United States v. Dolan

FILED
United States Court of Appeals
Tenth Circuit

June 26, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-2104

BRIAN RUSSELL DOLAN,

Defendant-Appellant.

ORDER

Before MURPHY, ANDERSON, and GORSUCH, Circuit Judges.

Appellant’s petition for rehearing is granted sua sponte for the limited

purpose of adding the following footnote to the end of section II, page 19:

Mr. Dolan argues that our holding conflicts with United States v.
Bedonie, 413 F.3d 1126 (10th Cir. 2005). It does no such thing. In
Bedonie, we considered whether § 3664(d)(5) authorized the district
court to reopen an already entered restitution order sua sponte simply
because it had reconsidered the wisdom of its order. We concluded
that the MVRA grants the district court no such authority. At the
same time, we took pains to emphasize in Bedonie that our decision
did not limit the authority of a district court to “‘hold[] open’ . . . a
restitution issue at the original sentencing” pending receipt of facts
needed to enter an initial restitution order. Id. at 1129. This, of
course, is precisely the case we now face: whether and to what
degree a “holding open” of the restitution question past the original
sentencing hearing and the statutory deadline is permissible – not
whether and to what degree a district court’s sua sponte reopening of
an existing restitution order is statutorily authorized.
 A copy of the corrected opinion is attached, filed nunc pro tunc to May 27,

2009.

The petition for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service. As no member of the panel and no

judge in regular active service on the court requested that the court be polled, that

petition is denied.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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 FILED
United States Court of Appeals
Tenth Circuit

May 27, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-2104

BRIAN RUSSELL DOLAN,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 06-CR-2173-RB)

Sara N. Sanchez, of Sheehan, Sheehan & Steltzner, P.A., Albuquerque, New
Mexico, for Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (Gregory J. Fouratt, United
States Attorney with her on the brief), Las Cruces, New Mexico, for Plaintiff-
Appellee.

Before MURPHY, ANDERSON, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Brian Dolan viciously attacked a hitchhiker, leaving his victim by the side

of the road bleeding, unconscious, with a great many broken bones. Eventually,

officers found the hitchhiker and rushed him to a hospital. He survived, but his
medical expenses topped $100,000. When it came time to sentence Mr. Dolan for

his assault, the district court ordered him not only to serve 21 months in prison

but to pay $250 monthly in restitution. Before us, Mr. Dolan doesn’t challenge

his prison sentence but does say his victim should get nothing. He contends that

the district court’s restitution order is void because it was entered too late, after a

statutory deadline passed. Even if the district court had the power to enter an

untimely restitution award, Mr. Dolan argues, $250 per month is more than he can

afford.

We reject both arguments. The district court’s restitution order was

undoubtedly late, coming after the deadline prescribed by the Mandatory Victims

Restitution Act. But a tardy restitution order is not an invalid one. Rather than

creating a jurisdictional bar to untimely restitution orders, the MVRA’s deadline

seeks to prod the government into ensuring victims swift compensation.

Sometimes, of course, the government is not so easily prodded. When that

happens – when the MVRA’s deadline passes without a restitution order entered –

the affected victim may well have cause to complain, and may even seek a

mandamus order compelling action. But the defendant does not get off the hook.

Neither can we say that the district court abused its discretion in pegging Mr.

Dolan’s monthly restitution payments at $250, given the record before us.

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 I

One evening, Mr. Dolan picked up an acquaintance and fellow tribe

member who was hitchhiking on a road inside the Mescalero Indian Reservation.

At some point, the pair began to argue. The argument grew heated, and

eventually Mr. Dolan parked his car so the men could fight. The encounter

proved a brutal one for the hitchhiker. He later reported that he suffered a

fractured nose, a broken wrist, a fractured leg, a spinal injury, broken ribs, and a

hematoma in his head. Mr. Dolan left the hitchhiker lying on the side of the road

and drove off. Once home, he told his sister, Deanna Dolan, of the assault. In

turn, Ms. Dolan alerted the Bureau of Indian Affairs (“BIA”) police. A

responding BIA officer eventually found the hitchhiker unconscious and bleeding

on the roadside. The hitchhiker was treated briefly at the scene and then

helicoptered to a hospital in El Paso, Texas.

