United States v. Allen

983 F.3d 463

UNITED STATES of America, Plaintiff - Appellee,

v.Robert Timothy ALLEN, Defendant - Appellant.

No. 19-1380

United States Court of Appeals, Tenth Circuit.

FILED December 17, 2020

Submitted on the briefs:^*

Virginia L. Grady, Federal Public Defender, and Grant R. Smith, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, for Appellant.

Jason R. Dunn, United States Attorney, and Karl L. Schock, Assistant United States Attorney, Office of the United States Attorney for the District of Colorado, Denver, Colorado, for Appellee.

Before BRISCOE, BALDOCK, and McHUGH, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant-Appellant Robert Timothy Allen appeals his conviction for depredation of government property under 18 U.S.C. § 1361, arguing that his conviction violates both the Fifth Amendment's Due Process Clause and separation of powers principles. Mr. Allen also appeals the district court's restitution order of $20,300, asserting that the order includes restitution for uncharged conduct and that the district court also erred in applying the procedural framework of the Mandatory Victim Restitution Act (MVRA) by placing the burden on him to disprove the amount of loss contained in the presentence report and by ordering a restitution amount unsupported by evidence. After the parties completed briefing on this case, the government filed a notice of concession, acknowledging that the restitution order was erroneous and suggesting remand for resentencing on restitution. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm Mr. Allen's conviction, vacate the district court's restitution order, and remand the case to the district court to calculate restitution consistent with this opinion.

I

Mr. Allen operated a rock and dirt excavation company for most of his life, and in recent years made his living by prospecting for minerals. In 2013, Mr. Allen began prospecting for minerals on a plot of land located in the northern part of Saguache County, Colorado. This land, known as the Vulcan area, is owned by the United States and is administered by the Bureau of Land Management (BLM).

BLM officials became aware of Mr. Allen's mining efforts in June 2013, and David Lazorchak, a BLM geologist, went to the site that month to investigate. Mr. Lazorchak saw several large pits, apparently recently excavated with a bulldozer (which remained on site). A BLM enforcement officer, Derek Chodorowski, also visited the Vulcan area in June 2013. Officer Chodorowksi estimated that many of the pits were large enough to hold one or more vehicles. Mr. Allen had placed a post at each pit, which held a pill bottle containing a piece of paper with Mr. Allen's name, phone number, the name of the pit, and the statement "In accordance with the 1872 mining law." ROA, Vol. 5 at 34. Officer Chodorowski called Mr. Allen about the pits, asking Mr. Allen if he had obtained a permit from BLM to excavate the pits. Mr. Allen responded that under the Mining Act of 1872, he was not required to get permits for mineral exploration.

Because Mr. Allen's understanding of mining law was incorrect and the Mining Act of 1872 is no longer the only applicable law, the agency sent Mr. Allen a non-compliance order in July 2013. The order advised Mr. Allen that his mining activities did not comply with regulations under 43 C.F.R. § 3809.1 [promulgated under the Federal Land Policy Management Act (FLPMA) ] which imposes notice and plan of operation requirements for mining operations on federal land. The order gave Mr. Allen thirty days to submit plans of operation for these sites and advised that if he did not comply, BLM could take further action including criminal prosecution. The order explained that those convicted of violating FLPMA are "subject to a fine of not more than $100,000 ... or imprisonment not to exceed 12 months, or both, for each offense." Supp. ROA at 9. Mr. Allen did not respond to the BLM order, did not obtain any permits, and continued excavating.

In October 2013, Officer Chodorowski visited the Vulcan area and saw Mr. Allen digging. Officer Chodorowski asked Mr. Allen if he had obtained permits from the BLM to excavate, and Mr. Allen explained that this was not required under the 1872 mining law. Mr. Allen said "[w]hen I stake my claim, the land becomes private. It is no longer the government's land." ROA, Vol. 5 at 38.

In November 2013, BLM sent Mr. Allen an Immediate Temporary Suspension Order. Mr. Allen was "ordered to immediately suspend all operations" he was conducting in the Vulcan area. Supp. ROA at 12. The order repeated warnings from earlier BLM orders that Mr. Allen's operations ran afoul of regulations promulgated under FLPMA and advised that his "unauthorized operations may also be in violation of other federal and state laws or regulations." Id. Mr. Allen did not submit a plan or otherwise comply with this order, and continued excavating.

