United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 1999 Decided November 2, 1999
No. 98-3152
United States of America,
Appellee
v.
Tristan Wolff,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00098-01)
Jennifer Blunt, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Stephen R. Martin, II, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Assistant U.S. Attor-
ney, and Mary Patrice Brown, Assistant U.S. Attorney.
Before: Williams, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: This case is here for a second time
on claims of sentencing error. In United States v. Wolff, 127
F.3d 84 (D.C. Cir. 1997) ("Wolff I") the court remanded for
resentencing in view of the government's breaches of the plea
agreement. See id. at 86-87. On remand, the district court
sentenced Wolff to sixty-four months' incarceration and three
years' supervised release on each robbery count, the sen-
tences to run concurrently. The district court reimposed a
special assessment of $100.00 under 18 U.S.C. s 3013, and
again ordered Wolff to pay restitution of $122.00 to Riggs
Bank and $1867.00 to Washington Federal Savings Bank.
Wolff contends the district court erred by applying a two-
level enhancement under s 2B3.1(b)(2)(F) of the United
States Sentencing Guidelines Manual (1995) ("Guidelines"),
when the evidence failed to show an express threat of death,
and by failing to consider his ability to pay before ordering
restitution as required under the Victim Witness Protection
Act, 18 U.S.C. s 3664(a) (1995). As clarified at oral argu-
ment, Wolff also contends, in the event this court agrees with
his second claim of error, that the district court erred in
delegating part of its sentencing responsibility to the proba-
tion office. Because our decision in United States v. Robin-
son, 86 F.3d 1197, 1202 (D.C. Cir. 1996), is dispositive of his
first claim of error, and we conclude that Wolff has failed to
show that the district court plainly erred with regard to its
statutory obligation to consider his ability to pay, we affirm
and do not reach his unlawful delegation claim.
I.
Wolff received a two-level sentence enhancement for mak-
ing an express threat of death pursuant to s 2B3.1(b)(2)(F) of
the Guidelines on the basis of a note that he handed to a
bank teller stating: "give me all your big bills, $100s, $50s,
and $20s, I have a gun. I will kill people." We see no merit
in Wolff's argument that this statement did not provide
sufficient basis for sentencing enhancement, as we fail to see
any material difference between the note used by Wolff in the
instant case and the demand note in Robinson that stated
"I'll shoot somebody in here now." Robinson, 86 F.3d at
1202. Each was an express threat of death within the
meaning of s 2B3.1(b)(2)(F) of the Guidelines.1
In Robinson, the court explained that to qualify for this
enhancement it is sufficient that a reasonable person in the
position of the immediate victim of the robbery would "(1)
very likely [have] believed that the robber made a threat and
that the threat was to kill and (2) likely thought that his or
her life was in peril thereby experiencing 'significantly great-
er fear' than the intimidation required to commit robbery."
86 F.3d at 1202. The court left open "the possibility that a
court may enhance a sentence even if an ordinary person
would be placed in fear for someone else's life." Id. at 1203.
Wolff contends that the statement at issue here could not
reasonably have put the teller in fear for her life because it
referred only to "people in general." Wolff maintains that
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1 Application note 6 to the commentary to s 2B3.1 of the Guide-
lines states:
An "express threat of death," as used in subsection (b)(2)(F),
may be in the form of an oral or written statement, act,
gesture, or combination thereof. For example, an oral or
written demand using words such as "Give me the money or I
will kill you", "Give me the money or I will shoot you", "Give
me your money or else (where the defendant draws his hand
across his throat in a slashing motion)", or "Give me the money
or you are dead" would constitute an express threat of death.
The court should consider that the intent of the underlying
provision is to provide an increased offense level for cases in
which the offender(s) engaged in conduct that would instill in a
reasonable person, who is a victim of the offense, significantly
greater fear than that necessary to constitute an element of the
offense of robbery.
Guidelines s 2B3.1 comment, n.6.
Robinson is not dispositive as to such "general" statements.2
Yet, from the statement of what are sufficient elements for
enhancement in Robinson, it necessarily follows that the bank
teller in the instant case could reasonably believe she was
included among the "people" Wolff was threatening to kill.
See United States v. Murray, 65 F.3d 1161, 1166-67 (4th Cir.
1995). The absence of the word "teller" in the note can
hardly be dispositive when the context of an ongoing robbery
is considered. This was not an innocent encounter; the
threat in the note enhanced the intimidation that robbery
alone would cause; the teller was in the immediate chain of
custody of the money that Wolff sought to take from the
bank. Moreover, the Guidelines would not appear to require
that the threat be specifically directed to a particular person
or specific target. In any event, under the circumstances, a
reasonable teller could easily infer from the context of the
note that the threat to kill "people" included her.
