Petition for Writ of Certiorari — David L. Price, Petitioner v. United States

Supreme Court briefJan 7, 2019

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

DAVID L. PRICE

Petitioner,

UNITED STATES OF AMERICA

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

David L. Price (PRO SE)

Req. No. 44923-424

U.S. Penitentiary

P.O. Box 1000

Leavenworth, KS 66048

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID L. PRICE, Defendant-Appellant.

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

906 F.3d 685; 2018 U.S. App. LEXIS 29514

No. 17-3077

September 27, 2018, Argued

October 19, 2018, Decided

Editorial Information: Prior History

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No.

12-cr-0587-1 Harry D. Leinenweber, Judge.

For UNITED STATES OF AMERICA, Plaintiff Appellee: Angel M. KruII,

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For DAVID L. PRICE, Defendant Appellant: Hannah Valdez

Garst, Attorney, LAW OFFICES OF HANNAH GARST, Arlington Heights, IL.

Judges: Before FLAUM, MANION, and SYKES, Circuit Judges.

Counsel

CASE SUMMARYBecause the restitution awards to the victim's family and funeral home did not fall

within the offense participant prohibition of 18 U.S.G.S. 3663(a)(1)(A), and because any error in

calculating defendant's criminal history category had no effect on his sentence, the sentence and

restitution order were affirmed.

OVERVIEW: HOLDINGS: [1]-The district court acted within its statutory authority by awarding restitution

to the victim's girlfriend to reimburse the victim's funeral expenses that the girlfriend paid out of pocket,

and part of the restitution payment went to the victim's mother, who also paid a portion of the funeral

expenses out of pocket; [2]-The family's losses were not derivative of the victim's losses as these women

asserted their claims standing in their own shoes, not the victim's; [3]-The funeral home was entitled to

restitution where it subsidized a portion of the funeral costs because the family did not have the means to

pay in full; [4]-Because the advisory sentence at defendant's offense level was life imprisonment

regardless of the applicable criminal history category, and because the district judge departed downward,

the error did not affect defendant's substantial rights.

OUTCOME: Judgment affirmed.

LexisNexis Headnotes

Criminal Law & Procedure > Appeals> Standards of Review> Plain Error> Definitions

In the context of a criminal sentence appeal, plain-error review requires the appellant to show that the

district court (1) committed an error that was (2) plain and obvious and that (3) affects the appellant's

substantial rights in the sense that it made a difference in his sentence. Even if the appellant meets

those three criteria, the appellate court will only exercise its discretion to reverse if the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.

Criminal Law & Procedure> Sentencing > Restitution

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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When sentencing a defendant in a criminal case for certain listed offenses, the district court is authorized

by statute to order restitution to any victim of the offense or to the victim's estate if deceased, 18

U.S.C.S. § 3663(a)(1)(A). The statute goes on to define a "victim" of a conspiracy as any person directly

harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern of

criminal activity, § 3663(a)(2). The statute, however, also states that in no case shall a participant in a

listed offense be considered a victim of such offense under this section, § 3663(a)(1)(A).

Criminal Law & Procedure> Sentencing > Restitution

The restitution statute specifically contemplates restitution orders purposed to reimburse funeral

expenses, 18 U.S.C.S. § 3663(b)(3). It would make little sense to conclude that Congress intended only

to empower a district court to reimburse those victims who are able to pay for the funeral in full and not

those who do not have the means to pay the bill. Furthermore, the statute elsewhere contemplates

reimbursing third parties, such as insurance companies, for compensation that a victim has already

received, 18 U.S.C.S. § 36640)(1).

Opinion

Opinion by:

MANION

Opinion

(906 F.3d 687) Manion, Circuit Judge. David Price was convicted of 13 criminal charges related to a

heroin distribution conspiracy he operated in Chicago. The district court sentenced Price to 37 years'

imprisonment and ordered him to pay over $11,000 in restitution. The primary issue on appeal is

whether the statutory provision that prohibits ordering restitution to a participant in the defendant's

offense also prohibits ordering restitution to the participant's family members. We hold that the

statute does not prohibit such a restitution order in cases in which the family members are victims in

their own right, whose losses are not merely derivative of the participant's losses. We therefore

affirm the district court's order.

