USA. v. Dawkins, 99-4240

• Decision Date: 03 December 1999
• Docket Number: CR-98-200,No. 99-4240,99-4240
• Citation: 202 F.3d 711
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PRENTICE HAROLD DAWKINS, Defendant-Appellant. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 711

202 F.3d 711 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PRENTICE HAROLD DAWKINS, Defendant-Appellant.

No. 99-4240(CR-98-200).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: December 3, 1999.

Decided: February 4, 2000.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham.

James A. Beaty, Jr., District Judge.

COUNSEL ARGUED: Thomas Norman Cochran, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Harry L. Hob-good, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attorney, Greensboro, North Carolina, for Appellee.

Before WILKINS and MICHAEL, Circuit Judges, and Margaret B. SEYMOUR, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part and vacated and remanded in part by published opinion. Judge Wilkins wrote the opinion, in which Judge Michael and Judge Seymour joined.

OPINION

WILKINS, Circuit Judge:

Prentice Harold Dawkins was convicted by a jury of two counts of making a false statement to obtain federal employee's compensation in violation of 18 U.S.C.A. § 1920 (West Supp. 1999). He was sentenced to 15 months incarceration and was ordered to pay $64,536 in restitution. Dawkins appeals both his convictions and sentence; we affirm the convictions but vacate the sentence and remand for re-sentencing.

I.

Dawkins worked for the United States Postal Service from 1966 until he was injured during the course of his employment in 1979. He was subsequently determined to be totally disabled and began receiving federal employee's compensation benefits pursuant to 5 U.S.C.A. § 8105 (West 1996).

As a condition of continuing to receive the benefits, the Department of Labor required Dawkins to periodically fill out and sign "1032 forms" concerning his employment and income. In signing the forms, Dawkins certified that "all the statements made in response to questions on this form are true, complete and correct to the best of my knowledge and belief." J.A. 166, 171. Dawkins also acknowledged that fraudulently concealing or failing to report required information that could impact his benefits, or making a false statement or misrepresenting a material fact on the form, could subject him to criminal prosecution.

Dawkins completed one 1032 form in February 1997 and another in December 1997.¹ On both forms, he denied having been either selfemployed or involved in any business enterprise during the preceding 15 months. However, in January 1997 Dawkins was arrested in Texas after having smuggled 85 pounds of marijuana from Mexico into the United States in secret compartments in his vehicle. Dawkins claimed that he expected to be paid $1,500 for delivering the drugs to South Carolina. Dawkins pled guilty to a state felonious possession charge and was sentenced to ten years probation.

The Government indicted Dawkins for failing to disclose his employment in the illegal drug business on the 1032 forms filed in February and December 1997. A jury found Dawkins guilty of two counts of making a false statement on the forms--one count for each 1032 form. At sentencing, the district court determined that the loss amount was the amount of the benefits Dawkins had received during the period covered by the two forms, or $64,536. The court sentenced Dawkins to 15 months incarceration and ordered him to pay restitution in the full amount of the loss.

II.

A.

Dawkins first contests his convictions, arguing that while the Department of Labor clearly has the authority to require recipients of partial disability benefits to complete 1032 forms, there is no corresponding authority for the Government to obligate total disability claimants to file these statements. Dawkins asserts that he cannot be convicted of making a false statement on a form that he was not lawfully required to submit. Whether a district court has jurisdiction over a criminal offense is a question of law that we review de novo. See United States v. Walczak, 783 F.2d 852, 854 (9th Cir. 1986).

Dawkins supports his argument by pointing to differences in statutory language. The statute concerning partial disability benefits expressly provides that "[t]he Secretary of Labor may require a partially disabled employee to report his earnings from employment or self-employment, by affidavit or otherwise, in the manner and at the times the Secretary specifies." 5 U.S.C.A. § 8106(b) (West 1996). The statute concerning total disability benefits, in contrast, does not include similar language, or indeed any language implying an ongoing reporting requirement. See 5 U.S.C.A.§ 8105. Dawkins contends that the absence of such language indicates that Congress must have intended to omit from § 8105 the reporting requirement found in § 8106(b).

