United States v. Ivan Reyes-Rodriguez

Case: 12-40768 Document: 00512222690 Page: 1 Date Filed: 04/26/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 26, 2013
No. 12-40768
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
IVAN ALEJANDRO REYES-RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-59-2
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ivan Alejandro Reyes-Rodriguez pled guilty to carjacking and bank
robbery; he received concurrent sentences of 97 months in prison, to be followed
by three-year terms of supervised release. On appeal, he contends that, in light
of information in the presentence report (“PSR”) showing his financial inability
to pay immediate restitution, the district court erred by ordering him to make
an immediate lump-sum payment of $52,989.50. Reyes-Rodriguez maintains
that the district court did not indicate that it had considered his financial
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-40768 Document: 00512222690 Page: 2 Date Filed: 04/26/2013
No. 12-40768
resources and obligations in accord with 18 U.S.C. § 3664(f)(2) and, thus, abused
its discretion in scheduling the lump-sum payment.
Typically, such a challenge to the terms of a restitution order is reviewed
for an abuse of discretion. See United States v. Calbat, 266 F.3d 358, 366 (5th
Cir. 2001). The Government asserts that we should review this claim for plain
error because Reyes-Rodriguez failed to object to the district court’s failure to
consider the propriety of the order in light of the facts and circumstances of the
case. See United States v. Myers, 198 F.3d 160, 168-69 (5th Cir. 1999). We need
not resolve whether Reyes-Rodriguez’s query about a payment schedule
preserved the issue because the result is the same regardless of the standard of
review. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
Section 3664(f)(2) requires the district court in setting a restitution
payment to consider the defendant’s financial resources and assets, his projected
earnings and income, and his financial obligations. This court will reverse a
district court’s decision concerning the scheduling of restitution payments only
if the defendant can show “that it is probable that the district court failed to
consider one of the mandatory factors and the failure to consider that factor
influenced the court.” United States v. Schinnell, 80 F.3d 1064, 1070 (5th Cir.
1996).
The PSR did not reflect that Reyes-Rodriguez had any assets or debts.
According to the PSR, over the previous five years Reyes-Rodriguez had worked
several jobs in the entertainment industry and in lawn maintenance, and all of
his earnings from these jobs were used to support his family. Other than its
determination that Reyes-Rodriguez could not afford to pay a fine, the district
court made no reference to these limited financial resources and did not indicate
how Reyes-Rodriguez would obtain the funds for a lump-sum payment.
The record does not reflect that the district court considered Reyes-
Rodriguez’s limited financial resources in ordering his immediate restitution
payment of $52,989.50. Therefore, the district court either abused its discretion
2
Case: 12-40768 Document: 00512222690 Page: 3 Date Filed: 04/26/2013
No. 12-40768
or plainly erred in requiring the immediate payment of the restitution. See
Calbat, 266 F.3d at 366; Myers, 198 F.3d at 169. Consequently, we affirm Reyes-
Rodriguez’s sentence in part, except for the requirement that he pay the
restitution amount immediately; that part of the sentence is vacated and
remanded for reconsideration of the scheduling of the restitution payment.
SENTENCE AFFIRMED IN PART, VACATED IN PART AND
REMANDED.
3