United States of America v. Chase Daniel Zerba

United States Court of Appeals
For the Eighth Circuit
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No. 19-2409
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Chase Daniel Zerba
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 25, 2020
Filed: December 22, 2020
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Chase Zerba agreed to sell a half-pound of marijuana to Dillon Beener in a
drug deal that resulted in the shooting death of Beener’s associate, Dylan Plotz.
Zerba entered a written plea agreement and pled guilty to conspiring to distribute
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846, as well as
possessing a weapon in furtherance of a drug trafficking crime, in violation of

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18 U.S.C. §§ 924(c) and 2. The district court1 ordered Zerba to pay $5,611.55 in
restitution to Plotz’s family for Plotz’s funeral costs. Zerba appeals the restitution
order, arguing that it was not authorized by statute or the plea agreement. We affirm.
I. BACKGROUND
On February 1, 2017, Beener contacted Zerba to purchase a half-pound of
marijuana for $1,500, which was a much larger quantity than Beener had previously
purchased from Zerba. Zerba was worried that the deal was a set-up for Beener to rob
him so he invited Tyler Clemens and Cameron Klouda to accompany him to the deal
for added security. Clemens came armed with a shotgun with Zerba’s knowledge.
Zerba’s suspicions were correct: Plotz had arranged for Beener to contact Zerba as
a pretext for robbery. The robbery went awry and in the process Clemens shot and
killed Plotz.
Zerba pled guilty to conspiring to distribute marijuana and to possessing a
weapon in furtherance of a drug trafficking crime pursuant to a written plea
agreement. This case turns on a provision in the plea agreement, which states:
Defendant agrees defendant will be required to pay full restitution to all
victims of the offense(s) including relevant conduct victims. Defendant
further understands the amount of loss sustained by each victim will be
determined during the course of preparation of the presentence
investigation report.
The presentence investigation report recommended that the district court order
Zerba to pay Plotz’s parents $5,611.55 in restitution for Plotz’s funeral expenses.
1The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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While Zerba objected to the recommendation and contested its application at the
sentencing hearing, the court awarded restitution to Plotz’s parents. Zerba appeals,
asserting the restitution order is improper for two reasons: (1) Plotz is not a “victim”
within the meaning of the Victim and Witness Protection Act (“VWPA”), 18 U.S.C.
§ 3663, because Plotz was a participant in the conduct underlying the offense of
conviction and because Plotz was not directly harmed by Zerba’s conduct, and (2) the
district court erred when it determined the plea agreement authorized restitution to
Plotz’s family.
II. DISCUSSION
A federal court is permitted to order restitution only when authorized by
statute. United States v. Doering, 759 F.3d 862, 866 (8th Cir. 2014). The VWPA
affords sentencing courts with the discretion to order restitution to the victims of
certain offenses or to the victim’s family members if the victim is deceased.
18 U.S.C. § 3663(a)(1)(A) and (a)(2). Restitution may include funeral expenses. Id.
§ 3663(b)(3). The statute permits a sentencing court to order restitution “in any
criminal case to the extent agreed to by the parties in a plea agreement,” id.
§ 3663(a)(3), including to persons other than the victim of the defendant’s offense of
conviction, id. § 3663(a)(1)(A).
The district court ordered restitution under both the VWPA and the plea
agreement. In the plea agreement Zerba agreed to pay full restitution to “all victims
of the offense(s) including relevant conduct victims.” Zerba contends that Plotz is
not a victim within the meaning of the agreement and that a plea agreement may not
expand the statutory obligation to pay restitution.
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We apply ordinary contract principles when construing plea agreements.
United States v. Mosley, 505 F.3d 804, 808 (8th Cir. 2007). Any ambiguities are
construed against the government. See United States v. Andis, 333 F.3d 886, 890
(8th Cir. 2003) (en banc).
The plea agreement provision at issue does not incorporate or reference the
VWPA, or include the VWPA’s definition of a “victim.” The plea agreement uses the
phrase “all victims of the offense(s)” to which it appends “including relevant conduct
victims.” While an argument perhaps can be made that “victims of the offense(s)”
should be coextensive with the definition of “victim” in the VWPA, it is plain and
unambiguous that the phrase “including relevant conduct victims” is adding
something more. The question becomes: is that something more plain or ambiguous?
We find that it is plain.
“Relevant conduct” is a term of art that is defined with precision in the
Sentencing Guidelines. It includes “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the defendant . . .
that occurred during the commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection or responsibility for that
offense.” U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(A) (2018). For jointly
undertaken criminal activity, relevant conduct also includes the acts of others that
occurred during or in preparation for the offense of conviction taken “(I) within the
scope of the jointly taken criminal activity, (ii) in furtherance of that criminal activity,
and (iii) [that are] reasonably foreseeable in connection with that criminal activity.”
Id. § 1B1.3(a)(1)(B).
Clemens was present and armed at the express direction of Zerba for the
purpose of protecting the conspiracy from a robbery by Beener and his associates,
which included Plotz. The shooting occurred to protect the conspiracy and
unambiguously falls within the definition of relevant conduct for Zerba as the director
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of this phase of the conspiracy. Zerba must acknowledge as much, having admitted
in his plea agreement: (1) that Clemens was present and armed at the direction of
Zerba; (2) that Clemens was a member of the conspiracy to distribute marijuana; (3)
that “Clemens committed the crime of use, carry, brandish, and discharge of a firearm
during and in relation to the conspiracy to distribute marijuana and in furtherance of
the conspiracy” because it prevented Zerba from being robbed of his marijuana; and
(4) that Clemens’s “use, carry, brandish, and discharge of the firearm . . . was within
the scope of the conspiracy to distribute marijuana and was reasonably foreseeable
as a necessary and natural consequence of the conspiracy.” Based on these admitted
facts, Clemens’s shooting of Plotz is relevant conduct for Zerba. It is indisputable
that Plotz is a victim of that relevant conduct. His family is entitled to restitution
because the VWPA specifically allows restitution to be ordered in “any criminal case
to the extent agreed to by the parties in a plea agreement,” 18 U.S.C. § 3663(a)(3),
and Zerba agreed to pay restitution for “relevant conduct victims.” Because the plea
agreement authorized the district court to order restitution, we need not reach the
question of whether restitution was separately available under the VWPA.2
III. CONCLUSION
We affirm the district court’s order of restitution.
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2Zerba argued in a Fed. R. App. P. 28(j) letter that the district court violated the
party presentation principle recently reiterated by the United States Supreme Court
in United States v. Sineneng-Smith, __ U.S.__, 140 S.Ct. 1575 (2020), when it sua
sponte determined the plea agreement obligated Zerba to pay restitution. While we
have doubts about application of that principle in this case, we do not consider
arguments raised for the first time in a Rule 28(j) letter. DISH Network Serv. L.L.C.
v. Laducer, 725 F.3d 877, 883 (8th Cir. 2013).
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