                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2006

USA v. Gregg
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2912




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Recommended Citation
"USA v. Gregg" (2006). 2006 Decisions. Paper 1539.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1539


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                       No. 04-2912


                          UNITED STATES OF AMERICA

                                           v.

                                 KENNARD GREGG

                                        Appellant



                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 04-cr-00103)
                      District Judge: Honorable John R. Padova



                            Argued: June 8, 2005
        Before: FUENTES, VAN ANTWERPEN, and BECKER, Circuit Judges.

                              (Filed: February 28, 2006)

                             OPINION OF THE COURT


Elaine DeMasse
David L. McColgin (Argued)
Maureen Kearney Rowley
Federal Court Division
Defender Association of Philadelphia
Suite 540 West
Curtis Center
Independence Square West
Philadelphia, PA 19106

       Attorneys for Appellant

Patrick L. Meehan
Laurie Magid
Robert A. Zauzmer (Argued)
Joseph G. Poluka
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

       Attorneys for Appellee

FUENTES, Circuit Judge.

       The issue presented by this appeal is whether the rule1 of United States v. Booker, 125

S. Ct. 738 (2005), is applicable to orders of restitution under the Mandatory Victim

Restitution Act (“MVRA”), 18 U.S.C. § 3663A.2 Kennard Gregg twice attempted to sell

counterfeit money to a government informant. In the first transaction, the informant paid

Gregg $350 in genuine currency in exchange for $1,020 in counterfeit currency; in the

second, the informant paid Gregg $500 in genuine currency in exchange for $5,000 in

counterfeit currency. After being arrested and charged, Gregg pled guilty to two counts of


   1
     The now-familiar holding in Booker is that “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant or proved
to a jury beyond a reasonable doubt.” 125 S. Ct. at 756.
   2
   The MVRA reads, in relevant part:
     (a)(1) Notwithstanding any other provision of law, when sentencing a
     defendant convicted of an offense described in subsection (c), the court shall
     order . . . that the defendant make restitution to the victim of the offense or, if
     the victim is deceased, to the victim’s estate.

                                            -2-
dealing in counterfeit obligations in violation of 18 U.S.C. § 473. Though the $500 used in

the second exchange was recovered, the $350 from the first exchange was never found.

       Gregg’s Presentence Investigation Report concluded that his total offense level under

the U.S. Sentencing Guidelines was 9 and that his criminal history category was 2, subjecting

him to 6-12 months of incarceration, supervised release, and a fine of anywhere from $1,000

to $10,000.

       In the section entitled “Restitution,” the report stated: “Restitution is not an issue in

this case.” However, at his sentencing hearing, the following exchange occurred:

       Mr. Poluka [Assistant United States Attorney]: . . . . I would add one other
       thing on maximum penalties. The first undercover deal, Mr. Gregg was paid
       $350 in currency. That money was obviously taken by him, so that would be
       a restitution amount at sentencing. And I believe it would be mandatory.

       The Court: Thank you. Okay. Do you understand that Mr. Gregg?

       Mr. Gregg: Yes.

At no time, however, did Gregg specifically admit that he had received the $350 or that the

Government had failed to recover it after his arrest.

       Gregg was sentenced to six months in prison and three years of supervised release,

and was ordered to pay $350 in restitution to the federal government, pursuant to the MVRA.

Gregg has already served his prison term and therefore challenges only the award of

restitution, arguing that the manner in which it was imposed violates the Sixth Amendment

under Booker. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742.


                                             -3-
       In United States v. Leahy, __ F.3d __, 2006 U.S. App. LEXIS 3576, an en banc panel

of this Court held that the rule from Booker is inapplicable to orders of restitution under the

Victim and Witness Protection Act and the MVRA. Id. at *6-7. Based on that holding, the

District Court’s ordering Gregg to pay $350 under the MVRA based on facts not found by

a jury or admitted by Gregg does not constitute a Sixth Amendment violation under Booker.

Having been presented with no other grounds for vacating the sentence, we affirm the

District Court’s order of restitution in the sum of $350.



TO THE CLERK:

       Please file the foregoing opinion.



                                                   /s/ Julio M. Fuentes
                                                   Circuit Judge




                                             -4-
