                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4307



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


MARSHALL DAILEY,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (CR-03-172)


Submitted:   June 21, 2006                 Decided:   July 10, 2006


Before WILKINS, Chief Judge, and MICHAEL and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant.    Kasey Warner, United States Attorney,
Steven I. Loew, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Marshall Dailey (“defendant Dailey” or “Dailey”) challenges

the sentence of imprisonment and the restitution order imposed on

him in the Southern District of West Virginia on his convictions

for two controlled substance offenses and a firearms offense.                     He

does not challenge his three convictions, which resulted from a

jury trial.      As explained below, we affirm defendant Dailey’s

sentence of seventy-eight months imprisonment, but we vacate the

restitution order and remand.



                                      I.

     On   May   1,    2002,   while   working        for    the   Trilateral    Drug

Enforcement     Network    Team   Drug       and    Violent    Crime    Task    Force

(“TRIDENT”),    Detectives     John   Dunn,        Dustin     Joynes,   and    Marvin

Robinson used David Hess, a confidential informant, in an attempt

to make a controlled purchase of prescription painkillers from

defendant Dailey.         The detectives equipped Hess with an audio

recording and transmitting device (the “recording device”), and

dropped   him   off    near   Dailey’s       home    in    Raleigh   County,     West

Virginia.

     While at defendant Dailey’s home, Hess discussed the cost of

buying Percocet and Lorcet tablets with Dailey and his brother,

Orlando Dailey (“Orlando”).           During that conversation, Orlando

asked Hess “if [he] was wired,” and then tore Hess’ shirt off of


                                         2
him.    Consequently, Orlando discovered the recording device and

ripped the microphone off Hess.              When Detective Dunn, who was

listening in, recognized that the device had been discovered, he

called for backup support from Detectives Joynes and Robinson, and

rushed to the scene of the incident.            When he arrived, he found

Hess, beaten and lying on the sidewalk.                 Defendant Dailey was

present and was holding the top portion of the recording device.

When Detectives Joynes and Robinson arrived, they called for

additional support from the local police, who arrested both Dailey

and Orlando.

       The   police     officers   and   detectives   then    obtained   search

warrants for the house and two safes inside the house.            In carrying

out the searches, the officers seized both safes, which contained

numerous firearms, ammunition, and an assortment of controlled

substances.       During the searches, the detectives attempted to

recover the broken recording device, but could not find all of its

components.      The device was damaged in the sum of $1300.

       On July 29, 2003, a federal grand jury in Beckley, West

Virginia,     returned    a    three-count   indictment    against   defendant

Dailey,      charging    him   with:     distribution    of   hydrocodone,   in

contravention of 21 U.S.C. § 841(a)(1) (Count One); distribution of

oxycodone, in violation of 21 U.S.C. § 841(a)(1) (Count Two); and

possession of a firearm in furtherance of a drug trafficking

offense, in contravention of 18 U.S.C. § 924(c)(1)(A)(I) (Count


                                         3
Three).    On April 30, 2004, after a one-day trial in Beckley, a

jury convicted Dailey of all three offenses.

     Dailey’s presentence report (the “PSR”) was submitted to the

district court on July 16, 2004.         The PSR recommended a base

offense level of 12 on Counts One and Two, and a two-level

enhancement for obstruction of justice, for a total offense level

of 14.     The PSR further calculated Dailey’s criminal history

category as II, yielding an advisory Guidelines sentencing range

for Counts One and Two of eighteen to twenty-four months. Pursuant

to   the   statute   of   conviction   for   Count   Three   (18   U.S.C.

§ 924(c)(1)(A)(I)), the PSR advised that the court was obliged to

impose a sentence of at least sixty months on Count Three, to run

consecutively to the sentence imposed on Counts One and Two.1

     Defendant Dailey’s sentencing hearing was conducted in the

district court on February 24, 2005.         At that hearing, the court

calculated Dailey’s Guidelines sentencing range on Counts One and

Two as eighteen to twenty-four months.           The court then asked

counsel for their positions on whether an order of restitution with

respect to the damaged recording device would be appropriate.


     1
      Dailey objected to the PSR’s recommendations, contending that
due process, informed by constitutional ex post facto principles,
precluded the sentencing court from imposing a sentence greater
than it could have imposed under the mandatory Guidelines scheme in
effect at the time of his offenses. Additionally, Dailey asserted
that his final offense level should be 12, and that the facts
supporting any enhancement applied against him had to be proven
beyond a reasonable doubt. However, the court overruled Dailey’s
objections to the PSR at his sentencing hearing.

