UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4429

MICHAEL HAWKINS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge;
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-98-170-HNM)

Submitted: August 15, 2000

Decided: October 6, 2000

Before WIDENER, TRAXLER, and KING, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per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

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COUNSEL

Robert C. Stacy II, HUNTON & WILLIAMS, McLean, Virginia, for
Appellant. Lynne A. Battaglia, United States Attorney, Lisa M. Tur-
ner, Special Assistant United States Attorney, Baltimore, Maryland,
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Unpublished opinions are not binding precedent in this circuit.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:

Michael Hawkins appeals from his conviction and sentence for
being a felon in possession of a firearm, 18 U.S.C.A. § 922(g) (West
2000). On appeal, he challenges the district court's denial of his
motion for judgment of acquittal, the court's instructions on the effect
of a stipulation, the application of the enhancement to his sentence for
being an armed career criminal, and the imposition of a restitution
order. We affirm Hawkins' conviction, but vacate the restitution
order, vacate his sentence, and remand for resentencing.

The evidence, viewed in the light most favorable to the govern-
ment, established that, following a verbal dispute between Hawkins
and Wendell Wilkins, Hawkins beat Wilkins with a handgun. See
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (providing
standard). Hawkins points to several inconsistencies in the testimony
and the lack of forensic evidence linking him to the gun. These are
matters left to the jury. See United States v. Lamarr, 75 F.3d 964, 973
(4th Cir. 1996). Because the jury apparently credited the testimony of
Wilkins and Officer Williams, and the testimony is sufficient to sup-
port the verdict, we conclude that the district court properly denied
Hawkins' motions for judgment of acquittal. See United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998), cert. denied, 525 U.S.
1141 (1999).

Next, Hawkins challenges the district court's jury instructions con-
cerning the stipulation as to the first element of the offense. The court
instructed the jury that, "the Government must prove beyond a rea-
sonable doubt that the Defendant was convicted of a crime punishable
by imprisonment for more than one year prior to the date on which
he is charged in the indictment in this case." The court further
instructed that the parties stipulated or agreed to this fact, and
"[t]herefore, you need not further consider this particular element of

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the charged offense." Hawkins contends that this instruction
amounted to a directed verdict as to the first element of the offense.

In United States v. Muse, 83 F.3d 672 (4th Cir. 1996), this court
held that "trial courts are foreclosed from instructing juries not to con-
sider certain elements of a crime, even if the case involves a stipula-
tion encompassing those elements." Id. at 680. In Muse, the district
court had instructed as to an element of the offense: "So, you should
not have to concern yourself with that, because the stipulation estab-
lishes that element . . . ." Id. at 678. We upheld this instruction, find-
ing that the precatory language "should not" did not take
consideration of the element out of the hands of the jury. Relevant,
also, was the fact that the district court had informed the jury that they
must consider all of the elements in order to determine whether the
defendant was guilty. See id. at 680-81. Here, too, the challenged
instruction contains precatory language--"need not" as opposed to
"must not." Also, the district court instructed the jury that in order to
find Hawkins guilty of the offense, they must find that the govern-
ment proved all of the elements of the offense beyond a reasonable
doubt. We find that the instruction as to the stipulation was not erro-
neous.

Next, Hawkins challenges the restitution order. Under the Victim
and Witness Protection Act (VWPA) of 1982, the district court may
order a defendant to pay restitution to any victim of an offense of con-
viction. See 18 U.S.C.A. § 3663(a)(1)(A) (West Supp. 2000); United
States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996). An individual is a
victim under § 3663 if he is harmed by 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 specifically
included as an element of the offense of conviction. See Blake, 81
F.3d at 506; see also Hughey v. United States , 495 U.S. 411, 413
(1990) (restitution allowed only "for the loss[es] caused by the spe-
cific conduct that is the basis of the offense of conviction"). The par-
ties agree that there was no scheme, so the relevant inquiry is whether
Wilkins was injured by conduct underlying an element of the offense
for which Hawkins was convicted.

The offense of conviction is possession of a firearm by a convicted
felon. The elements of that offense are: (1) that defendant was previ-

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ously convicted of a felony, (2) that he possessed a firearm, and (3)
that the possession charged was in or affecting interstate commerce.
See 18 U.S.C.A. § 922(g)(1). The government asserts that Wilkins
was injured by Hawkins' "use" of the firearm to assault Wilkins.
However, use is not an element, nor is it conduct underlying an ele-
ment of the offense. See United States v. Broughton-Jones, 71 F.3d
1143, 1148 (4th Cir. 1995) (holding that restitution permitted only
when loss flows from the "specific conduct" supporting the convic-
tion).