For his part, Mr. Dolan was apprehended and pled guilty to assault

resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and

113(a)(6). On July 30, 2007, the district court sentenced Mr. Dolan to 21 months’

imprisonment. At the sentencing hearing, the court also noted that restitution was

required by the MVRA. But, because it did not yet have sufficient information as

to the amount of restitution owed, the court “le[ft] that matter open, pending

receipt of additional information.” The court then informed Mr. Dolan that he

should “anticipate that such an award will be made in the future.” The district

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court’s judgment, entered on August 8, 2007, indicated that restitution was

applicable but that the court did not yet have sufficient information to set an

appropriate amount.

On October 5, 2007, the probation office reported that it now had enough

information to calculate a restitution award. The office estimated the victim’s

medical care cost at $105,559.78. It provided the court with documentation for

this figure and recommended that the court order Mr. Dolan to pay that amount in

restitution. The probation office also indicated that, “[p]ursuant to [18 U.S.C. §]

3664(d)(5)” of the MVRA, “the Court shall set a date for the final determination

of the victim’s losses, not to exceed 90 days after sentencing, which in this case

shall be October 28, 2007.” 1

It is here things get tricky. The district court did not hold a hearing for a

final determination on restitution by October 28, 2007, as required by

§ 3664(d)(5), but instead waited until February 4, 2008. At the February hearing,

Mr. Dolan’s counsel argued that the court no longer had authority to order

1
18 U.S.C. § 3664(d)(5) provides: “If the victim’s losses are not
ascertainable by the date that is 10 days prior to sentencing, the attorney for the
Government or the probation officer shall so inform the court, and the court shall
set a date for the final determination of the victim’s losses, not to exceed 90 days
after sentencing. If the victim subsequently discovers further losses, the victim
shall have 60 days after discovery of those losses in which to petition the court
for an amended restitution order. Such order may be granted only upon a
showing of good cause for the failure to include such losses in the initial claim
for restitutionary relief.”

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restitution because more than 90 days had passed since the entry of Mr. Dolan’s

sentence. The court ordered briefing on that question, as well as on Mr. Dolan’s

ability to pay. A hearing followed and, in due course, the district court issued a

memorandum opinion and order. In its order, the court candidly acknowledged

that it had erred “in not complying with the 90-day requirement,” but held that

§ 3664(d)(5) did not deprive it of jurisdiction to enter a restitution award after the

90-day deadline.

The district court then considered how much restitution Mr. Dolan should

pay. The court noted that Mr. Dolan held essentially no assets, had substance

abuse problems, and, at the time of the offense, was unemployed. But the court

also observed that Mr. Dolan receives an annual tribal stipend of $575 and

obtained a GED while incarcerated, thus enhancing his employment potential on

release (which has since occurred). Based on Mr. Dolan’s “lack of financial

resources, income, assets, and potential for future earnings,” the district court

found that he would be unable to pay “any significant amount of restitution now

or in the foreseeable future.” Still, the court believed that Mr. Dolan could afford

monthly payments of $250, and ordered him to do so.

Mr. Dolan now appeals to us on two grounds. First, he argues that, because

the district court acted outside § 3664(d)(5)’s 90-day deadline, its restitution

order is void. Second, he contends that the payment schedule fails to take

adequate consideration of his ability to pay. We address each contention in turn.

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 II

Mr. Dolan argues that the 90-day deadline set by § 3664(d)(5) is

jurisdictional. Put differently, he thinks the district court’s power to enter any

restitution order expired 90 days after his sentencing on July 30, 2007. Because

the district court failed to carry out its mandatory duty by the deadline, his victim

(and the victim’s third party insurer) should get nothing. We review de novo Mr.

Dolan’s appeal about the meaning of § 3664(d)(5), but even so we cannot agree

with his interpretation of the statute. The plain language of the Act, longstanding

canons of construction, the MVRA’s legislative history, and our own case law all

plot against his interpretation.

First, the language of the Act itself. As its name suggests, the Mandatory

Victims Restitution Act is all about mandating restitution. No longer is the

decision whether to order restitution for certain crimes left to the discretion of the

district court. See United States v. Taylor, 2002 WL 1166166, at 3 (10th Cir.

