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United States v. Howard

United States Court of Appeals, Tenth Circuit

April 17, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
RYAN JACOB HOWARD, Defendant-Appellant.

         Submitted on the briefs: [*]

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:16-CR-00142-C-1)

          William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant - Appellant.

          Mark A. Yancey, Acting United States Attorney, Amanda Maxfield Green, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff - Appellee.

          Before TYMKOVICH, Chief Judge, MURPHY, and McHUGH, Circuit Judges.

          McHUGH, Circuit Judge.

         Defendant Ryan Jacob Howard entered a guilty plea on three counts of transportation of stolen property in violation of 18 U.S.C. § 2314. During sentencing, Mr. Howard objected to the recommended restitution award for the second count, ordered under 18 U.S.C. § 3663A. This appeal concerns whether the court correctly used the replacement cost as the restitution value and correctly determined the value of the returned property to be zero. We hold that it did and affirm the district court.

         I. BACKGROUND

         A. Factual History

         Between August 2015 and May 2016, Mr. Howard stole various pieces of laboratory equipment from Oklahoma State University ("OSU") and transported them to his apartment in Texas. The equipment included thermocyclers, pipettors, chromatography machines, and centrifuges. While attempting to steal another chromatography machine on May 19, 2016, Mr. Howard was arrested and police officers executed a search warrant on his vehicle, recovering a set of bolt cutters and various pieces of laboratory equipment. Later, on June 8, 2016, investigators executed a search warrant on Mr. Howard's residence in Texas. The investigators discovered many of the items Mr. Howard had stolen from OSU as well as equipment stolen from Northeastern Oklahoma State University. Investigators recovered most of the stolen items and returned them to the respective universities.

         Some of the equipment, however, either was not returned or was in damaged condition when recovered. In particular, Mr. Howard stole a Fast Protein Liquid Chromatography machine ("FPLC machine") from the OSU Chemistry Department, which was damaged. Mr. Howard stole the FPLC machine between March 18, 2016 and March 23, 2016, and returned it sometime after June 8, 2016. Mr. Howard does not dispute that he stole the FPLC machine, but he does challenge the value of the FPLC machine and its condition when it was returned.

         B. Procedural History

         On July 20, 2016, Mr. Howard was indicted on three counts of transportation of stolen property in violation of 18 U.S.C. § 2314. He pleaded guilty to each of the three counts. The PSR for Mr. Howard recommended a term of imprisonment between twelve to eighteen months, supervised release after prison, and restitution of $25, 212.50-$24, 020 for the FPLC machine and $1192.50 for the pipettors.

         Mr. Howard objected to the amount of restitution recommended in the PSR for the FPLC machine. Specifically, Mr. Howard contended that the FPLC machine was not damaged beyond repair and that the cost of a replacement machine was not the proper measure of restitution. During sentencing, Mr. Howard again objected to the restitution amount, challenging both the use of the replacement cost and the failure to assign any value to the parts returned to OSU.

         At the time of sentencing, OSU was not able to produce any documentation related to the date of purchase or the value of the FPLC machine at that time. OSU no longer has any invoices related to the purchase of the FPLC machine or its related equipment. As a result, the only indication of the value of the stolen FPLC machine in the record is the statement in the Presentence Investigation Report ("PSR") that "[i]nvestigative reports reflect the value of the stolen machine was $40, 000." PSR at 4.

         The government did advance uncontested evidence that researchers at OSU purchased the replacement for the FPLC machine for $24, 020. It also offered evidence that the replacement machine is "not as advanced as the original equipment." Id. at 19.

         The government additionally provided evidence from OSU that, when the FPLC machine was returned, it was damaged with "[p]arts of the machine . . . either broken or missing." Id. at 6. In its Declaration of Victim Loss, OSU claimed "the machine was damaged beyond repair, " id. at 4 n.3, and "indicated the machine could not be repaired and was unusable for research purposes, " id. at 18. In addition, a member of the OSU Police Department noted that "all the wires and hoses were cut and pieces were missing." Id.

         Mr. Howard disagreed, claiming the machine was not "damaged beyond repair, " id. at 18-19, and further asserting that, as returned to OSU, it has value for which he should have received credit. In support, Mr. Howard compared photographs of the equipment seized from his apartment to parts available from laboratory equipment sales websites and online auction websites. He claimed the prices of those advertised parts were reflective of the reasonable value of the returned FPLC machine. Based on his research, Mr. Howard asserted that the FPLC machine, when ...


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