United States v. Nicole Grant , 715 F.3d 552 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 12-4037
NICOLE GRANT, a/k/a Nicole Jones,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Arenda Wright Allen, District Judge.
(2:10-cr-00014-AWA-DEM-1)
Argued: January 29, 2013
Decided: May 9, 2013
Before TRAXLER, Chief Judge, and GREGORY and
SHEDD, Circuit Judges.
Vacated by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Gregory joined. Judge Shedd wrote
a separate concurring opinion.
COUNSEL
ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Robert John Krask, OFFICE OF THE UNITED STATES
2 UNITED STATES v. GRANT
ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:
Michael S. Nachmanoff, Federal Public Defender, Alexan-
dria, Virginia, Keith Loren Kimball, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant. Neil H. Mac-
Bride, United States Attorney, Alexandria, Virginia, for
Appellee.
OPINION
TRAXLER, Chief Judge:
Nicole Grant appeals a district court order adding to her
previously imposed sentence a new requirement that she
apply all tax refunds and other money she receives from any
"anticipated or unexpected financial gains" toward an out-
standing restitution obligation imposed on her as part of her
sentence for the crime of theft of government property. Con-
cluding that the district court abused its discretion by later
amending the original sentence in the absence of evidence of
the impact the amendment would have on Grant’s ability to
support herself and her family, we vacate the order.
I.
Insofar as this appeal pertains to the law of criminal restitu-
tion and conditions of probation, we begin our discussion with
some brief background in those areas.
Although restitution has deep common law roots, it was
only in the Victim and Witness Protection Act of 1982,
("VWPA") Pub. L. No. 97-291, 96 Stat. 1248 (1982), "that
Congress first gave the federal district courts general statutory
authority to order restitution as part of a criminal sentence
outside of the probation context." United States v. Amato, 540
F.3d 153, 159 (2d Cir. 2008); see S. Rep. No. 97-532, at 30
UNITED STATES v. GRANT 3
(1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2536. Thirteen
years later, Congress passed the Mandatory Victims Restitu-
tion Act of 1996 ("MVRA") as part of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
Title II, Subtitle A, 110 Stat. 1214. The legislation’s stated
purpose was to ensure that offenders realized the damage they
caused with their criminal actions and make the victims
whole. See S. Rep. 104-179, at 12 (1995), reprinted in 1996
U.S.C.C.A.N. 924; see also Dolan v. United States, 130 S. Ct.
2533, 2539 (2010) (noting that the MVRA "seeks primarily to
assure that victims of a crime receive full restitution"). The
MVRA also served to "replace an existing patchwork of dif-
ferent rules governing orders of restitution under various Fed-
eral criminal statutes with one consistent procedure." S. Rep.
104-179, at 12 (1995), reprinted in 1996 U.S.C.C.A.N. 924.
Under the MVRA, for any defendant convicted of certain
enumerated offense categories, including, as is relevant here,
offenses against property, the sentencing court is required to
order the defendant to pay restitution in accordance with 18
U.S.C. § 3664. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii),
(d). Pursuant to that section, a sentencing court must "order
restitution to each victim in the full amount of each victim’s
losses as determined by the court and without consideration
of the economic circumstances of the defendant." Id.
§ 3664(f)(1)(A). However, upon determining the total restitu-
tion amount owed to each victim, the district court must,
pursuant to section 3572, specify in the restitution
order the manner in which, and the schedule accord-
ing to which, the restitution is to be paid, in consid-
eration of—
(A) the financial resources and other assets of the
defendant, including whether any of these assets are
jointly controlled;
(B) projected earnings and other income of the
defendant; and
4 UNITED STATES v. GRANT
(C) any financial obligations of the defendant;
including obligations to dependents.
Id. § 3664(f)(2).1 If the restitution order requires payment
over time, the time must be "the shortest . . . in which full
payment can reasonably be made." Id. § 3572(d)(2).
The MVRA also requires that the restitution order "provide
that the defendant shall notify the court and the Attorney Gen-
eral of any material change in the defendant’s economic cir-
cumstances that might affect the defendant’s ability to pay
restitution." Id. § 3664(k). Once the victim or victims owed
restitution are also notified, and the court finds that a material
change has indeed occurred, the court is authorized to adjust
the payment schedule "as the interests of justice require." Id.;
see Cani v. United States, 331 F.3d 1210, 1215 (11th Cir.
2003).