A jury convicted Price of 13 criminal charges including conspiracy to. distribute heroin, money

laundering, and felony firearm possession. At trial, the government offered evidence showing Price

conducted a large-scale heroin distribution operation in Chicago from 2005 until 2011. This

conspiracy was incredibly lucrative for Price and he profited to the tune of millions of dollars, which

he used to support a lavish and opulent lifestyle. The government presented evidence that there

were at least six co-conspirators involved in the conspiracy. One of those co-conspirators was Greg

Holden.

During the course of a two-day sentencing hearing, the government presented evidence that Price

was responsible for the murder of Holden. Through the testimony of three witnesses-a

co-conspirator, an IRS Special Agent, and Holden's fiancée Roshunda King-the government sought

to establish that Holden had been collaborating with the police and that Price murdered him to

prevent him from testifying.

King, Holden's longtime girlfriend and fiancée, testified that Holden had been arrested and then

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released on bond following the filing of federal charges. Holden had told King that he feared for his

life because Price wanted him dead and had placed a hit on him. On the day of the murder, King left

the apartment she shared with Holden to go to work, while Holden stayed home with two of their

three children. Around mid-morning, King learned from her mother that something was wrong, and

she returned home to find Holden dead in the apartment.

The government played a recorded 911 call from Holden's seven-year-old daughter, in which she

described her father bleeding on the floor and not breathing. Videotaped interviews of Holden's two

daughters on the day of the murder were also presented, in which his three-year-old daughter

described seeing a "monster" in a "mask" hurt her father. The girls' victim impact statements

described how they watched their father die as they tried to stop the bleeding of his gunshot wounds

with paper towels.

After reviewing these statements and the testimony of two other witnesses that connected Price to

the murder, the district court found by a preponderance of the evidence that Price murdered Holden.

The court connected Holden's murder to Price's underlying crimes by applying the enhancement for

obstruction of justice, since Price's purpose for killing Holden was to prevent him from testifying. At a

separate restitution hearing, the district court ordered Price to pay $11,693 in restitution to reimburse

Holden's family members for their out-of-pocket funeral expenses. This amount included $4,720 to

King (including $1,070 for the future purchase of a headstone), $4,050 to Holden's mother, and

$2,923 to Ferguson Funeral (906 F.3d 688) Service, Inc., for the unpaid balance of funeral

expenses.

At sentencing, the district court assigned Price a criminal history category of II. This was based on

the calculations of the supplemental presentence investigation report, which added two criminal

history points for two misdemeanor convictions of driving on a suspended or revoked license. One of

those convictions had resulted in a sentence of 12 months' non-reporting probation, and the second

resulted in a sentence of four months' supervised probation. The Guidelines provide that

misdemeanor convictions for this kind of offense resulting in a sentence of probation for one year or

less are not to be counted toward the criminal history score. U.S.S.G. §4A1.2(c)(1). Although both of

Price's sentences were terms of probation for one year or less, the presentence report contained a

typographical error that mistakenly identified the four-month sentence as having been for more than

one year. Despite the inclusion of these convictions, defense counsel agreed with the criminal history

calculation at the hearing.

The presentence report also calculated a total offense level of 54 under the Sentencing Guidelines,

but Price's offense level was treated as 43 because of the cap provided in the sentencing table.

U.S.S.G. § 5A cmt. n.2. The district court accepted the calculations of the presentence report.

According to the Guidelines, Price's sentencing range at offense level 43 was life imprisonment,

regardless of what criminal history category applied. See U.S.S.G. § 5A. Price was then sentenced to

concurrent sentences amounting to 37 years' imprisonment and ten years' supervised release.

Price appeals both the restitution order and the criminal history category score. He argues that (1)

the district court lacked statutory authority to order restitution reimbursing Holden's family for funeral

expenses, and (2) the misdemeanor convictions listed in the presentence report were ineligible to be

counted as prior convictions for sentencing purposes.