In May 2016, Mr. Allen was indicted on one count of willfully injuring or committing a depredation against property of the United States, causing damage in excess of $1,000, in violation of 18 U.S.C. § 1361. The indictment did not charge Mr. Allen for his earlier excavations in the Vulcan area, but only included depredation committed between July 24, 2013 and May 22, 2014. Mr. Allen was not charged with violating FLPMA or any associated regulations. Unlike FLPMA, which the BLM had referenced in its orders to Mr. Allen, § 1361 carries a maximum penalty of 10 years imprisonment and a maximum fine of $250,000. Mr. Allen represented himself at trial with the assistance of standby counsel.

Mr. Allen pleaded not guilty and defended his actions as being authorized under the Mining Act of 1872. Mr. Allen argued that his reliance on that law meant that his violation was not willful as required under § 1361. The government introduced evidence that Mr. Allen was on notice that his actions violated the law because of the various BLM letters and orders he had received. A BLM employee testified that the agency had solicited bids to refill the holes Mr. Allen had dug and that the expected cost was approximately $20,000. Fred Schmalz, a government contractor, confirmed that he had submitted a bid for $20,300 to restore the area. During closing arguments, the prosecutor explained that the government had gone easy on Mr. Allen by limiting the indictment to dates which covered only some of the pits Mr. Allen had excavated. The jury returned a guilty verdict.

The district court ordered a presentence report and held a sentencing hearing in September 2019. The district court adopted the PSR in full. The maximum term of imprisonment for Mr. Allen's offense was 10 years, and the advisory guideline range was 10 to 16 months. The district court sentenced Mr. Allen to imprisonment for 13 months followed by 3 years of supervised release. The PSR noted that restitution was required under the MVRA and recommended restitution of $20,300. During the sentencing hearing, Mr. Allen objected to the restitution amount, claiming that another, lower bid had been referenced at trial. The government countered that costs had likely risen since trial and referred to trial testimony to establish costs of $20,300. The district court overruled the objection, noting that the "burden is on the defense when it challenges a fact contained in the presentence report." ROA, Vol. 5 at 345. The court explained that it had no evidence "as to the alternate bid; and I decline to reach back into the trial evidence, because the amounts that were submitted there and the evidence submitted there is not necessarily the same evidence that would be submitted here." Id. The court found that the defense had "not carried its burden with regard to the amount of restitution" and ordered restitution of $20,300. Id . at 345–46. Mr. Allen timely appealed.

II

Mr. Allen raises three issues on appeal. Mr. Allen first contends that the government's decision to charge him under § 1361 was a violation of the Due Process Clause and separation of powers principles. Mr. Allen also contends that the district court's restitution order is unlawful because it included restitution for losses stemming from uncharged conduct. Finally, Mr. Allen contends that the district court erred in misapplying the procedural framework of the MVRA. As none of these issues were raised before the district court, Mr. Allen's forfeiture of these objections triggers plain error review. United States v. Rosales-Miranda , 755 F.3d 1253, 1257 (10th Cir. 2014). "To establish plain error, [a defendant] ‘must show that (1) the district court erred, (2) the error was plain, (3) the error affected substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.’ " United States v. Miller , 978 F.3d 746, 757 (10th Cir. 2020) (quoting United States v. Munoz , 812 F.3d 809, 813 (10th Cir. 2016) ). "An error is plain if it is clear or obvious at the time of the appeal." United States v. Cristerna-Gonzalez , 962 F.3d 1253, 1260 (10th Cir. 2020) (quoting United States v. Frost , 684 F.3d 963, 971 (10th Cir. 2012) ).

III

Mr. Allen raises two constitutional objections to the government's decision to charge him under 18 U.S.C. § 1361 instead of 43 U.S.C. § 1733 (FLPMA). First, Mr. Allen argues that because the notices he received from the BLM expressly mentioned FLPMA and did not reference § 1361, he was deprived of adequate notice—as required by the Due Process Clause of the Fifth Amendment—that his conduct violated § 1361. Aplt. Br. at 16–21. Second, Mr. Allen argues that by proceeding under § 1361 the prosecution ignored clear congressional intent to criminalize unauthorized mining solely under FLPMA. This charging decision, he contends, is contrary to congressional intent and thereby violates the separation of powers doctrine. Id. at 21–24. For the reasons discussed below,...