                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4297


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DENNIS BRADLEY SUTTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:10-cr-00096-FL-1)


Submitted:   January 15, 2013             Decided:   January 24, 2013


Before MOTZ, SHEDD, and THACKER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Dennis Bradley Sutton appeals the 200-month sentence

and    restitution      order       imposed       following     his   guilty      plea    to

possession of a firearm by a convicted felon and aiding and

abetting the same, in violation of 18 U.S.C. §§                        922(g)(1), 924,

2 (2006), and possession of a stolen firearm and aiding and

abetting the same, in violation of 18 U.S.C. §§ 922(j), 924, 2.

On    appeal,   Sutton       contends       that   the     district    court     erred   in

sentencing      him    as    an     armed    career      criminal     and   in   imposing

restitution.        We affirm in part and vacate in part.

              Sutton        first     contends        that     the    district      court

erroneously relied on non-Shepard 1-approved sources to determine

that his prior breaking and entering convictions were distinct

violent felonies.           We conclude that Sutton expressly waived his

right to contest the armed career criminal designation.                                  See

United States v. Olano, 507 U.S. 725, 733 (1993) (“[W]aiver is

the intentional relinquishment or abandonment of a known right.”

(internal quotation marks omitted)); United States v. West, 550

F.3d 952, 958-59 (10th Cir. 2008) (finding that defendant waived

challenge to prior conviction as predicate offense for purposes

of    the   Armed     Career      Criminal     Act    by     affirmatively       conceding

issue in district court), partially overruled on other grounds

       1
           Shepard v. United States, 544 U.S. 13 (2005).



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as recognized by United States v. Smith, 652 F.3d 1244, 1246

(10th Cir. 2011); see also United States v. Taylor, 659 F.3d

339, 348 (4th Cir. 2011) (“[T]he defendant is deemed bound by

the    acts       of    his    lawyer-agent.”    (internal    quotation    marks

omitted)), cert. denied, 132 S. Ct. 1817 (2012).                   Therefore, we

will       not    consider     Sutton’s   challenge   to     the   armed   career

criminal designation on appeal.                See United States v. Claridy,

601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When a claim of . . .

error has been waived, it is not reviewable on appeal.”).

                 Sutton also contends that the district court erred in

ordering restitution to two businesses. 2             Generally, “[w]e review

a district court’s restitution order for abuse of discretion.”

United States v. Leftwich, 628 F.3d 665, 667 (4th Cir. 2010).

None of the specific claims Sutton has raised on appeal were,

however, raised in the district court.                 Thus, “our review is

limited to plain error.”             United States v. Ubakanma, 215 F.3d

421,       427   (4th   Cir.    2000).    To    demonstrate    plain   error,   a

defendant must show that:            (1) there was an error; (2) the error




       2
        Sutton does not challenge on appeal the restitution
payable to three individuals. Thus, he has forfeited appellate
review of that portion of the restitution order. See Edwards v.
City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)
(concluding that issues not raised in opening brief are deemed
abandoned).



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was plain; and (3) the error affected his “substantial rights.”

Olano, 507 U.S. at 732.

             Under the Victim Witness Protection Act (VWPA), the

district     court   must   consider    the    following    factors    prior    to

imposing restitution:         “the amount of loss sustained by each

victim as a result of the offense; and . . . the financial

resources     of   the   defendant,    the    financial    needs   and   earning

ability of the defendant and the defendant’s dependents, and

such other factors as the court deems appropriate.”                   18 U.S.C.

§ 3663(a)(1)(B) (2006).           After determining the amount owed to

each victim, the court must consider the defendant’s financial

resources and assets, projected earnings and income, and other

financial     obligations    in    setting    the   payment   schedule.         18

U.S.C. § 3664(f)(2); see United States v. Dawkins, 202 F.3d 711,

716 (4th Cir. 2000) (requiring district court to “find that the

manner of restitution ordered is feasible”).

             The Government contends that the district court was

not required to consider the § 3663(a)(1)(B) factors because the

parties agreed to restitution in the plea agreement.                  While the

VWPA does permit the district court to order restitution “to the

extent agreed to by the parties in a plea agreement,” 18 U.S.C.

§ 3663(a)(3), the parties here merely agreed that Sutton would

pay restitution “in whatever amount the Court may order.”                 We do

not   read    this   language     as   expressing   the    agreement     of    the

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parties to free the district court from its statutory obligation

to make factual findings under § 3663(a)(1)(B) before imposing

restitution.

            Here,         the    district       court     made    no    factual        findings

relevant    to      restitution.           Nonetheless,         “we    have     held    that    a

sentencing court satisfies its duty to make specific findings if

it adopts a presentence report that contains adequate factual

findings    to      allow       effective      appellate       review     of    the    fine    or

restitution.”         United States v. Karam, 201 F.3d 320, 329 (4th

Cir. 2000) (internal quotation marks omitted).                                 Our review of

the   record     reveals         that    the    presentence       investigation          report

adopted    by       the    district        court    in     this    case    provides        some

relevant    factual             findings       as   to     Sutton’s       future        earning

capacity.        It       does    not,    however,       contain      sufficient        factual

findings       to     determine          whether         the     businesses       to      which

restitution         was     ordered        were     “victims.”            See     18    U.S.C.

§ 3663(a)(2)         (defining          “victim”    as     “a     person       directly       and

proximately harmed as a result of the commission of an offense

for which restitution may be ordered”).                         Thus, we conclude that

the district court’s failure to make sufficient factual findings

relevant to these businesses, as required by the VWPA, was plain

error that affected Sutton’s substantial rights.

            Accordingly, while we affirm Sutton’s convictions and

sentence of imprisonment, we vacate the restitution order and

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remand to the district court for additional factual findings

consistent with this opinion.       We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




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