United States v. Vance Inouye ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10510
Plaintiff-Appellee,
D.C. No.
v. 1:09-cr-00115-SOM-1
VANCE YUKIO INOUYE,
Defendant-Appellant. ORDER AND
AMENDED OPINION
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted
February 12, 2016—Honolulu, Hawaii
Filed May 10, 2016
Amended May 31, 2016
Before: Susan P. Graber, Jay S. Bybee,
and Morgan Christen, Circuit Judges.
Order;
Per Curiam Opinion
2 UNITED STATES V. INOUYE
SUMMARY*
Criminal Law
The panel affirmed the district court’s order setting a
restitution schedule in connection with the revocation of
supervised release.
The panel rejected Amicus’s arguments challenging the
reviewability of the merits. The panel wrote that the district
court’s judgment is final even though the district court is free
to adjust the restitution payment schedule, and held that a
generic appellate waiver does not waive the right to appeal
modification or revocation proceedings. The panel rejected
Amicus’s argument that a defendant must wait until a
restitution order is enforced for the order to be reviewable.
The panel held that the district court did not abuse its
discretion in setting the defendant’s restitution schedule at
8% of his gross monthly income. The panel held that the
district court committed no legal error when it considered the
defendant’s projected future income, a conclusion not
changed by the fact that the defendant was unemployed at the
time of his sentencing. As to application of the restitution
statute, the panel saw nothing in the district court’s order that
is illogical, implausible, or without support from the record.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. INOUYE 3
COUNSEL
Peter C. Wolff, Jr. (argued), Federal Public Defender,
Honolulu, Hawaii, for Defendant-Appellant.
Ronald G. Johnson (argued), Assistant United States
Attorney, and Florence T. Nakakuni, United States Attorney,
Honolulu, Hawaii, for Plaintiff-Appellee.
Victor D. Stone (argued), and Russell P. Butler, Upper
Marlboro, Maryland, for Amicus Curiae Maryland Crime
Victims’ Resource Center, Inc.
ORDER
The opinion, filed May 10, 2016, is amended as follows:
1. At slip op. 4, lines 24–25; delete, “so it appointed the
Maryland Crime Victims’ Resource Center, Inc., as amicus
curiae, to do so,” and replace it with “so it contacted the
Maryland Crime Victims’ Resource, Center, Inc., about
whether it would consider defending the judgment on appeal
as amicus curiae,”
2. At slip op. 6, line 26; insert a footnote after the word
“appeal.”, reading:
We recognize that “[g]enerally, we do not consider on
appeal an issue raised only by an amicus.” Swan v. Peterson,
6 F.3d 1373, 1383 (9th Cir. 1993). But we have also
recognized “[d]iscretionary exceptions” to this rule. Id. The
district court issued a detailed written order regarding
restitution. Based on the AUSA’s position, the district court
4 UNITED STATES V. INOUYE
did not expect either party to defend the judgment, so the
district court contacted the Maryland Crime Victims’
Resource Center, Inc., about whether it would consider
defending the judgment as amicus curiae on appeal. The
Maryland Crime Victims’ Resource Center filed an amicus
brief, and we accepted the brief and later granted Amicus’s
unopposed motion to participate in oral argument. Although
the government had supported Inouye’s position in the district
court proceedings, it changed its position, unexpectedly, on
appeal. In this unusual situation, the Amicus fully
participated in the appeal, and its arguments were briefed and
discussed by all parties. Cf. Russian River Watershed
Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141
n.1 (9th Cir. 1998) (declining to address Amicus’s argument
where “it [was] raised for the first time on appeal, and not by
any party”). Finally, we have expressly recognized an
exception to our general bar on addressing Amicus
arguments where the issue “involves a jurisdictional
question.” Swan, 6 F.3d at 1383. Amicus challenged the
reviewability of the judgment below both in jurisdictional and
non-jurisdictional terms.
The time for filing a petition for rehearing or rehearing en
banc is unaffected by this order.
UNITED STATES V. INOUYE 5
OPINION
PER CURIAM:
Defendant Vance Yukio Inouye appeals from an order
setting a restitution schedule in connection with the
revocation of his supervised release. We affirm.
