UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 00-4433

DANIEL QUACKENBUSH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-99-129)

Argued: April 6, 2001

Decided: May 29, 2001

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Mark Everette Edwards, Durham, North Carolina, for
Appellant. David J. Cortes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Daniel Quackenbush was convicted after a jury trial in the United
States District Court for the Eastern District of North Carolina as an
accessory-after-the-fact to a bank robbery after he assisted three bank
robbers, post-robbery, by driving them to and from various locations,
harboring them, and helping them travel and spend the proceeds of
the robbery. Quackenbush was sentenced to sixty-three months
imprisonment, and he was held jointly and severally liable for restitu-
tion in the amount of $26,343.99 based upon the losses to the bank,
a pre-robbery carjacking victim, and the carjacking victim's insurers.
Quackenbush argues on appeal that the district court committed plain
error in assessing the full amount of restitution against him because
the basis for his conviction was only as an accessory-after-the-fact to
the robbery. We agree with the district court that Quackenbush can
be held jointly and severally liable for the full amount of the bank's
unrecovered losses, but we disagree with the portion of the district
court's order finding Quackenbush liable for restitution to the owner
of the car-jacked vehicle and the vehicle's insurer. We remand for the
district court to key the manner and schedule of payment to Quacken-
bush's financial situation.

I.

Lorenzo Nesbitt, Robert Bishop, and Duana David Darby went to
a mall and stole a car at gunpoint. They then went to a First Union
Bank and robbed it. After the robbery, Nesbitt drove to a friend's
house, called Quackenbush, and asked Quackenbush to come and
pick him up for a ride. Quackenbush initially declined but agreed after
Nesbitt offered to pay for the ride. Quackenbush met the three robbers
and drove them to Quackenbush's home. At Quackenbush's house,
the robbers dumped the money on a coffee table and everyone,
including Quackenbush and his girlfriend, assisted in counting it. The

                  2
amount totaled approximately $23,000. Each of the robbers then gave
Quackenbush money for driving them.

Quackenbush later drove Darby home so that Darby could take his
share of the money and go to New York. Quackenbush took the other
two bank robbers to the mall, and, afterwards, they returned to Quack-
enbush's house and partied. Using disposable cameras that they had
purchased at the mall, they took pictures of the guns that they used
in the robbery.

The next day, Quackenbush and his girlfriend drove Bishop and
Nesbitt to the Charlotte airport to catch a flight to El Paso. Nesbitt
paid Quackenbush for the ride and also gave him money to stay at a
hotel. One week later, Quackenbush picked up Nesbitt and Bishop
after they returned from El Paso.

Quackenbush and Bishop were charged on a seven-count indict-
ment. Count Six charged that, knowing that carjacking and bank rob-
bery offenses had been committed, Quackenbush received, comforted,
and assisted the offenders in order to hinder and prevent their appre-
hension, trial, and punishment, in violation of 18 U.S.C.A. § 3. Count
Seven charged him with receiving, possessing, concealing, and stor-
ing in excess of $1000 in U.S. currency stolen from a bank in viola-
tion of 18 U.S.C.A. § 2113(b) and (c). Trial began on February 10,
2000, and the jury convicted Quackenbush on Count Six and on a
lesser-included misdemeanor charge as to Count Seven.1 On May 17,
                                                          1
2000, the district court sentenced Quackenbush to sixty-three months
imprisonment on Count Six and a concurrent twelve month sentence
on Count Seven. The district court concluded that Quackenbush was
jointly and severally liable for restitution and ordered him to pay a
total of $26,343.99. This amount was based upon losses by the bank
($22,681.53), the carjacking victim ($952.86), and the carjacking vic-
tim's insurers ($849.89 and $1,859.71). Quackenbush did not object
to the amount of restitution.
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1 Quackenbush was convicted of possessing $1,000 or less of stolen
bank accounts, as opposed to possessing more than $1,000.