                                   4
Defendant Dailey responded that restitution was not appropriate

because the damage to the recording device was not directly caused

by   the   conduct   constituting   his   offenses   of   conviction.   He

asserted that “the offenses of conviction are possessing a gun and

distributing drugs.       They have nothing to do with destruction of

Government property.”       J.A. 273.2     The Government, on the other

hand, contended that, although it did not “know any case law that

goes one way or the other,” the court was authorized to order

restitution under the drug and firearms offenses, because “[i]t’s

clearly related to these counts.          It was during the drug offense

that [defendant Dailey] . . . ripped off the wire and damaged the

property.”    J.A. 274.    Consequently, the Government maintained, a

restitution order for the damaged recording device, in the sum of

$1300, would be appropriate.        The court thereafter concluded that

the damage to the recording device was sufficiently related to the

offenses of conviction to allow for an order of restitution.

      The court then sentenced defendant Dailey to concurrent terms

of eighteen months each on Counts One and Two, and a consecutive

term of sixty months on Count Three, for a total of seventy-eight

months in custody.      The court further ordered Dailey to pay $1300

in restitution to TRIDENT.       Dailey has timely noted this appeal,

and we possess jurisdiction pursuant to 28 U.S.C. § 1291.



      2
      Our citations to “J.A.  ” refer to the contents of the Joint
Appendix filed by the parties in this appeal.

                                      5
                                       II.

      We review a district court’s order of restitution for abuse of

discretion.    United States v. Vinyard, 266 F.3d 320, 325 (4th Cir.

2001).    By definition, however, a court abuses its discretion when

it makes an error of law.          EEOC v. Navy Federal Credit Union, 424

F.3d 397, 405 (4th Cir. 2005).        We review questions of law, such as

statutory interpretation issues, de novo. United States v. Turner,

389   F.3d    111,   119    (4th    Cir.     2004).    And   we   review   for

reasonableness a sentence imposed under the advisory Sentencing

Guidelines regime.         United States v. Booker, 543 U.S. 220, 261

(2005).



                                      III.

                                       A.

      In his first contention on appeal, Dailey maintains that the

district court erred in ordering him to pay $1300 in restitution to

TRIDENT for the damage caused to the recording device.                We are

constrained to agree.        The federal sentencing courts possess no

inherent authority to order restitution, and they may do so only

when explicitly authorized by statute.                See United States v.

Donaby, 349 F.3d 1046, 1052 (7th Cir. 2003).                 The Victim and

Witness Protection Act of 1982 (the “VWPA”) provides, in relevant

part, that a court, in sentencing a defendant convicted of an

offense under 21 U.S.C. § 841 (the statute of conviction on Counts


                                        6
One and Two), may order the defendant to make restitution to any

victim of the offense.        See 18 U.S.C. § 3363.           Additionally, the

Mandatory      Victims    Restitution    Act     (the   “MVRA”)    provides,     as

pertinent, that a sentencing court shall award restitution to

victims of certain categories of offenses, including “a crime of

violence, as defined in [18 U.S.C. §] 16.”              18 U.S.C. § 3663A.       We

have    recognized    that   the   use   or     possession    of   a   firearm   in

furtherance of a drug offense, in violation of 18 U.S.C. § 924(c)

(the statute of conviction on Count Three), is a crime of violence

as   defined    in   18   U.S.C.   §   16(b),    thereby     making    restitution

mandatory to a victim under the MVRA.             See United States v. Myers,

280 F.3d 407, 416-17 (4th Cir. 2002). The district court therefore

possessed discretion, under the VWPA, to order restitution to the

victims of Dailey’s Counts One and Two offenses, and it was

required, under the MVRA, to award restitution to the victims of

the Count Three offense.

       TRIDENT, the Drug and Violent Crimes Task Force, was not,

however, a “victim” of any of defendant Dailey’s offenses in this

case.    Under both the VWPA and the MVRA, a “victim” is defined as

       a person directly and proximately harmed as a result of
       the commission of an offense for which restitution may be
       ordered including, in the case of an offense that
       involves as an element a scheme, conspiracy, or pattern
       of criminal activity, any person directly harmed by the
       defendant’s criminal conduct in the course of the scheme,
       conspiracy, or pattern.




                                         7
§ 3663(a)(2), § 3663A(a)(2).       In our decision in United States v.

Blake, we recognized that, in order to qualify as a victim under

the VWPA, one must be directly and proximately harmed by either:

(1) the conduct underlying an element of the offense of conviction;

or (2) an act taken in furtherance of a scheme, conspiracy, or

pattern of criminal activity, which is an element of the offense of

conviction.     See 81 F.3d 498, 506 (4th Cir. 1996); accord United

States    v.   Davenport,   445   F.3d   366,   373-74   (4th   Cir.   2006)

(construing “victim” under the MVRA). A person who has been harmed

by conduct not falling within one of these scenarios is not

entitled to an award of restitution by a sentencing court.             Blake,

81 F.3d at 506.3     Since none of Dailey’s offenses of conviction

have as an element a scheme, conspiracy, or criminal pattern, the

only inquiry left to us is whether the damage suffered by the

recording device was “conduct underlying an element of the offense

of conviction.”    See Davenport, 445 F.3d at 373-74; Blake, 81 F.3d

at 506.