I. FACTS
Inouye pleaded guilty to a count of wire fraud and a count
of conspiracy, in connection with a fraudulent mortgage
scheme he helped perpetuate. The district court sentenced
him to one month in prison, followed by three- and five-year
terms of supervised release, to be served concurrently. The
district court also ordered Inouye to be jointly and severally
liable for $274,401 in restitution—$74,401 to a victim family
and the remainder to a victim mortgage company. The order
required Inouye to pay restitution at a rate determined by the
Probation Office, but no less than 10% of his gross monthly
income, once he was released from prison.
Consistent with the restitution order, Inouye began paying
restitution upon his release in May 2010. But from
November 2013 to May 2014, Inouye failed to pay. When
questioned about it, he lied to his probation officer, saying the
checks were in the mail. The Probation Office referred
Inouye to the district court for revocation proceedings, and
Inouye ultimately admitted to lying about his missed
payments.
The district court held the proceedings in abeyance
several times so that defense counsel could provide more
information regarding a restitution schedule. Inouye
6 UNITED STATES V. INOUYE
consistently maintained that because of his financial straits
(he had no job, had barely ceased being homeless, and had
some significant debts), his schedule should be set at zero or
nominal payments at best. The Assistant U.S. Attorney
(“AUSA”) agreed.
The district court was unpersuaded, however, and
sentenced Inouye to one day in custody, 59 months of
supervised release, and restitution payments at a rate of 8%
of gross monthly income. Based on the AUSA’s position, the
district court did not expect any party to defend the judgment,
so it contacted the Maryland Crime Victims’ Resource
Center, Inc., about whether it would consider defending the
judgment on appeal as amicus curiae, and it issued a detailed
written order regarding restitution.
In its order, the court first made numerous findings about
Inouye and his general background. The court found he was
36 years old, had a high school education, had no substance
abuse problems, and was healthy. The court also found
Inouye to be “well-groomed” with “a professional
demeanor,” “employable,” “industrious,” and “likely to find
new employment within a reasonable time.” Inouye had been
“steadily employed throughout his life,” making around $15
an hour “when he was paid hourly” and “between $3,000 and
$5,000 per month when working as a loan officer.” And
despite Inouye’s criminal conviction, for the four years he
was on supervised release, he had “for the most part”
remained employed, working as a car salesman and in a
startup beverage company.
Relying on 18 U.S.C. § 3664(f)(2)—which directs district
courts to consider the various “financial resources,”
“projected earnings,” and “financial obligations” of the
UNITED STATES V. INOUYE 7
defendant—the court then made findings about Inouye’s
finances. As of July 2014, only a couple of months prior to
sentencing, he had after-tax income of $2,197 a month. His
expenses at that time were $2,418.77 a month (exceeding his
income), which “included $1,350 for rent, $400 for groceries
for four individuals [Inouye and his three children who were
then living with him], $173 for electricity, $170 for
telephone, $160 for commuting expenses such as gas,
$100.69 for auto insurance, and $65.08 for internet.” Inouye
had no medical insurance. He had an unsecured medical debt
of $5,000. And he had a tax debt of $18,000, which IRS
officials informed him was “subordinate to his restitution
debt.” However, the court also concluded that Inouye’s
expenses were likely to be lower than they had been
previously, because his children were now living with his ex-
wife, he had no apparent child-support obligations, and he
was now living with his aunt where “he is not presently being
charged for rent, utilities, or food.”
Based on these findings, the court imposed a restitution
schedule at 8% of Inouye’s gross monthly income. Inouye
now appeals.
II. STANDARD OF REVIEW
We review a restitution order for “an abuse of discretion,
provided that it is within the bounds of the statutory
framework.” United States v. Gordon, 393 F.3d 1044, 1051
(9th Cir. 2004) (internal quotation marks omitted). “Factual
findings supporting an order of restitution are reviewed for
clear error. The legality of [the] order is reviewed de novo.”
Id. (internal quotation marks and ellipsis omitted).