An order to pay restitution is a part of a criminal sentence.
See United States v. Cohen, 459 F.3d 490, 496 (4th Cir.
2006). Additionally, however, under the MVRA, the sentenc-
ing court must make compliance with the restitution order a
condition of any probation sentence. See 18 U.S.C.
§ 3563(a)(6)(A). There are certain conditions other than the
payment of restitution that the sentencing court must place on
any probation sentence, see id. § 3563(a), and sentencing
courts have discretion to add still more conditions of the
court’s choosing "to the extent that [they] are reasonably
1
Sentencing courts require the probation officer to provide the informa-
tion needed by the district court regarding the losses to each victim, the
amount of restitution owed under a plea agreement, and information
regarding the defendant’s economic circumstances. See 18 U.S.C.
§ 3664(a). This information is then disclosed to both the defendant and the
government. See id. § 3664(b). The defendant also must file with the pro-
bation officer an affidavit describing her financial resources, including a
listing of all assets she owned or controlled on the date of her arrest; her
financial needs and earning ability as well as that of her dependents; and
other information that the court might request. See id. § 3664(d)(3).
UNITED STATES v. GRANT 5
related to the factors set forth in section 3553(a)(1) and (a)(2)
and . . . involve only such deprivations of liberty or property
as are reasonably necessary for the purposes indicated in sec-
tion 3553(a)(2)," id. § 3563(b). After imposition of the initial
conditions of a probation are set, "[t]he court may modify,
reduce, or enlarge [those] conditions . . . at any time prior to
the expiration or termination of the term of probation, pursu-
ant to the provisions of the Federal Rules of Criminal Proce-
dure relating to the modification of probation and the
provisions applicable to the initial setting of the conditions of
probation." Id. § 3563(c).
With this general background, we now turn to the facts of
this case. In 2009, Grant was indicted and pled guilty in the
Northern District of Florida on one count of theft of govern-
ment property in excess of $1,000, see 18 U.S.C. § 641, as a
result of her receipt of Supplementary Security Income
("SSI") from the Social Security Administration ("SSA") after
her eligibility for such payments had ended. Grant had been
receiving the money on behalf of her special-needs daughter
but failed to notify the government when she subsequently
married and her husband’s income made her ineligible for
SSI.
Grant’s presentence report ("PSR") outlined her financial
circumstances relating to her ability to pay fines and restitu-
tion. According to the report, her monthly income at the time
of sentencing was $2,795.00 (including $1,865.00 in spousal
income and support for her two children and $930 in esti-
mated net salary) and her monthly expenses were $2,533.75,
yielding a net monthly cash flow of $261.25. Her expenses
included her payments on a debt of $807 owed to her cellular
telephone company, as well as $17,016 in credit card debt and
a $22,100 car loan. The report further noted that she had
received tax refunds of $2,722, $2,862, $600, and $3,987,
respectively, for the tax years 2005, 2006, 2007, and 2008. In
light of Grant’s anticipated restitution obligation, the PSR
noted it did not appear she would have the present or future
6 UNITED STATES v. GRANT
ability to pay a fine. See 18 U.S.C. § 3572(b) (providing that
a fine should be imposed only to the extent that it would not
impair the defendant’s ability to fulfill her restitution obliga-
tions).
On October 28, 2009, the district court sentenced Grant to
five years’ probation, with six months of home confinement
and a $100 special assessment, to be paid immediately. Her
sentence also required her to pay $42,152 in restitution to the
SSA in $250 monthly installments and to notify the court of
any material changes in her economic circumstances. As is
relevant here, the district court also conditioned her probation
on her compliance with her restitution payment schedule and
her "provid[ing] the probation office with access to all
requested financial information, both business and personal,
during the term of supervision." J.A. 17.
In January 2010, the district court reduced Grant’s required
monthly restitution payment to $125, presumably based on a
showing that Grant’s financial circumstances relating to her
ability to pay restitution had materially worsened. Later that
same month, the Florida district court transferred jurisdiction
over Grant’s case and supervision of her probation to the
Eastern District of Virginia.
In 2010 and 2011, Grant received tax refunds for the 2009
and 2010 tax years in the approximate amounts of $2,900 and
$3,300, respectively. Apparently as a result of these most
recent refunds, Grant’s new probation officer petitioned the
district court in November 2011 to add a new special condi-
tion to Grant’s probation that she must "apply monies
received from income tax refunds, lottery winnings, inheri-
tances, judgments, and any anticipated or unexpected finan-
cial gains to the outstanding court ordered financial
obligations." J.A. 22. Because Grant did not consent to this
change, the district court appointed counsel to represent her
and set a hearing.
