United States v. Ernest Gray

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-3387
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Ernest Lawrence Gray, *
* [PUBLISHED]
Appellant. *
___________
Submitted: March 3, 1999
Filed: April 15, 1999
___________
Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Ernest Lawrence Gray pleaded guilty to aiding and abetting firearm and armed
bank robbery violations. See 18 U.S.C. §§ 2, 924(c)(1), and 2113(a), (d). The district
court sentenced him to 157 months in prison and ordered restitution of approximately
$100,000 to the robbery victims, which “shall be paid in full immediately.” On
appeal, Gray does not challenge the amount of restitution ordered but argues that the
district court should have made findings as to his economic circumstances and should
have ordered a schedule of payments, or only nominal payments. Gray did not raise
these issues in the district court, so we review the restitution order for plain error.
A sentencing court must order full restitution of each crime victim’s loss. See
18 U.S.C. §§ 3663A(a)(1), 3664(f)(1)(A). The offender’s ability to pay is relevant
only in determining whether restitution should be paid by lump sum, a schedule of
payments, or nominal payments. See 18 U.S.C. §§ 3664(f)(2) and(3). The court has
substantial discretion in determining how restitution is to be paid but must consider
the statutory factors enumerated in § 3664(f)(2), including defendant’s financial
condition. See United States v. Rea, No. 98-2546, slip op. at 6-7 (8th Cir. Feb. 23,
1999). Here, the district court declined to impose a fine because of Gray’s inability
to pay, yet it ordered his substantial restitution obligation payable immediately. This
part of the restitution order appears to ignore the statutory payment factors set forth
in § 3664(f)(2)(A)-(C).
We reverse for plain error only if substantial rights of the defendant are
affected. See United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en
banc). Were Gray to be released in the near future, the district court’s failure to
consider ability to pay under § 3664(f)(2) might well affect his substantial rights
because one condition of his supervised release is that he “shall pay any restitution
that remains unpaid at the commencement of the term of supervised release.”1
However, Gray is commencing a long prison term. If he is unable to satisfy the
restitution order while incarcerated, as seems likely, then he may apply to the district
court for an amended restitution order better suited to his post-release financial
circumstances, before he begins supervised release. At this time, the district court’s
1
As we observed in United States v. Hines, 88 F.3d 661, 663-64 (8th Cir.
1996), “it is an abuse of discretion to impose as a condition of supervised release the
immediate payment of a fine if the defendant’s ability to pay that fine is based upon
post-supervised release income.”
-2-
restitution order does not affect his substantial rights and therefore was not plain
error.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-