United States v. George Hargrove

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 8, 2024
• Docket: 22-4296
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4296

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GEORGE MALCOLM HARGROVE,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:19-cr-00114-RJC-DSC-1)

Submitted: January 17, 2024 Decided: February 8, 2024

Before AGEE, WYNN, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Julia K. Wood, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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PER CURIAM:

George Malcolm Hargrove appeals the district court’s restitution order and amended

criminal judgment. Hargrove pled guilty to three child pornography offenses. On January

26, 2021, at sentencing, the district court imposed a 210-month sentence but deferred its

final determination of restitution for 90 days due to the number of victims. Hargrove

appealed, arguing that the district court erred in calculating his advisory Sentencing

Guidelines range and failed to comply with Fed. R. Crim. P. 32. We affirmed the criminal

judgment. United States v. Hargrove, No. 21-4090, 2022 WL 1135098, at *1-2 (4th Cir.

Apr. 18, 2022).

In the original criminal judgment, the district court stated that “[t]he determination

of restitution is deferred until 4/26/2021,” which was 90 days after the sentencing hearing.

(J.A. 106). * The judgment continued, “Upon such a determination an Amended Judgment

in a Criminal Case (AO 245C) will be entered. Failing such a determination by 4/26/2021,

[the] restitution amount becomes $0.00 without further Order of the Court.” (J.A. 106).

On April 6, 2021, within the 90-day deadline provided in 18 U.S.C. § 3664(d)(5), the

Government filed a motion for restitution, seeking a total of $30,000 of restitution for eight

victims. The Government’s motion stated that Hargrove objected but did not describe the

basis for his objection. Hargrove did not file a response to the Government’s motion.

On May 4, 2022, the district court ordered that the judgment be amended to require

Hargrove to pay $30,000 in restitution, as described in the Government’s motion for

* “J.A.” refers to the joint appendix filed by the parties in this appeal.

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restitution. The court stated that it had left open at sentencing a final determination of

restitution. The court also noted that, although the Government’s restitution motion

indicated Hargrove objected, he had not filed a response. The court entered the amended

criminal judgment on May 12, 2022.

On appeal, Hargrove first argues that the district court lacked jurisdiction to enter

its May 4, 2022, restitution order or modify the restitution amount in the amended criminal

judgment because our court’s mandate in his first appeal did not issue until May 10, 2022.

However, the Supreme Court has made clear “that deferred restitution cases involve two

appealable judgments, not one.” Manrique v. United States, 581 U.S. 116, 123 (2017).

Thus, a defendant’s appeal in a deferred restitution case of some portions of his sentence

does not divest the district court of jurisdiction to make a final determination as to

restitution, from which the defendant might then file a second notice of appeal—as

Hargrove did here. See id. at 124 (explaining that, “[b]y deferring restitution, the court is

declining to announce a sentence,” meaning a sentence as to restitution is not yet final).

Hargrove next contends that the district court lacked statutory authority to amend

the restitution amount because the court’s original criminal judgment stated that, if

restitution was not determined by April 26, 2021, which it was not, then restitution would

become $0 without further order from the court. Hargrove further argues that, even if the

court had the authority to amend the restitution amount, it failed to properly follow the

statutory procedures associated with ordering restitution.

“To preserve an issue for appeal, an objection or argument must be timely and state

the grounds on which it is based.” In re Under Seal, 749 F.3d 276, 287 (4th Cir. 2014)

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(cleaned up). Critically, “[i]f a party wishes to preserve an argument for appeal, the party

must press and not merely intimate the argument during the proceedings before the district

court.” CoreTel Va., LLC v. Verizon Va., LLC, 808 F.3d 978, 988 (4th Cir. 2015) (internal

quotation marks omitted). At bottom, “the party must raise the argument in a manner

sufficient to alert the district court to the specific reason the party seeks relief.” Id. (internal

quotation marks omitted).

Although the Government’s motion for restitution alluded to Hargrove having some

objection to the motion, it did not describe the basis for Hargrove’s objection—nor was the

Government obligated to do so. And Hargrove filed neither a response to the

Government’s motion nor any objection to the district court’s restitution order in the eight-

day period between the entry of the restitution order and the amended criminal judgment.

See Fed. R. Crim. P. 51(b) (noting that, to preserve a claim of error, a party must “inform[]

the court—when the court ruling or order is made or sought—of the action the party wishes

the court to take, or the party’s objection to the court’s action and the grounds for that

objection”). Accordingly, we review Hargrove’s two remaining nonjurisdictional claims

for plain error.

“[T]o establish plain error, [Hargrove] has the burden of showing: (1) that an error

was made, (2) that the error was plain, and (3) that the error affected his substantial rights.”

