United States v. Garcia-Castillo ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 11 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 03-2166
v. (D. New Mexico)
CARLOS ENRIQUE GARCIA- (D.C. No. CR-02-1676-WPJ)
CASTILLO,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and LUCERO, Circuit Judges.
Carlos Enrique Garcia-Castillo (“Garcia-Castillo”) pleaded guilty in the
District of New Mexico to a four-count superseding indictment stemming from his
attempt to steal merchandise from a train near the United States-Mexico border.
The charges were: (1) conspiracy to violate the laws of the United States under
18 U.S.C. § 371 by committing a theft from an interstate shipment, in violation of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
18 U.S.C. § 659; by entering a train to commit a crime, in violation of 18 U.S.C.
§ 1991; and by breaking or entering carrier facilities, in violation of 18 U.S.C.
§ 2117; (2) trespassing upon a railroad car with intent to commit a crime, in
violation of 18 U.S.C. § 1991; (3) entering a railroad car with intent to commit a
theft, in violation of 18 U.S.C. § 2117; and (4) assaulting a federal officer, in
violation of 18 U.S.C. § 111(a)(1). 1
Garcia-Castillo was sentenced pursuant to the United States Sentencing
Commission, Guidelines Manual (“USSG”), to twenty-four months in prison on
each count, to be served concurrently, followed by three years of supervised
release. He was also ordered to pay a special assessment of $250, and to pay
immediately $76,594.73 in mandatory restitution, jointly and severally with
codefendant Carlos Ivan Aguirre, to reimburse the U.S. Department of Labor for
treatment of injuries suffered by several law enforcement agents during the
commission of the crime. The district court also ordered that deportation
proceedings for Garcia-Castillo, a Mexican citizen, begin during the course of his
sentence.
On appeal, Garcia-Castillo argues (1) that it was improper for the district
court to order restitution because the assault on the agents was outside the scope
1
Count Four is for Garcia-Castillo’s assault on Agent Laird Hightower,
whose injuries did not require medical treatment. As explained below, this
assault was not the basis for any part of the restitution order at issue on appeal.
-2-
of the train-robbery conspiracy and because the restitution order violated the
recent Supreme Court decision, Blakely v. Washington, 124 S. Ct. 2531 (2004); 2
and (2) even if the restitution order was proper, the district court violated the
express requirements of the applicable restitution statute by failing to take into
account his financial condition when ordering the entire restitution amount due
immediately. We affirm in part, vacate in part, and remand for further
consideration consistent with this order and judgment.
BACKGROUND
Garcia-Castillo was arrested September 12, 2002, with twelve others 3 after
he boarded a Union Pacific train near the United States-Mexico border in an
attempt to steal the train’s cargo. The train was stopped on the siding in the
Sunland Park, New Mexico, area while loaded with electronics, toys, fireworks,
and canned goods that were being transported from Long Beach, California, to
Dallas, Texas. Because theft from cargo trains was an increasing problem, agents
from both countries were conducting a sting operation that day and were stationed
2
When the defendant raised Blakely before this court, the Supreme Court
had not yet issued United States v. Booker, 125 S. Ct. 738 (2005). However,
raising Blakely was sufficient to invoke Booker as well. Accordingly, even
though Garcia-Castillo did not address the application of Booker to this case, we
apply both cases and hereinafter refer to them collectively as Blakely/Booker.
The charges against most of these individuals were dismissed for lack of
3
evidence.
-3-
in the cars of the train and in the surrounding area. As the train rested, agents
inside the train heard male voices speaking in Spanish outside the train. Garcia-
Castillo then appeared on top of a railroad car and entered it. Several agents were
waiting in that car and Garcia-Castillo was taken into custody and handcuffed.
Agents found in his possession a piece of wire and a lighter, materials that are
used to “shunt,” or stop, trains.
Outside the train, Agents Samantha Mikeska and Sergio Barrio were
attempting to capture and arrest Eduardo Calderon, a/k/a “Lalo,” as he fled from
the train to the Mexican border. Agent Mikeska jumped on his back and the two
crashed into a cyclone fence marking the border between the two countries.
