NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 29 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10510
Plaintiff - Appellee, D.C. No. 1:09-cr-00115-SOM-1
v.
MEMORANDUM*
VANCE YUKIO INOUYE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted February 12, 2016
Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
Defendant Vance Yukio Inouye appeals from an order setting a restitution
schedule in connection with revocation of his supervised release. We affirm.
As a threshold matter, we can review Inouye’s appeal. The district court
judgment is a final judgment even though the district court is free to adjust the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
restitution payment schedule. See 18 U.S.C. § 3664(o)(1)(D). Nothing in “the
language of [Inouye’s original 2009] waiver encompasses [Inouye’s] right to
appeal” the consequences of a subsequent revocation proceeding. United States v.
Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (internal quotation marks omitted).
Thus, he did not “knowingly and voluntarily” waive his right to appeal the present
decision. Id.; see also United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009)
(holding that a defendant did not, pursuant to his plea agreement, waive his right to
appeal the district court’s decision that it lacked jurisdiction to modify his sentence
because the plea agreement encompasses only the right to appeal “the sentence . . .
imposed”). Additionally, the case is ripe for review.
On the merits, the district court did not abuse its discretion in setting
Inouye’s restitution schedule at 8% of his gross monthly income. See United
States v. Booth, 309 F.3d 566, 576 (9th Cir. 2002) (stating standard of review).
The district court did not “ignore[] the cash flow report that was in the PSR,” nor
did it “ignore[] that [Inouye] was not paying medical insurance.” The court
recognized both of those facts explicitly. And the court’s determination that
Inouye’s expenses in the immediate future were likely to be lower than they had
been had ample support in the record. The court did not abuse its discretion by
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concluding that Inouye’s expenses would be less when he was no longer living
with his children, paying rent, or paying for utilities.
As to projected income, the district court committed no error. By law the
district court “shall . . . specify . . . the schedule according to which[] the restitution
is to be paid, in consideration of . . . projected earnings and other income of the
defendant.” 18 U.S.C. § 3664(f)(2)(B) (emphasis added). Inouye is wrong that the
district court should have disregarded this factor on account of Inouye’s then-
current financial circumstances. Cf. Ward v. Chavez, 678 F.3d 1042, 1052 (9th
Cir. 2012) (“[A] sentencing court must consider the defendant’s financial resources
in setting a restitution payment schedule . . . .” (emphasis added)).
Finally, if Inouye has no job, then 8% of $0.00 is $0.00, and he suffers no
prejudice. As the district court noted, Inouye is free to seek further modification of
his restitution schedule as his circumstances continue to evolve.
AFFIRMED.
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