United States v. Vencent Scales

Case: 14-10725 Document: 00513428215 Page: 1 Date Filed: 03/17/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 14-10725 United States Court of Appeals
Summary Calendar Fifth Circuit

FILED
March 17, 2016
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee

v.

VENCENT SCALES,

Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-231

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The opinion of September 11, 2015, is withdrawn and the following is
substituted. Vencent Scales pled guilty to theft of government funds. The
issue on appeal is whether the district court erred in the manner in which it
ordered restitution be paid. Because there was no objection to the order in
district court, our review is for plain error. We find none and AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
 Case: 14-10725 Document: 00513428215 Page: 2 Date Filed: 03/17/2016

No. 14-10725
FACTS AND PROCEDURAL HISTORY
In district court, Scales admitted that in late 2012 or early 2013, as a
“representative payee” for another person, he took Social Security benefits of
over $1,000 and converted them to his own use. The offense took place in the
Northern District of Texas.
Scales pled guilty to theft of government funds in violation of 18 U.S.C.
§ 641. The district court sentenced him to 60 months of imprisonment and
three years of supervised release. The court also found that Scales owed
$29,427.37 in restitution, payable immediately. Separately and as a condition
of supervised release, the court set a payment schedule for restitution. Scales
was to make payments of $100 per month, beginning 60 days after he was
released from prison. The balance was to be paid 60 days prior to the end of
the term of supervised release. Scales challenges the payment schedule for
restitution, arguing the district court failed to give adequate consideration to
his financial circumstances or ability to pay.
No objection to the amount of restitution or the manner in which it was
to be paid was made in district court. On appeal, Scales’s counsel initially filed
a brief under Anders v. California, 386 U.S. 738 (1967), concluding there were
no non-frivolous issues on appeal. We disagreed and ordered a new brief to be
filed addressing the district court’s restitution order. We identified a two-part
issue, the first part broader and the second more focused:
Counsel does not address or analyze whether the district
court complied with its obligation to consider “financial resources
and other assets of the defendant” in determining the schedule
under which a restitution order is to be paid. . . . Specifically,
counsel does not address or analyze the condition of supervised
release that Scales make restitution payments over the course of
his term of supervised release and that any unpaid balance shall
be paid in full 60 days prior to the termination of the term of
supervised release, and whether, in light of the PSR’s recitation of
Scales’s financial position, this condition creates an “unrealistic
2
 Case: 14-10725 Document: 00513428215 Page: 3 Date Filed: 03/17/2016

No. 14-10725
payment schedule.” See United States v. Calbat, 266 F.3d 358, 366
(5th Cir. 2001).
In their briefing in response to this order, both Scales and the
Government analyze whether the defendant’s lack of financial resources meant
that it was error for the district court’s order to provide restitution was
“payable immediately.” We find that question to be sufficiently inherent in the
court’s briefing order, and also important in the caselaw we discuss, to identify
it as a separate issue in our opinion.
We earlier held there was reversible plain error. United States v. Scales,
615 F. App’x 230 (5th Cir. 2015) (opinion withdrawn). We have reconsidered
and now explain why we reach the opposite conclusion.

DISCUSSION
The parties disagree about the applicable standard of review. Scales
relies on caselaw that provides we should remand to correct an unpreserved
error when the ordering of restitution is “in violation of law.” See United States
v. Arnold, 947 F.2d 1236, 1238 & n.3 (5th Cir. 1991). Other decisions have held
that we apply de novo review when an appellant challenges the threshold
decision to award restitution at all, or challenges the specific amount of
restitution. See, e.g., United States v. Nolen, 472 F.3d 362, 382 (5th Cir. 2006).
There is no argument here that restitution could not be ordered. Scales objects
only to the schedule of payments in the order. As reflected in the analysis that
follows, we consistently apply plain error review to similar unpreserved
challenges to restitution. See, e.g., United States v. Arledge, 553 F.3d 881, 900
(5th Cir. 2008); United States v. Miller, 406 F.3d 323, 327–28 (5th Cir. 2005);
United States v. Myers, 198 F.3d 160, 168 (5th Cir. 1999).
Because Scales failed to raise this issue in the district court, we review
for plain error. See Arledge, 553 F.3d at 900. To demonstrate plain error,

3
 Case: 14-10725 Document: 00513428215 Page: 4 Date Filed: 03/17/2016

No. 14-10725
Scales must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). An
error is not clear or obvious if it is “subject to reasonable debate.” United States
v. Ellis, 564 F.3d 370, 377–78 (5th Cir. 2009). If Scales makes such a showing,
this court has the discretion to correct the error but only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See Puckett,
556 U.S. at 135.

