United States v. Sledge ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4480
THOMAS WILSON SLEDGE, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-95-126)
Submitted: November 26, 1996
Decided: December 18, 1996
Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William E. Martin, Federal Public Defender, John Stuart Bruce, Dep-
uty Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Scott P. Mebane,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Thomas Sledge pled guilty to embezzling over $258,000
from the Greensboro National Bank.1 The district court sentenced
Sledge to eighteen months incarceration with five years supervised
release and ordered Sledge to pay $25,000 in restitution. Sledge
appeals the restitution order claiming that the $25,000 amount is not
feasible in light of his current financial condition. Because Sledge
failed to object during sentencing to the calculation of restitution, he
waived appellate review absent plain error.2
Although Sledge at the time of sentencing had a negative net
monthly cash flow, this does not necessarily indicate an inability to
pay, particularly when his presentence report (PSR) reflected a steady
employment history, above average earning capacity, and limited debt.3
Because Sledge's PSR contained sufficient facts to support the impo-
sition of restitution, we conclude that under the plain error standard,
the district court did not err in calculating his restitution.
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1 18 U.S.C. § 656 (1994).
2 FED. R. CRIM. P. 52(b); United States v. Castner, 50 F.3d 1267, 1277
(4th Cir. 1995).
3 See United States v. Gresham, 964 F.2d 1426, 1431 (4th Cir. 1992);
see also United States v. Morrison, 938 F.2d 168, 172 (10th Cir. 1991)
(restitution upheld against defendant with negative net monthly cash
flow because of his business management experience and education);
United States v. McClellan, 868 F.2d 210, 213 (7th Cir. 1989) (restitution
exceeding defendant's current ability to pay upheld because of defen-
dant's earning capacity and potential future increases in income).
2
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
3