United States v. Graves, 17-11276

• Decision Date: 08 November 2018
• Docket Number: No. 17-11276,17-11276
• Citation: 908 F.3d 137
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Don Boyd GRAVES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

908 F.3d 137

UNITED STATES of America, Plaintiff-Appellee,

v.Gary Don Boyd GRAVES, Defendant-Appellant.

No. 17-11276

United States Court of Appeals, Fifth Circuit.

FILED November 8, 2018

REVISED November 27, 2018

Russell Lorfing, Lubbock, TX, James Wesley Hendrix, Assistant U.S. Attorney, Dallas, TX, U.S. Attorney's Office, Northern District of Texas, for Plaintiff-Appellee.

Christopher Allen Curtis, Assistant Federal Public Defender, Fort Worth, TX, David E. Sloan, Assistant Federal Public Defender, Lubbock, TX, Federal Public Defender's Office, Northern District of Texas, for Defendant-Appellant.

Before DAVIS, COSTA, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

Gary Don Boyd Graves pleaded guilty to one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court sentenced him to 108 months’ imprisonment followed by 10 years of supervised release. It also ordered Graves to pay an $100 special assessment as well as a $5,000 additional special assessment pursuant to the Justice for Victims of Trafficking Act of 2015. See 18 U.S.C. §§ 3013(a)(2)(A), 3014(a)(3). The additional $5,000 special assessment must be imposed on any non-indigent person who commits certain offenses, including offenses related to sexually exploiting children. See id. § 3014.

As part of his plea deal, Graves generally waived his right to appeal. Notwithstanding that waiver, Graves filed this appeal to challenge the $5,000 special assessment on the basis of his purported indigence. Whether Graves waived his right to challenge the special assessment is a close question. But it is one we need not answer. We instead resolve this appeal on the merits and hold § 3014 allows district courts to consider a defendant’s future earning capacity when determining whether a defendant is indigent. Therefore, we conclude the district court did not err in imposing the $5,000 special assessment and affirm its judgment.

I.

On June 14, 2017, Graves was indicted for possessing pornographic images of pre-pubescent children. Because the magistrate judge found that he was "financially unable to obtain counsel," the court appointed a public defender. After consulting with his appointed counsel, Graves decided to accept responsibility for his crime and pleaded guilty to possessing child pornography that included images of children under the age of twelve.

In the plea agreement, the Government and Graves agreed to minimum and maximum penalties for Graves’s crime. The possible penalties included: (a) imprisonment; (b) a fine; (c) a term of supervised release; (d) a mandatory special assessment of $100 and an additional mandatory special assessment of $5,000 if the court found Graves not indigent; (e) restitution; (f) costs of incarceration and supervision; and (g) forfeiture of property. In the plea agreement, Graves acknowledged that "the actual sentence imposed (so long as it is within the statutory maximum) is solely in the discretion of the Court." And Graves explicitly waived his right "to appeal the conviction, sentence, fine and order of restitution or forfeiture in an amount to be determined by the district court." He did, however, reserve his right to appeal "a sentence exceeding the statutory maximum punishment."

In September 2017, after the plea agreement was signed, the probation officer prepared a presentence investigation report ("PSR"). It included information about Graves’s employment history and current financial status. Because Graves had failed to provide requested information regarding his finances, the probation officer relied on Graves’s June 2017 financial affidavit in evaluating his financial condition. Based on that information, the PSR determined Graves had no substantial assets, $874 in debt, and a monthly cash flow of $50 after accounting for expenses. The PSR concluded that any fine or $5,000 assessment should be imposed based on Graves’s future earning capacity because he was employable. Graves disagreed. In his objections to the PSR, Graves argued the court must consider only his financial condition at the time of his sentencing, not his potential future earnings, in determining whether to assess him $5,000.

Graves subsequently submitted additional documents showing he had an income of $700 a month and up to $245 in monthly discretionary income. As a result, the probation officer filed an addendum to the PSR, which updated Graves’s financial information and reasoned that, based on Graves’s current income, he "could pay a $5,000 assessment, in-full, in less than 2 years." The addendum also concluded that Graves would likely have an increased earning potential after his release from prison. Graves continued to disagree.