I. Requirement that restitution be payable immediately
The Mandatory Victims Restitution Act (“MVRA”) instructs courts to
order the full amount of restitution without regard to a defendant’s ability to
pay. See 18 U.S.C. § 3664(f)(1)(A). In setting a payment schedule, however,
the court must consider the defendant’s resources, earnings, and obligations.
See id. § 3664(f)(2). As the Government stated in the PSR in this case, Scales
suffers from mental health problems, has no assets, and has not been employed
since 2009. He received Supplemental Security Income benefits of $699 per
month, but that amount is subject to garnishment for outstanding child
support payments. As a result, the PSR states that Scales “does not have the
financial resources to pay a fine and make restitution payments.”
We have held a district court plainly erred by ordering a defendant to
pay all of restitution immediately when the defendant lacked the resources to
do so; the restitution order contained no payment schedule. See United States
v. Myers, 198 F.3d 160, 169 (5th Cir. 1999). In that case, we remanded for the
district court to consider establishing a payment schedule. Id.
In another precedent we found no plain error in making restitution
payable immediately when a payment schedule was also set that considered a
defendant’s financial situation. See United States v. Miller, 406 F.3d 323, 328
& n.1 (5th Cir. 2005). The payment schedule in Miller required $500 monthly
4
 Case: 14-10725 Document: 00513428215 Page: 5 Date Filed: 03/17/2016

No. 14-10725
payments to begin once the defendant was released from prison. Id. Our
analysis focused on Myers, the only caselaw the defendant cited. See id. We
concluded Myers was “readily distinguishable,” then held that the schedule
was “not plain error, if it [was] error at all.” Id. On that issue, the Miller court
never discussed the two additional factors for plain-error review that must be
analyzed when there is error that is plain. Tellingly, Miller raised other claims
in which we explicitly went through all four plain-error factors. It is therefore
evident that we resolved the issue concerning the payment schedule for
restitution solely on the basis that any error was not obvious.
Applying that reasoning here, we again note that the district court
ordered restitution in a specific amount payable immediately. After
announcing that obligation, though, the court stated that failure to pay
immediately would not violate Scales’s conditions of supervised release if his
payments were made “as provided in defendant’s conditions of supervised
release.” The payment schedule required a $100 monthly payment that would
begin upon his release from prison, with any unpaid balance of the $29,427.37
to be paid no later than 60 days prior to the end of supervised release.
Because there was no payment schedule in Myers to qualify the
requirement of immediate payment of all restitution, we, as did the panel in
Miller, find Myers distinguishable and inapplicable. In contrast, in Miller —
though the order also said restitution was payable immediately — the
sentencing order provided that the defendant would not violate his conditions
of supervised release if he paid $500 per month upon his release from prison
until his term of supervision ended. Scales’s payment schedule is similar,
though the amount of Scales’s monthly payment is only $100.
There is another part of the payment schedule, of course, which is the
obligation to pay the balance of restitution by the end of the period of
supervised release. We will analyze that feature next. At this point we
5
 Case: 14-10725 Document: 00513428215 Page: 6 Date Filed: 03/17/2016

No. 14-10725
consider only whether plain error exists when a district court orders all of
restitution to be “payable immediately” and then provides a payment schedule
demonstrating no actual obligation exists to pay the full balance immediately.
We follow Miller, as we must, to hold that no clear or obvious error exists in
that circumstance, relying solely on the first two factors of plain error review.
Whatever the phrase “payable immediately” means, 1 its effect is limited
by the requirement that the manner in which restitution is to be paid must be
consistent with a defendant’s ability to pay. The validity of the schedule itself
is a separate issue, to which we now turn.

