U.S. v. Remillong

• Decision Date: 19 June 1995
• Docket Number: No. 94-2647,94-2647
• Citation: 55 F.3d 572
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Carl REMILLONG, Defendant-Appellant. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 572

55 F.3d 572

UNITED STATES of America, Plaintiff-Appellee, v. Michael Carl REMILLONG, Defendant-Appellant.

No. 94-2647

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 19, 1995.

Joel T. Remland, Asst. Federal Public Defender, Orlando, FL, for appellant.

Tamra Phipps, David Rhodes, Tampa, FL, for appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Michael Carl Remillong appeals the district court's sentencing order requiring him to make restitution of $29,251.00, the amount to which he pled guilty of robbing from ten banks. This is the third time that we have reviewed Remillong's sentencing by Judge G. Kendall Sharp in this case. ¹ See United States v. Canzater, 994 F.2d 773 (11th Cir.1993) (per curiam) ("Remillong I "); United States v. Remillong, No. 93-3034 (11th Cir. Apr. 12, 1994) ("Remillong II "). ² In vacating and remanding the second appeal of Judge Sharp's sentencing order for Remillong, we explicitly explained to Judge Sharp:

The use of restitution as part of a sentence is governed by 18 U.S.C. Secs. 3663 and 3664. Section 3664(a) states as follows:

(a) The court, in determining whether to order restitution under section 3663 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.

Also, U.S.S.G. Sec. 5E1.1 establishes rules for the district courts to consider when imposing restitution. One element which must be fully considered is the financial condition and the ability of a defendant to pay. The record in this case demonstrates that the district court failed to adequately consider the statutory factor of ability to pay under 18 U.S.C. Sec. 3664(a). This constitutes an abuse of discretion requiring remand for resentencing in accordance with the statute.

Remillong II, slip op. at 3-4 (quoting 18 U.S.C. Sec. 3664(a)) (emphasis added).

Following our Remillong II opinion, Remillong filed a motion to correct his sentence. Judge Sharp, however, refused to eliminate the restitution order. Instead, Judge Sharp handwrote across the top of Remillong's motion to correct his sentence: "Because this case involves a bank robbery and defendant had physical possession of the money, restitution of $29,251.00 is appropriate." R1-57; see Appendix. Consequently, this third appeal from Remillong's sentencing ensued. ³

We review a district court's restitution order for abuse of discretion. ⁴ United States v. Husky, 924 F.2d 223, 225 (11th Cir.), cert. denied, 502 U.S. 833, 112 S.Ct. 111, 116 L.Ed.2d 81 (1991). The Victim and Witness Protection Act ("VWPA"), 18 U.S.C. Secs. 3663-3664, authorizing restitution to victims of crimes, "specifically directs a sentencing judge to consider not only the victim's injury, but also 'the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.' " United States v. Barnette, 10 F.3d 1553, 1556 (11th Cir.) (quoting 18 U.S.C. Sec. 3664(a)), cert. denied, --- U.S. ----, 115 S.Ct. 74, 130 L.Ed.2d 28 (1994); see 18 U.S.C. Sec. 3556 (providing that restitution orders be "in accordance with sections 3663 and 3664" ). "This requirement ensures that a defendant will be able to pay restitution, and also ensures that restitution payments will not unduly limit his right to appeal." United States v. Kress, 944 F.2d 155, 163 (3d Cir.1991), cert. denied, 502 U.S. 1092, 112 S.Ct. 1163, 117 L.Ed.2d 410 (1992); see United States v. McIlvain, 967 F.2d 1479, 1481 (10th Cir.1992) ("[W]hen a district court orders restitution it must be consistent with a defendant's ability to pay."). "A district court's failure to make a restitution order with which a defendant could possibly be expected to comply threatens respect for judicial orders generally." United States v. Bailey, 975 F.2d 1028, 1032 (4th Cir.1992); see United States v. Mahoney, 859 F.2d 47, 52 (7th Cir.1988) ("[A]n impossible order of restitution ... is nothing but a sham, for the defendant has no chance of complying with the same, thus defeating any hope of restitution and impeding the rehabilitation process."). Consequently, "we will not uphold the district court's exercise of discretion if the record is devoid of any evidence that the defendant is able to satisfy the restitution order." United States v. Patty, 992 F.2d 1045, 1052 (10th Cir.1993).