                  3
II.

The sole issue on appeal is whether the district court erred in
imposing restitution against Quackenbush in the full amount of the
bank's losses where the basis for Quackenbush's conviction was his
conduct as an accessory-after-the-fact.2 Quackenbush argues that
                                         2
although 18 U.S.C.A. § 3663A (West 2000), mandates restitution for
victims proximately harmed by the defendants' criminal conduct, the
bank was not so harmed, at least not in the full amount, by Quacken-
bush's conduct because he was merely an accessory-after-the-fact. In
other words, Quackenbush argues that it was improper to impose the
full amount of restitution against him where the bank's losses were
not caused by the specific conduct that was the basis of his convic-
tions and where the losses were complete by the time he engaged in
his criminal conduct.3 Because Quackenbush did not object below, we
                     3
review the restitution order for plain error. See United States v. Uba-
kanma, 215 F.3d 421, 427 (4th Cir. 2000). "Four conditions must be
met to correct plain error: there must be (1) an error, such as a devia-
tion from a legal rule; (2) the error must be plain; (3) it must affect
substantial rights; and (4) it must seriously affect the fairness, integ-
rity, or public reputation of judicial proceedings." Id. at 429.

18 U.S.C.A. § 3663A, which codifies the pertinent provision of the
Mandatory Victim Restitution Act (MVRA) of 1996 and which gov-
erns "Mandatory Restitution to Victims of Certain Crimes," provides,
in pertinent part:

        (a)(1) Notwithstanding any other provision of law, when
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2 The Government concedes on appeal that "[w]ith respect to restitution
to the carjacking victim and her insurers, the restitution order was plainly
erroneous, because the losses to those victims were not linked to Quack-
enbush's offenses." (Appellee's Br. at 10.) We agree. We therefore focus
our analysis solely upon the restitution order as it relates to the bank's
unrecovered losses.
3 Quackenbush concedes that "[r]egarding the offense of possession of
stolen bank funds, based [on] the jury's verdict, the district court could
impose restitution for that conviction, but in an amount no greater than
$1000.00 since the jury convicted Mr. Quackenbush of accepting no
more than $1000.00." (Appellant's Br. at 9.)

                   4
       sentencing a defendant convicted of an offense described in
       subsection (c), the court shall order, in addition to, or in the
       case of a misdemeanor, in addition to or in lieu of, any other
       penalty authorized by law, that the defendant make restitu-
       tion to the victim of the offense or, if the victim is deceased,
       to the victim's estate.

        (2) For the purposes of this section, the term "victim"
       means 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. . . .

18 U.S.C.A. § 3663A (emphasis added). Interpreting the predecessor
statute to the MVRA, the Victim and Witness Protection Act of 1982
(VWPA), the Supreme Court has stated that restitution is authorized
"only for the loss caused by the specific conduct that is the basis of
the offense of conviction." Hughey v. United States, 495 U.S. 411,
413 (1990). In 1990, following the Hughey decision, the VWPA was
amended to provide that if the offense involves"as an element" a
scheme, conspiracy, or pattern of criminal activity, the definition of
"victim" includes any person directly harmed by the defendant's crim-
inal conduct. United States v. Broughton-Jones , 71 F.3d 1143, 1149
(4th Cir. 1995). "Although this amendment superseded Hughey's
holding in part, we have recognized that Hughey still applies when,
in the absence of an appropriate plea agreement that provides for restitu-
tion,4 a restitution award clearly encompasses an offense for which
     4
the defendant was not convicted." United States v. Blake, 81 F.3d
498, 506 n.6 (4th Cir. 1996) (internal quotation marks omitted). Thus,
for a person to be considered a victim under the restitution statute, the
act that harms the individual must either be 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 specifi-
cally included as an element of the offense of conviction. Cf.
Broughton-Jones, 71 F.3d at 1149. If the harm to the person does not
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4 There is no plea agreement in this case.