II. Validity of a payment schedule with a balloon obligation
Scales’s payment schedule requires $100 monthly payments once
supervised release begins. There is no argument that the monthly amount was
inappropriate due to Scales’s financial situation. The only claim as to the
schedule is that it was error to require the remaining balance be paid no later
than 60 days prior to the end of supervised release. No similar final obligation
was mentioned in our Miller opinion. In fact, though, a review of the record
reveals that Miller’s payment schedule also required that the “unpaid balance
of the restitution ordered by this judgment shall be paid in full 60 days prior
to the termination of the term of supervised release.” The same district judge
entered both orders, explaining the similarity.
Miller controls to the extent of its holding, which is that a district court
does not plainly err by ordering restitution be payable immediately if it then
also provides a realistic payment schedule. Id. at 328. The opinion did not

1Sentencing orders that require restitution to be paid immediately, or state that it is
payable or due immediately, have a long history and have been much litigated. The intent
of such language and its operation in practice are explained in CATHARINE M. GOODWIN,
FEDERAL CRIMINAL RESTITUTION § 11:30.
6
 Case: 14-10725 Document: 00513428215 Page: 7 Date Filed: 03/17/2016

No. 14-10725
address whether a restitution order that required the balance be paid in one
final balloon obligation before the end of supervised release affected whether
the schedule was “realistic.” Indeed, that part of the restitution order was not
described in our opinion. “Where an opinion fails to address a question
squarely, we will not treat it as binding precedent.” Thomas v. Tex. Dep’t of
Criminal Justice, 297 F.3d 361, 370 n.11 (5th Cir. 2002) (citing Webster v. Fall,
266 U.S. 507, 511 (1925)).
We look elsewhere for the validity of that final obligation. In one case,
we vacated a sentence because the district court imposed an “unrealistic
payment schedule” in light of the defendant’s poverty. See United States v.
Calbat, 266 F.3d 358, 366 (5th Cir. 2001). The schedule in Calbat compelled
the defendant to make unreasonably high payments as soon as he was released
from prison. Calbat’s restitution obligation was $250,000. Id. at 365. The
payment schedule required he pay “no more than 20 percent of funds in [his]
inmate trust fund” during his term of imprisonment, and then pay the
remaining balance through equal monthly payments during his term of
supervised release. Id. Assuming payments during incarceration were
negligible, Calbat would have been released with a remaining balance still
near $250,000. Spread over three years of supervised release, Calbat’s average
annual obligation was approximately $83,000. Before becoming a felon, Calbat
earned significantly less, about $39,000 annually. Id. at 366.
The court in Calbat used a somewhat different methodology — perhaps
a best-case scenario for upholding the schedule — to assess the defendant’s
average annual restitution obligation. The court allocated the obligation
equally through all six years of Calbat’s sentence (three in prison, and three
on supervised release), which would be about $41,000 annually. See id. Under
that analysis, Calbat would pay $2,000 more each year than he had earned
prior to his conviction.
7
 Case: 14-10725 Document: 00513428215 Page: 8 Date Filed: 03/17/2016

No. 14-10725
We do not apply Calbat’s method of calculation to Scales, namely, to take
the entire restitution amount and spread it over his full sentence in order to
judge its reasonableness. That is because the district order set a specific
amount for monthly payments. The order does not provide for payment while
Scales is in prison. Once on supervised release, he is to make $100 monthly
payments during the term of supervision. Scales received $699 each month in
Supplemental Security Income before his arrest. Thus, before becoming a
felon, Scales earned significantly more each month than he will be required to
pay. Unlike in Calbat, Scales has no obligation to make unreasonably large
periodic payments during his term of supervised release.
Applying this precedent, we first hold there is no plain error in setting
Scales’s monthly payment at $100. Indeed, Scales does not argue error there.
The only possible defect in the payment schedule is the requirement that any
unpaid balance be satisfied before supervision ends.
In deciding how a court in a sentencing order should address a possible
unpaid balance in restitution at the end of supervised release, we first identify
three options that structure our analysis. One is for the court to ignore the
anticipated outstanding balance. Two others are for the court’s order to
identify the amount of the anticipated balance, and then either remain silent
as to any obligation that the balance be paid during the term of supervised
release or, alternatively, require that the balance be paid during the period of
supervision. A fourth conceptual option, stating that the anticipated balance
is forgiven, may be beyond the authority of the court under the MVRA, but we
need not address that point. We examine whether what the district court did
here, namely, require the balance to be paid at the end of the term of
supervision, was plain error.
We start with the purpose of the MVRA, which “is to make victims of
crime whole, to fully compensate these victims for their losses and to restore
8
 Case: 14-10725 Document: 00513428215 Page: 9 Date Filed: 03/17/2016

