U.S. v. Ahidley

• Decision Date: 25 May 2007
• Docket Number: No. 06-2056.,06-2056.
• Citation: 486 F.3d 1184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Raymond AHIDLEY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

486 F.3d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Gary Raymond AHIDLEY, Jr., Defendant-Appellant.

No. 06-2056.

United States Court of Appeals, Tenth Circuit.

May 25, 2007.

Marc H. Robert, Assistant Federal Public Defender, Las Cruces, NM, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before KELLY, EBEL, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Gary Raymond Ahidley, Jr., pleaded guilty to assault with a dangerous weapon (count 1), 18 U.S.C. § 113(a)(3), and assault resulting in serious bodily injury (count 2), 18 U.S.C. § 113(a)(6), charges resulting from a crime he committed in Indian Country, 18 U.S.C. § 1153. Mr. Ahidley was sentenced to 41 months' imprisonment.

Mr. Ahidley's offenses implicated the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. § 3663A. Restitution was ordered in the amount of $22,537.13, with payment due immediately. Mr. Ahidley now appeals the restitution order. He contends that there was insufficient evidence to justify the amount of the restitution award and that the district court erred in imposing an immediate obligation to pay restitution, instead of establishing a reasonable restitution payment schedule after considering his financial resources and other legally-required factors.

We have jurisdiction under 28 U.S.C. § 1291. We AFFIRM the district court's order regarding the restitution amount. However, we conclude that the district court plainly erred in imposing an immediate-payment restitution obligation on Mr. Ahidley without consideration of the requisite MVRA factors. Accordingly, we VACATE that aspect of its restitution order and REMAND for the court to set an appropriate payment schedule.

I. BACKGROUND

On October 13, 2004, Defendant-Appellant Ahidley and his girlfriend Ava Joyce Pollock, along with two of her children, were staying the night at his cousin's home. The couple had been drinking alcohol throughout the day, and Mr. Ahidley admitted he was intoxicated. According to Mr. Ahidley, Ms. Pollock was belittling him and "fussing" about his haircut. R. vol. II, Presentence Investigation Report (PSR) ¶ 12. He attempted to hold her to talk, but she pulled away. This angered Mr. Ahidley, and he pulled a pocket knife out and stabbed Ms. Pollock. One of Ms. Pollock's children witnessed the incident. The stabbing occurred late in the evening, after 9:00 p.m.

Mr. Ahidley claims he did not intend to stab Ms. Pollock, but she was "standing too close." Id. After realizing she was injured, Ms. Pollock woke the defendant's sister, Tracey Ahidley, who also was staying at the home, and asked her for a ride to the hospital. Ms. Ahidley drove Ms. Pollock and her children to the hospital in Ruidoso, New Mexico.

The stab wound resulted in lacerations to Ms. Pollock's liver and kidney, and a penetrating trauma to her ascending colon. The serious nature of the wounds necessitated airlifting Ms. Pollock to a hospital in Lubbock, Texas for treatment and surgery. She remained in the hospital for one week. The treating physician estimated eight weeks for recuperation, but he expected a full recovery.

Mr. Ahidley pleaded guilty to the charges on July 11, 2005, and the U.S. Probation Office prepared a Presentence Investigation Report (PSR). The PSR noted that Mr. Ahidley was a highschool dropout who apparently had no specialized skills or training. Mr. Ahidley reported having no assets or liabilities. The Probation Office's examination of a credit report confirmed the latter (i.e., the absence of liabilities) and indicated that Mr. Ahidley had no credit at all. At the time of his arrest, Mr. Ahidley was living with, and being supported by, family members. The PSR concluded that based upon his "financial situation," Mr. Ahidley "does not have the means to pay a fine." Id. ¶ 58.

However, the PSR noted that the MVRA was applicable to Mr. Ahidley's case and required the district court to order restitution for his criminal conduct, without consideration of Mr. Ahidley's ability to pay. The initial PSR stated that Mr. Ahidley owed restitution to Cardiology Consultants in the amount of $30 and Lubbock Diagnostic Radiology in the amount of $1,044. The report noted Medicaid officials would be submitting a request for restitution within 90 days.

On October 18, 2005, the Probation Office amended the PSR to include a request for restitution in the amount of $21,463.13 from the New Mexico Human Services Department, Medical Assistance Division ("NMHSD"). The claim was submitted on an apparent form letter,¹ stating that the NMHSD Medicaid program provided assistance to Ms. Pollock for treatment "that may be related to the accident that occurred on or around October 14, 2004." R. vol. II, PSR Addendum, NMHSD Letter at 1 (Oct. 18, 2005).