United States v. Green, 996 F.3d 176, 185 (4th Cir. 2021). “Even then, correction of an

error is discretionary, and we will exercise that discretion only if an error would result in a

miscarriage of justice or would otherwise seriously affect the fairness, integrity or public

reputation of judicial proceedings.” Id. (internal quotation marks omitted). “An error is

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plain if the error is clear or obvious.” United States v. Kim, 71 F.4th 155, 163 (4th Cir.

2023) (internal quotation marks omitted), cert. denied, No. 23-5846, 2023 WL 8007580

(U.S. Nov. 20, 2023).

Turning to the merits of his nonjurisdictional claims, Hargrove concedes on appeal

that restitution was mandatory in his case because he pled guilty to trafficking in child

pornography. See 18 U.S.C. § 2259(b)(2), (c)(3). Under the Mandatory Victims

Restitution Act (“MVRA”), 18 U.S.C. §§ 3663A, 3664, “[i]f the victim’s losses are not

ascertainable by . . . 10 days prior to sentencing, . . . the Government or the probation

officer shall so inform the court, and the court shall set a date for the final determination

of the victim’s losses, not to exceed 90 days after sentencing,” 18 U.S.C. § 3664(d)(5).

The Supreme Court has instructed “that a sentencing court that misses the 90-day

deadline [in § 3664(d)(5)] nonetheless retains the power to order restitution—at least

where, as here, the sentencing court made clear prior to the deadline’s expiration that it

would order restitution, leaving open (for more than 90 days) only the amount.” Dolan v.

United States, 560 U.S. 605, 608 (2010). Consequently, “[t]he fact that a sentencing court

misses the statute’s 90-day deadline, even through its own fault or that of the Government,

does not deprive the court of the power to order restitution.” Id.; see United States v.

Johnson, 400 F.3d 187, 199 (4th Cir. 2005) (stating that district court’s “failure to conform

with the [90]-day limit constitutes harmless error absent prejudice”). Thus, the district

court’s entry of the restitution order and amended criminal judgment beyond the 90-day

deadline is not dispositive of whether the court had the authority to act.

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We conclude that the district court did not plainly err by amending the restitution

order more than 90 days after the sentencing hearing because Dolan suggests that the court

nonetheless retained the authority to amend the restitution order. As Dolan explained, to

deprive the district court of the authority to order restitution in these circumstances “would

harm . . . the victims of crime[] who likely bear no responsibility for the deadline’s being

missed and whom [the MVRA] also seeks to benefit.” 560 U.S. at 613-14. Indeed, “[t]he

potential for such harm—to third parties—normally provides a strong indication that

Congress did not intend a missed deadline to work a forfeiture, here depriving a court of

the power to award restitution to victims.” Id. at 614.

As Dolan made clear, “neither the language nor the structure of [§ 3664(d)(5)]

requires denying the victim restitution in order to remedy a missed . . . deadline.” Id. at

615. In the Supreme Court’s view, “doing so would defeat the basic purpose of the

[MVRA].” Id.; see United States v. Robl, 8 F.4th 515, 526 (7th Cir. 2021) (“The [MVRA]

imposes a deadline to give victims timely relief; it is not written to give defendants an

absolute deadline, after which they are freed from providing restitution to the individuals

they have harmed.” (internal quotation marks omitted)). Finally, and vitally, the MVRA

mandated restitution in Hargrove’s case, meaning the district court was required to order

it—a fact Hargrove acknowledges on appeal. See Dolan, 560 U.S. at 612 (“[T]he

[MVRA’s] text places primary weight upon, and emphasizes the importance of, imposing

restitution upon those convicted of certain federal crimes.”). We therefore conclude that

the district court did not plainly err in ordering restitution and amending the judgment.

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Hargrove last argues that, even if the district court had jurisdiction and authority to

modify the restitution amount, the court procedurally erred by not holding a restitution

hearing prior to entering the restitution order, not directing him to respond to the

Government’s motion for restitution, and not giving him an opportunity to contest the

restitution order.

Hargrove’s claims of procedural error lack merit. First, Hargrove did not request a

restitution hearing, and the court was not required to provide him one. Second, the district

court was not required to explicitly invite Hargrove to respond to the Government’s motion

or object to the court’s restitution order. In fact, local rules in the Western District of North

Carolina provided that, unless otherwise directed by the district court, Hargrove had to

respond to the Government’s restitution motion within seven days—which he did not do.

Hargrove’s failure to participate in the restitution proceedings was of his own accord.

Accordingly, we affirm the restitution order and the amended criminal judgment.

We dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED