                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4290


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOYCE GAYNELL GLISSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00459-PMD-2)


Submitted:   November 9, 2010             Decided:   December 16, 2010


Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished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


Guy J. Vitetta, VITETTA LAW GROUP, Daniel Island, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Joyce Gaynell Glisson pleaded guilty to embezzlement

from a federally-insured bank, in violation of 18 U.S.C. § 656

(2006).       After Glisson embezzled the funds from her employer,

Citizen’s Bank, she obtained a loan from a third party, Robert

Player, and used that money to repay some of the embezzled funds

to the bank.         The district court sentenced Glisson to fifteen

months of imprisonment and ordered that she pay restitution to

the   bank    and   to    Player.       Glisson    appeals,       arguing    that   the

district court erred in ordering restitution to the third party.

For   the    reasons      that   follow,   we     affirm    the    conviction,      but

vacate      the   order    of    restitution      with    instructions       that   the

district court modify the order.

              Glisson first argues that the district court erred in

awarding restitution to Player as he was not a victim of her

offense.      We review a restitution order for abuse of discretion.

United States v. Hoyle, 33 F.3d 415, 520 (4th Cir. 1994).                         Under

the   Mandatory      Victims      Restitution       Act     (“MVRA”),       18   U.S.C.

§§ 3663A-3664        (2006),      the    district        court    must    order     the

defendant to make restitution to victims of an offense against

property.         18 U.S.C. § 3663A(a), (c)(1)(A)(ii).                   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

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     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.

18 U.S.C. § 3663A(a)(2).                  Moreover, the MVRA “‘authorize[s] an

award of restitution only for the loss caused by the specific

conduct    that       is    the    basis        of       the    offense            of    conviction.’”

United States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996).

            Here, the offense of conviction was embezzlement under

§ 656.      Section         656    makes       it    a    crime      for       an       employee         of    a

federally-insured bank to embezzle, abstract, or misapply any

funds of the bank.            18 U.S.C. § 656.

     For a violation of § 656 to be proved, the Government
     must show, in addition to the status of both the bank
     and the defendant, that the defendant acted willfully,
     that [she] misapplied [or embezzled] funds, . . .
     belonging to or intrusted to the custody of the bank
     and that [she] did so with the intent to injure or
     defraud the bank.

United States v. Duncan, 598 F.2d 839, 858 (4th Cir. 1979).

Accordingly, as Glisson’s embezzlement was complete prior to her

obtaining       funds       from    Player,          and       as    embezzlement                 does    not

contain    as    an     element       a    scheme,          conspiracy,                 or   pattern          of

criminal activity, see Blake, 81 F.3d at 506 (“the act that

harms    the     individual         must       be       either       conduct            underlying            an

element    of    the        offense       of    conviction,              or    an       act       taken       in

furtherance      of     a    scheme,       conspiracy,              or    pattern            of    criminal

activity    that      is     specifically            included        as       an    element         of    the



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offense   of    conviction”),        Player     was   not     a   victim    within     the

meaning of the MVRA.

              However, the Government correctly argues that Player

is entitled to restitution under 18 U.S.C. § 3664(f)(1) (2006).

      If a victim has received compensation from insurance
      or any other source with respect to a loss, the court
      shall order that restitution be paid to the person who
      provided or is obligated to provide the compensation,
      but the restitution order shall provide that all
      restitution of victims required by the order be paid
      to the victims before any restitution is paid to such
      a provider of compensation.

18 U.S.C. § 3664(f)(1).              Here, as Player compensated Citizen’s

Bank for some of the loss resulting from Glisson’s embezzlement,

the district court properly awarded restitution to Player.                             See

United States v. Smith, 395 F.3d 316, 319 (4th Cir. 2005) (this

court   may    affirm    on    any    grounds     apparent        from    the    record).

However, as the statute unambiguously directs that victims be

paid the full amount of restitution to which they are due before

restitution     is    paid    to     persons    who    provide         compensation     to

victims for their loss, the order of restitution should have

specified that the restitution must be fully paid to Citizen’s

Bank before any restitution is paid to Player.

              Glisson next argues that the court erred in failing to

examine   the    statutory      factors        regarding      her      ability    to   pay

before ordering restitution.              We disagree.              Under § 3663A(d),

the   district       court    must    issue     an    order       of   restitution      in


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accordance with § 3664.        18 U.S.C. § 3663A(d).                 Section 3664(a)

provides that, for restitution orders, the court shall order

that   the   probation     officer    must     include       information          in   the

presentence     report     sufficient        for     the     court    to    determine

restitution, including, “to the extent practicable, a complete

accounting of the losses to each victim, any restitution owed

pursuant to a plea agreement, and information relating to the

economic circumstances of each defendant.”                 18 U.S.C. § 3664(a).

             Moreover, although a district court must make factual

findings     with   regard   to    the      statutory      factors,        see     United

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

overruled on other grounds, Irizarry v. United States, 553 U.S.

708 (2008), “[t]he district court may satisfy this requirement

by announcing its findings on the record or by adopting adequate

proposed     findings    contained       within       a    presentence           report.”

Blake, 81 F.3d at 505 (citation omitted).                    Here, the probation

officer included the necessary information in the presentence

report, and the district court explicitly adopted those findings

at the sentencing hearing.         Therefore, the court did not fail to

consider the statutory factors prior to awarding restitution.

             Accordingly, we affirm the judgment of the district

court in part, but also vacate the judgment in part and remand

with instructions that the district court modify the order of

restitution to provide that Citizen’s Bank be paid in full prior

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to restitution being paid to Player.       We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                 AFFIRMED IN PART;
                                      VACATED AND REMANDED IN PART




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