                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4867


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

HOWARD GLEN BLEVINS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.    Glen M. Williams, Senior
District Judge. (1:07-cr-00065-gmw-pms-1)


Submitted:    April 23, 2009                 Decided:   June 5, 2009


Before MICHAEL, TRAXLER, and AGEE, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished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


Larry W. Shelton, Federal Public Defender, Joel           C Hoppe,
Assistant Federal Public Defender, Charlottesville,       Virginia,
for Appellant.     Julia C. Dudley, United States         Attorney,
Jennifer   R.  Bockhorst,   Assistant United States       Attorney,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Howard    Glen      Blevins      pled    guilty       to   five      counts    of

possessing, transporting, and selling wildlife valued at more

than $350 in interstate commerce, in violation of state law,

16 U.S.C. § 3372(a)(2)(A) (2006).                      In sentencing Blevins, the

district court rejected Blevins’ request that he be sentenced to

probation, and instead, the district court sentenced Blevins to

six     months’        imprisonment           on     each     count       to     be     served

concurrently.          The district court also ordered Blevins to pay

$6970    in    restitution         to   the    Virginia       Department       of     Game   and

Inland Fisheries to reimburse the agency for its investigation

of Blevins.          We affirm the district court’s order with respect

to Blevins’ sentence of imprisonment, but vacate the order with

respect to restitution and remand to the district court.

               This court reviews a sentence imposed by a district

court under a deferential abuse of discretion standard.                                 United

States    v.    Evans,       526    F.3d      155,     161    (4th     Cir.    2008).        In

reviewing a sentence, we must first ensure that the district

court    committed        no       procedural        error,     such      as     failing     to

calculate       or     improperly        calculating          the    Guidelines         range,

treating the Guidelines as mandatory, failing to consider the

factors set forth in 18 U.S.C. § 3553(a) (2006), selecting a

sentence       based    on     clearly        erroneous       facts,      or     failing      to

adequately explain the chosen sentence.                        Gall v. United States,

                                               2
128 S. Ct. 586, 597 (2007).                 If there are no procedural errors,

we then consider the substantive reasonableness of the sentence.

Id.      A substantive reasonableness review entails taking into

account the totality of the circumstances.                          United States v.

Pauley,    511       F.3d     468,    473   (4th    Cir.    2007)    (quotations       and

citation       omitted).         In    making      this    assessment,     this    court

presumes       a     sentence        within   the     guidelines      range       to   be

reasonable.

               We have reviewed the record and find that the district

court did not commit procedural error in sentencing Blevins, nor

was     Blevins’      sentence        substantively        unreasonable.          Because

Blevins’ sentence fell within his advisory guidelines range, we

presume it is reasonable.               Rita v. United States, 551 U.S. 338,

___, 127 S. Ct. 2456, 2459 (2007).                  Blevins offers no persuasive

argument to rebut this presumption.                   Accordingly, we affirm the

prison term imposed by the district court.

               Blevins also argues on appeal that the district court

erred     in       imposing     restitution,        arguing    that    the    Virginia

Department of Game and Inland Fisheries is not a victim entitled

to restitution under 18 U.S.C. §§ 3663 (2006), 3663A (2006) or

18 U.S.C. §§ 3583(d) (2006), 3563(b)(2) (2006).                       The Government

concurs that the district court erred in its order regarding




                                              3
Blevins’ restitution.            We agree. *     Accordingly, we vacate the

district court’s judgment with respect to the restitution order

and remand for further proceedings consistent with this opinion.

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,
                                                                 REVERSED IN PART,
                                                                      AND REMANDED




        *
       Although this court has never addressed in a published
opinion whether a state law enforcement agency that expends
funds in the course of an investigation can be a “victim” of an
offense entitled to be awarded restitution, our sister circuits
that have considered this question appear to be unanimous in
concluding   that  restitution  is  not   appropriate  in  such
circumstances. See United States v. Cottman, 142 F.3d 160, 169
(3d Cir. 1998); United States v. Khawaja, 118 F.3d 1454, 1460
(11th Cir. 1997); United States v. Meacham, 27 F.3d 214, 218-19
(6th Cir. 1994); United States v. Gibbens, 25 F.3d 28, 29 (1st
Cir. 1994); United States v. Salcedo-Lopez, 907 F.2d 97, 98-99
(9th Cir. 1990).




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