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In re Brown

United States Court of Appeals, Fourth Circuit

July 26, 2019

In re: CARLOS BROWN, Petitioner.

          Argued: March 20, 2019

          On Petition for Writ of Mandamus from the United States District Court for the District of Maryland, at Greenbelt. (8:17-po-07283-TMD-1)

         ARGUED:

          Victor Darrel Stone, MARYLAND CRIME VICTIMS' RESOURCE CENTER, INC., Upper Marlboro, Maryland, for Petitioner.

          Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland; Cullen Oakes Macbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Respondents.

         ON BRIEF:

          Russell P. Butler, MARYLAND CRIME VICTIMS' RESOURCE CENTER, INC., Upper Marlboro, Maryland, for Petitioner.

          Robert K. Hur, United States Attorney, Jane F. Nathan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Respondent United States of America. James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh S. Patel, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Respondent Joyce Boone.

          Before MOTZ, AGEE and WYNN, Circuit Judges.

          AGEE, CIRCUIT JUDGE:

         In June 2017, Joyce Boone injured Carlos Brown in a car accident she caused while driving under the influence of alcohol. She pleaded guilty to three traffic violations before the United States magistrate judge and was sentenced to two years' probation. Brown asked the court to order restitution as a condition of Boone's probation, but his request was denied. He now petitions this Court for a writ of mandamus pursuant to 18 U.S.C. § 3771(d)(3). For the reasons stated below, we grant the petition and remand the case.

         I.

         A.

         Brown owned and operated his own electrician's business at the time of the accident. In June 2017, he was riding a motorcycle on a federal roadway in Maryland when Boone ran a red light while operating her vehicle under the influence of alcohol. She collided with Brown, leaving him with serious injuries that required at least seven surgeries within one year of the accident. Brown had metal rods installed in various parts of his body and needed assistive devices to walk. Because of these injuries, Brown alleged that he became unable to work as an electrician or perform daily activities and was "struggling physically, mentally, emotionally, [and] financially." J.A. 39.

         Boone was later charged with six violations of various federal traffic regulations in the United States District Court for the District of Maryland.[1] She reached a plea agreement with the Government and pleaded guilty to three offenses[2]: (1) driving with a blood alcohol concentration of .08 or above in violation of 36 C.F.R. § 4.23(a)(2); (2) failing to obey a traffic control device in violation of 36 C.F.R. § 4.12; and (3) unsafely operating a motor vehicle in violation of 36 C.F.R. § 4.22(b)(1). Under the terms of the plea agreement, the Government agreed to recommend a sentence of probation but make no recommendation regarding Brown's claim for restitution as part of Boone's sentence. The parties proceeded to a plea hearing, [3] during which the court conducted a plea colloquy and accepted Boone's guilty plea.

         At the hearing, Brown requested that the court order restitution in the amount of $18, 976 as a condition of Boone's probation. Specifically, Brown sought restitution for the deductible of $250 he paid to his vehicle insurance company and his estimated lost wages for the past seven months, which he calculated at an hourly rate of $22, less the settlement amount of $30, 000 he received from his insurer. To support his restitution request, Brown provided personal and familial statements about his injuries and an October 2017 letter from his physician stating that he would not be able to work full-time for one to one-and-a-half years after the accident. Brown explicitly declined to seek restitution for his medical bills or future lost wages.

         Boone agreed that the $250 deductible was an appropriate part of a restitution award but objected to Brown's claim for past lost wages because she contended his supporting evidence was speculative and not reliable. She asked the court to order a restitution award of $250, or, in the alternative, schedule a hearing as to any other proper amounts, although she believed the issue of restitution "would all get flushed out in the civil proceedings through discovery where it should be flushed out. Not here [in] a criminal magistrate court." J.A. 52. At that point, the court noted that Brown "got serious injuries [and] has had serious medical injuries in the past. It sounds like more surgery is down the road, lost wages, children. [T]his is not something I can decide today." J.A. 60-61. The court declined to order restitution at that time, stating that Brown's case was "extraordinarily unusual," J.A. 60, but ordered a presentence report directing the probation officer to examine the issue of restitution. The court scheduled a sentencing hearing for April 2018.

         Prior to the sentencing hearing, Brown filed an amended request seeking restitution in the amount of $19, 040.32 solely to cover his past lost wages. To support the request, he submitted his 2017 federal tax return, his own affidavit detailing his physical struggles, and the letter from his physician. In the letter, the doctor noted that Brown was using a walker and needed physical therapy twice per week for the next six months. The physician further stated "[i]f he is able to resume his regular full-time work as an electrician, it will likely be 1[ to ]1-1/2 years from the time of his injury." J.A. 75. There was no evidence offered as to whether Brown could work part-time as an electrician or was capable of maintaining some other form of full- or part-time employment.

         At the sentencing hearing, Brown reiterated his request for restitution, stating that he would not pursue any civil action against Boone. She continued to oppose the request, arguing that the court should "stay out of it" because Brown's restitution request "is [better suited for] civil litigation." J.A. 109. Further, Boone challenged the reliability of the October 2017 letter from Brown's doctor and questioned why Brown could not find other employment and thereby mitigate damages. She also argued that the court may not award restitution here because her conduct underlying the offenses to which she pleaded guilty did not cause Brown's injury.[4] Boone asked the court to place her on one year of probation and not to order restitution as a condition of probation.

         B.

         The court sentenced Boone to two years' probation but declined to order restitution, largely for two reasons: Brown lacked sufficient evidence to support his restitution request and the sentencing forum was unsuitable for determining the requested restitution. First, even though the court acknowledged that it had discretion to order restitution and "no reason to not believe Mr. Brown," J.A. 126, it rejected Brown's request, stating:

although there is evidence of lost wages through Mr. Brown's own testimony and tax return, in my opinion there has got to be more than simply the victim's statement to award restitution in the amount of $20, 000 ..... [T]his is misdemeanor court. This court generally does not deal with restitution, and if we are going to deal with restitution, it is not in this amount.

J.A. 127. The court also discussed Brown's future medical bills that were approximately a "half a million dollars," J.A. 128, although Brown did not request restitution for those expenses.

         Next, based on the proffered evidence and Boone's opposition, the court determined that under the circumstances of this case it was not the appropriate forum to determine restitution and referenced United States v. Fountain in support of its decision. See768 F.2d 790, 801-02 (7th Cir. 1985) (upholding the district court's decision not to award restitution for future lost wages because "the calculation of lost future earnings involves the difficult problem of translating an uncertain future stream of earnings into a present value"). The court then stated, "[i]n a criminal context the Court will put its foot into the waters of restitution if things are readily and accurately ascertainable uncontested. We are contested here, and that is why this is just so not the forum to be dealing with these kinds of figures." J.A. 129. The court also noted that "to order restitution in the amount that is being requested with the evidence that would give me the level of confidence and comfort in that I am ...


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