                  5
result from conduct underlying an element of the offense of convic-
tion, or conduct that is part of a pattern of criminal activity that is an
element of the offense of conviction,5 the district court may not order
                                         5
the defendant to pay restitution to the harmed individual. Cf. id. In
1996, Congress enacted the MVRA, which made restitution manda-
tory, as opposed to discretionary, irrespective of the defendants' abil-
ity to pay. See 18 U.S.C.A. § 3664(f)(1)(A) (providing that "the court
shall order restitution to each victim in the full amount of each vic-
tim's losses as determined by the court and without consideration of
the economic circumstances of the defendant")."The burden of dem-
onstrating the amount of the loss sustained by a victim as a result of
the offense shall be on the attorney for the Government." 18 U.S.C.A.
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5 The Government does not argue that restitution is appropriate on the
basis that Quackenbush's conduct was taken in furtherance of a scheme,
conspiracy, or pattern of criminal activity that is specifically included as
an element of the offense of conviction. Cf. United States v. Neal, 36
F.3d 1190, 1200-01 (1st Cir. 1994) (stating that the broadening of the
definition of "victim" to include offenses that involve a scheme, conspir-
acy, or a pattern of criminal activity "appears to apply to cases involving
mail fraud, racketeering, or other federal crimes that require proof of a
scheme, conspiracy, or pattern of criminal conduct" and that it "does not
appear to support [a] restitutionary award" based upon money laundering
or being an accessory-after-the-fact because "[n]either of these offenses
involves proof of a scheme, conspiracy or pattern of criminal activity as
an element"). In United States v. Plumley, 993 F.2d 1140 (4th Cir. 1993),
we upheld a restitution order against Plumley, who conspired with her
boyfriend to rob a bank, gave him two pistols, drove the boyfriend to the
bank, waited in the car while the boyfriend robbed the bank, and drove
the two of them away from the robbery. See id. at 1141. Although Plum-
ley argued that her actions did not directly harm the bank because she did
not rob the bank, we upheld the restitution order because, among other
reasons, "as a member of the conspiracy, Plumley was liable for all of
the actions of her co-conspirators in furtherance of the conspiracy . . .
[s]tated differently, Plumley's conduct during the course of the conspir-
acy unquestionably caused direct harm to [the bank]." Id. at 1142. Here,
Quackenbush did not participate in the planning or execution of the rob-
bery, nor is he alleged to have conspired to do so. Thus, the only ques-
tion in the present case is whether the bank's losses resulted from
Quackenbush's conduct as an accessory-after-the-fact and not as part of
a conspiracy or scheme.

                  6
§ 3664(e). The defendant, however, has the burden of demonstrating
his financial resources. Id.

A.

The Government argues that there is no per se rule against ordering
restitution against accessories-after-the-fact and that several facts sup-
port the causal link between Quackenbush's post-robbery conduct and
the bank's losses:

        Quackenbush drove the robbers to his home knowing they
        had just committed an armed bank robbery. He then drove
        Darby home so that he could escape to New York -- with
        the bank's money. He sheltered the robbers and the bank's
        funds for the night. He helped the robbers escape the next
        day, with at least part of the stolen funds, by driving them
        from Fayetteville to Charlotte. He retrieved them from the
        Charlotte Airport a week later and harbored them for some
        time afterward. In sum, Quackenbush assisted and facili-
        tated the robbers' possession of the loot and prevented its
        recovery, which is to say, he assisted and facilitated the
        bank's loss.

(Appellee's Br. at 14-15 (internal citations omitted)).

We agree that there is no per se rule against imposing restitution
on persons based upon their convictions for being accessories-after-
the-fact. See United States v. Neal, 36 F.3d 1190, 1201 n.10 (1st Cir.
1994) (recognizing that sentencing court "could well be within its
statutory authority" under the VWPA to impose the full amount of
losses in restitution if "Neal played a significant role in helping the
other defendants escape and that but for his actions, there was a sub-
stantial likelihood that the full proceeds would have been recovered").
Rather, the relevant question is whether the victims' losses were prox-
imately caused by the specific conduct for which Quackenbush was
convicted, i.e., being an accessory-after-the-fact by virtue of his acts
of driving the bank robbers to and from various locations following
the bank robbery, harboring them, helping them count and spend the
money, and helping them hide from the police.