2002). The absolute nature of the district court’s obligation is unmistakable from

the very first paragraph of the Act. There, Congress has prescribed that

“[n]otwithstanding any other provision of law, when sentencing a defendant

convicted of [an offense covered by the Act], the court shall order . . .

restitution.” 18 U.S.C. § 3663A(a)(1) (emphasis added). Plainly, Congress has

decided that defendants who have committed certain offenses should never be

able to avoid restitution.

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 As Mr. Dolan emphasizes, later in the Act, in § 3664(d)(5), Congress added

that restitution “shall” be awarded within 90 days after sentencing. But this

deadline, while real, is no doubt encompassed within § 3663A(a)(1)’s phrase “any

other provision of law.” So, while the 90-day deadline is surely a command of

the Act, it can be reasonably understood only as a subsidiary command to the

Act’s primary and overriding directive that restitution must be ordered for certain

crimes. Read together, the statute thus suggests that restitution shall be awarded

within 90 days but also that, notwithstanding any missed deadline, restitution

must be awarded. As the Supreme Court has explained when faced with an

analogous statutory rubric, “the use of such a ‘notwithstanding’ clause clearly

signals the drafter’s intention that the provisions of the ‘notwithstanding’ section

override conflicting provisions of any other section.” Cisneros v. Alpine Ridge

Group, 508 U.S. 10, 18 (1993); see also Liberty Maritime Corp. v. United States,

928 F.2d 413, 416 (D.C. Cir. 1991) (explaining that notwithstanding clauses

“supersede all other laws” because “[a] clearer statement is difficult to imagine”)

(brackets in original).

Confirming Congress’s point, § 3664(d)(5) itself authorizes the district

court to revise a restitution order anytime – days, months, years, or decades –

after the 90-day deadline, should the victim discover additional losses caused by

the defendant’s conduct. Even viewing § 3664(d)(5) in isolation, then, it is

evident that Congress did not intend to divest the district court of all power over

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restitution awards after 90 days. See United States v. Moreland, 509 F.3d 1201,

1224 (9th Cir. 2007), vacated on other grounds by 129 S. Ct. 997 (2009); United

States v. Cheal, 389 F.3d 35, 48-50 (1st Cir. 2004); United States v. Vandeberg,

201 F.3d 805, 814 (6th Cir. 2000). Cf. 18 U.S.C. § 3664(k) (authorizing district

courts to revise payment schedules).

Any possible lingering ambiguity on this point is dispelled by § 3664’s

title. See Carter v. United States, 530 U.S. 255, 267 (2000) (resort to statutory

titles is permissible to address statutory ambiguities). As our sister circuit has

observed, the subsection’s title practically “advertises” the 90-day time limit’s

non-jurisdictional nature by declaring that it concerns the “Procedure for issuance

and enforcement of order of restitution.” 18 U.S.C. § 3664 (emphasis added);

Moreland, 509 F.3d at 1224; Cheal, 389 F.3d at 48-49. Procedures for processing

claims and arguments are of course important, and respect for them may be

mandatory in certain circumstances when timely invoked, but they do not strip a

court of subject matter jurisdiction to entertain a dispute. See, e.g., Bowles v.

Russell, 127 S. Ct. 2360 (2007); Kontrick v. Ryan, 540 U.S. 443 (2004).

Congress is surely well aware of this distinction between claims processing

procedures and federal court subject matter jurisdiction, and it knows how to

restrict the latter when it wishes to do so. The fact that Congress conceived of

§ 3664 as a claims processing procedure is evidence that it had no intent to do so

here.

