United States v. Wheeler, 010920 FED6, 19-3445
| Opinion Judge | COOK, Circuit Judge. |
| Party Name | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL L. WHEELER, Defendant-Appellant. |
| Judge Panel | BEFORE: COLE, Chief Judge; COOK and THAPAR, Circuit Judges. COLE, Chief Judge, concurring. |
| Case Date | January 09, 2020 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
BEFORE: COLE, Chief Judge; COOK and THAPAR, Circuit Judges.
COOK, Circuit Judge.
Miguel Wheeler pleaded guilty to sexual exploitation of children and possession of child pornography after homemade videos of a prepubescent girl performing sexually explicit acts were found on his media devices. The district court sentenced him to 262 months in prison and added the required $5, 000 special assessment. With this appeal, Wheeler primarily focuses on the propriety of imposing the special assessment. Because the district court imposed a reasonable sentence and did not err in levying the special assessment, we AFFIRM.
I.
Police found sexually explicit videos of his girlfriend's 9-year-old daughter on Wheeler's Google Drive account and his phone, including a video of Wheeler himself having intercourse with the child. Wheeler also possessed "approximately 64 images and 22 videos of child pornography" depicting other victims.
Wheeler appeals the special assessment and his term of imprisonment.
II. A. Special Assessment
The Justice for Victims of Trafficking Act mandates that a $5, 000 special assessment be imposed on all defendants convicted of sexual exploitation of children-unless the district court finds the defendant indigent. 18 U.S.C. § 3014(a). "Section 3014 does not define the term 'indigent,' but this court has held that in assessing indigency, the court must resolve two basic questions: '(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?'" United States v. Wandahsega, 924 F.3d 868, 889 (6th Cir. 2019) (quoting United States v. Shepherd, 922 F.3d 753, 758 (2019)).
In answering these questions, sentencing courts may consider the defendant's potential future earnings. Shepherd, 922 F.3d at 759. And throughout the defendant "bears the burden of proving [his] indigency." Wandahsega, 924 F.3d at 890 (citing U.S.S.G. § 5E1.2). A defendant's financial straits must be more dire "than simply living paycheck-to-paycheck." Shepherd, 922 F.3d at 758. We affirm the district court unless the defendant shows that the special assessment will tip him into "penury[ or] destitution."
Id. (quoting Indigency, Oxford English Dictionary 868 (2d ed. 1989)). Importantly, 18 U.S.C. § 3613(b) gives defendants 20 years following release to pay the special assessment.
Although Wheeler complains on appeal about the district court's non-indigency determination, he never objected to it at sentencing. We thus limit our review to whether the district court plainly erred in evaluating Wheeler's indigency claim. United States v. Kent, 765 Fed.Appx. 126, 126 (6th Cir. 2019) (citing United States v. Olano, 507 U.S. 725, 732 (1993)); see also Fed. R. Crim. P. 52(b).
Wheeler failed to establish his ineligibility for the assessment to the satisfaction of the district court. The court noted that Wheeler possessed a high school degree, some college education, and a consistent job record. Wheeler acknowledged at sentencing that in the years before his arrest, his family upgraded from a single room in his aunt's house to "a five-bedroom house with a two-and-a-half car garage, [and] a fenced-in backyard." This factor too supported the district court's conclusion that, far from "liv[ing] in poverty [and] lack[ing] the means . . . to exit poverty," Shepherd, 922 F.3d at 758, Wheeler "has the future ability to earn sufficient monies in order to pay the special assessment."
True, as Wheeler argues, when released from prison he'll be almost fifty-five years old with out-of-date skills, and he'll still owe his $35, 000 of pre-incarceration debts. This court,...
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