                                                                    [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                             FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                              05/27/99
                               No. 98-8385                THOMAS K. KAHN
                                                               CLERK
                     D. C. Docket No. 5:97-CR-19-WDO




UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus


ERIC ANTHONY SHUGART,

                                                            Defendant-Appellant.



                               __________

                               No. 98-8386
                               ___________
                     D.C. Docket No. 5:97-CR-19-WDO


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

BRENT PATTERSON,

                                                            Defendant-Appellant.
____________________________________________________________________________

                                      ______________

                                       No. 98-8387
                                      _____________
                             D.C. Docket No. 5:97-CR-19-WDO


UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                                versus

JASON WESLEY CANTRELL,

                                                                         Defendant-Appellant.



                         Appeals from the United States District Court
                             for the Middle District of Georgia


                                       (May 27, 1999)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

DUBINA, Circuit Judge:




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       These consolidated criminal cases present an interesting sentencing issue that is one of

first impression in this circuit. After reviewing the record and having the benefit of oral

argument, we affirm the defendants’ sentences.

                                       I. BACKGROUND

       On February 22, 1997, appellants Eric Anthony Shugart, Brent Patterson, and Jason

Wesley Cantrell (“the defendants”) set fire to the century-old Oak Grove Methodist Episcopal

Church (the “Church”) in Elko, Georgia. The Church burned to the ground.

       A grand jury charged the defendants with conspiracy to commit arson, in violation of 18

U.S.C. § 371 (Count I), as well as with substantive violations of the arson statute, 18 U.S.C. §

844(i), and aiding and abetting in the commission of an offense against the United States, in

violation of 18 U.S.C. § 2 (Count II). After the government presented its case to a jury, the

defendants pled guilty to Count I. The court then dismissed Count II on the government’s

motion.

       In addition to sentencing the defendants to terms of imprisonment, the district court

ordered the defendants, jointly and severally, to pay restitution in the amount of $116,280. The

defendants appeal this portion of their sentences.

                                        II. DISCUSSION

       The defendants present two arguments on appeal. First, they submit that the district court

abused its discretion under 18 U.S.C. § 3663A when it ordered them to pay restitution in an

amount equal to the cost of rebuilding the Church using modern construction methods and

materials. Section 3663A, they urge, limits the amount the district court can award in restitution

to the actual cash value of the Church on the date of the offense. Second, they argue that even if


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§ 3663A permits a restitution order based on replacement cost, the district court clearly erred in

finding that $116,280 is the cost of rebuilding the Church.

       Our analysis of the district court’s restitution order involves three standards of review.

First, whether the term “value” in § 3663A contemplates a restitution order based on

replacement cost instead of fair market value is a legal question, which we review de novo. See

United States v. Davis, 117 F.3d 459, 462 (11th Cir.), cert. denied sub nom. Morfa v. United

States, 118 S. Ct. 355 (1997). Second, if § 3663A does permit a restitution order based on

replacement cost, we review the district court’s use of replacement cost in this case for abuse of

discretion. See United States v. Twitty, 107 F.3d 1482, 1493 (11th Cir. 1997). Finally, we

review for clear error the district court’s factual finding that it will cost $116,280 to rebuild the

Church. See United States v. Bourne, 130 F.3d 1444, 1446 (11th Cir. 1997).

       Section 3663A(b)(1) requires the defendants to pay restitution in an amount equal to the

“value” of the Church on the day they burned it down. For fungible commodities, value is easy

to determine: it’s the actual cash value, or fair market value, of the item — that is, “[t]he fair or

reasonable cash price for which the property could be sold in the market in the ordinary course

of business.” Black’s Law Dictionary 35 (6th ed. 1990). According to the defendants, § 3663A

always limits restitution to actual cash value. See Appellants’ Brief at 7. We disagree.

       Although fair market value will often be an accurate measure of the value of property, it

will not always be so. Where actual cash value is difficult to ascertain — because an item is

unique, or because there is not a broad and active market for it — replacement cost may be a

better measure of value. The Sentencing Guidelines, for instance, when specifying how to

determine the value of stolen property for purposes of calculating the appropriate number of


                                                   4
points to add to a defendant’s base offense level, allow that replacement cost may be used to

value items for which market value is “difficult to ascertain or inadequate to measure harm to the

victim.” U.S.S.G. § 2B1.1, application note 2; see also United States v. Pemberton, 904 F.2d

515, 516-17 & n.2 (9th Cir. 1990).

       We conclude that “value,” as § 3663A uses that term, contemplates a restitution order

based on replacement cost where actual cash value is unavailable or unreliable. Whether actual

cash value is unavailable or unreliable is an issue of fact, and a district court’s decision to use

replacement cost is a matter of discretion.

       In our view, the district court in this case did not abuse its discretion in ordering

restitution in an amount necessary to rebuild the Church. A church is not a fungible commodity.

See James C. Bonbright, The Valuation of Property 66, 419 (1937) (noting that a church is a

“[h]ighly unmarketable institutional propert[y]”). A congregation rarely sells its church so that

its members can relocate to a new city or a new neighborhood. A church is unique, and is valued

by its members, precisely because of its location, its design, and the memories it evokes. None

of these characteristics can be recreated by purchasing an alternate structure in another city or

neighborhood, even if such a structure were available. In sum, actual cash value is not, in our

view, an appropriate measure of value in this case. We conclude that the district court properly

determined that the only effective way to return to the victims the fair equivalent of what they

lost is to rebuild a church comparable in size and design on the same lot where the original

church stood. This is the only result that even comes close to returning to the victims what they

had before February 22, 1997.




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       The rule of lenity does not affect our conclusion. The defendants argue that lenity

requires us to adopt their interpretation of the word “value” because it is ambiguous. We

disagree. We only invoke the rule of lenity when, after considering the structure and purpose of

a criminal statute, we are left with nothing more than a guess as to what Congress intended. See

United States v. Wells, 117 S. Ct. 921, 931 (1997). In this case, we see no “grievous ambiguity”

sufficient to require application of the rule of lenity. Chapman v. United States, 500 U.S. 453,

463 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)).

       Finally, the defendants argue that the district court erred in determining that the

replacement cost of the Church was $116,280. This contention is without merit. Robert Tuggle,

the sole witness called to establish the replacement cost of the Oak Grove Church, testified that

the “actual replacement cost” of the Church, using “modern construction techniques,” was

$116,280. He also testified that the method and figures he used to estimate the replacement cost

were the ones generally used in the insurance industry to tell what it will cost to reconstruct a

building. In our view, this testimony amply supports the district court’s finding.

       For the foregoing reasons, we affirm the district court's restitution order and the

defendants' sentences.

       AFFIRMED.




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