United States v. Nelson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5555
TOINETTA MONDS NELSON, a/k/a
Toinetta M. Nelson,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-95-19-AW)
Argued: April 11, 1997
Decided: June 4, 1997
Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Michael T. CitaraManis, Assistant Federal Public
Defender, Greenbelt, Maryland, for Appellant. Larry David Adams,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
ON BRIEF: James K. Bredar, Federal Public Defender, Greenbelt,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Greenbelt, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Toinetta Nelson (Nelson) pled guilty to theft of government prop-
erty. See 18 U.S.C. § 641. She now appeals the portion of the district
court's judgment that orders her to pay $19,607.69 in restitution in
such installments as directed by the United States Probation Office.
For the following reasons, we affirm.
I.
On March 31, 1995, Nelson pled guilty to one count of theft of
government property. See id. Specifically, Nelson pled guilty to steal-
ing imprest funds from the Office of Oceanic and Atmospheric
Research, National Oceanic and Atmospheric Administration, United
States Department of Commerce, where she was employed.
The presentence investigation report (PSR) prepared in anticipation
of Nelson's sentencing calculated the government's loss from the
theft at $19,607.69. The district court adopted both the recommended
factual findings and the application of the provisions of the United
States Sentencing Guidelines to Nelson's case as set forth in the PSR.
Accordingly, the district court sentenced Nelson to five years proba-
tion on the specific conditions that: (1) she serve four months of home
confinement with an electronic monitoring device; and (2) she pay
$19,607.69 in restitution. Without objection from Nelson, the district
court ordered Nelson to pay the restitution in "installments as directed
by the U.S. Probation Office . . . ." (J.A. 37). Asserting her inability
to pay the amount of restitution ordered, Nelson subsequently
requested reconsideration of the restitution order, which the district
court denied. Nelson noted a timely appeal.
II.
On appeal, Nelson contends the district court's order of restitution
is not supported by adequate factual findings regarding her ability to
pay and the financial needs of her dependents. We disagree.
2
Title 18, United States Code § 3663, authorizes district courts to
order defendants to pay restitution to any victim of an offense com-
mitted in violation of Title 18 or other specified sections. In determin-
ing whether to order restitution under § 3663 and the amount of such
restitution, a district court must "consider the amount of the loss sus-
tained by any victim as a result of the offense, the financial resources
of the defendant, the financial needs and earning ability of the defen-
dant and the defendant's dependents, and such other factors as the
court deems appropriate." 18 U.S.C. § 3664(a). "In order to assure
effective appellate review of restitution orders, this circuit requires
sentencing courts to make specific, explicit findings of fact on each
of the factors set forth in § 3664(a)." United States v. Molen, 9 F.3d
1084, 1086 (4th Cir. 1993) (collecting cases). These findings must
key a defendant's financial resources, financial needs, and earning
ability to the type and amount of restitution. See id. In addition, the
district court must make a factual determination regarding whether
the defendant can feasibly comply with the order without undue hard-
ship to himself or his dependants. See id. In satisfying these require-
ments, a district court may: (1) specifically articulate its findings
regarding each factor on the record; or (2) adopt a PSR that ade-
quately recites recommended factual findings. See id.Here, the district court articulated some separate findings and
adopted those recommended in Nelson's PSR. After reviewing the
relevant factual findings separately made by the district court and the
relevant factual findings recited in the PSR that were adopted by the
district court, we conclude that while they are not a model of clarity,
they are nonetheless adequate to meet the requirements just outlined.
Accordingly, we decline Nelson's request that we vacate and remand
the district court's order of restitution.
III.
Nelson also contends the district court erred by delegating to the
United States Probation Office the responsibility to determine the
amount and timing of her restitutionary installment payments. See
United States v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995) (holding
that sentencing courts may not delegate decisions about the amount
and timing of restitutionary installment payments). Because Nelson
failed to object to this alleged error, we only review for plain error.
3
See United States v. Olano, 113 S. Ct. 1770, 1776 (1993); see also
Fed. R. Crim. P. 52(b) ("Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention
of the court.").
Under the plain error analysis clarified by the Supreme Court in
Olano, an appellate court has the discretion to correct a forfeited error
under Federal Rule of Criminal Procedure 52(b), where: (1) there is
an error; (2) the error is plain; (3) the error affects substantial rights;
and (4) the court determines, after examining the particulars of each
case, that the error seriously affects the fairness, integrity or public
reputation of judicial proceedings. See Olano , 113 S. Ct. at 1776.
Applying this analysis here, we conclude the district court's dele-
gation of the responsibility to determine the timing and amount of
Nelson's restitutionary installment payments to the United States Pro-
bation Office does not constitute plain error under Federal Rule of
Criminal Procedure 52(b). We do not hesitate to conclude that the dis-
trict court erred by delegating the responsibility of determining the
timing and amount of Nelson's restitutionary installment payments to
the United States Probation Office. See Johnson , 48 F.3d at 809("[M]aking decisions about the amount of restitution, the amount of
installments, and their timing is a judicial function and therefore is
non-delegable."). Nor do we hesitate to conclude that the error is plain
in the sense that our circuit precedent clearly prohibits the district
court's delegation. See id.; see also Olano, 113 S. Ct. at 1777 (defin-
ing "plain" as synonymous with clear or, equivalently, obvious).
We do, however, conclude that the error did not affect Nelson's
substantial rights. See Olano, 113 S. Ct. at 1776. In most cases, affect-
ing a defendant's substantial rights is synonymous with prejudice to
the defendant. See id. at 1778. Furthermore, when reviewing for plain
error under Federal Rule of Criminal Procedure 52(b), "[i]t is the
defendant rather than the Government who bears the burden of per-
suasion with respect to prejudice." See id. Nelson has not shown that
she was prejudiced by the district court delegating to the United
States Probation Office the responsibility to determine the amount
and timing of her restitutionary installment payments. The timing and
amount of Nelson's restitutionary installment payments are minor
determinations in the entire scheme of Nelson's conviction and sen-
4
tence. Indeed, the district court did not delegate responsibility for
making the far more important determination of the total amount of
restitution owed by Nelson. Furthermore, if the amount and timing of
restitutionary installment payments set by the United States Probation
Office are not agreeable to Nelson, she can petition the district court
for modification. See 18 U.S.C. § 3563(c); Fed. R. Crim. P. 32.1(b).
Because the error does not affect Nelson's substantial rights, the error
cannot constitute plain error under Federal Rule of Criminal Proce-
dure 52(b).*
IV.
For the foregoing reasons, the district court's judgment is affirmed.
AFFIRMED
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*Because the error does not affect Nelson's substantial rights, we need
not consider whether the error seriously affects the fairness, integrity or
public reputation of judicial proceedings. See Olano, 113 S. Ct. at 1776.
5