UNITED STATES v. GRANT 7
Grant argued that the requested condition would amount to
an unauthorized amendment to her sentence. She particularly
emphasized that the additional burden would be unwarranted
in light of the fact that the financial circumstances affecting
her ability to pay restitution had not materially improved. The
government countered that district courts have broad authority
to modify probation conditions and that the condition sought
served the goals of sentencing, as it would reduce "the likeli-
hood of a substantial shortfall in restitution." J.A. 31. On the
issue of Grant’s financial circumstances, the government
argued that Grant’s "receipt of an annual windfall [the tax
refunds] arguably qualifies as a material change." J.A. 33. The
government did not assert that Grant could afford to pay her
tax refunds and other financial gains but nonetheless sug-
gested that the court should add the condition and make fur-
ther adjustments in Grant’s restitution obligations at some
later time if the court determined Grant could not satisfy all
of her restitution obligations and still support her family.
The district court agreed at the hearing with the govern-
ment that adoption of the special condition would not be an
unauthorized amendment to the sentence. Addressing Grant,
the court stated,
I do empathize with you and your children and
your husband and your daycare in your house and
your needs to use your tax refund for your family but
unfortunately those are all mitigation factors that
[defense counsel] listed out that you should have
thought about before you committed the crime down
in Florida.
J.A. 47. Without deciding there had been any material change
in Grant’s ability to pay restitution since her monthly obliga-
tion was reduced to $125, the district court nonetheless ruled
that the requested special condition was proper and ordered
that Grant comply with it. In a written order, the district court
explicitly noted its detailed consideration of
8 UNITED STATES v. GRANT
the factors set forth in 18 U.S.C. § 3553(a), 18
U.S.C. § 3563(c), the Federal Rules of Criminal Pro-
cedure, the spirit and intent of 18 U.S.C. § 3664(k)
(regardless of that statute’s direct applicability), the
arguments and law presented at the Show Cause
Hearing on December 20, 2011, the interests of jus-
tice and fundamental fairness, and the undisputed
circumstances presented in this case.
J.A. 52.
II.
Grant contends that the district court erred in increasing her
restitution obligation when there was no evidence that there
had been any material change in her ability to pay. Grant also
argues that even if there are circumstances under which a dis-
trict court can increase a defendant’s restitution obligation
without showing a material change in her ability to pay, the
court abused its discretion by imposing the special condition
in the absence of evidence that Grant would be financially
able to comply with it.
We review questions of statutory interpretation de novo.
See EEOC v. Great Steaks, Inc., 667 F.3d 510, 519 (4th Cir.
2012). However, we review the district court’s decision
whether to modify Grant’s conditions of probation for abuse
of discretion. See United States v. Johnson, 892 F.2d 369,
371-72 (4th Cir. 1989). And, "[d]iscretion in ordering restitu-
tion is circumscribed by the procedural and substantive pro-
tections of the statute authorizing restitution." United States v.
Leftwich, 628 F.3d 665, 667 (4th Cir. 2010) (internal quota-
tion marks omitted). "A district court abuses its discretion
when it acts arbitrarily or irrationally, fails to consider judi-
cially recognized factors constraining its exercise of discre-
tion, relies on erroneous factual or legal premises, or commits
an error of law." United States v. Delfino, 510 F.3d 468, 470
(4th Cir. 2007).
UNITED STATES v. GRANT 9
As we have explained, the scheme Congress has set up
regarding the issuance and modification of criminal restitution
orders is detailed and extensive. Indeed, the MVRA specifi-
cally addresses the finality of sentences that include a restitu-
tion order:
A sentence that imposes an order of restitution is a
final judgment notwithstanding the fact that —
(1) such a sentence can subsequently be
—
(A) corrected under Rule 35 of the
Federal Rules of Criminal Procedure
and section 3742 of chapter 235 of this
title;
(B) appealed and modified under sec-
tion 3742;
(C) amended under subsection (d)(5);
or
(D) adjusted under section 3664(k),
3572, or 3613A; or
(2) the defendant may be resentenced
under section 3565 or 3614.