No. 14-10725
these victims to their original state of well-being.” United States v. Boccagna,
450 F.3d 107, 115 (2d Cir. 2006). To effectuate that purpose, the MVRA
requires district courts to “order restitution to each victim in the full amount
of each victim’s losses as determined by the court and without consideration of
the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). That
requirement may be the reason for the court’s ordering Scales to pay the entire
amount immediately. Regardless, the district court is to set a payment
schedule “pursuant to section 3572.” Id. § 3664(f)(2). Section 3572 provides
for a payment schedule that allows the Government to collect the entire
restitution obligation. “[T]he length of time over which scheduled payments
will be made shall be set by the court, but shall be the shortest time in which
full payment can reasonably be made.” Id. § 3572(d)(2).
In setting a schedule, the district court must consider the defendant’s
financial situation. Id. § 3664(f)(2). Importantly, this initial determination of
the defendant’s ability to pay is subject to later revision during the term of
supervision, which allows a district court to increase the payment amount:
A restitution order shall provide that the defendant shall notify
the court and the Attorney General of any material change in the
defendant’s economic circumstances that might affect the
defendant’s ability to pay restitution. The court may also accept
notification of a material change in the defendant’s economic
circumstances from the United States or from the victim. The
Attorney General shall certify to the court that the victim or
victims owed restitution by the defendant have been notified of the
change in circumstances. Upon receipt of the notification, the court
may, on its own motion, or the motion of any party, including the
victim, adjust the payment schedule, or require immediate payment
in full, as the interests of justice require.
Id. § 3664(k) (emphasis added).
In summary, the MVRA requires the district court to: (a) order the full
amount of restitution; (b) establish an initial payment schedule that takes into
consideration the defendant’s financial situation; and (c) respond to any change
9
 Case: 14-10725 Document: 00513428215 Page: 10 Date Filed: 03/17/2016

No. 14-10725
in the defendant’s economic condition by adjusting the schedule. All of this has
the goal of making “full payment” in the shortest time possible.
Thus, a court at the time of sentencing will establish a payment schedule
that takes into account a defendant’s ability to pay. Likely, if the total
restitution is a substantial amount, the schedule will not result in payment of
the entire amount. In that circumstance, one proper issue for the court
throughout the term of the sentence is whether the defendant can pay more.
Under Section 3664(k), defendants must notify the court of material changes
in their financial situation, an obligation that “accounts both for windfalls and
for tighter times.” United States v. Cheal, 389 F.3d 35, 53 (1st Cir. 2004).
All this means that the deficiency resulting from a defendant’s
satisfaction of a relatively modest payment schedule may in proper
circumstances be reduced by increasing the payment amounts during the
period of supervision. Here, the district court provided that the deficiency
must be satisfied in full by a final lump-sum payment before supervision ends.
Even if it is unlikely a defendant will be able to pay a large balance, it is not
plain error for a court, in a sentencing order, to leave open the possibility that
it might require an additional payment near the end of supervised release if
unexpected funds are suddenly available. The MVRA explicitly provides that
if an individual becomes entitled to “substantial resources from any source,
including inheritance, settlement, or other judgment, during a period of
incarceration,” the court may require that those amounts be used to pay
restitution. 18 U.S.C. § 3664(n). Making full payment of restitution a
condition of supervised release is consistent with the statutory right to draw
on unanticipated resources to pay restitution. We consider the balloon
payment to be a placeholder, or a way in which a final accounting may be done,
a means by which payment of the largest amount of restitution possible can be
made a condition of supervised release.
10
 Case: 14-10725 Document: 00513428215 Page: 11 Date Filed: 03/17/2016