Calderon shouted for help and five or six men on the Mexican side of the fence
tried to pull Calderon through a hole in the fence. Those men also began striking
Mikeska and Barrio with their hands, fists, rocks, and bricks. The agents and
Calderon were all eventually pulled through the hole, and the assault continued
until another agent fired a shot that caused the group to scatter. Meanwhile,
Garcia-Castillo, still in custody on the train, heard the commotion outside and
attempted to escape by kicking Agent Laird Hightower in the leg, hamstring, and
buttock.
Mikeska and Barrio were transported to the hospital. Mikeska suffered a
fractured orbital bone on her left eye, a fractured vertebra, head trauma, and a
-4-
laceration on her forehead. Barrio suffered several fractures to his skull, resulting
in seizures, dizziness, migraine headaches, and emotional problems. It is
uncertain whether he will be able to return to work.
Garcia-Castillo pleaded guilty in the District of New Mexico to the charges
outlined above. His plea agreement contained a “Waiver of Appeal Rights”
provision, and the government sought to enforce the waiver resulting in a
dismissal of this appeal by filing a Motion for Enforcement of the Plea
Agreement, as required by United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)
(en banc). The language of the waiver provision was narrow and did not in any
way refer to the restitution order. Applying the principles of Hahn, a panel of this
court denied the motion because the restitution order was not encompassed in the
waiver. The waiver provision is at best ambiguous with respect to the issue in
question. However, the panel decision determined only that the appeal could go
forward. It did not address, and has no bearing on, the merits of the appeal.
Accordingly, we now address the merits of the issues outlined above.
DISCUSSION
I. Imposition of Restitution
Garcia-Castillo first argues that the district court erred by ordering
restitution because he was not involved in the assault on Mikeska and Barrio and
-5-
should not be responsible for their injuries. He asserts that two conspiracies
existed in this case: the conspiracy to rob the train, to which he pleaded guilty,
and a separate conspiracy to aid Calderon’s escape, which resulted in harm to the
agents. He contends that it was not foreseeable that the train-robbery conspiracy
would result in the melee at the international border which resulted in the agents’
injuries. Garcia-Castillo also argues that the restitution was imposed in violation
of Blakely/Booker because a jury did not make the factual findings underlying the
restitution order. We reject these arguments on multiple grounds.
A.
We first turn to Garcia-Castillo’s argument that the agents’ injuries were
not within the scope of the train-robbery conspiracy and were not foreseeable.
“We review the legality of a restitution order de novo.” United States v. Nichols,
169 F.3d 1255, 1278 (10th Cir. 1999). “Factual findings underlying a restitution
order are reviewed for clear error and the amount of restitution for an abuse of
discretion.” Id.Federal courts may order restitution only as “explicitly empowered by
statute.” Id. at 1278 (internal quotation omitted). The Victim and Witness
Protection Act (“VWPA”) provides that a court may order restitution to any
victim of an offense. 18 U.S.C. § 3663(a)(1)(A). The Mandatory Victims
-6-
Restitution Act (“MVRA”), which amended the VWPA in 1996 and under which
the restitution was ordered in this case, defines “victim” as
a person directly and proximately harmed as a result of the
commission of an offense for which restitution may be ordered
including, in the case of an offense that involves as an element a
scheme, conspiracy, or pattern of criminal activity, any person
directly harmed by the defendant’s criminal conduct in the course of
the scheme, conspiracy, or pattern.
Id. at § 3663A(2). The MVRA requires restitution for victims of violent crimes.
Id. at § 3663A(c)(1). The parties do not dispute that conspiracy to rob a train is a
violent crime under the MVRA.
A restitution award under these statutes is authorized only for losses caused
by the conduct underlying the conviction. United States v. Brewer, 983 F.2d 181,
183-84 (10th Cir. 1993) (citing Hughey v. United States, 495 U.S. 411, 420
(1990)). Nonetheless, “[a] conspiracy participant is legally liable for all
reasonably foreseeable acts of his or her coconspirators in furtherance of the
conspiracy.” Id. at 185. See also United States v. Osborne, 332 F.3d 1307, 1314
(10th Cir. 2003) (“The losses caused by the entire conspiracy, not just the losses
caused by those acts committed by the defendant, can be attributed to the
defendant when the court orders restitution.” (internal quotation omitted));
Nichols, 169 F.3d at 1278 (“[A] criminal defendant who participates in a
conspiracy is liable in restitution for all losses flowing from that conspiracy.”)
