, 16-4226

• Decision Date: 26 July 2017
• Docket Number: No. 16-4226,16-4226
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Patrick DIAZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

865 F.3d 168

UNITED STATES of America, Plaintiff–Appellee,

v.David Patrick DIAZ, Defendant–Appellant.

No. 16-4226

United States Court of Appeals, Fourth Circuit.

Argued: March 24, 2017

Decided: July 26, 2017

Amended: July 31, 2017

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jon Tyler McGaughey, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Brooke S. Rupert, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before FLOYD and HARRIS, Circuit Judges, and John Preston BAILEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Floyd wrote the opinion, in which Judge Harris and Judge Bailey joined.

FLOYD, Circuit Judge:

Appellant David Diaz rushed the cockpit of a flight approximately 45 seconds after takeoff from Washington Dulles International Airport. After pleading guilty in an open plea to violating 49 U.S.C. § 46504, interference with flight crew members and attendants, the district court was tasked with deciding whether to impose restitution, and, if imposed, how much restitution would be appropriate. The government argued that this offense fell within the scope of the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, such that Diaz was required to pay the full amount of restitution calculated in his presentence report. Diaz argued instead that his crime was covered by the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663, and thus the district court retained discretion in deciding whether to impose restitution and the amount of restitution it would require Diaz to pay. The district court agreed with the government, found that the MVRA applied, and ordered Diaz to pay the full amount of restitution. Diaz appealed, and we now vacate the order of restitution, finding that the VWPA applies because interference with a flight crew is not categorically a crime of violence as defined by 18 U.S.C. § 16.

I.

A.

In early 2015, David Diaz was living in Northern Virginia with his father and suffering from a declining mental state. Deciding that it would be best to send Diaz to live with his mother in Texas, Diaz's father bought him a plane ticket to depart on March 15, 2015, from Washington Reagan National Airport. Diaz felt extreme anxiety and paranoia about flying, and would self-medicate with alcohol. Diaz boarded the flight, but was too nervous to stay in his seat and remain on the plane, and so he voluntarily deplaned. Diaz tried again to fly on the morning of March 16, 2015, from Reagan National Airport, but again was too nervous and again voluntarily deplaned after boarding.

Determined to reach his mother in Texas who was expecting him, Diaz boarded a third flight on March 16, 2015, operated by United Airlines, departing from Washington Dulles International Airport bound for Denver, Colorado. At the time he boarded the flight, Diaz was intoxicated. Approximately 45 seconds after takeoff, Diaz left his seat and rushed toward the cockpit. According to witnesses, he yelled that the plane was going too slowly, was going down, and was shooting flames. Diaz also reportedly shouted about jihad, a bomb, and that there was "something in the belly of the plane." J.A. 28–29. Other passengers tackled Diaz and attempted to restrain him, but he resisted. The pilots returned the flight to Dulles approximately thirteen minutes after takeoff. Feeling too upset to continue working, the flight attendants would not re-board the plane. As a result, the flight was canceled and passengers were re-booked onto other flights. Diaz has no independent recollection of the incident due to his intoxication, but does not dispute the statements or their effect on passengers and crew.

A grand jury in the Eastern District of Virginia indicted Diaz on one count of interference with flight crew members and attendants, in violation of 49 U.S.C. § 46504. Diaz then pleaded guilty to the offense without having a plea agreement in place.

B.

Before discussing the proceedings below imposing restitution, a brief discussion of the restitution scheme in criminal offenses is necessary to understand the issues in this appeal. Two different statutes are relevant here: 18 U.S.C. § 3663, which we refer to as the Victim and Witness Protection Act (VWPA), and 18 U.S.C. § 3663A, which we refer to as the Mandatory Victims Restitution Act (MVRA).

Under the VWPA, restitution is discretionary. 18 U.S.C. § 3663(a)(1)(A). The VWPA requires that the court consider "the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate" in determining whether to order restitution. Id. § 3663(a)(1)(B)(i)(II). The VWPA states that it will apply "when sentencing a defendant convicted of an offense under ... section ... 46504 of title 49" unless the offense is "an offense described in section 3663A(c)." Id. § 3663(a)(1)(A).

