United States v. Toni Hodge

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4870
TONI M. HODGE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-98-128)
Submitted: April 27, 1999
Decided: May 25, 1999
Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, Charleston, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney, Susan
M. Arnold, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
After pleading guilty to embezzlement, in violation of 18 U.S.C.A.
§ 656 (West Supp. 1999), Toni Marena Hodge was sentenced to eight
months' imprisonment, followed by five years' supervised release,
and ordered to pay $47,704.84 in restitution. On appeal, Hodge con-
tends that the district court failed to make sufficient findings of fact
regarding her ability to pay restitution in the manner ordered. Finding
no error, we affirm.
Toni Marena Hodge entered a guilty plea pursuant to a written plea
agreement to embezzling $47,704.84 while she was employed with
Matewan National Bank.* When accepting Hodge's plea, the district
court complied with Fed. R. Crim. P. 11. The court also informed
Hodge that as part of her plea agreement she would be ordered to pay
restitution, and explained that Hodge waived her right to appeal the
court's restitution order. At the conclusion of the plea hearing, the
court found that Hodge entered her plea knowingly and voluntarily
and that a factual basis supported the plea.
After adopting the findings of the presentence report and its adden-
dum, the court sentenced Hodge to an eight month term of imprison-
ment to be followed by five years of supervised release. The court did
not impose a fine because of Hodge's lack of resources and likely
inability to pay a fine in the future. However, the court ordered Hodge
to pay restitution to Matewan National Bank after her release from
prison in sixty equal monthly installments of $795.08 pursuant to the
Victim and Witness Protection Act of 1982 (VWPA), as amended, 18
U.S.C.A. §§ 3663-3664 (West 1994 & Supp. 1999). In reaching its
decision the court stated that Hodge had a "history of gainful employ-
ment;" "ha[d] the ability to perform well in a job environment;" and
thus, "ha[d] the ability to obtain gainful employment and to pay the
money back in this fashion." Defense counsel objected to the court's
payment schedule contending that Hodge would not have the ability
to pay $795.08 per month. Thereafter, the court reiterated its belief
_________________________________________________________________
*Matewan National Bank is a federally insured institution head-
quartered in Williamson, West Virginia.
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that Hodge had the ability to follow this payment schedule and
entered its order. Hodge now appeals, contending that the district
court erred when it ordered her to pay $795.08 per month in restitu-
tion because it failed to make the requisite findings of fact regarding
her ability to make these monthly payments. See 18 U.S.C.A.
§ 3663(f)(2)(A), (B), (C) (West Supp. 1999).
We find that Hodge waived her right to contest the validity of the
restitution payment schedule. A knowing and intelligent waiver of the
right to appeal is generally valid. See United States v. Attar, 38 F.3d
727, 731 (4th Cir. 1994). Certain exceptions apply, such as where the
defendant's sentence exceeds the statutory maximum or where the
sentence is based on a constitutionally impermissible factor such as
race. See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
Because Hodge does not challenge the legality of the restitution order,
but rather how it will be implemented, we hold that the court's restitu-
tion order does not fall outside the scope of Hodge's waiver. Thus,
she is precluded from raising this issue on appeal. See id.; United
States v. Wiggins, 905 F.2d 51, 52-53 (4th Cir. 1990).
Accordingly, we affirm Hodge's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and oral argument would not
aid the decisional process.
AFFIRMED
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