Much like the Ninth Circuit in United States v. Strandberg,
952 F.2d 1149, 1151-52 (9th Cir. 1991), we conclude that the
statement by Wolff was equivalent to the note in Robinson.
See also United States v. Figueroa, 105 F.3d 874, 879-80 (3d
Cir. 1997); United States v. Robinson, 20 F.3d 270, 276-77
(7th Cir. 1994); United States v. Bell, 12 F.3d 139, 139-40
(8th Cir. 1993).
Just as a reasonable teller receiving a note from a bank
robber would very likely infer that "shoot" means "kill,"
a reasonable teller would also probably infer that a
threat to kill "somebody in here" referred to him. In-
deed, in the highly-charged circumstances of a robbery,
we think that the threat to "shoot somebody in here" is
practically indistinguishable from the threat to "shoot
you."
Robinson, 86 F.3d at 1202. Therefore, the district court did
not err in enhancing Wolff's sentence under s 2B3.1(b)(2)(F).
__________
2 Wolff suggests that Robinson left open, for example, the ques-
tion of whether statements such as "I have a gun" and "I will shoot
somebody out here" are statements to which s 2B3.1(b)(2)(F) ap-
plies.
II.
The Victim Witness Protection Act, 18 U.S.C. ss 3663-3664
(1995), requires that, prior to ordering restitution, the district
court "shall consider the amount of loss sustained by any
victim as a result of the offense, the financial resources of the
defendant, the financial needs and earning ability of the
defendant and the defendant's dependents, and such other
factors as the court deems appropriate." 18 U.S.C. s 3664(a)
(1995).3 Wolff contends for the first time on appeal that the
district court failed to consider his ability to pay restitution.
Because our review is for plain error, Wolff must show not
only that the district court erred but that he suffered preju-
dice as a result. See United States v. Bapack, 129 F.3d 1320,
1327 (D.C. Cir. 1997); United States v. Thompson, 113 F.3d
13, 15 (2d Cir. 1997); United States v. Olano, 507 U.S. 725,
732-34, 736, 113 S. Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993).
Even under our modified view of plain error in sentencing,
see United States v. Saro, 24 F.3d 283, 287-88 (D.C. Cir.
1994), cert. denied, 591 U.S. 956 (1996), Wolff has not met his
burden.
At his original sentencing, the district court ordered Wolff
to pay restitution of $122.00 to Riggs Bank and $1,867.00 to
Washington Federal Savings Bank. At the sentencing hear-
ing, the district court indicated that it had considered the
information in Wolff's presentence report. That report con-
cluded that Wolff did not currently have the ability to pay a
fine, restitution, or the cost of supervision or incarceration.
But the report also stated that Wolff was 30 years old at the
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3 We apply the statute in effect at the time of the criminal
conduct, as both parties agree, in light of the court's decisions that
application of the later enacted Mandatory Victims Restitution Act
of 1996, Title II, Subtitle A of the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(codified at 18 U.S.C. ss 3663-3664 (1996)), which eliminated the
requirement that the district court consider the defendant's ability
to pay before ordering restitution in a case like this, 18 U.S.C.
s 3664(f)(1)(A) (1996), would raise ex post facto concerns. See
United States v. Rezaq, 134 F.3d 1121, 1141 n.13 (D.C. Cir. 1998);
Bapack, 129 F.3d at 1327 n.13.
time of sentencing in 1996, had no dependents, was in good
mental and physical health, had a Bachelor of Science degree
from Dolgealflea Polytechnic in England, had previously been
employed at a local business for seven years earning approxi-
mately $500 weekly, and had produced award-winning movie
videos. Wolff does not dispute the accuracy of this informa-
tion, nor does he dispute that the district court referenced the
original judgment at his resentencing.
Clearly, under the statutory mandate, the district court
could properly take into account the defendant's educational
level, employable skills, and financial status, including family
cost-of-living expenses upon release from prison and other
obligations. Consideration of the statutory factors is demon-
strated when a district court indicates expressly at some
point prior to ordering a defendant to pay restitution that the
court has considered the defendant's financial situation and
has concluded, in light of identified evidence or uncontested
proffers, that the defendant has the ability to pay. A district
court's consideration of a defendant's ability to pay also may
be demonstrated implicitly by its adoption of the explained
conclusion in the presentence report, or through some other
statement by the court indicating in more than a perfunctory
manner that it has considered the defendant's financial situa-
tion. See Rezaq, 134 F.3d at 1141; Bapack, 129 F.3d at 1328.