In contrast, the MVRA requires—as its name implies—mandatory restitution. Id. § 3663A(a)(1). As relevant to this appeal, the MVRA applies for any offense "(A) that is (i) a crime of violence, as defined in section 16 [of title 18] ... and (B) in which an identifiable victim or victims has suffered a physical injury or pecuniary loss." Id. § 3663A(c)(1) (emphasis added).

C.

U.S. Probation Services determined in Diaz's presentence report (PSR) that United Airlines suffered a loss of $22,151.77 as a result of Diaz's criminal conduct, and recommended an order of restitution in that amount. The PSR also noted that Diaz's financial condition made him unable to pay a fine or costs. See Appellant's Br. at 5. However, the PSR did not indicate the statutory basis for restitution.

The government in its sentencing position paper did not mention restitution, only requesting that Diaz receive a guidelines range sentence. Diaz submitted that the offense fell within the scope of the VWPA. As such, Diaz argued restitution was not mandatory, and requested the court consider his financial situation under the VWPA. He also "suggested that a restitution amount of $10,869 was more appropriate in light of United's direct costs and Mr. Diaz's financial condition" if the court determined to order restitution. Appellant's Br. at 5.

At the sentencing hearing, for the first time, the government argued that the MVRA applied instead of the VWPA. The government first argued that flight crew interference in violation of 49 U.S.C. § 46504 was a crime of violence under 18 U.S.C. § 3663A(c)(1)(A)(i). However, the government then argued: "But it doesn't even matter because Your Honor doesn't even have to find that because under 3663A(c)(1)(B), the Mandatory Victims Restitution Act applies to any offense in which an identifiable victim has suffered pecuniary loss." J.A. 53.

The court agreed with the government's argument and held, "it appears to the Court that restitution is mandatory in this case under 3663A(c)(1)(B), which requires restitution whenever there's an identifiable victim that suffered a pecuniary loss." J.A. 56–57. The court never ruled on the issue of whether flight crew interference was a crime of violence as defined by 18 U.S.C. § 16. As a result, the court ordered Diaz to pay the full amount of $22,151.77 as restitution as part of Diaz's sentence.

Diaz timely noted this appeal, and appeals only the restitution order. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.

II.

We review restitution ordered generally for abuse of discretion, but "assess de novo any legal questions raised with respect to restitution issues, including matters of statutory interpretation." United States v. Ocasio , 750 F.3d 399, 412 (4th Cir. 2014) (citations omitted).

III.

A.

Diaz raises a threshold question that we must answer before reaching further questions in this appeal: whether it is possible for a crime presumptively covered by the VWPA to instead fall within the scope of the MVRA. This is a straightforward question of statutory interpretation with a clear answer—yes.

Diaz's sole argument is that Congress placed flight crew interference within the VWPA when it was first enacted, and did not indicate that flight crew interference should fall under the MVRA when passing the legislation later creating the MVRA. He submits that "[t]his deliberate placement of § 46504 into the VWPA and not the MVRA is the best indication that Congress intended the VWPA to apply to convictions under § 46504." Appellant's Br. at 12. However, this argument flies in the face of the actual statutory language. Diaz is correct that flight crew interference is an enumerated offense to which the VWPA presumptively applies; however, the VWPA also clearly provides that if the offense is covered by 18 U.S.C. § 3663A(c), then the MVRA will apply. See 18 U.S.C. § 3663(a)(1)(A).¹

Thus, it is clear that the MVRA may apply in determining restitution for a defendant who interferes with a flight crew in violation of 49 U.S.C. § 46504, but only if it is determined that flight crew interference falls within the scope of 18 U.S.C. § 3663A(c).

B.

Accordingly, the next issue is how to interpret 18 U.S.C. § 3663A(c). The question presented to us is whether this section of the MVRA, specifically § 3663A(c)(1), is disjunctive or conjunctive. Again, this is a straightforward question of statutory interpretation with a clear answer—conjunctive. The district court below erred in interpreting the statute as disjunctive.

The MVRA in § 3663A(c)(1) makes clear that for an offense to fall within the MVRA, the offense must satisfy § 3663A(c)(1)(A)and also satisfy the requirement of § 3663A(c)(1)(B) by using the word "an...