United States v. Rosario

• Decision Date: 29 July 2021
• Docket Number: 20-2268,August Term, 2019,Docket Nos. 18-2739
• Citation: 7 F.4th 65
• Parties: UNITED STATES of America, Appellee, v. Carlos ROSARIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

7 F.4th 65

UNITED STATES of America, Appellee,

v.Carlos ROSARIO, Defendant-Appellant.

Docket Nos. 18-2739

20-2268

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: November 5, 2019

Final Submission: August 24, 2020

Decided: July 29, 2021

Philip L. Weinstein (Matthew B. Larsen, on the brief), Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.

Justin V. Rodriguez (Anna M. Skotko, Alexandra Rothman, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: Sack and Park,^* Circuit Judges, and Rakoff, District Judge.^†

Park, Circuit Judge:

Carlos Rosario pled guilty in the United States District Court for the Southern District of New York to three offenses stemming from his sexual exploitation of a minor. As part of Rosario's sentence, the district court (William H. Pauley III, J. ) ordered Rosario to pay a $5,000 special assessment under the Justice for Victims of Trafficking Act of 2015 ("JVTA"), which requires courts to impose the assessment on all "non-indigent" persons convicted of specified offenses.

On appeal, Rosario argues that the district court erred by considering his future earning capacity in finding him to be "non-indigent." We disagree. The ordinary meaning of "indigent" encompasses not only a lack of present resources, but also includes a forward-looking assessment of the defendant's "means" or ability to pay. This understanding is reinforced by the statutory scheme, which provides defendants 20 years after their release to make payment. It is also consistent with our precedent and the view of all six of our sister circuits that have addressed the issue.

The district court properly considered Rosario's future earning potential in concluding that he is "non-indigent" under the JVTA and did not otherwise clearly err in reaching that conclusion. We therefore affirm.

I. BACKGROUND

A. JVTA Assessment

The JVTA provides that courts "shall assess an amount of $5,000 on any non-indigent person or entity convicted of" certain specified offenses, including "offense[s] under ... chapter 110 (relating to sexual exploitation and other abuse of children)." 18 U.S.C. § 3014(a). The JVTA assessment is "collected in the manner that fines are collected in criminal cases," id. § 3014(f), and the obligation to pay the assessment continues for 20 years after the entry of judgment or defendant's release from prison, whichever is later, id. §§ 3014(g), 3613(b).

Funds collected under section 3014(a) are deposited in the "Domestic Trafficking Victims’ Fund." Id. § 3014(c) – (d). The Attorney General must "use amounts available in the Fund to award grants or enhance victims’ programming" under the Trafficking Victims Protection Act, the Trafficking Victims Protection Reauthorization Act, the Victims of Child Abuse Act, or the PROTECT Our Children Act. Id. § 3014(e).

B. Procedural History

In 2017, Rosario pled guilty to sexual exploitation of a minor and possession and distribution of child pornography. The district court sentenced him to 240 months’ imprisonment, followed by a lifetime term of supervised release. The court did not impose a fine, but it ordered Rosario to pay $12,000 in restitution, a $300 mandatory assessment, and the $5,000 special assessment under the JVTA.

Rosario appealed to this Court, challenging only the imposition of the JVTA assessment. His sole argument on appeal was that the district court plainly erred in finding him "non-indigent" under section 3014(a). He did not raise any challenge to the district court's consideration of his future earning ability.

In accordance with the procedure outlined in United States v. Jacobson , 15 F.3d 19 (2d Cir. 1994), we remanded this matter to the district court for further proceedings because we found the record "unclear as to why and how the district court determined that Rosario was not indigent." United States v. Rosario , 785 F. App'x 22, 23 (2d Cir. 2019). We noted that "[w]hile the district court explicitly adopted the Presentence Investigation Report (PSR)" prepared by the Probation Department, "which had recommended the JVTA assessment, the PSR contained no specific finding with respect to Rosario's indigency." Id. We further observed that "the non-imposition of fines may not be determinative in establishing indigency under Section 3014(a)," and we advised the district court, if it saw fit, to "further develop the record with regard to Rosario's present financial condition and his predicted earnings capacity." Id.