Looking at the record, see, e.g., Rezaq, 134 F.3d at 1141, it
is sufficiently clear, albeit just barely, by cobbling together
statements at various points in Wolff's sentencing hearings,
that there was no plain error.4
__________
4 Although the district court did not make express findings as to
Wolff's ability to pay restitution, the statute does not require as
much. See Bapack, 129 F.3d at 1328. Accord United States v.
Davis, 117 F.3d 459, 463 (11th Cir. 1997); United States v. Sanders,
95 F.3d 449, 456 (6th Cir. 1996); United States v. Lavin, 27 F.3d 40,
42 (2d Cir. 1994); United States v. Rogat, 924 F.2d 983, 986 (10th
Cir. 1991); United States v. Ryan, 874 F.2d 1052, 1053 (5th Cir.
1989). Additionally, we note that while express findings are not
required, a clear indication on the record of the district court's
consideration of the statutory factors would facilitate appellate
review; in this regard, counsel on both sides could assist the district
First, and foremost, the district court's remarks at sentenc-
ing indicate that it had reviewed the presentence report prior
to imposing sentence. This alone can suffice to show that the
district court considered the defendant's ability to pay. See
Bapak, 129 F.3d at 1327; Davis, 117 F.3d at 464; United
States v. Castner, 50 F.3d 1267, 1278 (4th Cir. 1995); United
States v. Mizrachi, 48 F.3d 651, 657 (2d Cir. 1995); United
States v. Osborn, 58 F.3d 387, 389 (8th Cir. 1995); United
States v. Nelson, 5 F.3d 254, 258-59 (7th Cir. 1993), cert.
denied, 510 U.S. 1098, 114 S. Ct. 937, 127 L.Ed.2d 228 (1994).
At the end of Wolff's first sentencing hearing, the district
court referenced the findings in the report with regard to the
amount of restitution due each victim bank, and at his resen-
tencing hearing, the district court read from and paraphrased
its discussion of restitution at the first sentencing hearing.
Thus, in amending the restitution amount suggested in the
presentence report to reflect money already recovered by one
of the victim banks, the district court remarked "I can only
deal with the information that I have from the presentence
report...." Furthermore, in the judgment imposing the
restitution on Wolff, the district court indicated that it had
adopted the factual findings of the presentence report.
It might also be said that the district court did not accept
such evidence at face value, for it specifically stated that, as of
the time of sentencing, the amount of Wolff's prison pay
"probably is meager." Although a defendant could have
other financial resources, the district court's remark is some
indication that the court was considering Wolff's financial
status. In addition, at the conclusion of Wolff's first sentenc-
ing hearing, the district court stated that it had not "been
able to find that there has been any ability to pay." Although
this statement is unclear, it does suggest that the district
court recognized that it was obligated to consider Wolff's
ability to pay if it was going to impose financial conditions as
part of the sentence, or as the government suggests, the
__________
court. Cf. United States v. Dudley, 104 F.3d 442, 447 (D.C. Cir.
1997).
statement may have referred to Wolff's inability to pay a fine,
cost of imprisonment, or supervision.
Considering the burden on Wolff to show error by the
district court in ordering restitution, see 18 U.S.C. s 3664(d),
we conclude that Wolff cannot show error that seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings. See Olano, 507 U.S. at 736, 113 S. Ct. at
1779. Although at oral argument he emphasized that he was
represented by court-appointed counsel, and the presentence
report noted a large debt, namely a loan of $8,000 from a
friend, and concluded, based in part on Wolff's statement that
he had no assets, that he was financially unable to pay
restitution, the district court was not required to reach the
same conclusion. The presentence report also included infor-
mation about Wolff's somewhat remarkable educational and
working history that could reasonably cause the district court
to conclude that Wolff had the ability to earn a decent living
and then some. The court could reasonably view a personal
loan in a different light than a commercial loan with due dates
and clear legal consequences upon default. Wolff's conten-
tion at oral argument that the district court's reference at
sentencing to avoiding double recovery by a victim bank
indicates that it was applying the wrong statute, and there-
fore was unaware of the need to consider his ability to pay,
fails to demonstrate plain error; not only did the district
court refer to the need to find an ability of pay, neither the
government nor the 1995 Act or its successor, see supra n.3,
suggest the propriety of such recovery.
Accordingly, because Wolff's challenge to the enhancement
of this sentence under s 2B3.1(b)(2)(F) of the Guidelines is
meritless and he has failed to demonstrate that the district
court plainly erred by not considering his ability to pay
restitution, we affirm the judgment of conviction.