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 Second, Mr. Dolan’s interpretation runs afoul not just of the statute’s

language and structure, but also an essential canon of statutory construction. The

Supreme Court has cautioned us against “readily infer[ring] congressional intent

to limit an agency’s power to get a mandatory job done merely from a

specification to act by a certain time.” Barnhart v. Peabody Coal, 537 U.S. 149,

160 (2003). Where, as here, a statute seeks to “direct[] official action” by a

particular deadline, the Court has directed us that a statute “needs more than a

mandatory ‘shall’ before the grant of power can sensibly be read to expire when

the job is supposed to be done.” Id. at 161. Absent some specifically identified

consequence for failing to comply with the deadline, we are obliged to read such

a statute “as a spur to prompt action, not as a bar to the tardy completion of the

business” Congress mandated. Id. at 172; see also Regions Hosp. v. Shalala, 522

U.S. 448, 459 n.3 (1998) (explaining that a Cabinet Secretary’s failure to meet

statutory deadline did “not mean that official lacked power to act beyond it”);

United States v. James Daniel Good Real Prop., 510 U.S. 43, 63-64 (1993)

(unless a statute “specif[ies] a consequence for noncompliance with statutory

timing provisions,” generally we may not “impose [our] own coercive sanction”);

United States v. Montalvo-Murillo, 495 U.S. 711, 721 (1990) (“We do not agree

that we should, or can, invent a remedy to satisfy some perceived need to coerce

the courts and the Government into complying with the statutory time limits.”);

Brock v. Pierce County, 476 U.S. 253, 265 (1986) (statute providing that

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Secretary of Labor “shall” take action within 120 days did not divest the

Secretary of authority to act beyond deadline); 3 Norman J. Singer & J.D.

Shambie Singer, Sutherland on Statutes and Statutory Construction § 57:19 (6th

ed.) (“The general rule is that if a provision of a statute states a time for

performance of an official duty, without any language denying performance after

a specified time, it is directory [rather than jurisdictional].”) (emphasis added).

Call this the better-late-than-never principle. Congress imposes deadlines

on other branches of government to prod them into ensuring the timely

completion of their statutory obligations to the public, not to allow those branches

the chance to avoid their obligations just by dragging their feet. It would be a

strange thing indeed if a bureaucracy or court could avoid a congressional

mandate by unlawful delay. As the Supreme Court has explained, its canon of

construction recognizes the “great principle of public policy, applicable to all

governments alike, which forbids that the public interests should be prejudiced by

the negligence of the officers or agents to whose care they are confided.” Brock,

476 U.S. at 260 (quoting United States v. Nashville, C. & St. L.R. Co., 118 U.S.

120, 125 (1886)).

Here, of course, § 3664(d)(5) requires restitution to be ordered within 90

days, and it has no other language purporting to deny district courts the authority

to enter late restitution orders. The canon against a jurisdictional reading thus

applies with full force. In this respect, our case is very much like the one we and

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the Supreme Court faced in Montalvo-Murillo. See United States v. Montalvo-

Murillo, 876 F.2d 826 (10th Cir. 1989), rev’d by 495 U.S. 711 (1990). The

statute at issue there was the Bail Reform Act of 1984, which required district

courts to hold a hearing at an arrestee’s first appearance to consider whether or

not the arrestee should be detained pending trial. Montalvo-Murillo, 495 U.S. at

714. As it happened, however, the magistrate judge assigned to the case failed to

make this assessment at the arrestee’s first appearance. Id. at 715. Reading the

statute as imposing a jurisdictional deadline, the district court held that, as a

result of the magistrate judge’s oversight, it lacked authority to detain the

defendant and was bound to release him. Id. at 716. This court concurred with

the district court’s analysis, Montalvo-Murillo, 876 F.2d at 827, but the Supreme

Court reversed, explaining that it found “nothing in the statute to justify” an

interpretation that the courts have no power to detain “once the statutory time for

hearing has passed.” Montalvo-Murillo, 495 U.S. at 721. To the contrary, the

Court held, such an interpretation impermissibly “expos[ed] the public to an

increased likelihood of violent crime by persons on bail, an evil the statute aims

to prevent.” Id. at 720. Exactly the same might be said here: Nothing in the

MVRA suggests that a defendant should be freed from the obligation of paying

restitution just because the district court was slow in ordering it; such a result

would thwart rather than effect Congress’s express desire that all victims of

covered crimes receive restitution.