8 UNITED STATES V. INOUYE
III. ANALYSIS
On appeal, Inouye argues that the district court abused its
discretion when it imposed an 8%-of-gross-income restitution
schedule because it considered his projected future earnings
and drew inferences about Inouye’s finances with “no support
in the record.” Amicus contends that we cannot review
Inouye’s appeal and that, alternatively, the district court did
not abuse its discretion. The government has changed its
position on appeal and now supports the judgment below.
We hold that Inouye’s appeal is reviewable, and we
affirm the district court’s order.
A. Reviewability of Inouye’s Appeal
As a threshold matter, we reject Amicus’s several
arguments aimed at challenging our ability to review the
merits of Inouye’s appeal.1 First, the district court judgment
1
We recognize that “[g]enerally, we do not consider on appeal an issue
raised only by an amicus.” Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir.
1993). But we have also recognized “[d]iscretionary exceptions” to this
rule. Id. The district court issued a detailed written order regarding
restitution. Based on the AUSA’s position, the district court did not
expect either party to defend the judgment, so the district court contacted
the Maryland Crime Victims’ Resource Center, Inc., about whether it
would consider defending the judgment as amicus curiae on appeal. The
Maryland Crime Victims’ Resource Center filed an amicus brief, and we
accepted the brief and later granted Amicus’s unopposed motion to
participate in oral argument. Although the government had supported
Inouye’s position in the district court proceedings, it changed its position,
unexpectedly, on appeal. In this unusual situation, the Amicus fully
participated in the appeal, and its arguments were briefed and discussed
by all parties. Cf. Russian River Watershed Protection Comm. v. City of
Santa Rosa, 142 F.3d 1136, 1141 n.1 (9th Cir. 1998) (declining to address
UNITED STATES V. INOUYE 9
is a final judgment even though the district court is free to
adjust the restitution payment schedule. See 18 U.S.C.
§ 3664(o) (“A sentence that imposes an order of restitution is
a final judgment notwithstanding the fact that . . . such a
sentence can subsequently be . . . corrected[,] . . . appealed
and modified[,] . . . amended[,] . . . adjusted[,] . . . [or] the
defendant may be resentenced . . . .”). Second, nothing in
“the language of [Inouye’s original 2009] waiver
encompasses [Inouye’s] right to appeal” the consequences of
a subsequent revocation proceeding. United States v. Nunez,
223 F.3d 956, 958 (9th Cir. 2000) (internal quotation marks
omitted). Accordingly, he cannot be said to have “knowingly
and voluntarily” waived his right to appeal the district court’s
decision here. Id. (internal quotation marks omitted); see also
United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009)
(holding that a defendant did not, pursuant to his plea
agreement, waive his right to appeal the district court’s
decision that it lacked jurisdiction to modify his sentence
because the plea agreement encompassed only the right to
appeal “the sentence imposed” (internal quotation marks and
ellipsis omitted)). We agree with the courts of appeals that
have addressed this and similar situations: A generic
appellate waiver does not waive the right to appeal
modification or revocation proceedings. See United States v.
Wilson, 707 F.3d 412, 415–16 (3d Cir. 2013) (collecting
cases from the Tenth and Eleventh Circuits); United States v.
Lonjose, 663 F.3d 1292, 1301–02 (10th Cir. 2011) (collecting
Amicus’s argument where “it [was] raised for the first time on appeal, and
not by any party”). Finally, we have expressly recognized an exception
to our general bar on addressing Amicus arguments where the issue
“involves a jurisdictional question.” Swan, 6 F.3d at 1383. Amicus
challenged the reviewability of the judgment below both in jurisdictional
and non-jurisdictional terms.
10 UNITED STATES V. INOUYE
cases from the Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
and Eleventh Circuits). And finally, Amicus cites no
authority to support its position that a defendant must wait
until a restitution order is enforced against him for the order
to be reviewable. Amicus’s citation to Stack v. Boyle,
342 U.S. 1, 6 (1951)—which held that the proper procedure
for challenging bail as unlawfully fixed in violation of the
Eighth Amendment is to file a motion for reduction of bail
instead of collaterally attacking it on habeas review—is
inapposite. There is no obstacle, jurisdictional or otherwise,
to our review of the merits.
