                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4552



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


EDWARD C. CROW, a/k/a Edward Crow,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg.  Joseph R. Goodwin,
Chief District Judge. (6:06-cr-00260)


Submitted:   November 2, 2007          Decided:     November 14, 2007


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Remanded by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Lisa Grimes
Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Edward   C.   Crow    pleaded     guilty   to   being    a   felon   in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2)(2000), was sentenced to 235 months’ imprisonment followed

by five years of supervised release, and was ordered to pay

restitution to the West Virginia Crime Victims Fund in the amount

of $10,527.   After Crow appealed his sentence and challenged the

court’s order of restitution, Crow and the Government filed a joint

motion to remand for resentencing.          We grant the motion.

          A district court’s order of restitution is reviewed for

abuse of discretion.     United States v. Henoud, 81 F.3d 484, 487

(4th Cir. 1996). By definition, a court abuses its discretion when

it makes an error of law.      EEOC v. Navy Fed. Credit Union, 424 F.3d

397, 405 (4th Cir. 2005), cert. denied, 547 U.S. 1041 (2006).

          Under the Victim and Witness Protection Act (“VWPA”), the

district court may order a defendant to pay restitution to any

victim   of   an   offense     of    conviction.          See     18   U.S.C.A.

§ 3663(a)(1)(A) (West 2000 & Supp. 2007); United States v. Blake,

81 F.3d 498, 506 (4th Cir. 1996) (authority of district court to

order restitution is limited to terms of VWPA).            An individual is

a victim under § 3663 if the act that harms him is either 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


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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 loss caused by the specific conduct that is the basis of the

offense of conviction).

            In this case, the elements of the offense of conviction,

possession of a firearm by a convicted felon are: (1) the defendant

was previously convicted of a felony; (2) the defendant possessed

a firearm; and (3) the possession was in or affected interstate

commerce.   18 U.S.C. § 922(g)(1).       Use of the firearm to shoot the

victim, as occurred in this case, is not an element, nor is it

conduct   underlying    an    element   of   the   offense   of    conviction.

Accordingly, because the restitution order was not authorized under

the VWPA, we grant the parties’ motion to remand for resentencing.

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.



                                                                      REMANDED




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