While this difference in statutory language is notable, we nevertheless conclude that Congress has conferred on the Department of Labor the authority to require recipients of total disability benefits to complete periodic 1032 forms. We find this authority in sections 8145 and 8149 of Title 5 of the United States Code. See 5 U.S.C.A. §§ 8145, 8149 (West 1996). Section 8145 mandates that the Secretary of Labor "administer, and decide all questions arising under" the federal employee's compensation scheme. 5 U.S.C.A. § 8145. Section 8149 authorizes the Secretary of Labor to "prescribe rules and regulations necessary for the administration and enforcement of" the relevant portion of that scheme. 5 U.S.C.A. § 8149. Requiring total disability claimants to file periodic statements concerning their employment and income is part of administering the federal employee's compensation program. And, the Secretary of Labor has exercised this authority to enact a regulation requiring total disability claimants to file periodic reports with the Department. See 20 C.F.R.§ 10.525 (1999). Accordingly, we conclude that Dawkins was lawfully required to file the 1032 forms, and we affirm his convictions. Cf. United States v. Fitzgerald, 147 F.3d 1101, 1103-04 (9th Cir. 1998) (rejecting argument that Department of Labor lacked authority to require total disability beneficiaries to file periodic statements, because such authority was implicit in § 8105 and because recent amendments to 18 U.S.C.A. § 1920 indicated congressional intent for total disability beneficiaries to file such updates).

B.

Dawkins next challenges the loss amount calculated by the district court. See U.S. Sentencing Guidelines Manual§ 2F1.1(b)(1) (1998). The district court found that the loss for sentencing purposes was the total amount of benefits paid to Dawkins during the time covered by the February and December 1997 1032 forms, or $64,536. We review the factual findings of the district court for clear error, and we review its legal interpretation of the Sentencing Guidelines de novo. See United States v. Parsons, 109 F.3d 1002, 1004 (4th Cir. 1997).

"[L]oss is the value of the money ... unlawfully taken." U.S.S.G. § 2F1.1 comment. (n.8); see also U.S.S.G. § 2F1.1 comment. (n.8(d)) ("In a case involving diversion of government program benefits, loss is the value of the benefits diverted from intended recipients or uses."). In describing how the Sentencing Guidelines define loss, we recently stated that "[t]he general rule is that loss is determined by measuring the harm to the victim." United States v. Ruhe, 191 F.3d 376, 391 (4th Cir. 1999). The Government bears the burden of proving the amount of the loss. See 18 U.S.C.A.§ 3664(e) (West Supp. 1999); United States v. Reddeck, 22 F.3d 1504, 1512 (10th Cir. 1994).

The Government maintains that by making a false statement on the 1032 forms Dawkins disentitled himself to all federal employee's compensation benefits. See 5 U.S.C.A. § 8148(a) (West Supp. 1999); 20 C.F.R. § 10.529 (1999). It argues that it therefore lost the entire amount of benefits Dawkins received during the period of time covered by the two relevant 1032 forms.

Our reasoning in United States v. Parsons, 109 F.3d 1002 (4th Cir. 1997), forecloses this argument. Parsons involved the direct appeal of a postal service worker convicted of making false statements on a travel voucher in violation of 18 U.S.C.A. § 1001 (West Supp. 1999). See Parsons, 109 F.3d at 1003. The district court determined that the loss was the total amount claimed in the vouchers. See id. We disagreed, and held that the loss was only the amount fraudulently claimed. See id. at 1006. As is relevant here, we stated that even if automatic forfeiture of the entire voucher amount were required as a result of the false statement,

this does not mean that the amount forfeited by a defendant constitutes a loss to the Government for guidelines purposes. Forfeiture is a penalty imposed on a criminal independent of any loss to the crime victim. As Chief Judge Wilkinson recently explained, the "procedures for forfeiture are set forth in a comprehensive statutory framework of their own, one which is separate and apart from the sentencing guidelines." United States v. Weinberger , 91 F.3d 642, 644 (4th Cir. 1996).

Id. at 1005. Parsons thus instructs that we view the calculation of loss for sentencing purposes differently than forfeiture. Therefore, although the Government may be entitled to collect $64,536 via forfeiture, see 20 C.F.R. § 10.529, that is not necessarily the measure of loss for sentencing purposes. See United States v. Henry, 164 F.3d 1304, 1311-12 (10th Cir.) (Henry, J., concurring in part and dissenting in part) (stating that loss is "the magnitude of the crime at the time it was committed," and reasoning that in this context loss should be calculated as the amount of benefits received above what would have been received "but for the violation" (internal quotation marks omitted)), cert. denied, 119 S. Ct. 2381 (1999).

Accordingly, we vacate Dawkins'...