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 Of course, mandatory (“shall”) deadlines abound in other contexts and are

often interpreted as jurisdictional. So, for example, the Supreme Court recently

found jurisdictional a statutory deadline prescribing the time period in which a

notice of appeal must be filed. Bowles, 127 S. Ct. at 2362. How, then, can we

explain the difference between our case and those like Bowles? While no doubt

there are other points of distinction, most critical for our purposes is this one:

The statute at issue in Bowles affords all parties a discretionary opportunity to

appeal if they meet a deadline, while the statutes at issue in Montalvo-Murrilo,

Barnhart, and our case impose mandatory obligations on government officials to

perform duties on behalf of the public. The former statute pertains to all parties;

the others only to governmental actions designed to advance a congressionally

identified public interest. The former affords a discretionary opportunity; the

other concerns a mandatory obligation. In this latter respect, Bowles is something

like the father who tells his daughter, “to receive ice cream, you shall eat all your

dinner by 7 o’clock.” Meanwhile, Montalvo-Murillo, Barnhart, and our case are

more like the father who tells his daughter “you shall eat everything on your plate

and you shall do it by 7 o’clock.” In the first example, the child won’t receive ice

cream if dinner remains on the plate after 7, but the choice is the child’s. In the

second example, dinner had better be eaten by the deadline, but even if it is not,

no one would expect the child to be free to skip off to bed without clearing her

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plate. So it is with the MVRA – district courts must order restitution by the

deadline, but even if they are late they cannot avoid the restitution obligation.

Third, while the Supreme Court has acknowledged that legislative history

can sometimes prove “[a] murky, ambiguous, and contradictory” business, Exxon

Mobil Corp. v. Allapattah Servs. Inc., 545 U.S. 546, 568 (2005), it has sometimes

studied that history for guidance in analogous cases, see, e.g., Barnhart, 537 U.S.

at 165-66 (2003); Montalvo-Murillo, 495 U.S. at 720; Brock, 476 U.S. at 263-65.

Doing so may not be strictly necessary in this case in light of all we have said

already, but any such examination only reinforces our conclusion.

Mr. Dolan submits that the Senate Committee Report aids his cause when it

discusses “the need for finality and certainty in the sentencing process” and

indicates that this need “dictates that th[e] determination [of restitution] be made

quickly.” S. Rep. 104-179, at 20 (1995). But Mr. Dolan misses the point of this

discussion. The Committee Report makes plain that its emphasis on the need for

speed and finality arises out of concern for victims, not victimizers. The Report

proceeds to explain that the “sole due process interest of the defendant being

protected during the sentencing phase” isn’t the right to a speedy determination,

but only “the right not to be sentenced on the basis of invalid premises or

inaccurate information.” Id. (emphasis added). By contrast, when it comes to

victims, the Report stresses that “justice cannot be considered served until full

restitution is made.” Id. In the Committee’s words, “[i]t is essential that the

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criminal justice system recognize the impact that crime has on the victim, and, to

the extent possible, ensure that [the] offender be held accountable to repay these

costs.” Id. at 18. As we have explained previously, any complete examination of

the Report or the entirety of the Act’s legislative history can fairly lead only to

the conclusion that “Congress intended the 90 day limitation period to protect

victims against the dissipation of defendants’ assets and not to protect defendants

from a drawn-out sentencing process or to establish finality.” United States v.

Dando, 287 F.3d 1007, 1010 n.4 (10th Cir. 2002).

Finally, our holding today is in full harmony with our prior decisions in

Dando and United States v. Reano, 298 F.3d 1208 (10th Cir. 2002). In both

cases, we upheld the authority of a district court to enter a restitution order after

§ 3664(d)(5)’s 90-day deadline – results that strongly suggest the deadline’s non-

jurisdictional nature.

Mr. Dolan seeks to avoid this conclusion by stressing that we allowed late-

entered restitution orders in Dando and Reano only because the defendants in

those cases were at least partially responsible for the delay. Here, by contrast,

Mr. Dolan notes, he is not at all to blame for the missed deadline. On this basis,

Mr. Dolan submits, neither Dando or Reano can control our decision.

