United States v. Moore ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4590
JOHN HENRY MOORE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-95-684)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4591
JOHN HENRY MOORE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CR-96-494, CR-96-495,
CR-96-496, CR-96-497)
Submitted: March 11, 1997
Decided: March 28, 1997
Before HALL and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Dean A. Eichelberger, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
John Henry Moore appeals his sentence on a guilty plea for bank
robbery (No. 96-4590), and the district court's revocation of his
supervised release imposed as a result of prior convictions (No. 96-
4591).
Moore first challenges his bank robbery sentence, claiming that the
district court erred in ordering restitution when it failed to advise
Moore at his Fed. R. Crim. P. 11 hearing that restitution could be
ordered as a consequence of his guilty plea. The district court advised
Moore three times of the possibility that a fine of $250,000 could be
imposed upon him. Because this potential fine far exceeded the
amount of restitution actually ordered by the district court, we find
that the order of restitution was neither a surprise nor unfairly prejudi-
cial to Moore. See United States v. Fentress, 792 F.2d 461, 465-66
(4th Cir. 1986). Thus, the district court's error in failing to advise
Moore of the possibility of restitution during the Rule 11 proceeding
was harmless.
Moore also claims on appeal that the district court abused its dis-
cretion in failing to make particularized findings regarding Moore's
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ability to pay restitution prior to ordering its payment. This Court
ordinarily reviews restitution orders under an abuse of discretion stan-
dard, United States v. Piche, 981 F.2d 706, 718 (4th Cir. 1992), but
because Moore failed to object at sentencing to imposition of the res-
titution order, he has waived appellate review absent plain error. Fed.
R. Crim. P. 52(b); United States v. Castner, 50 F.3d 1267, 1277 (4th
Cir. 1995).
Under 18 U.S.C.A. § 3664(a) (West Supp. 1996), before ordering
restitution, a district court must consider the financial resources of the
defendant, and the financial needs and earning ability of the defendant
and his dependant. The sentencing court must make explicit findings
as to the statutory factors keyed to the specific type and amount of
restitution. See United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.
1993); United States v. Bruchey, 810 F.2d 456, 458 (4th Cir. 1987).
However, we have also held that where a fine imposed was relatively
minor, the district court did not abuse its discretion in failing to make
specific findings as to the defendant's ability to pay because courts
are presumed to be familiar with how much prisoners can make in
prison. United States v. Taylor, 984 F.2d 618, 622 (4th Cir. 1993).
Here, the restitution ordered was $2153, and properly may be con-
sidered to be relatively minor. Also, the district court in this case
apparently was fully aware of Moore's financial condition, finding
that Moore was destitute after reviewing the financial information
contained in Moore's presentence investigation report. Moreover, the
record reflects that Moore agreed to participate in the prison work
program, and the district court knew of this agreement. Accordingly,
it appears that the district court based its restitution order on the fact
that Moore would be earning enough money working in prison during
his eighty-two month incarceration to pay the amount of restitution
ordered. Accordingly, we find that the restitution order in this case
was not plainly erroneous, despite the fact that the district court failed
to comply fully with 18 U.S.C.A. § 3664(a).
Finally, while Moore also noted an appeal to the district court's
revocation of his supervised release, he failed to raise any specific
related claim in his brief on appeal (No. 96-4591). Accordingly, we
affirm this order as well.
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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the Court and
argument would not aid the decisional process.
AFFIRMED
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