United States v. Ridley, James I.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 11, 2006*
Decided October 12, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Nos. 05-3480 & 05-3627
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, Fort Wayne Division
v.
No. 04 CR 49
JAMES I. RIDLEY,
Defendant-Appellant. William C. Lee,
Judge.
ORDER
James Ridley, along with others, robbed a bank at gunpoint and stole over
$60,000. A jury found him guilty on two counts: armed robbery and carrying a
firearm during a crime of violence. See 18 U.S.C. §§ 2113(a), 2113(d); 924(c). The
district court sentenced Ridley on these two counts to consecutive sentences of 77
and 84 months’ imprisonment and concurrent five- and three-year terms of
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
Nos. 05-3480 & 05-3627 Page 2
supervised release respectively. It also ordered Ridley to pay $49,284 in restitution.
Although the court’s restitution order required Ridley to participate in the inmate
financial responsibility program and pay any restitution remaining after his
incarceration as a condition of his supervised release, it did not set a specific
payment schedule in consideration of his ability to pay.
Ridley contends that the district court erred in ordering him to pay
restitution without considering his ability to pay and fixing a payment schedule as
required by the Mandatory Victims Restitution Act of 1996. Pub. L. No. 104-132,
§ 206, 110 Stat. 1214, 1234 (1996) (amending 18 U.S.C. § 3664). See United States
v. Day, 418 F.3d 746, 761 (7th Cir. 2005). Ridley forfeited this argument by not
raising it in the district court, rendering our review for plain error only. See Fed. R.
Crim. P. 52(b). But a district court has plainly erred when it orders restitution
without fixing a payment schedule in consideration of the defendant’s ability to pay,
as the government concedes happened here. See United States v. Pandiello, 184
F.3d 682, 688 (7th Cir. 1999). We agree. Accordingly, in case no. 05-3480 we
VACATE the district court’s order regarding restitution and REMAND with
instructions to set a payment schedule in light of Ridley’s financial circumstances.
Case no. 05-3627, which we consolidated for purposes of briefing and disposition, is
DISMISSED as duplicative.