B. The Restitution Schedule
The district court did not abuse its discretion in setting
Inouye’s restitution schedule at 8% of his gross monthly
income. When assessing whether a restitution schedule under
18 U.S.C. § 3664(f)(2) was an abuse of discretion, we follow
a two-step inquiry: First, we determine whether the lower
court applied the correct legal rule, and second, we determine
whether the application of that rule or standard was illogical,
implausible, or without support from any inferences that can
be drawn from the record. United States v. Hinkson, 585 F.3d
1247, 1261–62 (9th Cir. 2009) (en banc); see also United
States v. Booth, 309 F.3d 566, 575 n.6 (9th Cir. 2002) (“A
restitution order is reviewed for abuse of discretion if it is
within the bounds of the statutory framework.”). Inouye fails
to make out a case at either step, so we affirm.
First, contrary to Inouye’s repeated assertion, the district
court committed no legal error when it considered Inouye’s
projected future income. To the contrary. By law the district
court “shall . . . specify . . . the schedule according to which[]
the restitution is to be paid, in consideration of . . . projected
UNITED STATES V. INOUYE 11
earnings and other income of the defendant.” 18 U.S.C.
§ 3664(f)(2)(B) (emphasis added). As we have made clear
regarding § 3664(f)(2)(A), “a sentencing court must consider
the defendant’s financial resources in setting a restitution
payment schedule.” Ward v. Chavez, 678 F.3d 1042, 1052
(9th Cir. 2012) (emphasis added). The same holds true for
§ 3664(f)(2)(B)—a district court must consider projected
earnings when imposing restitution. See, e.g., United States
v. Bogart, 576 F.3d 565, 574 (6th Cir. 2009) (holding that
§ 3664(f)(2) “provides that district courts must evaluate” the
“financial resources,” “projected earnings,” and “financial
obligations” of the defendant (emphasis added) (internal
quotation marks omitted)); United States v. Calbat, 266 F.3d
358, 366 (5th Cir. 2001) (holding that “the financial resources
and other assets of the defendant; projected earnings and
other income of the defendant; and any financial obligations
of the defendant, including obligations to dependents” are
“mandatory factors” for consideration in setting a restitution
schedule). That conclusion is not changed by the fact that
Inouye was unemployed at the time of his sentencing (a state
of affairs likely to be true in many sentencing proceedings).
See, e.g., Booth, 309 F.3d at 576 (holding that a $500-per-
month schedule was not an abuse of discretion, even though
the defendant claimed that “his circumstances do not permit
any payment,” because the defendant could “reasonably look
forward to being able to pay [that amount] after his term of
imprisonment”); Bogart, 576 F.3d at 574–75, 574 n.4 (noting
that restitution schedule was proper in light of the defendant’s
“potential earning capacity” despite a recorded monthly cash
flow of $193, only $200 in his checking account, over
$400,000 in debts, and defendant’s statement that he was
“just released from prison” and had unknown prospects
(internal quotation marks omitted)); United States v. Viemont,
91 F.3d 946, 951 (7th Cir. 1996) (“If a district court possesses
12 UNITED STATES V. INOUYE
the necessary information regarding the financial condition of
a defendant, there is no abuse of discretion in ordering
restitution—even where the defendant has a negative net
worth and a monthly cash flow of zero.” (alteration and
internal quotation marks omitted)).
Second, as to the application of the restitution statute, we
fail to see anything in the district court’s order that is
illogical, implausible, or without support from the record.
Hinkson, 585 F.3d at 1261–62. The district court did not
“ignore[] the cash flow report that was in the PSR,” nor did
it “ignore[] that [Inouye] was not paying medical insurance.”
The court recognized both of those facts explicitly. And the
court’s determination that Inouye’s expenses in the
immediate future were likely to be lower than they had been
had ample support in the record. The court did not abuse its
discretion by concluding that Inouye’s expenses would be
less when he was no longer living with his children, paying
rent, or paying for utilities. Finally, we note, as did the
district court, that if Inouye has no job, then 8% of $0.00 is
$0.00, and he suffers no real prejudice. Inouye is free to seek
further modification of his restitution schedule as his
circumstances continue to evolve.
AFFIRMED.