                   7
Our decision in United States v. Broughton-Jones , 71 F.3d 1143
(4th Cir. 1995), is instructive. Broughton-Jones involved a financial
consultant who was indicted on charges of wire fraud and perjury and
who pleaded guilty (and was convicted) only of perjury arising from
her testimony before the grand jury that she never signed a document
under the fictitious name of "Otto Solheim." Id. at 1145. In analyzing
the question of whether the district court's restitution order properly
"compensated [the] victim of [the] perjury for some loss caused by
that offense," we stated that "Hughey makes clear that in determining
what loss flowed from the offense of conviction, we must examine the
`specific conduct' supporting [the] conviction." Id. at 1148 (quoting
Hughey, 495 U.S. at 413). We stated that "Broughton-Jones's perjury
was complete when she knowingly made a `false material declaration'
before the grand jury. The Government has identified no loss that
flowed to anyone -- much less specifically to[the victim] -- as a
result of this perjury before the grand jury." Id. We also rejected the
notion that because "the transaction about which Broughton-Jones
lied was the very one in which she allegedly defrauded [the victim],
her fraud was `inextricably intertwined' with her offense of convic-
tion," stating that "[a]lthough there is a factual connection between
Broughton-Jones's perjury and her alleged financing scheme, that
connection is legally irrelevant" because " Hughey and the text of the
VWPA do not allow us to stretch the `offense' involved in the perjury
conviction to include any other conduct, whether or not the subject of
separate conviction, to which the defendant's perjurious statement
may have borne some relationship." Id. at 1149. We nevertheless left
open the possibility that a court could impose restitution for perjury
in some instances, as we assumed that "such a loss is conceivable
(e.g., by delaying Government efforts to recover stolen or defrauded
money)." Id. at 1148 n.3.

It is true that, here, the actual bank robbery, and therefore the initial
loss, was complete by the time Quackenbush became involved. Like-
wise, Quackenbush was not the actual "getaway driver" from the rob-
bery; rather, Nesbitt called Quackenbush for a ride after Nesbitt had
already gone to another friend's house. Although the bank robbery
was completed by the time Quackenbush became involved, we have
no difficulty concluding that the district court could have found that
Quackenbush's conduct, for which he was convicted, impaired both
the police's effort to stop the bank robbers and the bank's efforts to

                  8
recover the stolen money. Quackenbush helped the bank robbers hide
themselves and the money after the robbery (J.A. at 42 (testimony
that Quackenbush harbored Nesbitt while he was in possession of
stolen money and that Quackenbush's home was a safe place for
him); 87 (Bishop's testimony that they stayed at Quackenbush's
house in part because it was safe and because they were afraid of get-
ting caught and that they gave him close to a thousand dollars for
staying there)), and he also helped the bank robbers count and spend
the money by driving them to the mall and taking them to the airport
for their trip to El Paso, a trip that was presumably financed by the
stolen money. Unlike the situation in Broughton-Jones, in which
Broughton-Jones's perjury "caused no direct pecuniary harm to" the
client that she allegedly bilked, see Broughton-Jones, 71 F.3d at 1147,
here, the district court very well could have found that the bank's
inability to recover the stolen money was directly attributable to
Quackenbush's act of helping the bank robbers hide after the robbery.
In other words, Quackenbush's conduct is more analogous to the situ-
ation explicitly left open in Broughton-Jones , in which we assumed
that restitution could be available for perjury that"delay[ed] Govern-
ment efforts to recover stolen or defrauded money." Id. at 1148 n.3.
We therefore agree with the district court that Quackenbush could be
held jointly and severally liable for the full amount of the bank's
unrecovered losses notwithstanding his role as an accessory-after-the-
fact.

B.

Having concluded that Quackenbush could be held jointly and sev-
erally liable for the full amount of the bank's losses, we now must
address whether the district court's restitution order satisfies the
MVRA.

Under the MVRA, "a sentencing court must make a factual finding
keying the statutory factors to the type and manner of restitution
ordered; it must find that the manner of restitution ordered is feasi-
ble." United States v. Dawkins, 202 F.3d 711, 716 (4th Cir.), cert.
denied, 529 U.S. 1121 (2000); 18 U.S.C.A. § 3664(f)(2).6 "A court
                                                       6
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6 Although the MVRA requires that the sentencing court order full res-
titution without considering the defendant's economic circumstances, see

