United States v. Slate, William , 207 F. App'x 664 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2006*
Decided November 29, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4779
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 05-CR-153-1
WILLIAM SLATE,
Defendant-Appellant. Rebecca R. Pallmeyer,
Judge.
ORDER
William Slate pleaded guilty to one count of bank robbery in violation of 18
U.S.C. § 2113(a). In his plea agreement, he waived his right to appeal his sentence,
and was sentenced to 78 months’ imprisonment and three years’ supervised release.
In addition, he was ordered to make restitution under the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. § 3663A, of $81,000, the amount he stole from
the bank. The district court ordered that payment of this monetary penalty was
due “in full” to begin “immediately.” But the court did not consider Slate’s financial
condition or otherwise set a payment schedule.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-4779 Page 2
On appeal, Slate argues that the district court erred when it failed to
consider his financial situation and establish a specific payment schedule as
required by United States v. Day, 418 F.3d 746 (7th Cir. 2005). Slate is indigent; he
has been incarcerated since 2005, has no assets, and has earned only minimal
income in the past. Slate did not object to the restitution order before the district
court, however, so our review is for plain error. See United States v. Thigpen, 456
F.3d 766, 771 (7th Cir. 2006).
As the government concedes, the district court plainly erred when it failed to
impose a restitution payment schedule. We have emphasized in recent cases that
the MVRA “requires a sentencing court to set a payment schedule, taking into
account the defendant’s financial resources, obligations, and projected earnings.”
Id.; Day, 418 F.3d at 761; see also 18 U.S.C. § 3664(f)(2). The district court’s failure
to consider Slate’s resources and set a schedule effectively delegated its
responsibility to the probation office, which is inconsistent with the MVRA. See
Thigpen, 456 F.3d at 771; Day, 418 F.3d at 761; United States v. Pandiello, 184 F.3d
682, 688 (7th Cir. 1999). Such a delegation deprives the defendant of a substantial
right and constitutes plain error warranting, as the government agrees, a remand.
Thigpen, 456 F.3d at 771; see also Pandiello, 184 F.3d at 688; United States v.
Mohammad, 53 F.3d 1426, 1438-39 (7th Cir. 1995). And, as the government also
does not dispute, Slate’s appeal waiver in his plea agreement does not foreclose this
appeal because his waiver applied only to the conviction and sentence, and not to
the order of restitution. See United States v. Behrman, 235 F.3d 1049, 1052 (7th
Cir. 2000).
Accordingly, we AFFIRM Slate’s sentence, but VACATE the restitution order
and REMAND for the imposition of a restitution schedule consistent with our
opinion in Day.