On January 27, 2006, more than three months after the PSR was initially amended, Mr. Ahidley filed a sentencing memorandum objecting to certain aspects of the report. See R. vol. I, Doc. 34. Mr. Ahidley mentioned the PSR's restitution figure in a brief passage of his memorandum. Id. at 12. He devoted the bulk of his energy, however, to challenging the PSR's findings (a) that Ms. Pollock suffered "an injury between serious and life-threatening"; and (b) that the appropriate criminal history category was III. Id. at 4. On February 6, 2006, the Probation Office filed another addendum. It represented to the court that the addendum "fairly state[d] any objections that have been made." Id. vol. II, PSR Addendum at 1 (Feb. 6, 2006). The addendum addressed Mr. Ahidley's objections concerning the bodily injury enhancement and his criminal history. It made no mention, however, of the restitution amount. More specifically, it did not aver that Mr. Ahidley had raised any objections concerning restitution.

The district court sentenced Mr. Ahidley on February 10, 2006. During the sentencing hearing, when the topic turned to restitution, Mr. Ahidley's counsel interposed an objection.² He stated, "Your Honor, one thing about restitution. I assume that there's evidence supporting that. It was my intention to object to the restitution, if the Court doesn't have evidence before it supporting the restitution award." R. vol. III, Tr. Sentencing Hearing at 40-41 (Feb. 10, 2006). The court noted the objection, but referred to "numerous claims" listed in the PSR. Id. at 41. It ordered restitution in the amount cited by the Probation Office (i.e., $22,537.13), which the government noted was "around [$]21,000." Id.³ The court declined to impose a fine "[b]ased upon Mr. Ahidley's resources." Id.

The district court was silent at the sentencing hearing regarding the schedule of payments—that is, about the timetable that would control Mr. Ahidley's obligation to pay the restitution. In its written judgment docketed three days after the sentencing, however, the district court specifically addressed this issue. It stated: "The restitution will be paid immediately." Id. Doc. 39, at 5.

II. DISCUSSION

We review the legality of an order of restitution de novo. See United States v. Nichols, 169 F.3d 1255, 1278 (10th Cir.1999). The factual findings supporting restitution are reviewed for clear error and the amount of restitution for abuse of discretion. See United States v. Osborne, 332 F.3d 1307, 1314 (10th Cir. 2003). Mr. Ahidley acknowledges that he did not preserve an objection to the restitution payment schedule; however, we may review for plain error. See United States v. Overholt, 307 F.3d 1231, 1253 (10th Cir.2002); see also Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.").⁴

A. Amount of Restitution

Because Mr. Ahidley was convicted of a crime of violence, the MVRA required the district court to order restitution to the victims of the offense. See 18 U.S.C. §§ 3663A(a)(1), (c)(1)(A)(i) (requiring restitution for crimes of violence); see also 18 U.S.C. § 16 (defining "crime of violence"). The MVRA calls for restitution in the "full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant." 18 U.S.C. § 3664(f)(1)(A). This amount should include costs for the necessary medical services for recovery. See id. § 3663A(b)(2)(A).

We have recognized that "the determination of restitution is not an exact science and that the calculation of a loss need not be precise." United States v. Kravchuk, 335 F.3d 1147, 1157 (10th Cir. 2003). In assessing the reliability of loss figures, courts are permitted to draw inferences from the totality of the circumstances through an exercise of "logical and probabilistic reasoning." United States v. Atencio, 435 F.3d 1222, 1232 (10th Cir. 2006) (internal quotations omitted; quoting United States v. Jones, 44 F.3d 860, 865 (10th Cir.1995)) (noting that an appellate court will uphold a criminal conviction when the jury's factual inferences in support of the verdict are based upon logical and probabilistic reasoning).

Mr. Ahidley argues that the NMHSD letter requesting restitution in the amount of $21,463.13 is insufficient evidence on which to base the restitution amount because it does not detail the actual medical services rendered to Ms. Pollock. He further asserts that there is nothing to demonstrate that the treatment Ms. Pollock received, for which NMHSD claimed reimbursement, was limited to injuries caused by his offense. Mr. Ahidley hinges his argument on a Seventh Circuit decision and the equivocal language of the NMHSD letter, which requests reimbursement for treatment that "may be related to" the incident.

We are unpersuaded by Mr. Ahidley's arguments. Nothing in the record would have given the district court a reason to question the loss amount claimed by NMHSD. Furthermore, its probable accuracy was supported...