United States v. Gill ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5768
CONTONIOUS DEVON GILL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert R. Merhige, Jr., Senior District Judge,
sitting by designation.
(CR-94-110-V)
Submitted: September 30, 1996
Decided: October 16, 1996
Before HALL, WILKINS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Michael S. Scofield, Charlotte, North Carolina, for Appellant. Mark
T. Calloway, United States Attorney, Brian L. Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Pursuant to Contonious Gill's plea of guilty to violating 18
U.S.C.A. § 371 (West Supp. 1996), the district court entered a judg-
ment order sentencing him to twenty-four months imprisonment fol-
lowed by two years of supervised release, and ordering him to pay
$17,216.80 in restitution. On appeal, Gill challenges the restitution
order on the ground that the district court failed to make the findings
required by 18 U.S.C.A. § 3664(a) (West Supp. 1996). Because Gill
failed to object to the restitution order at sentencing, we review the
order for plain error. Fed. R. Crim. P. 52(b); United States v. Castner,
50 F.3d 1267, 1277 (4th Cir. 1995); see United States v. Olano, 507
U.S. 725, 734 (1993). To correct plain error the appellate court must
find (1) an error, (2) which is plain and obvious under existing law,
(3) which is so prejudicial as to affect the outcome of the proceedings,
and (4) which seriously affects the fairness, integrity, or public repu-
tation of the proceedings. United States v. Hanno, 21 F.3d 42, 45 (4th
Cir. 1994).
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 dependents. The district court must make explicit findings as
to these factors, keyed to the specific type and amount of restitution.
United States v. Plumley, 993 F.2d 1140, 1143 (4th Cir.), cert. denied,
510 U.S. 903 (1993); United States v. Bruchey , 810 F.2d 456, 458
(4th Cir. 1987). The district court in this case made no such findings.
A district court can satisfy the statutory requirements by adopting
a presentence report (PSR) that recites adequate factual findings,
United States v. Molen, 9 F.3d 1084, 1086 (4th Cir. 1993), cert.
denied, ___ U.S. ___, 62 U.S.L.W. 3722 (U.S. May 2, 1994) (No. 93-
7805), or contains sufficient facts to support the imposition of the
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amount of restitution. Castner, 50 F.3d at 1278. The PSR makes no
recommendation as to Gill's ability to pay restitution or the effect of
such a payment on his family. According to the PSR, Gill's family,
including his wife and dependent children, have outstanding unse-
cured debt of over $11,000. Their monthly income is $944, including
Gill's unemployment benefits and his wife's salary. Their monthly
outlay is $1321. Gill has experience and training in data processing.
His past hourly wage has averaged $7 per hour.
While present indigence does not preclude a court from ordering
restitution where it concludes that a defendant's financial status will
improve to a point where he will be able to pay restitution in the
future, see United States v. Bailey, 975 F.2d 1028, 1032 (4th Cir.
1992), no such finding was made here. Neither the district court's
statements nor the PSR keyed Gill's financial resources, financial
needs, and earning ability to the amount of restitution ordered.
Plumley, 993 F.2d at 1143. The court made no finding that Gill could
"feasibly comply with the order without undue hardship to himself or
his dependents." Bailey, 975 F.2d at 1032.
We conclude that the district court's failure to comply with
§ 3664(a) constitutes plain error. While we affirm Gill's conviction
and sentence of imprisonment and supervised release, we remand the
action to allow the district court to make the requisite factual findings.
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 IN PART, VACATED
IN PART, AND REMANDED
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