Price failed to object to either the order of restitution or the criminal history score calculation. We

therefore review both for plain error. Fed. R. Crim. P. 52(b); United States v. Walker, 746 F.3d 300,

308 (7th Cir. 2014). In the context of a criminal sentence appeal, plain-error review requires the

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the funeral costs because King and Ms. Holden did not have the means to pay in {906 F.3d 690}

full.2 The restitution statute specifically contemplates restitution orders purposed to reimburse

funeral expenses. See 18 U.S.C. § 3663(b)(3). It would make little sense to conclude that Congress

intended only to empower a district court to reimburse those victims who are able to pay for the

funeral in full and not those who do not have the means to pay the bill. Furthermore, the statute

elsewhere contemplates reimbursing third parties, such as insurance companies, for compensation

that a victim has already received. Id. § 36640)(1). Given this statutory basis, the district court did

not plainly err by awarding restitution to the funeral home for expenses still owed by King and Ms.

Holden.

Finally, Price argued in his reply brief that even if the reimbursement for past funeral expenses was

proper, the district court committed plain error by including in the restitution order the cost of the

future purchase of a headstone. Price asserts that this cost, since it had not yet been paid, was not

an "actual loss" that can be remedied through restitution, citing United States v. Dokich, 614 F.3d

314, 319-20 (7th Cir. 2010), for the proposition that restitution is limited to actual loss. There are

multiple problems with this argument. First and foremost, Price has waived the issue by not raising it

until his reply brief. See Mendez v. Per/a Dental, 646 F.3d 420, 423-24 (7th Cir. 2011). Furthermore,

we note that Dokich is inapposite because that case was concerned with distinguishing between the

intended loss of a perpetrator of fraud and the actual loss suffered by the victim; it has nothing to say

about future lossesattributable to the defendant's criminal conduct. See Dokich, 614 F.3d at 318-20.

Because the issue was waived, however, we decline to decide here whether a restitution award for a

future expense attributable to the defendant's criminal conduct is proper.

The second issue on appeal presents an unusual situation in which the litigants on both sides are in

substantial agreement on the merits. Price appeals the district court's assignment of criminal history

category II as a plain error, but concedes that it is unlikely the error affected his sentence, and thus

remand is unnecessary. He states that he appeals this issue only to preserve it in the possible event

of resentencing. The government agrees that an error was committed: Price's two misdemeanor

convictions, both of which resulted in a sentence of probation for one year or less, should not have

been included in the criminal history calculation, and thus he should have been assigned criminal

history category I. See U.S.S.G. § 4A1.2(c)(1) (stating that a misdemeanor conviction for driving with

a suspended/revoked license resulting in probation only counts toward the criminal history calculation

if the probation was for more than one year).

We agree that the inclusion of the misdemeanor convictions in the criminal history calculation was

an error. But because the advisory sentence at Price's offense level was life imprisonment

regardless of the applicable criminal history category, and because the district judge departed

downward from the Guidelines with a sentence of 37 years' imprisonment, the error did not affect

Price's substantial rights. Kruger, 839 F.3d at 580 (finding defendant (906 F.3d 691) was not

prejudiced by criminal history calculation error when the defendant's resulting advisory sentence

would have been the same even if the correct criminal history category had been applied).

Therefore, remand is not necessary. Id. at 580-81.

Because the restitution awards to King, Ms. Holden, and Ferguson Funeral Service do not fall within

the offense participant prohibition of 18 U.S.C. § 3663(a)(1)(A), and because any error in calculating

Price's criminal history category had no effect on his sentence, we AFFIRM Price's sentence and the

district court's restitution order.

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Footnotes

In its brief and at oral argument, the government argued in the alternative that Holden was no longer

a participant in the offense at the time of his murder because he had withdrawn from the conspiracy

by cooperating with the police investigation. We need not decide that question because, in any

event, the restitution was ordered to Holden's family and not to Holden or his estate. Thus the

restitution award does not come under the statutory prohibition.

The funeral home also provided the family with a $2,000 discount for the funeral costs, but that

amount was not included in the restitution order: the $2,923 ordered to the funeral home was solely

the unpaid amount of the total funeral costs after the $2,000 discount had been applied. (Doc. 143,

Gov't's Mot. for Restitution, at 2; Appellant's Br. App. at 9.)

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