     The Government contends that TRIDENT is a victim of Dailey’s

offenses because his destruction of the recording device was “part

of the ongoing commission of” his drug and firearm offenses of

conviction and was “inextricable” from those offenses.          Appellee’s


     3
      The VWPA and MVRA also authorize a sentencing court to award
restitution if the parties have so agreed in a plea agreement. See
18 U.S.C. § 3663(a)(3); 18 U.S.C. § 3663A (a)(3). These statutory
provisions are irrelevant here as defendant Dailey was convicted
after a jury trial, rather than pursuant to a guilty plea.

                                     8
Br. at 8-9.        Unfortunately for the Government and this contention,

however,      we    have    heretofore        rejected        the     proposition     that

restitution may be ordered for conduct “inextricably intertwined”

with   the    offense      of   conviction,        merely     because     of   a    factual

connection between the two.            See United States v. Broughton-Jones,

71 F.3d 1143, 1149 (4th Cir. 1995).                  We cannot, therefore, extend

Dailey’s drug and firearms offenses to include his destruction of

the recording device, simply because of a temporal proximity

between the events.

       Moreover, Blake proscribes us from concluding that Dailey’s

damage   to    the    recording     device,        insofar     as   it    evidenced       his

consciousness        of    guilt,      constitutes          conduct      underlying       any

knowledge or intent element of his drug and firearms offenses.                             In

Blake,   the       defendant,    who    had       pleaded    guilty      to   the   use    of

unauthorized credit cards, was ordered to make restitution to the

card owners as part of his sentence. See 81 F.3d at 502.                            Blake’s

offense of conviction had four elements, including the intent to

defraud.      See id. at 506.       We there determined that, although his

stealing of credit cards was evidence of Blake’s intent to defraud,

the specific conduct underlying the intent element did not include

theft of the credit cards.             See id.      The restitution order against

Blake was therefore deemed inappropriate.                     See id. at 507; accord

Davenport, 445 F.3d at 373-74 (concluding that conduct underlying

elements of fraudulent use of credit card offense did not include


                                              9
theft of card, and restitution was therefore inappropriate).              By

analogy, we are foreclosed from concluding that the damage to the

recording   device   in   Dailey’s       case     (although    evidence   of

consciousness of guilt), is conduct underlying a knowledge or

intent element of an offense of conviction.          TRIDENT was therefore

not, under these facts, a “victim” of any of Dailey’s offenses of

conviction, and the sentencing court erred in ordering Dailey to

make restitution to TRIDENT.



                                    B.

     Defendant   Dailey   further   contends      that   his   sentence   was

unreasonable under the standards set forth in United States v.

Booker, 543 U.S. 220 (2005).    We are obliged to disagree.          First,

the district court, in imposing sentence, properly followed the

procedures we established in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), by calculating Dailey’s sentencing range under

the Guidelines and then considering the factors provided in 18

U.S.C. § 3553(a).    Second, the sentence imposed fell within the

advisory Guidelines range and is thus “entitled to a rebuttable

presumption of reasonableness.”          United States v. Moreland, 437

F.3d 424, 433 (4th Cir. 2006).            In attempting to rebut this

presumption, Dailey asserts only that his sentence is unreasonable

because of his need for medical care.           Although his medical needs

may have justified a variant sentence, see § 3553(a)(1) (providing


                                    10
that sentencing courts must consider “the nature and circumstances

of   the   offense      and   the   history     and   characteristics    of    the

defendant”) and § 3553(a)(2)(D) (providing that sentencing courts

must consider “the need for the sentence imposed . . . to provide

the defendant with needed . . . medical care”), the district court

properly weighed each of these factors.               As a result, it sentenced

at the bottom of the Guidelines range and recommended that Dailey

be assigned to a facility which would be able to treat his medical

condition. In these circumstances, the fact that the court did not

impose a sentence below the advisory Guidelines range, is not,

standing     alone,      sufficient       to    rebut    the    presumption    of

reasonableness.



                                          IV.

      Pursuant to the foregoing, we affirm the district court’s

sentence of imprisonment, but we vacate its restitution order and

remand     for   such    other      and   further     proceedings   as   may   be

appropriate.4

                                                               AFFIRMED IN PART,
                                                                VACATED IN PART,
                                                                    AND REMANDED




      4
      We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid in the decisional process.

                                          11