To some extent, Mr. Dolan is surely right. Neither Dando nor Reano had

occasion to address the question before us today and neither, strictly speaking,

controls our disposition. In Dando, we held the 90-day deadline “tolled” by

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virtue of the defendant’s request for a continuance and evidentiary hearing. 287

F.3d at 1011. In Reano, we held that the 90-day period was “tolled” by the

defendant’s appeal of a restitution award. 298 F.3d at 1211-12. But even

spotting all this to Mr. Dolan, the fact remains that in neither Dando nor Reano

did we hold that a failure to order restitution before the 90-day deadline deprived

the district court of jurisdiction to act. In both cases, we allowed late-entered

restitution orders. And there is nothing in the language, structure, or history of

the statute to suggest that the MVRA imposes a jurisdictional limit on the district

court’s authority to award restitution when the government or district court is at

fault for the delay but not when the defendant is to blame.

Put differently, while neither Dando or Reano addressed the question now

before us – what to do about delay caused by the government or district court,

rather than by the defendant – neither case is in any way inconsistent with our

holding today that § 3664(d)(5)’s deadline is non-jurisdictional. And it is surely

notable that our decision today is consistent not only with our prior precedent but

with the decisions of the First, Second, Fourth, and Ninth Circuits, each of which

has held, as we do, that the passing of § 3664(d)(5)’s deadline does not toll the

death knell of the district court’s subject matter jurisdiction. See United States v.

Douglas, 525 F.3d 225, 252-53 (2d Cir. 2008); Moreland, 509 F.3d at 1224;

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United States v. Johnson, 400 F.3d 187, 198-99 (4th Cir. 2005); Cheal, 389 F.3d

at 48-50. 2

Having concluded that the MVRA’s deadline seeks to spur prompt

restitution orders, not spurn belated ones, the question naturally arises whether

any remedy exists for a district court’s failure to comply with the 90-day

deadline. The MVRA is of course silent on this score, and we have read the 90-

day deadline as non-jurisdictional in part precisely because of that silence. In

these circumstances, the Supreme Court has sometimes indicated that “[w]e do

not agree that we should, or can, invent a remedy to satisfy some perceived need

to coerce the courts and the Government into complying with the statutory time

limits. Magistrates and district judges can be presumed to insist upon compliance

with the law[.]” Montalvo-Murillo, 495 U.S. at 721. Arguably, as well, there is

no need for courts to “invent” a remedy given the existence of the All Writs Act.

2
The Sixth Circuit appears to have decisions on both sides of the question.
Compare Vandeberg, 201 F.3d at 814 with United States Jolivette, 257 F.3d 581,
584 (6th Cir. 2001). The Seventh Circuit also arguably appears to have
competing trends in its jurisprudence. Compare United States v. Farr, 419 F.3d
621, 625 (7th Cir. 2005) (invalidating restitution order entered more than 90 days
after sentencing) with United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999)
(defendant not prejudiced by district court’s failure to identify within 90 days of
sentence all the crime victims entitled to restitution). See also United States v.
Maung, 267 F.3d 1113, 1122 (11th Cir. 2001) (invalidating restitution order
entered more than 90 days after sentencing but reserving question whether
restitution could be validly entered after the deadline if the delay was caused by
the “defendant’s bad faith delay”); United States v. Stevens, 211 F.3d 1, 5 (2d Cir.
2000) (holding that 90-day deadline may be tolled by defendant’s purposeful
misconduct).

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Should a district court fail to comply with the 90-day deadline, it would be hardly

surprising if a victim sought and obtained a writ of mandamus to compel the

district court to enter a restitution order forthwith. See In re Antrobus, 519 F.3d

1123, 1124 (10th Cir. 2008) (noting that one of the traditional offices of the writ

has been to compel an inferior court “to exercise its authority when it is its duty

to do so”) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)

(per curiam)).

