U.S. v. Merric

• Citation: 166 F.3d 406
• Decision Date: 29 January 1999
• Docket Number: No. 98-1455,98-1455
• Parties: UNITED STATES, Appellee, v. Michael MERRIC, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 406

166 F.3d 406

UNITED STATES, Appellee, v. Michael MERRIC, Appellant.

No. 98-1455.

United States Court of Appeals, First Circuit.

Jan. 29, 1999.

Dawn M. Pelletier with whom Pelletier & Faircloth was on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and James L. McCarthy, Assistant United States Attorney, were on brief for appellee.

Before BOUDIN, Circuit Judge, GIBSON, ^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

BOUDIN, Circuit Judge.

On May 21, 1996, Michael Merric walked into the Margaret Chase Smith Federal Building in Bangor, Maine, with a homemade, double-barreled shotgun tucked into a bedroll. He told the security officer that he was going to the office handling social security matters in order to change his address. Later information reveals that Merric was at the time homeless and mentally disturbed.

The shotgun was discovered after Merric placed the bedroll on the conveyor belt of the x-ray machine at the building's entrance. The search revealed Merric was carrying several rounds of ammunition for the shotgun. He was arrested and later charged with possession of a firearm not registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5861(d), 5871.

In November 1996, after psychiatric evaluations and an incompetency hearing before a magistrate judge, the district court affirmed and adopted a recommendation that Merric be found incompetent to stand trial. Thereafter, Merric was confined to a federal prison hospital facility in Buttner, North Carolina, until November 1997, when he was found competent and released from the hospital. The diagnosis was that Merric suffered from schizophrenia.

In December 1997, Merric was indicted on the firearms offense already described. Shortly before his scheduled trial in February 1998, Merric pled guilty. In April 1998, the district judge sentenced Merric to time already served in federal custody, a $4,000 fine, and a three-year term of supervised release conditioned, inter alia, on his repayment of $3,000 in counsel fees paid to Merric's assigned counsel by the government under the Criminal Justice Act. Merric now appeals from the final judgment, challenging the fine and the requirement that he repay counsel fees as a condition of supervised release.

Merric's first argument against the fine is that the district judge made inconsistent findings regarding Merric's ability to pay. This argument turns on the fact that the "judgment"--an eight-page form document--contains a page captioned "Statement of Reasons" which, in addition to other information (e.g., offense level, criminal history category) has a next-to-last sentence reading: "Fine waived or below the guideline range because of inability to pay."

It is evident from the record as a whole that the district judge deliberately considered whether Merric should be fined and concluded that he did have the ability to pay a $4,000 fine. At the sentencing hearing, the district judge heard testimony, which Merric did not contest, that Merric was to receive about $20,000 in accrued social security disability benefits, heard Merric's objection to the imposition of any fine, rejected the government's recommendation of a fine of $15,000, stated that the court did not "see why a reasonable fine at the low end of the scale would not be appropriate," and then, "with all this in mind," imposed a $4,000 fine. The page in the judgment "Criminal Monetary Penalties" specifies that a fine is imposed in the amount of $4,000. The separate memorandum entered on the same day by the district judge explicitly states that "[t]he defendant is able to pay a minimal fine but is not able" to pay more even in installments. In short, the "inability to pay" finding is patently a clerical error--as defense counsel came close to admitting at oral argument--and the case bears no relation to United States v. Monem, 104 F.3d 905, 911-13 (7th Cir.1997), where there were genuine ambiguities.

Merric's second challenge to the fine is that the district court erred in not expressly considering or making findings on the factors outlined in 18 U.S.C. § 3572(a). The statute provides that in addition to more general factors bearing on punishment (see id. § 3553(a)), the court in considering a fine should take account of such factors as the defendant's income, earning capacity, financial resources, and the burden of the fine imposed on the defendant and on anyone who is dependent on the defendant or who would be responsible for the welfare of a person financially dependent on the defendant.