(internal quotation omitted).
-7-
In this case, the district court implicitly found that Garcia-Castillo was
responsible for the agents’ harm:
THE COURT: Do you take any position on this [issue of
restitution], Mr. Harwood?
MR. HARWOOD [Garcia-Castillo’s counsel]: Yes, Your
Honor. I fear we may be dealing with a theoretical issue because
Mr. Garcia has absolutely no ability to pay any restitution, but for the
Court to order restitution, I think the Court needs to find that the
injuries suffered by the agents were somehow causally connected to
Mr. Garcia-Castillo, and that’s simply not the case from the
uncontested facts in the presentence report.
He pled guilty to a conspiracy to burglarize a train. . . . At the
time these other unknown individuals, who may or may not have
even been part of this train burglary conspiracy, injured the other two
agents, Mr. Garcia was on the ground in custody in handcuffs.
It’s not a foreseeable result of a train burglary. Nobody was
armed . . . when they started the burglary, and we don’t even know if
the people who ended up injuring these agents were part of the
conspiracy or just other people in the area, so I don’t think it would
be appropriate, Your Honor.
THE COURT: I find and conclude that the Mandatory
Restitution Act requires me to impose restitution, and therefore, part
of this Judgment and Commitment will require that the defendant
make restitution to the United States Department of Labor . . . in the
amount of $75,594.73 [sic].
Tr. of Sentencing Hr’g at 10-11, R. Vol. IV (emphasis added). Because the
district court allowed defense counsel to expound on the issue, and immediately
thereafter ordered the full amount of restitution, it is apparent that the court found
that the agents’ injuries flowed from the conspiracy to rob the train.
-8-
The record supports that finding. The conduct underlying the conspiracy
conviction was Garcia-Castillo’s agreement with Calderon and others to steal
merchandise from the train. It is foreseeable that during a criminal act such as
this, law enforcement agents could confront and seek to apprehend the thieves,
and that bodily harm could result from the encounter, whether during an
attempted escape across the border or otherwise. The conspiracy was the direct
cause of the agents’ injuries. We therefore hold that the harm inflicted on
Mikeska and Barrio was in the course of the conspiracy to which Garcia-Castillo
pleaded guilty, and the restitution order was, therefore, required by statute.
B.
We now consider Garcia-Castillo’s contention that the restitution order
violated Blakely/Booker, because: (1) the judge, rather than a jury, found the
facts underlying the restitution order, and (2) the judge did so under a
preponderance of evidence standard, in accordance with 18 U.S.C. § 3664(e),
rather than under a beyond a reasonable doubt standard. Garcia-Castillo contends
that only a jury could have made the factual findings supporting the restitution
order as to “the scope of the conspiracy that Mr. Garcia-Castillo joined, whether
the melee involving the two injured agents was in furtherance of that conspiracy,
-9-
whether the injuries to those agents were foreseeable to Mr. Garcia-Castillo, and
the amount of restitution due for those injuries.” Appellant’s Supp. Br. at 8.
In Blakely, the Supreme Court reiterated the holding of Apprendi v. New
Jersey, 530 U.S. 466 (2000), that “‘[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.’”
Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490). In applying this
holding to Washington state’s determinate sentencing scheme, Blakely clarified
that the “statutory maximum” is “not the maximum sentence a judge may impose
after finding additional facts, but the maximum he may impose without any
additional findings.” Id. at 2537. Recently, Booker applied Blakely to the federal
sentencing guidelines, rendering them advisory rather than mandatory. Booker
held that “[a]ny fact (other than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the facts established by a plea
of guilty must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker, 125 S. Ct. at 756. For any one of three independent
reasons, we reject Garcia-Castillo’s Blakely/Booker argument.