While saying all this, we also must acknowledge that some of our sister

circuits have held out the possibility that, if a defendant could establish prejudice

arising from the district court’s failure to enter restitution within the 90-day

deadline, they might well craft some remedy to address any such prejudice. See

Moreland, 509 F.3d at 1224-25; Johnson, 400 F.3d at 199; see also Montalvo-

Murillo, 495 U.S. at 721-22 (emphasizing that defendant was not prejudiced by

court’s failure to hold hearing in conformity with Bail Reform Act’s timing

requirements). For reasons we have already articulated, we are unsure whether

Congress has authorized us to excuse a defendant from the obligation to pay

restitution for offenses covered by the MVRA under any circumstances. Neither

is it altogether obvious how a defendant might be prejudiced by an untimely

restitution order: it would seem “a fortiori more than highly probable” that a

delayed restitution order would “not adversely affect [the defendant’s] substantial

rights.” United States v. Stevens, 211 F.3d 1, 6 (2d Cir. 2000). After all, it is

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usually better to pay a dollar tomorrow than to pay one today. Happily, however,

we can leave the final resolution of all this for another case because, in the one

actually before us, Mr. Dolan does not purport to identify any way in which his

substantial rights were infringed by the district court’s decision requiring him to

pay restitution later rather than sooner.

While we today decide the 90-day deadline is not a jurisdictional limit on

the district court’s authority to order restitution, our holding should not be

misconstrued as suggesting the government has the discretion to seek, and the

district court has discretion to enter, restitution on any time schedule they find

convenient. The law remains that the district court shall enter a restitution order

within 90 days. And this directive serves important congressionally identified

purposes – to ensure victims timely compensation and to prevent the potential

dissipation of defendants’ assets. District courts and the government must take

steps to ensure compliance with the MVRA’s deadline and the public interests it

serves, just as they must with any other congressional command. Though district

courts do not lose the authority to enter restitution after 90 days, the law remains

the law and courts and the government alike are bound to follow it. As the

Supreme Court explained in Montalvo-Murillo, though “the sanction for breach is

not loss of all later powers to act,” the duty remains a “mandatory” one. 495 U.S.

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at 718. Failure to abide Congress’s instruction still “represent[s] a default on a

statutory duty.” Barnhart, 537 U.S. at 157. 3

III

Having said that the district court retained authority to enter a restitution

award despite its failure to comply with the 90-day deadline, we must still ask

whether the amount the district court ordered Mr. Dolan to pay each month, $250,

adequately accounts for his financial condition.

While the MVRA requires that the total amount of restitution be ordered

“without consideration of the economic circumstances of the defendant,” 18

U.S.C. § 3664(f)(1)(A), the district court can and must consider the defendant’s

economic circumstances in fashioning a restitution payment schedule, id. at

§ 3664(f)(2). Specifically, the district court must consider “(A) the financial

resources and other assets of the defendant, including whether any of the assets

3
Mr. Dolan argues that our holding conflicts with United States v.
Bedonie, 413 F.3d 1126 (10th Cir. 2005). It does no such thing. In Bedonie, we
considered whether § 3664(d)(5) authorized the district court to reopen an already
entered restitution order sua sponte simply because it had reconsidered the
wisdom of its order. We concluded that the MVRA grants the district court no
such authority. At the same time, we took pains to emphasize in Bedonie that our
decision did not limit the authority of a district court to “‘hold[] open’ . . . a
restitution issue at the original sentencing” pending receipt of facts needed to
enter an initial restitution order. Id. at 1129. This, of course, is precisely the
case we now face: whether and to what degree a “holding open” of the restitution
question past the original sentencing hearing and the statutory deadline is
permissible – not whether and to what degree a district court’s sua sponte
reopening of an existing restitution order is statutorily authorized.

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are jointly controlled; (B) projected earnings and other income of the defendant;

and (C) any financial obligations of the defendant[,] including obligations to

dependents.” Id. If, after consideration of these factors, the court finds that “the

economic circumstances of the defendant do not allow . . . for the payment of the

full amount of a restitution order in the foreseeable future under any reasonable

schedule of payments,” the district court can direct the defendant to make

“nominal periodic payments.” Id. at § 3664(f)(3)(B).

Mr. Dolan does not (and cannot) argue that the district court failed to

consider his economic circumstances. The district court engaged in a thorough

examination of Mr. Dolan’s financial resources, his projected earnings, and his

financial obligations. Dist. Ct. Op. at 15. Neither does (or could) he argue that

the facts found by the district court regarding his economic circumstances were

erroneous; before us they are undisputed. Instead, Mr. Dolan argues only that, in

light of the facts found by the district court as part of its duty to consider his

ability to pay restitution, $250 per month is simply too high.

