U.S. v. Gilbreath, 91-5158

• Decision Date: 08 November 1993
• Docket Number: No. 91-5158,91-5158
• Citation: 9 F.3d 85
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Howard GILBREATH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 85

9 F.3d 85

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Howard GILBREATH, Defendant-Appellant.

No. 91-5158.

United States Court of Appeals Tenth Circuit.

Nov. 8, 1993.

Barbara S. Blackman, Cherner and Blackman, Denver, CO, for defendant-appellant.

F.L. Dunn, III, U.S. Atty. and Neal B. Kirkpatrick, Asst. U.S. Atty., Tulsa, OK, for plaintiff-appellee.

Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Thomas Gilbreath was charged in a fifteen count indictment with one count of conspiracy to commit wire fraud and fourteen counts of wire fraud. The charges arose out of a scheme concocted by Mr. Gilbreath to induce women to send him money. Mr. Gilbreath obtained information about his victims through a magazine for Christian singles and called them purporting to be interested in companionship, fellowship, and/or matrimony. Mr. Gilbreath, sometimes with the assistance of codefendant Steven Young, would represent that in order to get together with his victims, he needed money for car repairs, traffic fines, bail, or other expenses. In actuality, Mr. Gilbreath and Mr. Young were cellmates in a state correctional center serving very long prison terms.

Several days into a jury trial, Mr. Gilbreath agreed to plead guilty to the conspiracy count and two counts of wire fraud. He was subsequently sentenced to seventy-one months in prison with three years of supervised release, and ordered to pay restitution in the amount of $35,033.08. On appeal, Mr. Gilbreath asserts through his appointed counsel that the lower court abused its discretion in imposing restitution. Mr. Gilbreath has also filed several pro se motions with this court contending that his previous counsel was ineffective in failing to preserve his appeal rights, that the sentencing court improperly used his prior convictions in calculating his sentence, and that his guilty plea was in essence involuntary because he was misled about his potential sentence. As we discuss below, we hold Mr. Gilbreath's pro se arguments to be without merit. However, we vacate the order of restitution and remand to the district court for further proceedings.

I.

Mr. Gilbreath contends that the district court erred in imposing restitution when the record contains no evidence that he has present assets or future capacity to pay restitution with legally obtained funds. ¹ In sentencing Mr. Gilbreath, the district court adopted the factual statements set out in the presentence report. The report reveals that Mr. Gilbreath, who is fifty-nine years old, is presently serving a 101 year sentence in state prison. ² It appears that his federal incarceration will not begin until his current prison term is complete. See 18 U.S.C. Sec. 3584(a) (1988) ("Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently."); U.S.S.G. Sec. 5G1.3(a) (sentence for offense committed while defendant serving term of imprisonment shall run consecutively to undischarged term). Mr. Gilbreath has spent twenty-five of the last thirty-seven years in prison. He completed the ninth grade before being confined for juvenile convictions and allegedly received the equivalent of a high school education while a juvenile inmate. He has no vocational skills, and when not incarcerated has been employed by his brother-in-law as a bricklayer at minimum wage.

This court has held that a restitution order "must be consistent with a defendant's ability to pay." United States v. McIlvain, 967 F.2d 1479, 1481 (10th Cir.1992); see also United States v. Kelley, 929 F.2d 582, 587 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 341, 116 L.Ed.2d 280 (1991); United States v. Dunning, 929 F.2d 579, 581 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 224, 116 L.Ed.2d 182 (1991); United States v. Clark, 901 F.2d 855, 857 (10th Cir.1990). Although indigency does not preclude an order of restitution, the order must be supported by at least some indication that a defendant has assets or earning potential. See United States v. Rogat, 924 F.2d 983, 985 (10th Cir.), cert. denied, 499 U.S. 982, 111 S.Ct. 1637, 113 L.Ed.2d 732 (1991).

In ordering restitution here, the court relied on testimony offered by the defense that Mr. Gilbreath ran an illegal loan sharking operation in prison which generated considerable income. The apparent purpose of this evidence was to explain Mr. Gilbreath's source of funds and to persuade the jury that he had no motive to undertake the fraudulent scheme charged. The court stated at sentencing:

The evidence clearly showed here in this case that Mr. Gilbreath, both he and his friends testified that he always has money. He always has various forms of rackets going in the institution wherever he is, and he has people help him obtain money for the rackets apparently.

He has money to loan out at rather substantial interest rates. As I recall, there was some discussion here of his loaning money through some of these gentlemen that were his enforcers in the penitentiary. As I heard the evidence, it was for 50 percent a week, I think. So if you loan $100 today, within a week from today you expect to get $150 back, and with that kind of a business deal, Mr. Gilbreath, you've got a lot of money. There's not a banker in the world that wouldn't love that kind of program, because that will figure out on an annual basis of three or four thousand percent.

So because of the fact that the evidence showed you had substantial monies of your own, and always do have, the Court will impose a cost of imprisonment here of $1,492 a month. You will be expected to pay for your cost of imprisonment. Also, when you get out, for supervised release for that three-year period you will be expected to pay your $115.30 per month supervised release.

If you have the money that you have, which the evidence showed that you always have money, and apparently your sister keeps for you and places it in various bank accounts, I think it would be appropriate to assess those and let you start paying for some of your own incarceration instead of the public having to do it all the time.

Also, the Court will impose restitution, full amount of the scheme, of $35,033.08. The restitution amount will be that total sum.

Transcript of Sentencing Proceedings had on October 3, 1991 (Sentencing) at 13-14.

Mr. Gilbreath argues that a restitution order which the sentencing court knows will be paid with funds from future illegal conduct is contrary to the rehabilitative goal Congress intended restitution to serve. The government counters that while restitution is intended to promote rehabilitation, it is also intended to make victims whole. The government contends that because Mr. Gilbreath has admitted he has assets, the order is proper even though his income will be derived from future illegal activity.

The statutes underlying the sentencing guidelines recognize four purposes of sentencing: punishment, deterrence of criminal conduct, protection of the public from further crimes by the defendant, and rehabilitation. See H.R.Rep. No. 1030, 98th Cong., 2d Sess. 50, reprinted in 1984 U.S.C.C.A.N. 3182, 3233. We sympathize with the sentencing court's desire that Mr. Gilbreath be required to compensate the...