United States v. Mozella Gainous, Jr. ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
___________ ELEVENTH CIRCUIT
OCT 30, 2008
No. 07-15669 THOMAS K. KAHN
___________ CLERK
D.C. Docket No. 01-00061-CR-4-SPM-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOZELLA GAINOUS, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Florida
____________
(October 30, 2008)
Before BARKETT and WILSON, Circuit Judges, and GOLDBERG,* Judge.
GOLDBERG, Judge:
*
Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by
designation.
Mozella Gainous, Jr. appeals his sentence for violating several conditions of
his supervised release. Specifically, Gainous misrepresented his income to his
probation officer and used these funds to purchase a house, rather than to fulfill
his outstanding obligations to the Internal Revenue Service. As part of his
sentence, the district court ordered Gainous to sell his newly purchased house and
apply the proceeds toward his restitution order. On appeal, Gainous argues that
the district court lacked the authority to order this sale as a condition of supervised
release, and in the alternative, that the sale constituted an abuse of the district
court’s discretion.
After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we conclude that Gainous’ arguments in support of his
appeal are meritless. First, the district court had the statutory authority to “order
the sale of property of the defendant” upon its “finding that the defendant [was] in
default on a payment of a fine or restitution.” 18 U.S.C. § 3613A(a)(1) (2000).
Second, the district court did not abuse its discretion in ordering the sale of
Gainous’ residence as it reasonably related to the factors set forth in the United
States Sentencing Guidelines, and does not involve a greater deprivation of liberty
than necessary in light of Gainous’ misrepresentations to his probation officer.
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See 18 U.S.C. §§ 3553(a)(2)(a) and 3583(d). The sentence of the district court is
therefore AFFIRMED.
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BARKETT, Circuit Judge, dissenting:
I respectfully dissent. I believe the compelled sale of Gainous’s house was
neither statutorily authorized nor within the district court’s discretion.
Section 3613A(a)(1) of Title 18 of the United States Code permits a court to
order the sale of a defendant’s property “upon a finding that the defendant is in
default on a payment of . . . restitution.” Although not defined in the statute, the
general meaning of the term “default” is “[t]he omission or failure to perform a
legal or contractual duty; esp., the failure to pay a debt when due.” Black’s Law
Dictionary 449 (8th ed. 2004). There is no dispute that Gainous made all of his
court-ordered restitution payments. Thus, under the plain language of the statute, I
believe the district court erred in finding a default even though the schedule was
based upon Gainous’s misrepresentations.
Assuming argumendo that 18 U.S.C. § 3583(d) provides the district court
with authority to compel the sale of an individual’s home as a condition of
supervised release, I believe the district court abused its discretion in doing so.
The record suggests that there was, at most, $8,000 of equity in the house.
Without any further inquiry into Gainous’s ability to procure this amount by some
other means, the district court ordered him to sell his house. See United States v.
Lampien, 89 F.3d 1316, 1325 (7th Cir. 1996) (Manion, J., concurring) (“[I]f
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Lampien has other means of paying the required restitution (e.g., helpful family
members, lucky lotto number, etc.), she should be allowed to keep her home.”).
Moreover, the district court had—and employed—means other than the forced sale
of Gainous’s home to sanction him for his failure to comply with the original
terms of his supervised release. In addition to the compelled sale of his home, the
district court sentenced Gainous to ten days of imprisonment followed by a
30-month term of supervised release and increased his monthly restitution
payments to $1,300.
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