United States v. Butler

                                 REVISED

                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT

                           _________________

                              No. 97-20603

                           (Summary Calendar)
                            _________________


            UNITED STATES OF AMERICA,


                                  Plaintiff - Appellee,

            versus


            GRIOUARD V BUTLER,


                                  Defendant - Appellant.



            Appeal from the United States District Court
                 For the Southern District of Texas

                             March 27, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

     Griouard Butler challenges his sentence on the grounds that
the Mandatory Victim Restitution Act of 1996 (“MVRA”) violates the

Fifth Amendment, the Eighth Amendment, and the separation of powers

doctrine.    To the extent that Butler’s Fifth and Eighth Amendment

claims depend on his speculation that he will be imprisoned because

of his indigence, they are premature and not ripe for review;

Butler does not assert that he has suffered or is about to suffer

such punishment.      See United States v. Williams, 128 F.3d 1239,
1242 (8th Cir. 1997) (rejecting Eighth Amendment challenge to MVRA

as not ripe).    To the extent that Butler claims his sentence))168

months incarceration, a $5,000 fine, and $8,879 in restitution))is

disproportionate and excessive in relation to the three bank

robberies for which he was convicted, his claim is without merit.

See United States v. Dean, 949 F. Supp. 782, 786 (D. Or. 1996)

(“Where the amount of restitution is geared directly to the amount

of the victim’s loss caused by the defendant’s illegal activity,

proportionality is already built into the order.”); see also United

States v. Tencer, 107 F.3d 1120, 1135-36 & n.7 (5th Cir.) (“An

order of restitution must be limited to losses caused by the

specific conduct underlying the offense of conviction.”), cert.

denied, 118 S. Ct. 390 (1997).

     Butler’s    claim   that   the   mandatory   imposition   of   full

restitution violates the separation of powers doctrine is similarly

without merit.   See United States v. Rasco, 123 F.3d 222, 226 (5th

Cir. 1997) (“The power to fix sentences rests ultimately with the

legislative, not the judicial branch of the government and thus the

mandatory nature of the punishment . . . does not violate the

doctrine of separation of powers.”), cert. denied, 118 S. Ct. 868

(1998).   Accordingly, Butler’s sentence is AFFIRMED.




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