On remand, the district court received new sentencing submissions from the parties and held a resentencing hearing. Rosario again did not argue that consideration of his future earning potential was improper under section 3014(a). The court ultimately reimposed its original sentence, including the $5,000 JVTA assessment. Tr. at 15–17.¹

As to the JVTA assessment, the district court, citing decisions of our sister circuits, stated that a sentencing court "may consider both a defendant's financial situation and future earnings potential when making [the] indigency determination." Id. at 6. The court then found Rosario to be "non-indigent" under section 3014(a). It considered Rosario's health, outstanding debts and current assets, employment while incarcerated, "extensive prior work history," and "transferable skills" in "basic plumbing, painting, flooring and tile work." Id. at 7–12. The court also noted it was "mindful that [Rosario's] felony convictions and sex-offender status will likely have an adverse effect on his employability," but stated that Rosario could not "use that fact as a shield against paying the special assessment." Id. at 12.

II. DISCUSSION

On appeal, Rosario again challenges the district court's imposition of the JVTA assessment. This time, he argues that the district court (1) improperly considered his future earning capacity in finding him to be "non-indigent," and (2) erred in imposing the assessment even if consideration of future earning capacity were proper. We reject both arguments.

A. The district court appropriately considered Rosario's future earning potential

First, Rosario argues that a district court may consider only the defendant's resources at the time of sentencing, and not his future earning potential, when determining whether he is "non-indigent" under section 3014(a). We review the district court's interpretation of section 3014(a) for plain error because Rosario failed to raise this statutory challenge below. Puckett v. United States , 556 U.S. 129, 138, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ; United States v. Harris , 838 F.3d 98, 103–04 (2d Cir. 2016).

The government contends that Rosario waived this argument by choosing not to argue to the district court "that Section 3014(a) prohibits consideration of future ability to pay." Gov't Suppl. Br. at 4. We disagree. Waiver is the "intentional relinquishment or abandonment of a known right," and Rosario's submissions do not reflect a "strategic, calculated decision" to abandon his statutory challenge. United States v. Dantzler , 771 F.3d 137, 146 n.5 (2d Cir. 2014).

1. Statutory Text and Precedent

We start, as always, with the statutory text. Section 3014(a) does not define "indigent," so we look to its "ordinary meaning." Asgrow Seed Co. v. Winterboer , 513 U.S. 179, 187, 115 S.Ct. 788, 130 L.Ed.2d 682 (1995). In determining ordinary meaning, "[t]ext may not be divorced from context," Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 356, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), and "the same words, placed in different contexts, sometimes mean different things," Yates v. United States , 574 U.S. 528, 537, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) (plurality op.).

The word "indigent" encompasses not only a person's present lack of resources, but also indicates that a person "lacks the means of subsistence." Indigency , Black's Law Dictionary (11th ed. 2019); see also Indigence , Oxford English Dictionary (3d ed. 2020) (defining the term as the "[w]ant of the means of subsistence"). As several other circuits have concluded, this "forward-looking" sense of the word "refers to a person's capabilities—whether a person has or lacks the capacity to earn subsistence." United States v. Graves , 908 F.3d 137, 141 (5th Cir. 2018) (emphasis in original); see also United States v. Shepherd , 922 F.3d 753, 758 (6th Cir. 2019) (noting that "an indigent person not only lives in poverty but also lacks the means—e.g. , skills or education—to exit poverty"). Thus, "the district court must resolve two basic questions in assessing the defendant's indigency: (1) Is the defendant impoverished now ; and (2) if so, does the defendant have the means to provide for himself so that he will not always be impoverished?" Shepherd , 922 F.3d at 758 (emphases in original).

The Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits—all of our sister circuits to have considered the issue—have held that courts may consider a defendant's future earning potential when determining indigency for purposes of imposing the JVTA assessment. See United States v. McMiller , 954 F.3d 670, 675 (4th Cir. 2020) ; Shepherd , 922 F.3d at 758–59 ; Graves , 908 F.3d at 141 ; United States v. Kelley , 861 F.3d 790, 802 (8th Cir. 2017) ; see also United States v. Janatsch , 722 F. App'x 806, 810–11 (10th Cir. 2018) ; United States v. Strange , 692 F. App'x 346, 348–49 (9th Cir. 2017). We agree with our sister circuits, concluding that when determining whether a defendant is indigent pursuant to section 3014(a), a court may consider both the resources available to the defendant at the time of sentencing and the defendant's future earning potential. See United States v. Clarke , 979 F.3d 82, 101 (2d Cir. 2020) ("When making an indigency determination, a district court ‘may consider both [the] defendant's present financial resources and those that may become available in the future.’ " (quoting United...