Because the harm to Wilkins did not result from conduct underly-
ing an element of the § 922(g) offense, the district court erred in
ordering Hawkins to pay restitution to Wilkins. See Blake, 81 F.3d at
506. We find that this error was plain due to the clear language of
§ 3663(a)(2) and this court's holding in Blake. Further, the improper
restitution order was prejudicial to Hawkins because restitution was
not authorized by statute in this case. Also, these circumstances war-
rant the exercise of this court's discretion to notice plain error, partic-
ularly in light of the holding in Blake. See United States v. Olano, 507
U.S. 725, 732 (1993). Accordingly, we vacate the order of restitution.

Lastly, Hawkins contends that the district court erred in applying
offense level 34 and criminal history category VI under the armed
career criminal provision of the sentencing guidelines. See U.S. Sen-
tencing Guidelines Manual § 4B1.4 (1998). This offense level and
criminal history category apply only upon finding that the defendant
"used or possessed the firearm or ammunition in connection with a
crime of violence . . ., as defined in § 4B1.2(1)." See USSG
§ 4B1.4(b)(3)(A), (c)(2). Section 4B1.2(1) defines "crime of vio-
lence" to mean a state or federal offense "punishable by imprisonment
for a term exceeding one year that--(i) has as an element the use,
attempted use, or threatened use of physical force against the person
of another, or--(ii) is burglary of a dwelling, arson, or extortion,
involves use of explosive, or otherwise involves conduct that presents
a serious potential risk of physical injury to another." USSG
§ 4B1.2(1). "The term `crime of violence' does not include the
offense of unlawful possession of a firearm by a felon." USSG
§ 4B1.2 comment. (n.2). That same commentary notes that an offense
qualifies as a "crime of violence" if:

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          (A) that offense has as an element the use, attempted use, or
          threatened use of physical force against the person of
          another, or (B) the conduct set forth (i.e. , expressly charged)
          in the count of which the defendant was convicted involved
          the use of explosives . . . or by its nature, presented a serious
          potential risk of physical injury to another. Under this sec-
          tion, the conduct of which the defendant was convicted is
          the focus of inquiry.

Id. "Accordingly, in assessing whether a particular offense satisfies
the `otherwise clause' of USSG § 4B1.2(1)(ii), `a sentencing court
must confine its factual inquiry to those facts charged in the indict-
ment.'" United States v. Dickerson, 77 F.3d 774, 776 (4th Cir. 1996)
(quoting United States v. Johnson, 953 F.2d 110, 113 (4th Cir. 1991)).
Here, the indictment merely charged Hawkins with possession of a
firearm by a convicted felon. Because there are no facts in the indict-
ment from which the court could determine that the possession was
"in connection with a crime of violence," we conclude that Hawkins
is correct in asserting that the sentencing court erred. See United
States v. Talbott, 78 F.3d 1183, 1190 (7th Cir. 1996) (holding that
enhancement for possessing firearm "in connection with a crime of
violence" was improper when violent conduct not charged in indict-
ment, even though bystander shot during scuffle over gun).

The sentencing court misapplied the "in connection with a crime of
violence" enhancements under USSG § 4B1.4(b)(3)(A), (c)(2), and
determined that the offense level was 34 and the criminal history cate-
gory was VI. After finding that the criminal history category substan-
tially overstated the seriousness of Hawkins' criminal history, the
court departed downward to category IV. Thus, Hawkins' sentencing
range was 210 to 262 months. As correctly applied, employing
offense level 33 and criminal history category IV, see USSG
§ 4B1.4(b)(3)(B), (c)(3), Hawkins' sentencing range should be 188 to
235 months. Sentencing a defendant under a wrong guidelines range
constitutes plain error. See United States v. Ford, 88 F.3d 1350, 1356
(4th Cir. 1996); United States v. Robinson, 20 F.3d 270, 273 (7th Cir.
1994) ("A sentence based on an incorrect guideline range constitutes
an error affecting substantial rights and can thus constitute plain
error."). Accordingly, we vacate Hawkins' sentence and remand for
resentencing at offense level 33 and criminal history category IV.

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In conclusion, we affirm Hawkins' conviction, vacate the restitu-
tion order, vacate his sentence, and remand for resentencing to deter-
mine Hawkins' offense level and criminal history category under
§ 4B1.4 without application of the additional enhancement for use of
a firearm "in connection with a crime of violence." See USSG
§ 4B1.4(b)(3)(A), (c)(2). 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; VACATED
IN PART; AND REMANDED

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