At the sentencing hearing, Graves argued that he was "most certainly indigent" and urged the district court not to impose the $5,000 special assessment. The Government countered that the court should consider Graves’s future earning capacity in assessing his indigence. Pointing to Graves’s education, which included some college courses, his employment history, and the fact that he is able bodied, the Government argued Graves would have the ability to make payments in the future. The district court agreed. It found that Graves "is not indigent based upon his potential future earning capacity" and imposed the $5,000 additional special assessment. Graves preserved his objection to the special assessment. This appeal followed.

II.

As with other legal issues, we review the effect of an appeal waiver de novo. United States v. Walters , 732 F.3d 489, 491 (5th Cir.2013). We usually employ a two-step inquiry, asking: (1) "whether the waiver was knowing and voluntary" and (2) "whether, under the plain language of the plea agreement, the waiver applies to the circumstances at issue." United States v. Keele , 755 F.3d 752, 754 (5th Cir.2014). In this case, however, neither party contests the knowing and voluntary nature of the waiver. So we skip straight to step two—whether the waiver bars the present appeal.

Graves’s appeal waiver expressly preserves his right to appeal "a sentence exceeding the statutory maximum punishment."

He argues the district court was not statutorily authorized to impose the $5,000 special assessment because Graves is "an[ ] [ ]indigent person" under 18 U.S.C. § 3014(a)(3), and therefore, the sentence exceeds the statutory maximum. To support his reading of the statutory-maximum exception to his appeal waiver, Graves relies on appeals challenging the legality of restitution orders. Under our precedent, an appeal waiver with a statutory-maximum exception does not foreclose challenges to restitution awards that are unsupported by evidence of the victims’ losses. See United States v. Chem. & Metal Indus., Inc. , 677 F.3d 750, 752 (5th Cir.2012) ; see also United States v. Winchel , 896 F.3d 387, 389 (5th Cir.2018) (determining an appeal fell within a statutory-maximum exception when "a court orders a defendant to pay restitution under § 2259 without determining that the defendant’s conduct proximately caused the victim’s claimed losses" because "the amount of restitution necessarily exceeds the statutory maximum"); Keele , 755 F.3d at 756 (noting "that, while defendant has made no such argument on appeal herein, an ‘in excess of the statutory maximum’ challenge, if properly raised on appeal, would not be barred by an appeal waiver" (quoting Chem. & Metal Indus., Inc. , 677 F.3d at 752 ) ). Arguably, appeals challenging restitution orders are analogous to appeals challenging special assessments. After all, both types of appeals turn on whether a statute authorizes the district court to demand money from the defendant—and hence whether the district court exceeded the "statutory maximum" in doing so.

The Government counters that a special assessment is more analogous to a "fine," which falls within the plain terms of Graves’s appeal waiver. The appeal waiver provided: "The defendant waives the defendant’s rights ... to appeal the conviction, sentence, [or] fine ." The Government further argues that, even if a special assessment were analogous to a restitution order, the appeal waiver would still apply unless the record contained no evidence to support it. See Chem. & Metal Indus., Inc. , 677 F.3d at 752 (appeal waiver does not bar challenge to restitution order where Government concedes "there was no finding of loss"). By contrast here, the Government observes, ample record evidence supports the district court’s finding that Graves would be able to pay the $5,000 special assessment based on his future earning capacity.

Fortunately, we do not need to resolve the appeal-waiver question here because this case is easily resolved on the merits. See United States v. Childers , No. 17-40621, 740 Fed.Appx. 417, 417–18, 2018 WL 5259393, at *1 (5th Cir. Oct. 19, 2018) (per curiam) (denying motion for summary dismissal of a challenge to the $5,000 special assessment when the defendant’s claim would fail even if it was not barred by the appeal waiver); United States v. Smith , 528 F.3d 423, 424 (5th Cir.2008) (declining "to address the issue of whether a general appeal waiver bars review of a restitution order when the plea agreement does not discuss restitution" because the "appeal is more easily resolved on the merits").

III.

Whether Graves is "a[ ] non-indigent person" is a factual question we review for clear error. United States v. Streaty , 735 F. App'x 140, 140 (5th Cir.2018) (per curiam). Whether the district court applied the correct legal standard in assessing Graves’s non-indigence, however, is a question of law we review de novo. Pedcor Mgmt. Co. Welfare Benefit Plan v. Nations Pers. of Tex., Inc. , 343 F.3d 355, 358 (5th Cir.2003).

A.

1.

"We start, of course, with the statutory text." BP Am. Prod. Co. v. Burton , 549 U.S. 84, 91, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006). "Unless otherwise defined, statutory terms are generally interpreted in accordance with their...