-10-
1. Restitution is not punishment
Blakely/Booker apply only to judicial fact-finding that increases a criminal
punishment in violation of the Sixth Amendment. Blakely, 124 S. Ct. at 2536(applying its rule to “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury” (emphasis added)).
Restitution ordered under the VWPA and MVRA, however, is not criminal
punishment. “‘[T]he VWPA’s purpose is not to punish defendants or to provide a
windfall for crime victims, but to ensure that victims, to the greatest extent
possible, are made whole for their losses.’” Nichols, 169 F.3d at 1279 (quoting
United States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir. 1993)) (emphasis
added). See also United States v. Hampshire, 95 F.3d 999, 1006 (10th Cir. 1996)
(“[T]he VWPA seeks to compensate victims rather than punish defendants.”
(emphasis added)). Although the question in Nichols was whether restitution was
criminal punishment barring ex post facto application of the law, 169 F.3d at
1279-80, the principle does not change simply because we are examining the issue
in a Sixth Amendment context.
We acknowledge that this reasoning is somewhat in tension with our recent
case United States v. Wooten, 377 F.3d 1134, 1144 & n.1 (10th Cir.), cert.
denied, 125 S. Ct. 510 (2004), which held that Apprendi and Blakely did not
apply to a restitution order because the amount ordered did not exceed any
-11-
prescribed statutory maximum. Wooten, 377 F.3d at 1144 & n.1. Wooten noted
in dicta that “courts commonly regard . . . restitution orders as criminal
penalties,” but concluded Apprendi still did not apply because the defendant
never contended that the restitution order exceeded the amount of the victim’s
harm, or the statutory maximum under the MVRA. Id. at 1144-45; 18 U.S.C.
§ 3663A(b).
Wooten, however, did not explain its divergence in dicta from our
controlling precedent in Nichols, Hampshire, and Arutunoff holding that
restitution is not punishment. And, it is a well-established rule in this circuit that
an earlier decision that has not been overturned en banc or by express supervening
Supreme Court authority, takes precedence over a later, conflicting decision. See
United States v. Prentiss, 206 F.3d 960, 965 n.2 (10th Cir. 2000) (“[T]o the extent
that a more recent panel decision conflicts with . . . prior Tenth Circuit authority,
we are bound by the earlier case.”). We therefore adhere to the holding that
-12-
restitution is not criminal punishment. 4 Blakely/Booker therefore do not apply to
the restitution order.
2. Garcia-Castillo admitted the facts underlying the restitution order
Alternatively, and assuming arguendo that restitution is criminal
punishment subject to Blakely/Booker, the Sixth Amendment is still not
implicated because Blakely/Booker do not apply to sentences based on facts
which have been admitted by the defendant or found by a jury. Blakely, 124
S. Ct. at 2537; Booker, 125 S. Ct. at 756. By entering into the plea agreement,
4
Whether restitution is criminal punishment and whether restitution is
subject to Apprendi, Blakely, and Booker are by no means settled questions in
courts across the country. Compare United States v. Behrman, 235 F.3d 1049,
1054 (7th Cir. 2000) (Apprendi does not apply to restitution because it is not
criminal punishment but rather a “classic civil remedy,” and, alternatively, MVRA
does not have a statutory maximum); United States v. Szarwark, 168 F.3d 993,
998 (7th Cir. 1999) (restitution ordered under the MVRA is not criminal
punishment); United States v. Wilson, __ F. Supp. 2d. __, No. 2:03-CR-00882-
PGC, 2005 WL 78552, at *16-18 (D. Utah Jan. 13, 2005) (historical precedents
compel conclusion that restitution is not criminal punishment, and Booker
addressed constitutionality of sentencing guidelines, not the MVRA); United
States v. Visinaiz, 344 F. Supp. 2d 1310, 1318-26 (D. Utah 2004) (discussing
extensively reasons why restitution is not criminal punishment); and United States
v. Einstman, 325 F. Supp. 2d 373, 382 (S.D.N.Y. 2004) (stating uncertainty about
whether restitution is criminal punishment but nonetheless concluding that
Congress intended judge, not jury, to order restitution); with United States v.
