Argued: March 24, 2017
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:15-cr-00324-AJT-1)
Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.
Tyler McGaughey, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
C. Kamens, Federal Public Defender, Brooke S. Rupert,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
J. Boente, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
FLOYD and HARRIS, Circuit Judges, and John Preston BAILEY,
United States District Judge for the Northern District of
West Virginia, sitting by designation.
David Diaz rushed the cockpit of a flight approximately 45
seconds after takeoff from Washington Dulles International
Airport. After pleading guilty in an open plea to violating
49 U.S.C. § 46504, interference with flight crew members
and attendants, the district court was tasked with deciding
whether to impose restitution, and, if imposed, how much
restitution would be appropriate. The government argued that
this offense fell within the scope of the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. § 3663A, such that
Diaz was required to pay the full amount of restitution
calculated in his presentence report. Diaz argued instead
that his crime was covered by the Victim and Witness
Protection Act (VWPA), 18 U.S.C. § 3663, and thus the
district court retained discretion in deciding whether to
impose restitution and the amount of restitution it would
require Diaz to pay. The district court agreed with the
government, found that the MVRA applied, and ordered Diaz to
pay the full amount of restitution. Diaz appealed, and we now
vacate the order of restitution, finding that the VWPA
applies because interference with a flight crew is not
categorically a crime of violence as defined by 18 U.S.C.
early 2015, David Diaz was living in Northern Virginia with
his father and suffering from a declining mental state.
Deciding that it would be best to send Diaz to live with his
mother in Texas, Diaz's father bought him a plane ticket
to depart on March 15, 2015, from Washington Reagan National
Airport. Diaz felt extreme anxiety and paranoia about flying,
and would self-medicate with alcohol. Diaz boarded the
flight, but was too nervous to stay in his seat and remain on
the plane, and so he voluntarily deplaned. Diaz tried again
to fly on the morning of March 16, 2015, from Reagan National
Airport, but again was too nervous and again voluntarily
deplaned after boarding.
to reach his mother in Texas who was expecting him, Diaz
boarded a third flight on March 16, 2015, operated by United
Airlines, departing from Washington Dulles International
Airport bound for Denver, Colorado. At the time he boarded
the flight, Diaz was intoxicated. Approximately 45 seconds
after takeoff, Diaz left his seat and rushed toward the
cockpit. According to witnesses, he yelled that the plane was
going too slowly, was going down, and was shooting flames.
Diaz also reportedly shouted about jihad, a bomb, and that
there was "something in the belly of the plane."
J.A. 28-29. Other passengers tackled Diaz and attempted to
restrain him, but he resisted. The pilots returned the flight
to Dulles approximately thirteen minutes after takeoff.
Feeling too upset to continue working, the flight attendants
would not re-board the plane. As a result, the flight was
canceled and passengers were re-booked onto other flights.
Diaz has no independent recollection of the incident due to
his intoxication, but does not dispute the statements or
their effect on passengers and crew.
jury in the Eastern District of Virginia indicted Diaz on one
count of interference with flight crew members and
attendants, in violation of 49 U.S.C. § 46504. Diaz then
pleaded guilty to the offense without having a plea agreement
discussing the proceedings below imposing restitution, a
brief discussion of the restitution scheme in criminal
offenses is necessary to understand the issues in this
appeal. Two different statutes are relevant here: 18 U.S.C.
§ 3663, which we refer to as the Victim and Witness
Protection Act (VWPA), and 18 U.S.C. § 3663A, which we
refer to as the Mandatory Victims Restitution Act (MVRA).
the VWPA, restitution is discretionary. 18 U.S.C. §
3663(a)(1)(A). The VWPA requires that the court consider
"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" in determining whether to order
restitution. Id. § 3663(a)(1)(B)(i)(II). The
VWPA states that it will apply "when sentencing a
defendant convicted of an offense under . . . section . . .
46504 of title 49" unless the offense is "an
offense described in section 3663A(c)." Id.
contrast, the MVRA requires-as its name implies-mandatory
restitution. Id. § 3663A(a)(1). As relevant to
this appeal, the MVRA applies for any offense "(A) that
is (i) a crime of violence, as defined in section 16 [of
title 18] . . . and (B) in which an identifiable
victim or victims has suffered a physical injury or pecuniary
loss." Id. § 3663A(c)(1) (emphasis added).
Probation Services determined in Diaz's presentence
report (PSR) that United Airlines suffered a loss of $22,
151.77 as a result of Diaz's criminal conduct, and
recommended an order of restitution in that amount. The PSR
also noted that Diaz's financial condition made him
unable to pay a fine or costs. See Appellant's
Br. at 5. However, the PSR did not indicate the statutory
basis for restitution.
government in its sentencing position paper did not mention
restitution, only requesting that Diaz receive a guidelines
range sentence. Diaz submitted that the offense fell within
the scope of the VWPA. As such, Diaz argued restitution was
not mandatory, and requested the court consider his financial
situation under the VWPA. He also "suggested that a
restitution amount of $10, 869 was more appropriate in light
of United's direct costs and Mr. Diaz's financial
condition" if the court determined to order restitution.
Appellant's Br. at 5.
sentencing hearing, for the first time, the government argued
that the MVRA applied instead of the VWPA. The government
first argued that flight crew interference in violation of 49
U.S.C. § 46504 was a crime of violence under 18 U.S.C.
§ 3663A(c)(1)(A)(i). However, the government then
argued: "But it doesn't even matter because Your
Honor doesn't even have to find that because under
3663A(c)(1)(B), the Mandatory Victims Restitution Act applies
to any offense in which an identifiable victim has suffered
pecuniary loss." J.A. 53.
court agreed with the government's argument and held,
"it appears to the Court that restitution is mandatory
in this case under 3663A(c)(1)(B), which requires restitution
whenever there's an identifiable victim that suffered a
pecuniary loss." J.A. 56-57. The court never ruled on
the issue of whether flight crew interference was a crime of
violence as defined by 18 U.S.C. § 16. As a result, the
court ordered Diaz to pay the full amount of $22, 151.77 as
restitution as part of Diaz's sentence.
timely noted this appeal, and appeals only the restitution
order. We have jurisdiction pursuant to 18 U.S.C. §
3742(a)(1) and 28 U.S.C. § 1291.
review restitution ordered generally for abuse of discretion,
but "assess de novo any legal questions raised with
respect to restitution issues, including matters of statutory
interpretation." United States v. Ocasio, ...