No. 14-10725
Another way to have described that final payment in the sentencing
order would be to order a final payment of the maximum amount of restitution
consistent with a defendant’s economic circumstances at the time that
supervised release is scheduled to end, capped by the total restitution owed.
That would maintain the possibility of revoking supervised release for failure
to pay. The exact amount of that final payment is unknowable at the time of
sentencing. We consider what the district court did here as accomplishing the
same result in a manner in which there is no clear or obvious error.
In holding that it is not plain error to require full payment of restitution
as a final condition of supervised release, we rely on the point that enforcing
the obligation requires proof of an ability to pay. A district court may not
revoke supervised release simply because the person does not make the final
balloon payment. Instead, the court must first determine whether there was
a willful refusal to pay. See United States v. Payan, 992 F.2d 1387, 1396 (5th
Cir. 1993). 2 If the district court determines Scales has willfully refused to pay
any amount, either the $100 per month or some portion of the final obligation,

2 We have held that that when reviewing for plain error, the possibility of modification
of a term of supervised release is irrelevant to the first three steps of the analysis but may
apply as to the final step regarding the exercise of our discretion to correct an error. United
States v. Prieto, 801 F.3d 547, 554 (5th Cir. 2015). We are not conducting a fourth-step
analysis here. Such cases as Prieto focus on the immediate effects on a defendant of a term
of supervision, an appellate focus that should not be postponed because of the possibility of
later modification. As we recently said, quoting another circuit, the right of “a future court
to modify a sweeping ban on computer or internet use does not immunize the ban from an
inquiry that evaluates the justification for the ban in the first instance. Otherwise, in the
guise of delegation to a future decision-maker, sentencing courts could abdicate their
responsibility to assess the compatibility of supervised release conditions with the goals of
sentencing.” United States v. Duke, 788 F.3d 392, 401 (5th Cir. 2015) (quoting United States
v. Ramos, 763 F.3d 45, 61 (1st Cir. 2014)). Unlike the challenged conditions in Prieto and
Duke, Scales’s end-of-supervision balloon payment is not an immediate and ongoing
obligation whose review should not be postponed. As we have already discussed, the balloon
obligation is not plainly erroneous because the MVRA requires restitution to be ordered in
full, 18 U.S.C. § 3664(f)(1)(A), and any payment schedule “shall be the shortest time in which
full payment can reasonably be made,” id. § 3572(d)(2). The balloon payment maintains the
possibility that a larger amount can be paid ere the end of supervised release.
11
 Case: 14-10725 Document: 00513428215 Page: 12 Date Filed: 03/17/2016

No. 14-10725
or if the court uses Section 3664(k) to increase the monthly payment due to the
defendant’s changed economic circumstances, it would seem that a new appeal
could be taken. While a single dispositive appeal is the norm as to a
defendant’s sentence, the district court’s continuing enforcement of the
restitution obligation might necessitate subsequent appeals.
We find support for this analysis in Payan. The defendant challenged
his sentence that required restitution payments as a condition of supervised
release, arguing his inability to pay might keep him imprisoned indefinitely.
Id. at 1395. We rejected the argument, explaining “even if such future
collection efforts by the government should prove fruitless, Payan’s supervised
release still would not be revoked automatically.” Id. at 1395–96. We relied
on a Supreme Court decision that required a court to “inquire into the reasons
for the failure to pay” before revoking probation. Id. at 1396 (citing Bearden v.
Georgia, 461 U.S. 660 (1983)). We also explained, according to the Sentencing
Guidelines’ policy statements on revocation proceedings, that a district court
judge need not revoke supervised release after a defendant fails to pay
restitution. Id. at 1396–97 (citing U.S.S.G. § 7B1.3(a)).
Finally, we noted the Government has other enforcement mechanisms
for failure to pay restitution, aside from revocation proceedings. Payan, 992
F.2d at 1397–98. Nonetheless, though revocation is not the only tool available
to enforce an order of restitution, it is an especially potent option. Thus, the
payment schedule here, requiring modest monthly payments and a final
balloon obligation, furthers the MVRA’s goal of full payment in the shortest
time possible without violating a defendant’s right not to be incarcerated for
being unable to pay restitution.
We restate our conclusions. The district court set a payment schedule
that allows Scales to meet his periodic restitution obligations. There is one
final and large balloon obligation. If Scales shows he cannot pay the balance
12
 Case: 14-10725 Document: 00513428215 Page: 13 Date Filed: 03/17/2016

No. 14-10725
at the end of his term of supervision, further orders from the district court can
be entered, but his supervised release cannot be revoked automatically.
Whatever is ultimately ordered by the district court, an appeal can be taken at
that time to contest any of those new rulings. As to the restitution order and
payment schedule now before us, Scales has no viable claim of plain error.
AFFIRMED.

