Sunday, May 22, 2016

Case o' The Week: Give Unto Others (or Go to Jail) - Inouye and Restitution Orders

 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 of Hawaii.

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). 
  When 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.
For Further 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 heresee alsoNew San Francisco Police Chief Top Priorities: Body Cameras, Use of Force,” available here.  

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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