18 U.S.C. § 3664(o).
None of these enumerated exceptions apply here. Rule 35
allows correction of a sentence within 14 days of its imposi-
tion when an error "resulted from arithmetical, technical, or
other clear error" or modification of a sentence for the defen-
dant’s substantial assistance to the government. 18 U.S.C.
§ 3742 concerns an appeal of a sentence. 18 U.S.C.
§ 3664(d)(5) pertains to victim losses that the district court
10 UNITED STATES v. GRANT
cannot ascertain at the sentencing hearing. 18 U.S.C. § 3572concerns adjustment of payment of fines. 18 U.S.C. §§ 3613A
and 3614 concern a defendant’s default on a payment of a fine
or restitution. And, 18 U.S.C. § 3565 pertains to a defendant’s
violation of her probation. Only 18 U.S.C. § 3664(k), con-
cerning a material change in the defendant’s ability to pay res-
titution, is arguably relevant. However, the only change the
government alleged here was Grant’s "receipt of an annual
windfall," J.A. 33, namely, her tax refunds. Yet, in light of the
fact that at the time the Florida district court set her initial res-
titution payment and later reduced it Grant had received
refunds for each of the four prior tax years — most recently
for $3,987 — her receipt of refunds in the approximate
amounts of $2,900 and $3,300 could not be considered a
material improvement. And, of course, the district court did
not find that it was.
In the face of § 3664(o)’s seemingly comprehensive lan-
guage, the government nonetheless maintains that, when pay-
ment of restitution is made a condition of probation, a district
court may increase the rate at which a defendant is required
to pay as a condition of his probation even if none of
§ 3664(o)’s enumerated exceptions apply. The government
specifically relies on the authority granted to district courts by
18 U.S.C. § 3563(c) to "modify, reduce, or enlarge [probation
conditions] at any time prior to the expiration or termination
of the term of probation, pursuant to the provisions of the
Federal Rules of Criminal Procedure relating to the modifica-
tion of probation and the provisions applicable to the initial
setting of the conditions of probation." 18 U.S.C. § 3563(c).
We are extremely skeptical that Congress intended that
granting district courts the general authority to modify proba-
tion provisions would allow courts to bypass the much more
specific scheme Congress created concerning modification of
restitution, essentially rendering the scheme a nullity in a
wide range of cases. See Farmer v. Employment Sec. Comm’n
of N.C., 4 F.3d 1274, 1284 (4th Cir. 1993) (discussing the
UNITED STATES v. GRANT 11
"basic principle of statutory construction that when two stat-
utes are in conflict, a specific statute closely applicable to the
substance of the controversy at hand controls over a more
generalized provision"); see also Botany Worsted Mills v.
United States, 278 U.S. 282, 289 (1929) ("When a statute lim-
its a thing to be done in a particular mode, it includes the neg-
ative of any other mode."); United States v. Roper, 462 F.3d
336, 338 (4th Cir. 2006) ("Because the MVRA includes one
unique circumstance where district courts may reduce a man-
datory order of restitution, we will not read into the statute
any additional authority to remit such orders."). Indeed, by
sanctioning the increase of Grant’s restitution obligation out-
side the context of the scheme outlined in 18 U.S.C.
§ 3664(o), the government’s position is arguably in tension
with one of Congress’s stated purposes in enacting the
MVRA, namely, to "replace an existing patchwork of differ-
ent rules governing orders of restitution under various Federal
criminal statutes with one consistent procedure." S. Rep. 104-
179, at 12 (1995), reprinted in 1996 U.S.C.C.A.N. 924. Nev-
ertheless, we need not decide in this case whether there are
any circumstances in which a district court may modify a res-
titution obligation in the context of modifying a probation
condition even when none of the § 3664(o) exceptions apply.
That is so because even assuming that there are some circum-
stances under which a district court would possess such
authority, the district court’s adoption of the special condition
in this case amounted to an abuse of discretion.
As we have noted, although the district court did not find
that any of 3664(o)’s exceptions justified imposing the special
condition, the court reasoned that imposing the condition was
consistent with the "spirit and intent" of § 3664(k). J.A. 52.
We conclude, however, that quite the opposite is true.
There is no question that the primary purpose of the MVRA
was to ensure that victims are made whole, see Dolan, 130 S.
Ct. at 2539, which is why the MVRA requires that the total
amount of restitution must be determined without regard to
12 UNITED STATES v. GRANT
the defendant’s financial circumstances, see 18 U.S.C.