13
 Case: 14-10725 Document: 00513428215 Page: 14 Date Filed: 03/17/2016

No. 14-10725
JENNIFER WALKER ELROD, Circuit Judge, concurring in the judgment
only:
I write separately to express my view that United States v. Calbat, 266
F.3d 358 (5th Cir. 2001), governs this case and establishes that the district
court plainly erred by imposing a restitution obligation on Scales which he
could not reasonably be expected to pay and of which non-payment subjects
him to the threat of incarceration. Because Scales has not briefed the fourth
prong of plain error review, I concur in the decision to affirm the district court’s
order.
The majority opinion correctly concludes that United States v. Miller, 406
F.3d 323 (5th Cir. 2005), “controls to the extent of its holding, which is that a
district court does not plainly err by ordering restitution be payable
immediately if it then also provides a realistic payment schedule.” However,
because Miller “did not address whether a restitution order that required the
balance be paid in one final balloon obligation before the end of supervised
release affected whether the schedule was ‘realistic,’” the majority opinion
properly looks to Calbat for the validity of that final obligation.
In Calbat, the district court ordered Calbat to pay $250,000 in
restitution, to begin sixty days after the date of his confinement, with no more
than twenty percent of the funds in his inmate trust fund to be withheld for
that purpose. 266 F.3d at 365. Calbat was ordered to pay the balance due
upon his release in equal monthly installments during his three-year term of
supervised release. Id. We vacated this restitution order because we held that
the payment schedule was unrealistic:
According to the PSR, at the time of the offense, Calbat was
employed as a purchasing manager and earned approximately
$39,000 a year. His only assets were a 1995 Pontiac Grand Prix
valued at $4800 and his § 401K account, which was valued at
$2800. Calbat’s debts amount to approximately $1,200. Under the

14
 Case: 14-10725 Document: 00513428215 Page: 15 Date Filed: 03/17/2016

No. 14-10725
payment schedule imposed by the district court, the average yearly
payment required of him, over $41,000, is greater than his yearly
income at the time of the offense. The district court noted at
sentencing that “I frankly do not anticipate that he would ever be
able to pay the full $250,000.” Absent a large windfall, Calbat will
not be able to pay the full amount of restitution within the time
ordered by the district court. This unrealistic payment schedule is
particularly troubling in light of the fact that payment of
restitution is one of the conditions of Calbat’s supervised release.
Calbat could thus be sent back to prison for failure to make
restitution payments in a timely manner. Under these
circumstances, we conclude that the district court abused its
discretion in setting the payment schedule for the restitution
order.
Id. at 366.
Applying Calbat’s methodology—spreading Scales’s total restitution of
$29,427.27 over his sixty months of imprisonment and thirty-six months of
supervised release—results in monthly payments of about $306. These
payments would be unrealistic. Scales’s presentence report (PSR) notes that
he suffers from severe mental and emotional health issues, which, together
with his prior incarcerations, have limited his ability to maintain employment.
Before his arrest, Scales had no earned income and received only $699 in
monthly SSI benefits, which was subject to garnishment for child support
payments. Scales has no assets, multiple delinquent loans, and outstanding
child support obligations. Based on these facts, the PSR concluded that Scales
did not have the financial resources to make any restitution payments. Thus,
just as in Calbat, it is unrealistic to expect Scales to be able to pay his
restitution in the time allotted. 1

1 Although the Calbat panel did not do so, the majority opinion also calculates the
annual payments Calbat would have owed if the restitution were spread over only the three
years of supervised release, on the assumption that payments during incarceration would be
negligible. Applying the same calculation to Scales produces average payments of
15
 Case: 14-10725 Document: 00513428215 Page: 16 Date Filed: 03/17/2016

