Argued May 14, 2014
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Western District of North Carolina, at Statesville. (5:11-cr-00030-RLV-DSC-1). Richard L. Voorhees, District Judge.
Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina,
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Ross Hall Richardson,
Acting Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before TRAXLER, Chief Judge, and KEENAN and FLOYD, Circuit Judges. Judge Floyd wrote the opinion, in which Chief Judge Traxler and Judge Keenan joined.
FLOYD, Circuit Judge:
A jury convicted Joseph Catone, Jr., of one count of making a false statement in connection with his receipt of federal workers' compensation benefits, in violation of 18 U.S.C. § 1920. The district court imposed a sixteen-month term of imprisonment and ordered Catone to pay restitution in the amount of $106,411.83. Catone now appeals his conviction, his sentence of imprisonment, and the district court's restitution order. For the reasons tat follow, we affirm Catone's conviction but vacate his sentence and the restitution order and remand for further proceedings.
Catone began working for the United States Postal Service in 1977. On August 2,
2006, he submitted a claim for federal workers' compensation benefits under the Federal Employees' Compensation Act based on injuries arising from extended periods of driving. The Office of Workers' Compensation Programs (OWCP) awarded to Catone benefits regarding his claim of temporary aggravation of obstructive sleep apnea, which he began receiving in March 2007.
To verify his continued eligibility for benefits, Catone submitted a " CA-1032" form to OWCP each year. The form instructed Catone to disclose whether, in the past fifteen months, he (1) " work[ed] for any employer" ; (2) was " self-employed or involved in any business enterprise" ; (3) earned " monetary or in-kind compensation" for " volunteer work" ; or (4) was " unemployed for all periods." Catone submitted CA-1032 forms in April 2008 and 2009, and each time he answered " no" to the first three questions and " yes" to the fourth question. From March 2007 to September 2009, Catone received $121,729.80 in benefits from OWCP.
Catone was indicted in May 2011 on three criminal charges stemming from his receipt of federal workers' compensation benefits. The first two counts charged Catone with making false statements in connection with his receipt of benefits, in violation of 18 U.S.C. § 1920, and the third count charged him with violating 18 U.S.C. § 1001(a)(2), which makes it unlawful to " knowingly and willfully . . . make any materially false, fictitious, or fraudulent statement" to a federal official. The indictment alleged that Catone failed to disclose that he was employed by, and received income from, Angelo's Maintenance for custodial work that he performed at Hayes Performing Arts Center (the Center) during the period that he obtained federal benefits. As relevant to the third count, the indictment alleged that Catone knowingly made false statements during an interview with federal agents when he reported that he had not earned any income while receiving compensation benefits. Instead, during that interview, he informed federal investigators that his wife was employed by Angelo's Maintenance as a custodian and that he occasionally assisted her with performing custodial tasks while she cleaned the Center.
At trial, the government elicited testimony from three former employees of the Center, whose testimony collectively established that Catone often assisted his wife in cleaning the Center; that Catone was not employed or paid by the Center; and that the Center contracted with Angelo's Maintenance to provide cleaning services. The government also proffered testimony from an employee at the bank where Catone and his wife maintained a joint checking account. According to his testimony, the Catones' account included three checks written directly to Catone from Angelo's Maintenance. Two of the checks predated Catone's receipt of workers' compensation benefits and the third check, which Catone received while also receiving workers' compensation benefits, was for $635. The jury convicted Catone on count one, which alleged a violation of § 1920 based upon the CA-1032 form that Catone submitted in April 2008, and acquitted him on the two remaining counts.
A presentence investigation report (PSR) prepared by a probation officer concluded that Catone's conviction under § 1920 carried a statutory maximum sentence of five years' imprisonment. The probation officer further found that Catone was responsible for a loss amount of $128,124.75, which constitutes the entire amount of benefits Catone received from OWCP. Based on the loss-amount ...