                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-5191



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RALPH MANNA,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-05-71-WDQ)


Submitted:   August 30, 2006            Decided:   September 28, 2006


Before WILKINSON, WILLIAMS, and KING, Circuit Judges.


Affirmed in part; reversed in part by unpublished per curiam
opinion.


James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Rod
J. Rosenstein, United States Attorney, Deborah A. Johnston,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ralph   Manna    appeals    his    240-month      sentence   imposed

following his jury conviction for solicitation to commit a crime of

violence, in violation of 18 U.S.C. § 373 (2000).              Manna raises two

issues on appeal:        whether the statutory language of 18 U.S.C.

§ 373 establishes a maximum sentence of twenty years’ imprisonment

for soliciting another to travel interstate to commit murder-for-

hire and whether the district court abused its discretion under the

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

§ 3663A(a)(1), (c)(1)(A)(ii) (West 2000 & Supp. 2006), when it

ordered restitution for counseling expenses and travel expenses

absent bodily injury.       For the reasons stated below, we affirm the

240-month   incarceration     sentence,       but   reverse    the   restitution

order.

            Manna’s   indictment   charged       him   with    solicitation   to

commit a crime of violence, in violation of 18 U.S.C. § 373(a), and

identified the crime of violence solicited as 18 U.S.C. § 1958

(2000), use of interstate commerce facilities in the commission of

murder-for-hire.        The indictment did not charge that personal

injury or death resulted.       The jury found Manna guilty as charged

in the single-count indictment, and Manna was sentenced to 240

months’ imprisonment.       The court also imposed restitution to the

victims in the amount of $815 to cover the costs of counseling

expenses and travel expenses related to counseling.                  The parties


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dispute the applicable statutory maximum penalty and the authority

to compensate victims for costs and expenses related to counseling,

absent physical injury.

           Manna first questions whether the statutory language of

18 U.S.C. § 373 establishes a maximum sentence of twenty years’

imprisonment for soliciting another to travel interstate to commit

murder-for-hire.     Two statutes are at issue here:           § 373, the

“solicitation” statute, and 18 U.S.C. § 1958 (2000), the “murder-

for-hire” statute.    The pertinent language of § 373 reads:

     Whoever . . . solicits, commands, induces, or otherwise
     endeavors to persuade such other person to engage in such
     conduct, shall be imprisoned not more than one-half the
     maximum term of imprisonment . . . of the crime solicited
     . . . or if the crime solicited is punishable by life
     imprisonment or death, shall be imprisoned for not more
     than twenty years.

18 U.S.C. § 373.      Section 1958 provides for graduated maximum

penalties depending upon the harm suffered by the victim:                   a

maximum   sentence   of    ten   years’   imprisonment   for   the   use   of

interstate commerce facilities in the commission of murder-for-hire

without resulting injury; a maximum sentence of twenty years’

imprisonment for the use of interstate commerce facilities in the

commission of murder-for-hire resulting in personal injury; and a

maximum sentence of death or life imprisonment for the use of

interstate commerce facilities in the commission of murder-for-hire

resulting in death.       18 U.S.C. § 1958(a).    We review questions of




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statutory construction de novo.             See United States v. Davis, 98

F.3d 141, 144 (4th Cir. 1996).

              Manna argues that without proof of death or serious

bodily injury, the maximum penalty for solicitation to violate the

murder-for-hire statute must be one-half of the ten-year maximum

for a violation of § 1958 that does not result in any injury.                    The

reference point when analyzing § 373, however, is the “crime

solicited,” not the sentence of the resulting crime.                     See United

States v. Devorkin, 159 F.3d 465, 467 (9th Cir. 1998).                          For

example, § 373 imposes a maximum sentence of twenty years if “the

crime solicited” is punishable by life imprisonment or death, while

the maximum prison term “for all other solicitations” prohibited

under   §   373    is   one-half    of    the    prison   term   for    “the   crime

solicited.”       Id. (emphasis added).          Thus, § 373 does not instruct

courts to look to the actual sentence that would be imposed for the

underlying violation according to the particular facts of each

case.   Based on the statutory language, we conclude the district

court   did    not   err   when    it    imposed   the    maximum   sentence     for

solicitation to travel interstate to commit murder-for-hire.

              Manna next contends that the district court erred in

ordering him to pay $815 to the victims, his ex-wife and son, to

cover the costs of counseling and travel expenses.                     The MVRA, 18

U.S.C. § 3663A, governs here, because Manna was convicted of a

crime of violence. Section 3663A(b)(2)(A) requires proof of bodily


                                         - 4 -
injury to a victim before a court may order restitution for

counseling.   It is undisputed that the victims of the solicitation

sustained no bodily injury; the solicitation never proceeded beyond

the point of a discussion between Manna and the undercover agent.

In the absence of bodily injury, Manna correctly argues that

restitution could not be ordered pursuant to § 3663A(b)(2)(A). See

United States v. Follet, 269 F.3d 996, 1001 (9th Cir. 2001).

Likewise,   under    the    particular     facts    here,    we    conclude     that

restitution   was     not     authorized    by   either     §     3663A(b)(1)    or

§ 3663A(b)(4). We therefore reverse the court’s restitution order.

            Based on the foregoing, we affirm Manna’s sentence of

incarceration and reverse the restitution order.                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




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