No. 14-10725
Of course, as the majority opinion notes, Scales was not ordered to pay
off his restitution in equal installments as in Calbat. Instead, Scales is
required to pay $100 per month with the remainder as a balloon payment at
the end of his term of supervised release. This difference is immaterial,
however, because Scales is no more likely to be able to pay $29,000 in
restitution at the end of his thirty-six months of supervised release than he is
to be able to spread those payments over the thirty-six months. Calbat’s
reasoning and holding could just as well have been written about Scales:
Absent a large windfall, [Scales] will not be able to pay the full
amount of restitution within the time ordered by the district court.
This unrealistic payment schedule is particularly troubling in light
of the fact that payment of restitution is one of the conditions of
[Scales’s] supervised release. [Scales] could thus be sent back to
prison for failure to make restitution payments in a timely
manner. Under these circumstances, we conclude that the district
court abused its discretion in setting the payment schedule for the
restitution order.
Id. Given the direct applicability of Calbat’s holding, I would hold that the
district court here likewise erred in setting an unrealistic payment schedule
for Scales as a condition of supervised release, such that non-payment could
result in his re-imprisonment, and that the error was plain.
The majority opinion, however, declines to apply Calbat’s method of
calculation and instead adopts a novel approach, evaluating the restitution
payment schedule as if the district court had only ordered the periodic
payments without the lump sum at the end. Although the district court’s
judgment orders that “[a]ny unpaid balance of the restitution ordered by this
judgment shall be paid in full 60 days prior to the termination of the term of
supervised release,” the majority opinion “consider[s] the balloon payment to

approximately $817 per month, which, as in Calbat, exceeds Scales’s pre-incarceration
income.
16
 Case: 14-10725 Document: 00513428215 Page: 17 Date Filed: 03/17/2016

No. 14-10725
be a placeholder, or a way in which a final accounting may be done, a means
by which payment of the largest amount of restitution possible can be made a
condition of supervised release” by “leav[ing] open the possibility that [the
district court] might require an additional payment near the end of supervised
release.” The majority opinion concludes that the $100 monthly payments are
reasonable in isolation, and that imposition of the balloon payment was not
plain error because Scales’s failure to pay it will not result in automatic
imprisonment. The majority opinion states that if Scales cannot pay the
balloon payment at the end of his term of supervision, “further orders from the
district court can be entered,” and “[w]hatever is ultimately ordered by the
district court, an appeal can be taken at that time to contest any of those new
rulings.”
The majority opinion’s approach is contrary to our precedent, including
the cases on which the majority opinion relies. In those cases, we have
consistently evaluated the reasonableness of the payment schedule as a whole,
not the reasonableness of each required payment. See Calbat, 266 F.3d at 366
(“Absent a large windfall, Calbat will not be able to pay the full amount of
restitution within the time ordered by the district court. This unrealistic
payment schedule is particularly troubling in light of the fact that payment of
restitution is one of the conditions of Calbat’s supervised release. . . . Under
these circumstances, we conclude that the district court abused its discretion
in setting the payment schedule for the restitution order.”) (emphasis added);
Miller, 406 F.3d at 328 (“In determining the manner and schedule with respect
to which restitution will be paid, . . . a court must consider . . . the defendant’s
financial resources.”) (emphasis added).
In the face of this uniform precedent, the majority opinion does not cite
to any case in which we have avoided addressing the reasonableness of the
restitution payment schedule as a whole by determining that some of the
17
 Case: 14-10725 Document: 00513428215 Page: 18 Date Filed: 03/17/2016

No. 14-10725
required payments are realistic and that any unrealistic payments need not
yet be addressed. This approach is not only novel; it also violates our
longstanding policy against piecemeal appeals by preventing Scales from
challenging the requirement that he make a patently unreasonable balloon
payment at the time the condition is imposed and instead suggesting that he
can separately appeal a future order enforcing this condition. See, e.g.,
Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 24 (1966)
(“Unlike some state procedures, federal law expresses the policy against
piecemeal appeals.”). The majority opinion attempts to pragmatically reconcile
the Mandatory Victims Restitution Act’s requirements that the full amount of
restitution be ordered and that the payment schedule be reasonable in light of
the defendant’s ability to pay, but by encouraging multiple appeals, the
resulting approach is far from practical. Indeed, the long-established principle
behind the policy against piecemeal appeals is the impracticality and
inefficiency of bringing separate challenges that could otherwise be brought
together. See Forgay v. Conrad, 47 U.S. 201, 205 (1848) (“In limiting the right
of appeal to final decrees, it was obviously the object of the law to save the
unnecessary expense and delay of repeated appeals in the same suit; and to
have the whole case and every matter in controversy in it decided in a single
appeal.”). The majority opinion sets no limit on the application of its approach
so as to prevent every required payment from providing the basis of an appeal,
but even where it results in only two appeals, the majority opinion’s approach
unnecessarily increases the demands on judicial resources.
Moreover, as the majority opinion acknowledges, our precedent dictates
that the possibility of future modification of a supervised release condition has
no bearing at all on prongs one through three of plain error review and is only
a factor under prong four. United States v. Prieto, 801 F.3d 547, 554 (5th Cir.
2015) (“While the modifiable nature of supervised-release conditions does not
18
 Case: 14-10725 Document: 00513428215 Page: 19 Date Filed: 03/17/2016