This court has ruled that "a district court need not make express findings regarding a defendant's financial condition so long as the record is sufficient for adequate appellate review." United States v. Peppe, 80 F.3d 19, 22 (1st Cir.1996). See also United States v. Wilfred Am. Educ. Corp., 953 F.2d 717, 720 (1st Cir.1992). Where the pertinent information is presented in the district court, this court will assume that the district court considered it. Id. at 719. Here, the district court learned that Merric planned to remain in Ellsworth, Maine, and to live on his social security disability benefits of $835 per month after his release. His parents were willing to pay for him to stay at a hotel in Bangor for the time being. Merric, as already said, was also entitled to $20,000 in back benefits.

On this appeal, Merric points out that combining the $4,000 fine with $3,000 in counsel fees represents a considerable portion of his $20,000 net worth (he has no other assets or liabilities) and makes it more difficult to start a new life and get himself out of poverty. On the other hand, there is a presumption that the defendant will pay a fine, see U.S.S.G. § 5E1.2(a); United States v. Lombardi, 5 F.3d 568, 572 (1st Cir.1993), and the burden is on the defendant to show that his case warrants an exception. Peppe, 80 F.3d at 22. On the facts before the district judge, there was nothing improper about the decision to impose a $4,000 fine.

Merric's final objection to the fine is that the district court erred in "delegating" to the probation officer the schedule for paying the fine. Merric points out that the memorandum accompanying the judgment includes a paragraph providing that Merric is to pay a fine of $4,000 to the Clerk's Office in Bangor and continues: "Any amount that the defendant is unable to pay now shall be paid in monthly installments, to be determined in amount by the supervising officer, during the period of his supervised release." There is little doubt that this language was meant to govern, even though the judgment contains a boilerplate statement that the fine was due "[i]n full immediately."

The government first says that we should review Merric's claim only for plain error because no objection was raised at sentencing to the allegedly improper delegation. The difficulty is that there is no indication that Merric was told at the sentencing hearing that a payment schedule for the fine would be delegated to the probation officer; it appears that Merric learned of this only after the formal judgment had been entered. Thus, the government is effectively arguing that to preserve his claim, Merric had to return to the district judge with a post-judgment motion. Cf. Fed.R.Crim.P. 35(c).

Most "errors" occur in a context in which counsel is on notice that the court is taking or has just taken an objectionable action. In such a case the failure to object does normally remit the defaulting party whatever protection the plain error doctrine affords. E.g., Fed. R. Evid 103(a); Fed.R.Civ.P. 51. But where the error occurs in the judgment itself, there is no settled general rule that counsel has to return to the district court and seek correction there. Efficient though this result might be, this is no occasion for us to create such an exhaustion requirement, which could well entail problems of its own.

Although this court has not previously ruled on the delegation issue, we agree with Merric that the district judge could not empower the probation officer to make a final decision as to the installment schedule for payments. The text of 18 U.S.C. § 3572(d)(2) may not be conclusive in saying that "[t]he length of time over which scheduled payments will be made shall be set by the [sentencing] court" (conceivably, "set" could include delegation); but we join the other circuit courts that have held that it is the inherent responsibility of the judge to determine matters of punishment and this includes final authority over all payment matters. ¹ The government does not explicitly disagree.

The government points out that in United States v. Lilly, 80 F.3d 24, 29 (1st Cir.1996), we read a judgment requiring restitution "as directed" by the probation officer to reserve final authority to the district court. But Lilly is not on all fours, because we there relied on a later explanation by the district judge that he had not given the probation officer the authority to set a binding payment schedule. Id. Because we think that the judge rather than the probation officer must have the final authority to determine the payment schedule, we will vacate the sentence and remand so that the district judge can insert into the judgment a phrase or sentence making this reservation of authority explicit.

We now turn our attention to the other element of the sentence challenged by Merric on this appeal, namely, the district court's requirement that Merric repay the government the counsel fees it paid for his representation, an amount that later proved to be about $3,000. It clear enough that the district court can require such repayment, since 18 U.S.C. § 3006A(f) so provides. ² However, Merric objects to making this repayment a condition of supervised release.

The transcript shows that Merric was explicitly advised at the sentencing hearing...