While we have determined that a "defendant's indigency at the time of sentencing is not a bar to an order of restitution under the VWPA," United States v. Stevens, 909 F.2d 431, 435 (11th Cir.1990), we nonetheless have required that the district court evaluate the defendant's financial condition and ability to pay before determining the restitution amount, United States v. Cobbs, 967 F.2d 1555, 1558 (11th Cir.1992) (per curiam); Stevens, 909 F.2d at 435. ⁵ See United States v Logar, 975 F.2d 958, 964 (3d Cir.1992) (holding that, while restitution can be legally ordered for indigent defendants, "restitution is only appropriate in an amount that the defendant can realistically be expected to pay"). Further, we have held under Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990), that the "district court is authorized to order restitution only for the loss caused by the specific conduct underlying the offense of conviction." ⁶ Cobbs, 967 F.2d at 1559. Judge Sharp, however, "apparently focused only on the amount of loss to the victim[s]" without considering Remillong's ability to pay the ordered restitution within the statutory limitations period as required by sections 3663(f)(1)-(3) and 3664(a). United States v. Newman, 6 F.3d 623, 631 (9th Cir.1993); see 18 U.S.C. Sec. 3663(f)(1)-(3) (designating specific dates by which restitution must be paid in full relative to the sentence imposed); accord U.S.S.G. Sec. 5E1.1, comment.

The defendant bears the burden of demonstrating his financial resources by a preponderance of the evidence. 18 U.S.C. Sec. 3664(d). At sentencing, Remillong testified that he had no financial ability to pay the ordered restitution, no cash flow, and no money in a bank. R5-9. Additionally, he testified that he committed the bank robberies because he "needed money" because of his "economic problems" resulting from not having a job. Id. at 7. Remillong's Presentence Report ("PSR") shows that his only asset was a 1979 Ford pickup truck valued at approximately $1,000.00, and that he had a loan liability of $3,000.00. ⁷ The PSR, which Judge Sharp adopted at sentencing, states that "it does not appear that [Remillong] has the ability to pay a fine." PSR at 15. No evidence was presented to show his ability to pay the restitution ordered within the statutory limitations period. ⁸ Despite this record evidence and in blatant contravention of the adopted PSR, Judge Sharp ordered restitution of the cumulative amount taken from the ten banks.

We have determined that district courts are not required to make factual findings whenever they impose a restitution order if the appellate record provides sufficient reasons for the decision to order full restitution. United States v. Hairston, 888 F.2d 1349, 1352-53 (11th Cir.1989); accord United States v. Lombardo, 35 F.3d 526, 529-30 (11th Cir.1994) (per curiam). Our review of the record in this case, particularly the PSR, causes us to believe that Judge Sharp "effectively ignored the requirements of the statute" by failing to consider evidence of Remillong's financial inability to pay the ordered restitution in the record before him. Bailey, 975 F.2d at 1032. "A defendant claiming that the district judge failed to consider a mandatory sentencing factor [under section 3664(a) ] must show either that (1) it is not improbable that the judge failed to consider the mandatory factor and was influenced thereby, or (2) the judge explicitly repudiated the mandatory factor." United States v. Murphy, 28 F.3d 38, 41 (7th Cir.1994). ⁹ Clearly, Remillong has satisfied both parts of this disjunctive standard. See United States v. Clark, 901 F.2d 855, 857 (10th Cir.1990) (vacating restitution order in bank embezzlement case because district court abused its discretion by ignoring the defendant's evidentiary proof of her inability to pay the restitution ordered at sentencing or within the statutory limitations period).

After specifically being instructed by this court in Remillong II to assess on remand Remillong's financial capability to pay restitution pursuant to section 3664(a), Judge Sharp's cryptic handwritten notation that Remillong owes full restitution because he once had physical possession of the money is more than irresponsible, it is defiant. Far from performing the assessment that he explicitly was instructed to conduct in Remillong II, ¹⁰ Judge Sharp's cursory handwritten notation dashed at the top of Remillong's motion to correct his sentence evidences Judge Sharp's disregard for this court's instruction and mandate. ¹¹ The problem in this case is not that restitution was ordered, but that Judge Sharp failed to evaluate Remillong's financial ability to pay as statutorily required and as mandated by this court.

Regrettably, this case is not an aberration. We previously have reversed and/or remanded cases to Judge Sharp for failing to provide factual and legal explanations for his rulings. See, e.g., Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 29 F.3d 581, 583 (11th Cir.1994) (per curiam) ("Before we can effectively review this appeal, we need an explanation from the district court about its factual and legal conclusions on the standing issue."); Rodgers ex...