No. 14-10725
insulate them from third-prong scrutiny, it weighs heavily in our consideration
of the fourth prong.”); see also United States v. Caravayo, 809 F.3d 269, 275 n.4
(5th Cir. 2015) (“[T]he possibility of future judicial modification has no bearing
on whether the district court abused its discretion today.”). The majority
opinion nevertheless disregards this precedent, concluding that cases like
Prieto “focus on the immediate and questionable effects on a defendant of a
term of supervision,” whereas the majority opinion describes the balloon
payment as “maintain[ing] the possibility that a larger amount can be paid ere
the end of supervised release.”
This is a false distinction. The balloon payment does far more than
“leave open the possibility that [the district court] might require an additional
payment near the end of supervised release,” as the majority opinion
characterizes it. The conditions imposed on Scales presently require him to
pay off the balance of his restitution sixty days before the end of his term of
supervised release. This requirement is already imposed in a binding court
order, and is not a future “possibility.” The majority appears to suggest that
Scales may disregard this requirement and trust that the district court will
decide not to re-imprison him for the violation after inquiring into the reasons
for his failure, as required in United States v. Payan, 992 F.2d 1387, 1396 (5th
Cir. 1993). But see id. (explaining that if the district court determines that the
defendant “made all reasonable efforts to pay the fine or restitution but was
still unable to do so through no fault of his own, the court must consider
alternative means of punishment in lieu of more imprisonment” but
imprisonment is still permitted “if alternative measures are not adequate to
protect the government’s interest in punishment and deterrence”); Calbat, 266
F.3d at 366 (vacating unrealistic payment schedule based on possibility of
future revocation of supervised release for non-payment). The majority opinion
cites no authority suggesting that an unlawful condition of supervised release
19
 Case: 14-10725 Document: 00513428215 Page: 20 Date Filed: 03/17/2016

No. 14-10725
does not affect a defendant if the district court is unlikely to punish a violation
of the condition. Nor does such a rule, which invites defendants to violate their
supervised release conditions if punishment is unlikely, promote respect for
the courts and the rule of law.
In sum, the restitution schedule ordered in this case is patently
unrealistic. Indeed, the majority opinion does not suggest that Scales will be
able to comply with the required payment schedule. Noncompliance subjects
Scales to the threat of re-imprisonment. Under Calbat, therefore, the district
court erred by imposing the unrealistic payment schedule as a condition of
supervised release, and the error was plain. The majority opinion avoids this
conclusion only by creating a novel approach that is at odds with our precedent.
I therefore do not join the majority opinion’s analysis of prongs one and two of
plain error review. 2
Nevertheless, I concur in the judgment because Scales has not briefed
the fourth prong of plain error review. See, e.g., United States v. Rivera, 784
F.3d 1012, 1019 (5th Cir.) (“We have . . . refused to correct plain errors when,
as here, the complaining party makes no showing as to the fourth prong.”),
reh’g denied, 797 F.3d 307 (5th Cir. 2015). Accordingly, I concur in the
judgment only.

2The majority does not reach prong three of plain error review. Under our precedent,
Scales has established that the district court’s error affects his substantial rights. See Prieto,
801 F.3d at 554 (noting that “the modifiable nature of supervised-release conditions does not
insulate them from third-prong scrutiny”); Calbat, 266 F.3d at 366 (vacating sentence where
Calbat “could” be sent back to prison if he did not make his required restitution payments).
20