§ 3664(f)(1)(A). However, the defendant’s financial circum-
stances are relevant to the determination of the rate at which
the restitution must be paid. The applicable statutes carefully
balance the need for obtaining victim compensation with a
requirement that restitution obligations be based on the defen-
dant’s ability to pay. It is for that reason that, in determining
the manner of payment and the monthly payment schedule,
the district court must consider the defendant’s financial
resources and assets and her projected income and her obliga-
tions, including those of her dependents. See id. § 3664(f)(2).
In fact, it is not sufficient that the district court merely con-
sider these facts; the court must actually demonstrate its con-
sideration of them on the record. See Leftwich, 628 F.3d at
668; United States v. Dawkins, 202 F.3d 711, 716-17 (4th Cir.
2000)
After sentencing, except in the case of the enumerated
exceptions that the parties agree do not apply here, the
MVRA authorizes the modification of the restitution payment
schedule only upon a finding by the court of a "material
change in the defendant’s economic circumstances that might
affect the defendant’s ability to pay restitution." 18 U.S.C.
§ 3664(k); see Cani, 331 F.3d at 1215 (explaining that district
court can modify restitution payment schedule when there is
a "bona fide change in the defendant’s financial condition").
With this limitation, Congress ensured that the rate at which
a defendant would be obligated to pay restitution would
remain tethered to the most current information regarding her
ability to pay.
In this case, however, the district court imposed a substan-
tial new restitution payment obligation on Grant without mak-
ing any inquiry regarding what effect it would have on her
and her family. The government downplays the significance
of the change, noting that it is possible that Grant will not
receive a tax refund this year. Despite this theoretical possibil-
ity, however, the facts of this case are that Grant has received
UNITED STATES v. GRANT 13
substantial refunds in each of the six years documented in the
record. Only one of those was for less than $2,722, and
assuming that Grant continued to receive refunds on the order
of $3,000, the addition of the special condition would amount
to an approximately 200% increase in her annual obligation,
from $1,500 to $4,500.2 Thus, certainly the district court had
every reason to expect that the special condition would sub-
stantially impact Grant and her family.
The government implies that Grant’s tax refunds, paid as
they are in lump sums, are somehow "extra" money that she
did not need to pay her family’s expenses. However, the dis-
trict court made no finding to that effect and nothing in the
record supports that assumption. Millions of Americans living
paycheck to paycheck rely on tax refunds every year to catch
up on their bills and pay for or save for other one-time
expenses. Nothing in the record suggests that Grant was any
different.3 In our view, the district court’s decision to require
Grant to pay this money toward her restitution obligation
without considering whether she could do so and still meet
her family’s financial needs amounted to an abuse of discre-
tion. See Ostergren v. Cuccinelli, 615 F.3d 263, 290 (4th Cir.
2010) ("A district court abuses its discretion when it . . . fails
to consider judicially recognized factors constraining its exer-
cise of discretion. . . ." (internal quotation marks omitted)); cf.
United States v. Bruchey, 810 F.2d 456, 459 (4th Cir. 1987)
("It is particularly inappropriate for the burden of restitution
to fall on innocent dependents, and thus concomitantly impor-
tant that [the defendant’s financial ability to meet his restitu-
tion obligations] be fully developed."). Indeed, a court’s
issuance of an order that conditions probation on the defen-
dant’s making of payments the court has no reason to believe
she can make runs the risk of undermining respect for all
2
Her monthly restitution payment of $125 equates to $1,500 annually.
3
Moreover, we have no reason to assume that the Florida district court
ignored Grant’s prospects for receiving a tax refund when it set her restitu-
tion payment at $250 per month and later reduced it to $125 per month.
14 UNITED STATES v. GRANT
court orders. Cf. United States v. Bailey, 975 F.2d 1028, 1032
(4th Cir. 1992) ("A district court’s failure to make a restitu-
tion order with which a defendant could possibly be expected
to comply threatens respect for judicial orders generally.").
Defending the district court’s decision, the government
notes that the court remains free to adjust Grant’s obligations
at some point down the road if it became clear that Grant
could not meet them.4 However, that the issuing court stands
willing to attempt, at some later time, to ameliorate the possi-
bly harsh effects of its challenged order has no bearing on
whether the challenged order was authorized in the first place.