We have previously explained that a district court enjoys “substantial

discretion” in setting monthly payment schedules, see United States v. Wilson,

416 F.3d 1164, 1170 (10th Cir. 2005), and does not abuse this discretion so long

as “the evidence indicates a defendant has some assets or earning potential and

thus possibly may be able to pay the amount ordered.” United States v. Rogat,

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924 F.2d 983, 985 (10th Cir. 1991). 4 Admittedly, asking whether a defendant

possibly may be able to pay the amount ordered is a very narrow inquiry and

surely poses the defendant with a daunting hurdle. But the limited nature of our

appellate inquiry becomes sensible when considered in light of the MVRA’s

purpose of ensuring maximum restitution to victims; its requirement that

restitution awards take account of the defendant’s future earning potential, 18

U.S.C. § 3664(f)(2)(B), an exercise that necessarily involves the district court in

“a delicate balancing of diverse, sometimes incomparable factors, some which not

only lack certainty but may indeed be based on mere probabilities, expectations,

guesswork, even a ‘hunch,’” United States v. Ismail, 219 F.3d 76, 78 (2d Cir.

2000); as well as the fact that no restitution payment schedule is ever fixed

immutably in stone. As we have already alluded to, if and whenever there is a

“material change in the defendant’s economic circumstances,” the MVRA

authorizes the district court to adjust the defendant’s payment schedule “as the

interests of justice require.” 18 U.S.C. § 3664(k). So if a district court’s

assessment of a defendant’s future earning potential doesn’t pan out and its

4
In Rogat, we were asked to determine whether a restitution order entered
pursuant to the Victims and Witness Protection Act was more than the defendant
was able to pay. Given the strong similarities between that statute and the
MVRA, however, it provides appropriate guidance here. See, e.g., United States
v. Mahone, 453 F.3d 68, 74 & n.3 (1st Cir. 2006); United States v. Randle, 324
F.3d 550, 556 n.3 (7th Cir. 2003). In fact, we have previously relied on Rogat in
evaluating a challenge to a payment schedule imposed under the MVRA, albeit in
an unpublished decision. See Taylor, 2002 WL 1166166, at 3.

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payment schedule proves too onerous, the defendant is not stuck, overwhelmed

with an obligation he cannot meet and without the means to seek redress.

Congress has specifically directed that the doors of the district court should

remain open to the defendant, and that the court is free to revise its payment

schedule at any time.

Applying our governing standard of review to this case, we are constrained

to affirm. We admit many record facts suggest that Mr. Dolan could have

difficulty paying the amount of restitution ordered. His income is small, his

employment history poor, his substance abuse problem apparent. There is,

however, other evidence in the record suggesting that it is not impossible for Mr.

Dolan to meet his monthly payment obligation. The record shows that Mr. Dolan

has a GED, has been able to win jobs in the past, is physically able to work, and

has few financial obligations because he lives with and is supported by his aunt.

The record also reveals that he receives a modest annual stipend from his tribe.

Based on the evidence before us, we cannot disagree with the district court that

Mr. Dolan has the potential to win a job and earn a living that would allow him to

meet a monthly obligation of $250; neither can we ignore the fact we and others

have upheld similar restitution orders on similar records against similar

challenges. See, e.g., Wilson, 416 F.3d 1164, 1170 (10th Cir. 2005) (upholding

restitution order requiring indigent defendant to pay restitution while incarcerated

because he did not show that there were insufficient opportunities to work in

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prison or that he was physically unable to do so); Rogat, 924 F.2d at 986

(upholding restitution award against indigent defendants based on their future

earnings potential); Ismail, 219 F.3d 76, 78 (same); United States v. Booth, 309

F.3d 566, 576 (9th Cir. 2002) (upholding $500 per month payment schedule for

defendant with “financial difficulties” on the grounds that he had worked in the

past and “might reasonably look forward to being able to pay after his term of

imprisonment”). Should events as they unfold reveal a material change in Mr.

Dolan’s circumstances, he and the district court can and will, pursuant to

§ 3664(k), adjust the payment schedule.

Affirmed.

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