United States v. Bradford William Davis , 140 F. App'x 190 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 14, 2005
No. 04-15530
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00007-CR-WCO-2-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRADFORD WILLIAM DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 14, 2005)
Before BLACK, HULL and WILSON, Circuit Judges.
PER CURIAM:
Bradford William Davis appeals his sentence imposed after revocation of
probation for willful failure to pay court-ordered restitution for past due child
support. We affirm the district court.
A district court may revoke a defendant’s term of probation and return the
defendant to prison when the defendant violates a condition of that probation. 18
U.S.C. § 3565(a)(2). “‘In a probation revocation proceeding, all that is required is
that the evidence reasonably satisfy the judge that the conduct of the probationer
has not been as good as required by the conditions of probation; evidence that
would establish guilt beyond a reasonable doubt is not required.’” United States v.
O'Quinn, 689 F.2d 1359, 1361 (11th Cir. 1982) (citation omitted). We review a
district court’s revocation of probation for abuse of discretion. Id.Where the alleged violation is the failure to pay restitution or a fine, the
court must find the probationer’s failure to pay was willful, i.e., the probationer
had the means or ability to pay a fine or restitution as ordered and purposefully did
not do so. Bearden v. Georgia, 103 S. Ct. 2064, 2070 (1983). The government
may establish willful failure to pay by producing evidence the defendant had funds
available to pay restitution and did not do so. United States v. Boswell, 605 F.2d
171, 175 (5th Cir. 1979).1 Willfulness requires the government to prove the law
imposed a duty on the defendant, the defendant knew of this duty, and he
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.
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voluntarily and intentionally violated that duty. United States v. Williams, 121
F.3d 615, 621 (11th Cir. 1997). “[P]robationer's failure to make sufficient bona
fide efforts to seek employment or borrow money in order to pay the fine or
restitution may reflect an insufficient concern for paying the debt he owes to
society for his crime,” and in such a situation, “the State is likewise justified in
revoking probation and using imprisonment as an appropriate penalty for the
offense.” Bearden, 103 S. Ct. at 2070.
Even though the record on this appeal does not contain the medical records
that Davis presented to his probation officer and to the district court regarding his
health condition, it contains sufficient evidence to conclude Davis’s failure to pay
the restitution was willful.2 First, the record reveals Davis had $1,000.00 in his
Prudential Securities account at the time he was sentenced to five years of
probation. The district court intended this money be paid on or before June 1,
2004, as the first payment towards restitution. However, Davis failed to make any
payments from that or any other account. Second, even though Davis had an ability
to earn significant income (his earning were $50,000 during 2001-2002), he made
2
It is not possible to analyze Davis’s claim that he could not work because he was sick, as
his medical records are not in the record on appeal. See Fed. R. App. P. 10(b)(2) (“If the appellant
intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary
to the evidence, the appellant must include in the record a transcript of all evidence relevant to that
finding or conclusion.”). However, it is not necessary to do so because there was other evidence in
the record supporting the district court’s ruling.
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no effort to find a job when he was on probation during a five-month period.
Third, while Davis was on probation, he told his probation officer he was unable to
borrow money from anyone to pay towards the restitution. However, when Davis
was facing revocation of his probation, he represented to the court that he could
borrow money which he could pay towards restitution within two weeks. Thus, the
district court’s finding that Davis’s failure to pay restitution was willful is not
erroneous.
Given the circumstances of this case, namely, Davis’s neglect to pay child
support which had grown to $42,760.00 over 15 years and his failure to pay any
money towards court-ordered restitution despite his apparent ability to work or
borrow, the district court did not abuse its discretion by revoking Davis’s
probation.
AFFIRMED.
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