In any event, in this case, the district court had no reason to
believe it would be able to remedy the potentially damaging
blow that losing her tax refund could deal to Grant’s ability
to support her family. If Grant were forced to pay to the SSA
approximately $3,000 that she needed to pay her family’s
expenses, even if the district court soon thereafter suspended
her entire monthly $125 obligation and withdrew the new
condition, it would take Grant two years to recoup the $3,000.
What she and her children would do in the interim is not
clear.
For these reasons, we vacate the district court’s order
imposing the special condition. Cf. United States v. Blake, 81
F.3d 498, 505 (4th Cir. 1996) (vacating restitution when dis-
trict court "failed to make a factual determination that [defen-
dant] could make the necessary restitution payments without
undue hardship to himself or his teenage daughter"). In so
doing, we are mindful of the fact that it was Grant who made
the decision to commit the crime that is the genesis of her res-
titution violation. We also have no doubt that the district
court, in imposing the special condition, was simply attempt-
ing to increase the amount of compensation that Grant’s vic-
tim would receive, which was, after all, the MVRA’s primary
4
The government points out that the district court in fact reduced her
monthly payment to $75 in April 2012.
UNITED STATES v. GRANT 15
goal. Nevertheless, the district court’s authority to speed up
the rate by which a defendant satisfies her restitution obliga-
tion is not boundless, and when a court imposes payment obli-
gations that are untethered from the defendant’s ability to
meet those obligations, the court exceeds its authority.
III.
In sum, in light of the fact that the district court order
before us imposes a substantial additional restitution obliga-
tion on Grant without considering whether Grant had the
financial ability to comply with it and still support her family,
we vacate the order. Because the government has not alleged
any material improvement in Grant’s ability to pay restitution
that would justify the special condition, we do not remand for
further proceedings. Of course, nothing in our decision bars
a future petition based on a material change in Grant’s finan-
cial circumstances.
VACATED
SHEDD, Circuit Judge, concurring:
To a casual observer, our decision could easily appear odd.
Nicole Grant stole approximately $42,000 from the United
States. Consistent with congressional mandate, the sentencing
court ordered Grant to pay restitution under a monthly pay-
ment schedule, and it made this order part of the criminal sen-
tence and a condition of her probation.1 Today, we hold that
the district court abused its broad discretion by adding a spe-
cial condition of probation that requires Grant to apply
towards her restitution obligation, among other things, any
1
Grant was sentenced in federal court in Florida, but jurisdiction over
her case and supervision of her probation was later transferred to the East-
ern District of Virginia, which entered the order now before us. Both the
sentencing court and the district court below lowered Grant’s monthly
payments in an effort to accommodate her financial ability to pay.
16 UNITED STATES v. GRANT
future money she may receive in the form of an income tax
refund (presumably federal or state). In practical terms, our
holding means that even though Grant stole from the United
States a significant amount of money, most of which she has
yet to repay, the United States (i.e., the victim of her crime)
must refund any future excess federal income tax payment she
makes so that she may use it as she wishes rather than apply
it to her restitution obligation.
The district court’s exercise of discretion to modify Grant’s
special conditions of probation in an effort to ensure that
Grant meets as much of her restitution obligation as is possi-
ble is commendable, especially in view of the fact that the
court otherwise appears to have been entirely accommodating
regarding her financial ability to pay restitution. Nonetheless,
I am constrained to agree with the majority that the district
court abused its discretion under the specific facts of this case.
Grant’s presentence investigation report, which is part of the
record, establishes that she consistently received relatively
substantial income tax refunds at the time she was originally
sentenced, and those refunds are comparable to the refunds
she has received thereafter. The sentencing court was there-
fore aware of Grant’s receipt of income tax refunds when it
first set her restitution payment schedule, and it factored them
into her ability to pay restitution.2
In short, Grant’s annual receipt of a relatively substantial
income tax refund has the outward appearance of being a
financial windfall for her when compared to her normal
monthly income. However, upon closer review, her income
tax refunds are not windfalls in the context of her previously
determined ability to pay restitution. In adding the special
condition at issue here, the district court did not account for
the fact that Grant’s history of receiving income tax refunds
2
Apparently, Grant did not bring this fact to the district court’s attention
during the pertinent proceedings below. Likewise, she does not mention
it in her appellate brief. However, it is part of the case record.
UNITED STATES v. GRANT 17
had previously been factored into her payment schedule and,
therefore, the receipt of any future income tax refunds does
not represent a change in her ability to pay restitution. On this
basis alone, I concur in the majority’s decision to vacate the
order setting the special condition.