Ross, 279 F.3d 600, 609 (8th Cir. 2002) (restitution is a criminal penalty); United
States v. Bearden, 274 F.3d 1031, 1042 n.4 (6th Cir. 2001) (stating Seventh
Circuit’s decision in Behrman at odds with case law in other circuits holding that
restitution is punishment); and United States v. Williams, 128 F.3d 1239, 1241
(8th Cir 1997) (restitution is a criminal penalty).
-13-
Garcia-Castillo admitted the facts underlying the restitution order, namely, that
the agents’ injuries were caused by the conspiracy.
In the plea agreement, Garcia-Castillo waived his right to “have a trial by
jury” and agreed to “plead guilty to a four-count Superseding Indictment”
charging him with the counts described above. Plea Agreement at 1, 2, R. Vol. I,
doc. 137. The plea agreement also informed Garcia-Castillo that a guilty plea to
the conspiracy charge would subject him to “restitution as may be ordered by the
Court, including, if applicable, mandatory restitution under 18 U.S.C. § 3663A.”
Id. at 3. Moreover, the indictment contained the following description of the
assault on the agents as an overt act in furtherance of the train-robbery
conspiracy:
On September 12, 2002, after being observed by law enforcement
officers, several of Defendant Garcia-Castillo’s unindicted co-
conspirators fled from the area near the train. Several of these, and
other unindicted co-conspirators, threw bricks, rocks, and sticks at
FBI Special Agent Samantha Mikeska and FBI Special Agent Sergio
Barrio in an effort to help another unidentified co-conspirator escape
from FBI Special Agent Samantha Mikeska.
Superseding Indictment at 4, R. Vol. I, doc. 139. Garcia-Castillo’s counsel for
the first time objected to this overt act at the plea hearing and again at the
sentencing hearing; but at no time did he ask that the overt act be stricken from
the indictment, and he never sought to modify or void the plea agreement and go
to trial. The fact is that Garcia-Castillo entered into the plea bargain
-14-
unconditionally and is bound by its terms and what it encompasses. A defendant
who pleads guilty admits to all of the factual allegations contained in the
indictment, including overt acts in furtherance of a conspiracy, and the legal
consequences of those acts. United States v. Wilks, 58 F.3d 1518, 1523 (10th Cir.
1995); Spencer v. Hunter, 139 F.2d 828, 829 (10th Cir. 1944). See also United
States v. Brown, 164 F.3d 518, 521 (10th Cir. 1998) (“An unconditional plea of
guilty is an admission of all material facts alleged in the charge.”); United States
v. Powell, 159 F.3d 500, 503 (10th Cir. 1998) (same). Therefore, Garcia-Castillo
admitted that the conspiracy to which he pleaded guilty encompassed the agents’
injuries, and the Sixth Amendment is not implicated by the restitution order.
3. Alternatively, the district court did not commit plain error when it ordered
restitution
As further alternative argument, assuming arguendo that restitution is
criminal punishment, that Blakely/Booker apply, and that Garcia-Castillo did not
admit the facts underlying the restitution order, we review this claim for plain
error. The defendant raised this issue for the first time in a Supplemental Brief in
this court. He did not present it below. 5 Booker, 125 S. Ct. at 769 (“[W]e expect
5
We decline Garcia-Castillo’s invitation to apply the “supervening-
decision” doctrine of Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1231 (10th
Cir. 1996), to the Blakely/Booker issue in this case.
-15-
reviewing courts to apply ordinary prudential doctrines, determining, for example,
whether the issue was raised below and whether it fails the ‘plain-error’ test.”);
United States v. Maldonado-Ramires, 384 F.3d 1228, 1230 n.1 (10th Cir. 2004);
United States v. Sanchez-Cruz, 392 F.3d 1196, 1201 (10th Cir. 2004).
Reversal under the plain error standard requires (1) an error, (2) that is
plain, and that (3) affects substantial rights. United States v. Olano, 507 U.S.
725, 732 (1993). The burden is on the defendant to demonstrate that the error
affected his substantial rights. United States v. Vonn, 535 U.S. 55, 63 (2002). If
these three conditions are met, the reviewing court may in its discretion correct
the error if the error (4) “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 732 (internal quotation
marks omitted).
