United States v. Joshua Scott

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 3, 2024
• Docket: 23-12254
• Status: Unpublished

Opinion

USCA11 Case: 23-12254 Document: 29-1 Date Filed: 07/03/2024 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-12254 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSHUA SCOTT,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:17-cr-00050-LGW-CLR-2 ____________________ USCA11 Case: 23-12254 Document: 29-1 Date Filed: 07/03/2024 Page: 2 of 5

2 Opinion of the Court 23-12254

Before NEWSOM, BRASHER, and BLACK, Circuit Judges. PER CURIAM: Joshua Scott appeals the district court’s order that he pay $34,740 in restitution to Brink’s, Inc., based on his convictions of conspiracy to interfere with interstate commerce by robbery and interference with interstate commerce by attempted robbery. Scott asserts the district court erred by ordering restitution for fi- nancial loss stemming from an October 14, 2016, robbery for which he was acquitted by the jury. After review, 1 we affirm. “A federal district court has no inherent authority to order restitution, and may do so only as explicitly empowered by stat- ute.” United States v. Dickerson, 370 F.3d 1330, 1335 (11th Cir. 2004) (quotation marks omitted). The Mandatory Victims Restitution Act (MVRA) states that, “when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to . . . any other penalty authorized by law, that the de- fendant make restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(1). A “victim” is defined as “a person directly and prox- imately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an of- fense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s

1 We review the legality of a restitution order de novo. United States v. Robert- son, 493 F.3d 1322, 1330 (11th Cir. 2007). We review factual findings underly- ing a restitution order for clear error. Id. USCA11 Case: 23-12254 Document: 29-1 Date Filed: 07/03/2024 Page: 3 of 5

23-12254 Opinion of the Court 3

criminal conduct in the course of the scheme, conspiracy, or pat- tern.” Id. § 3663A(a)(2). The offenses listed in subsection (c) in- clude offenses against property. Id. § 3663A(c)(1)(A)(ii). “[A] jury’s verdict of acquittal does not prevent the sentenc- ing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponder- ance of the evidence.” United States v. Watts, 519 U.S. 148, 157 (1997). In United States v. Foley, we considered a challenge to a res- titution order on the basis the district court had relied on acquitted conduct. 508 F.3d 627, 635 (11th Cir. 2007). The defendant was convicted of 2 counts of mail fraud and 11 counts of money laun- dering, but was acquitted of wire fraud and conspiracy charges. Id. at 631. We explained that, under the MVRA, “restitution for mail or wire fraud is not limited to the specific act of fraud underlying the mailing or use of the wires for which the defendant is con- victed, but is available for any victim of the entire scheme or arti- fice to defraud furthered by the mailing or use of the wires.” Id. at 635 (quotation marks omitted). We concluded that, because one of the elements of mail fraud was participation in a scheme to de- fraud, “[t]he district court was correct to award restitution for any victim of the scheme furthered by [the defendant’s] mail fraud.” Id. at 636. The district court did not err by ordering Scott to pay resti- tution to Brink’s based on the financial loss it suffered due to the October 14 robbery. The court was permitted to consider Scott’s participation in the October 14 robbery in issuing the restitution USCA11 Case: 23-12254 Document: 29-1 Date Filed: 07/03/2024 Page: 4 of 5

4 Opinion of the Court 23-12254

order, so long as it was proven by a preponderance of the evidence. See Watts, 519 U.S. at 157, Foley, 508 F.3d at 635-36. For defendants convicted of offenses that include conspiracy as an element, resti- tution must be made to “any person directly harmed by the defend- ant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(1), (2). Scott was convicted of con- spiracy to commit Hobbs Act robbery, and there was evidence to establish by a preponderance of the evidence that Brink’s had been “directly harmed by [Scott’s] criminal conduct in the course of ” that conspiracy. Id. § 3663A(a)(2). Specifically, Gregory Plair testi- fied that Scott helped plan and execute the October 14 robbery of SunTrust, and there was evidence that Brink’s lost $34,740 as a re- sult. Based on that evidence, the court did not clearly err when it found by a preponderance of the evidence that Scott’s conduct di- rectly harmed Brink’s in the course of his conspiracy, and so the court did not clearly err when it ordered Scott to pay restitution to Brink’s for its pecuniary loss from the October 14 robbery. See 18 U.S.C. § 3663A(a)(1), (2). Scott is incorrect to argue the district court never found by a preponderance of the evidence that he was responsible for the Oc- tober 14 robbery. Scott objected to assertions in the PSI that he was accountable for the October 14 robbery, and the district court over- ruled that objection at the sentencing hearing, stating that it found “by a preponderance of the credible evidence that the probation officer is factually correct in the presentence report.” That finding in response to Scott’s factual objections to the PSI was the equiva- lent of a finding that Scott was responsible for the October 14 USCA11 Case: 23-12254 Document: 29-1 Date Filed: 07/03/2024 Page: 5 of 5

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robbery by a preponderance of the evidence. Regardless, we do “not insist that trial courts make factual findings directly addressing each issue that a litigant raises, but instead adhere to the proposi- tion that findings should be construed liberally and found to be in consonance with the judgment, so long as that judgment is sup- ported by evidence in the record.” See United States v. Acosta, 363 F.3d 1141, 1151 (11th Cir. 2004) (quotation marks and citation omit- ted). For that reason, the court’s restitution order itself was suffi- cient because the order required the finding that Scott was respon- sible for the October 14 robbery, which was the cause of Brink’s loss, and that finding was supported by evidence in the record. In sum, the district court did not err by considering Scott’s acquitted conduct in relation to the October 14 robbery, and it did not clearly err by ordering Scott to pay restitution to Brink’s based on that robbery. Therefore, we affirm. AFFIRMED.