United States v. Perch ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5356
SOPHIA PERCH,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-94-466-JFM)
Submitted: December 19, 1995
Decided: January 8, 1996
Before ERVIN, Chief Judge, HAMILTON, Circuit Judge,
and PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James K. Bredar, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Ira L. Oring, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
After pleading guilty to bank embezzlement under 18 U.S.C.A.
§ 656 (West Supp. 1995), Sophia Perch appeals her sentence of res-
titution. She claims that the district court failed to make necessary
factual findings before ordering restitution and impermissibly dele-
gated judicial duties to a probation officer. Finding no reversible
error, we affirm.
Perch pled guilty to a one-count information charging her with
bank embezzlement under 18 U.S.C.A. § 656. The presentence report
estimated the loss at approximately $97,000, and detailed her finan-
cial resources, her and her dependents' needs, and other relevant fac-
tors. See 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). The court set restitution at $30,000 pursuant to the
Victim and Witness Protection Act, 18 U.S.C.A. §§ 3663, 3664 (West
1985 & Supp. 1995), and ordered Perch to pay that amount "at the
rate to be determined by the Probation Officer."
Perch failed to raise the issues presented here during the proceed-
ings below, where they should have been presented in the first
instance.* Thus, her appeal is subject to the plain error standard of
review. United States v. Olano, ___ U.S. ___, 61 U.S.L.W. 4421
(U.S. Apr. 26, 1993) (No. 91-1306); see also Fed. R. Crim. P. 52(b).
To constitute plain error, the claim (1) must be an error, (2) clear
under current law, (3) affecting substantial rights, and (4) seriously
affecting the fairness, integrity, or public reputation of judicial pro-
ceedings. Olano, 61 U.S.L.W. at 4421.
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*We note that Perch's attorney failed to raise objections below despite
having notice of the issues. The day before Perch's sentencing, her attor-
ney filed a brief in this court in another case raising the same issues.
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The district court did not err by imposing restitution because it
adopted a presentence report that included the necessary factual find-
ings. See Molen, 9 F.3d at 1086. Additionally, the court did not com-
mit plain error by delegating its duties to a probation officer. While
a district court may not delegate to a probation officer the final
authority to determine the amount and timing of installment pay-
ments, United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir. 1995),
the court's error is not cause for reversal because it does not implicate
every element of the plain error test. See Olano , 61 U.S.L.W. at 4424.
Perch has not established that her substantial rights are prejudiced by
the error--the only matters left to the probation officer's discretion
are the amount and timing of the installments, not the amount of resti-
tution. Further, we cannot say that the fairness and integrity of the
proceedings are implicated by the court's error. See United States v.
Castner, 50 F.3d 1267, 1277-78 (4th Cir. 1995).
Accordingly, we affirm Perch's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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