United States v. Wager , 45 F. App'x 216 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4906
RICHARD ALLEN WAGER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Dennis W. Shedd, District Judge.
(CA-01-117-DWS)
Submitted: April 17, 2002
Decided: June 18, 2002
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. Marshall Prince, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WAGER
OPINION
PER CURIAM:
Richard Allen Wager pled guilty before a magistrate judge to an
armed bank robbery he committed on January 16, 1996, in violation
of 18 U.S.C.A. § 2113(a), (d) (West 2000). The district court sen-
tenced him to a 125-month prison term to be served concurrently with
another federal sentence for armed bank robbery. The court also
imposed a five-year term of supervised release and ordered Wager to
pay $7598 in restitution and a $100 special assessment. Wager
appeals his conviction and sentence. His attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
two issues but stating that, in counsel’s view, there are no meritorious
grounds for appeal. Wager has filed a pro se supplemental brief. We
affirm in part, vacate in part, and remand for further proceedings.
Counsel first questions whether the magistrate judge properly con-
ducted the Fed. R. Crim. P. 11 colloquy. Our review of the record
leads us to conclude that the magistrate judge fully complied with the
mandates of Rule 11 in accepting Wager’s guilty plea. See United
States v. Damon, 191 F.3d 561, 564 n.2 (4th Cir. 1999) (stating stan-
dard of review); United States v. Ciapponi, 77 F.3d 1247, 1251 (10th
Cir. 1996) (holding that taking guilty plea is permissible as "addi-
tional duty" for magistrate judge, that such proceedings do not violate
structural guarantees of U.S. Const. art. III, and that de novo review
by district court not required unless parties so demand).
Next, counsel raises as a potential issue the calculation of Wager’s
sentence. Because Wager did not object to the probation officer’s rec-
ommendations in the presentence report, our review is for plain error.
United States v. Dinnall, 269 F.3d 418, 423 (4th Cir. 2001) (stating
standard of review). We find no plain error in the calculation of
Wager’s total offense level or criminal history category.
Although not raised by counsel, we address the sufficiency of the
district court’s findings with regard to its restitution order. Wager did
not object to the adequacy of the district court’s findings or the pre-
sentence report’s recommendations at sentencing. Our review of the
restitution order therefore is limited to review for plain error. United
UNITED STATES v. WAGER 3
States v. Ubakanma, 215 F.3d 421, 427 (4th Cir. 2000) (stating stan-
dard of review).
Before a district court orders restitution under the Victim and Wit-
ness Protection Act ("VWPA") (which applies to offenses, like
Wager’s, that were committed before April 24, 1996), see United
States v. Dawkins, 202 F.3d 711, 715 (4th Cir.), cert. denied, 529 U.S.
1121 (2000), it must consider defendant’s economic circumstances,
including his financial resources and the needs and earning ability of
him and his dependents. See 18 U.S.C.A. §§ 3663, 3664 (West 2000);
United States v. Bollin, 264 F.3d 391, 419-20 (4th Cir.), cert. denied,
122 S. Ct. 303 (2001). "The district court must make explicit findings
as to those factors enumerated in 18 U.S.C. § 3664(a) and such find-
ings should be keyed to the specific type and amount of restitution
ordered." United States v. Plumley, 993 F.2d 1140, 1143 (4th Cir.
1993) (citing United States v. Bruchey, 810 F.2d 456, 459 (4th Cir.
1987)). We have held that "[a] sentencing court satisfies its duty
[under the VWPA] to make specific findings if it adopts a presentence
report that contains adequate factual findings to allow effective appel-
late review of the fine or restitution." Bollin, 264 F.3d at 420 (internal
quotation marks and citations omitted); see United States v. Molen, 9
F.3d 1084, 1086-87 (4th Cir. 1993).
Here, the presentence report’s findings were not "keyed to the spe-
cific type and amount of restitution ordered." Bruchey, 810 F.2d at
459. Wager’s presentence report noted that he was unable to pay a
fine, that he had no assets or liabilities, and that he had virtually no
employment history. In addition, the presentence report failed to
address Wager’s future earning ability either in prison, see United
States v. Walker, 83 F.3d 94 (4th Cir. 1996), or upon his release or
the restitution order’s effect on Wager’s existing obligation to pay
$17,374 in restitution as a result of his prior conviction for armed
bank robbery. We therefore find that the absence of any findings by
either the district court or the presentence report keyed specifically to
whether Wager is able to pay the restitution ordered and whether the
imposition of such restitution would be unduly harsh constitutes plain
error. See United States v. Castner, 50 F.3d 1267, 1277 (4th Cir.
1995). Accordingly, we vacate the district court’s restitution order
and remand for the court to make explicit findings regarding Wager’s
ability to pay.
4 UNITED STATES v. WAGER
Finally, Wager contends in his pro se supplemental brief that the
Government did not timely file the indictment. We disagree. The
indictment was filed within the five-year statute of limitations period,
see 18 U.S.C.A. § 3282 (West 2000), and Wager has not shown that
the preindictment delay violated his rights to due process. See United
States v. Marion, 404 U.S. 307, 324 (1971).
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
Wager’s conviction and sentence, except for the order of restitution.
We vacate the restitution order and remand for further proceedings.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
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 IN PART, VACATED IN PART, AND REMANDED