In the unique circumstances of this case, we need not examine the third and
fourth prongs of the plain-error test because we conclude that even if, arguendo,
there was error, it certainly was not plain, as the foregoing discussion indicates.
For an error to be “plain,” it must be “clear or obvious” and “contrary to well-
settled law.” United States v. McSwain, 197 F.3d 472, 481 (10th Cir. 1999). As
noted above, there is a lack of uniformity in the law of this circuit, and of our
sister circuits, on whether restitution is criminal punishment and therefore subject
to the Sixth Amendment principles announced in Apprendi, Blakely, and Booker.
-16-
See supra n. 4. There is one point of commonality, however: our research failed
to yield a single case in which an order of restitution was reversed under
Apprendi, Blakely, or Booker. We did find one recent case in which this circuit
reversed and remanded because the district court failed to order mandatory
restitution under the MVRA. United States v. Barton, 366 F.3d 1160, 1167 (10th
Cir. 2004). Therefore, because it is far from “clear” or “well-settled” whether
and how restitution implicates the Sixth Amendment, there was no plain error.
II. Manner of Payment
Garcia-Castillo next contends that even if the restitution order was proper,
the district court erred by requiring the full amount, plus interest and penalties, to
be due immediately without considering his financial condition. Garcia-Castillo’s
attorney did not raise this issue below. 6 We therefore review for plain error.
The MVRA states:
In each order of restitution, the court shall 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.
6
As noted above, Garcia-Castillo’s attorney did make reference to his
client’s financial situation at the sentencing hearing when he stated: “I fear we
may be dealing with a theoretical issue because Mr. Garcia has absolutely no
ability to pay any restitution . . . .” Tr. of Sentencing Hr’g at 10, R. Vol. IV.
However, this statement is not specific enough to be construed as raising the
manner-of-payment issue.
-17-
...
Upon determination of the amount of restitution owed to each victim,
the court shall, pursuant to section 3572, specify in the restitution
order the manner in which, and the schedule according to which, the
restitution is to be paid, in consideration 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
(C) any financial obligations of the defendant; including
obligations to dependents.
A restitution order may direct the defendant to make a single, lump-
sum payment, partial payments at specified intervals, in-kind
payments, or a combination of payments at specified intervals and in-
kind payments.
A restitution order may direct the defendant to make nominal
periodic payments if the court finds from facts on the record that the
economic circumstances of the defendant do not allow the payment
of any amount of a restitution order, and do not allow for the
payment of the full amount of the restitution order in the foreseeable
future under any reasonable schedule of payments.
18 U.S.C. § 3664(f)(1)-(3) (emphasis added). A district court is therefore to
disregard a defendant’s financial condition when determining the amount of
restitution to be paid, but it is to consider a defendant’s financial condition when
determining the manner in which the restitution should be paid, whether in
accordance with a schedule, by nominal payment, or in a lump sum. 7 United
7
Under the VWPA, in contrast with the MVRA, a district court is required
to consider the financial resources of the defendant and the defendant’s future
earning capacity in deciding even whether to order restitution. See United States
v. Haddock, 50 F.3d 835, 837-38 (10th Cir. 1995).
-18-
States v. Coates, 178 F.3d 681, 683-84 (3d Cir. 1999); United States v. Myers,
198 F.3d 160, 168-69 (5th Cir. 1999).
The presentence report noted that Garcia-Castillo had no income or assets
and only a grade-school education. As conceded by government counsel at oral
argument, the district court violated the statute by ordering the full amount of
restitution due immediately without contemplating the defendant’s ability to pay,
a payment schedule, or nominal payments. Coates, 178 F.3d at 684; Myers, 198
F.3d at 169. We therefore vacate the portion of the restitution order that directs
immediate full payment and remand to the district court to consider an appropriate
manner of payment.
CONCLUSION
Garcia-Castillo’s restitution order is AFFIRMED, except for the
requirement that he pay the full amount of restitution immediately, which is
VACATED and REMANDED to the district court for consideration of Garcia-
Castillo’s financial circumstances in determining the manner in which payment
shall be made.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-19-