U.S. v. Irvin, 86-2882

• Decision Date: 10 June 1987
• Docket Number: No. 86-2882,86-2882
• Citation: 820 F.2d 110
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William E. IRVIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 110

820 F.2d 110

UNITED STATES of America, Plaintiff-Appellee, v. William E. IRVIN, Defendant-Appellant.

No. 86-2882.

United States Court of Appeals, Fifth Circuit.

June 10, 1987.

Patty Merkamp Stemler, Louis M. Fischer, Washington, D.C., Susan L. Yarbrough, James R. Gough, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., Mervyn Hamburg, Atty., Appellate Section, Crim.Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Thomas S. Berg, Asst. Federal Public Defender, Roland E. Dahlin, Federal Public Defender, Houston, Tex., for defendant-appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, HILL, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

William E. Irvin, former assistant vice president of United Savings Association of Texas, at Houston, was indicted in June 1982 for making three fraudulent loans to persons or entities that did not apply for the loans and diverting the proceeds to his own use. He embezzled $50,640.30 but in a negotiated guilty plea, he pleaded guilty only to the second count of the indictment that involved a loan transaction for $19,947.30. The government, in exchange, agreed to dismiss the first and third counts of the indictment and to make no recommendation on either sentencing or restitution. The district court thereafter suspended the imposition of confinement and placed Irvin on five years probation, conditioned upon his making restitution to United Savings by paying off the three loans. For three years, Irvin complied with the restitution obligation, but after he ceased making payments on the loans the U.S. Probation Department requested that his probation be revoked. Irvin's appeal follows from the district court's revocation of probation. We affirm in part and vacate in part.

Irvin first attempts to challenge the validity of the restitution provision of his initial sentencing as vague and overbroad. The government argues, and we agree, that appellant has waived the right to make this assertion. Appellant never challenged the terms of the restitution provision either at the time of his sentencing or by way of direct appeal, nor did he seek relief pursuant to Federal Rule of Criminal Procedure 35. In United States v. Weber, 437 F.2d 1218, 1220 (7th Cir.1971), cert. denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1973), the court held that a probationer who accepted a condition of probation and did not challenge it through direct appeal "was foreclosed from attacking the condition on his subsequent appeal from the order revoking probation." See also United States v. Stine, 646 F.2d 839, 844-45, 847 (3rd Cir.1981). We therefore decline to rule on the validity of the restitution condition of the original sentence.

Responding to Irvin's second contention, we hold that the district court did not abuse its discretion in revoking probation. Irvin ceased making payments under the restitution order in October 1985. He never asserted poverty as the reason for failure to pay, rather, he questioned United Savings' computation of interest due. At the time of the probation revocation hearing, appellant was working as a salesman of...