Tithe 10% to
the Church -- or face the consequences on judgment day.
Then give 8% to the Feds -- or
face the consequences on judgment day.
United States v. Inouye, 2016 WL
2641109 (9th Cir. May 10, 2016), decision available here.
Players: Per curiam decision with Judges Graber, Bybee, and
Christen. Hard-fought appeal by Federal Public Defender Peter Wolff, District
Facts: Inouye pleaded guilty to wire fraud. Id. at *1. He was sentenced to one month
in prison, concurrent terms of supervised release, and was held joint and
severally liable for over $200,000 in restitution. Id. The order had the rate of repayment to be set by the Probation
Office, “but no less than 10% of his gross monthly income . . . .” Id. at *1. While on supervised release, Inouye
started making payments, then stopped, then lied and assured his PO “the checks
were in the mail.” Id. Because Inouye
had no job, had barely ceased being homeless, and had significant debts, the
defense and the government agreed
that the repayment schedule should be set at zero, or a nominal fee. Id.
At the Form 12 hearing, however, the
court sentenced Inouye to a day of custody, 59 months of supervised release,
and future restitution at 8% of gross monthly income. Id. Because the government had agreed to no, or nominal, restitution, the court appointed the “Maryland Crime Victim’s ResourceCenter, Inc.” as amicus curiae. Id.
Issue(s): “On appeal, Inouye argues that the district court
abused its discretion when it imposed an 8%-of-gross-income restitution
schedule because it considered his projected future earnings and drew
inferences about Inouye’s finances with ‘no support in the record. . . . The
government has changed its position on appeal and now supports the judgement
below.” Id. at *2.
Held: “The district
court did not abuse its discretion in setting Inouye's restitution schedule at
8% of his gross monthly income. When assessing whether a restitution schedule
under 18 U.S.C. § 3664(f)(2) was an abuse of discretion, we follow a two-step
inquiry: First, we determine whether the lower court applied the correct legal
rule, and second, we determine whether the application of that rule or standard
was illogical, implausible, or without support from any inferences that can be
drawn from the record. United States v.
Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.2009) (en banc); see also United States v. Booth, 309
F.3d 566, 575 n. 6 (9th Cir.2002) (“A restitution order is reviewed for abuse
of discretion if it is within the bounds of the statutory framework.”). Inouye
fails to make out a case at either step, so we affirm.” Id. at *3.
Of Note: Amicus “Victim’s Resource Center” argued that
the Ninth lacked jurisdiction, because of an appellate waiver in the original
plea agreement. Id. at *2.
Thankfully, the Court rejected all of the arguments challenging the right to
appeal a sentence for a supervised release violation. Id. The Ninth agrees with other Circuits that have considered the
issue: “A generic appellate waiver does not waive the right to appeal
modification or revocation proceedings.” Id.
How to Use:
Eight percent of monthly income, for a guy reduced to living rent-free with his
aunt, id. at *1, seems like a particularly
harsh restitution order (notably, the Hawaiian AUSA apparently agreed).
staving off Inouye in district court,
note some unusual facts that may help distinguish the case. Inouye was 36, had
no substance abuse problems, was healthy, had been steadily employed throughout
his life, and had – for the most part – remained employed during most of his
period of supervised release. Id. at
*1. Not our typical indigent client.
Moreover, remember – as emphasized by the
Ninth – “8% of $0.00 is “$0.00.” If this restitution order had been an amount – instead of a
percentage – this rate may not have fared as well.
Reading: What do District Judge Charles R. Breyer,
and new San Francisco Police Chief Toney Chaplin, have in common? They both
think S.F. cops need body cams. See “For Further Reading” available here; see also “New San Francisco Police Chief Top Priorities: Body Cameras, Use of
Force,” available here.
Labels: Appellate Jurisdiction, Appellate Waiver, Bybee, Christen, Graber, Plea Agreements, Restitution