                  9
may comply with these requirements by announcing its findings on
the record or by adopting adequate proposed findings contained
within a presentence report." Id. (internal quotation marks omitted).
In Dawkins, the district court instructed Dawkins that if he "were
unable to pay the full restitution amount immediately, he could pay
$200 per month beginning 60 days after his release." Id. Although we
found that this instruction was sufficient to satisfy the district court's
obligation to set a payment schedule, we nevertheless concluded that
further clarification was necessary, stating that

        [o]ur review of the record indicates that the district court did
        not make all of the necessary factual findings. The court
        adopted the proposed findings of the presentence report
        (PSR), which contained a section concerning Dawkins'
        financial condition. The PSR adequately described
        Dawkins' financial resources and assets and his projected
        earnings. . . . However, the record is devoid of any factual
        finding that keys Dawkins' financial situation to the restitu-
        tion schedule ordered or finds that the order is feasible. We
        therefore instruct the district court, when it reconsiders the
        restitution order on remand, to make such a finding on the
        record.
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18 U.S.C.A. § 3664(f)(1)(A), it also requires that the sentencing court
"specify the manner and schedule by which the defendant is to pay resti-
tution." United States v. Dawkins, 202 F.3d 711, 716 (4th Cir.), cert.
denied, 529 U.S. 1121 (2000). 18 U.S.C.A. § 3664(f)(2) provides,

        (2) Upon determination of the amount of restitution owed to each
        victim, the court shall, pursuant to section 3572, specify in the
        restitution order the manner in which, and the schedule accord-
        ing to which, the restitution is to be paid, in consideration of--

         (A) the financial resources and other assets of the defendant,
        including whether any of these assets are jointly controlled;

         (B) projected earnings and other income of the defendant; and

        (C) any financial obligations of the defendant; including obli-
        gations to dependents.

18 U.S.C.A. § 3664(f)(2).

                    10
Id. at 716-17 (internal citations omitted). Here, as in Dawkins, the dis-
trict court failed to "key[ ] [Quackenbush's] financial situation to the
restitution schedule ordered or find[ ] that the order is feasible." Id.
at 717. Instead, the district court simply required, without explana-
tion, that Quackenbush pay the amount "in full immediately." (J.A. at
163.)7 We therefore remand for the district court to make an appropri-
     7
ate finding on the record. See United States v. Ubakanma, 215 F.3d
421, 429 (4th Cir. 2000) (finding that restitution order under VWPA
constituted plain error where district court failed to make findings to
support its restitution award).8 8

III.

In sum, the district court did not err in concluding that Quacken-
bush could be held liable for the full amount of restitution to the bank
even though the basis for his conviction was only as an accessory-
after-the-fact. Quackenbush, however, is not liable for restitution to
the car owner or the vehicle's insurer, and, thus, the district court
_________________________________________________________________
7 The district court adopted the findings of the presentence report.
However, although the presentence report "adequately described [Quack-
enbush's] financial resources and assets," neither it nor the district
court's findings "key[ ] [Quackenbush's] financial situation to the restitu-
tion schedule ordered or find[ ] that the order is feasible." United States
v. Dawkins, 202 F.3d 711, 716-17 (4th Cir.), cert. denied, 529 U.S. 1121
(2000).
8 Although we have already concluded that the district court could have
found that Quackenbush's conduct impaired the bank's ability to recover
the stolen money so as to warrant joint and several liability for the full
amount of the bank's losses, we note that the district court had the discre-
tion to apportion liability rather than finding Quackenbush jointly and
severally liable for the full amount of the bank's losses. See 18 U.S.C.A.
§ 3664 (West 2000) (providing that where "more than 1 defendant has
contributed to the loss of a victim, the court may make each defendant
liable for payment of the full amount of restitution or may apportion lia-
bility among the defendants to reflect the level of contribution to the vic-
tim's loss and economic circumstances of each defendant"). Given the
nature of Quackenbush's involvement in the robbery, which was less
direct than that of the actual bank robbers, the district court may wish to
clarify that it was aware that it could apportion liability pursuant to
§ 3664. To the extent that the district court has not already considered
§ 3664, it may do so on remand.

                  11
must adjust the restitution order accordingly. The district court also
must key the manner and schedule by which Quackenbush must pay
restitution to his financial situation. Accordingly, we reverse and
remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

                  12
