[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-14191 ELEVENTH CIRCUIT
Non-Argument Calendar June 27, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 01-00239-CR-J-99-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARREN LAMONT KEYS,
a.k.a. Roderick Bremby, etc.,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(June 27, 2005)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Darren Lamont Keys appeals the district court’s denial of his two motions
for adjustment of his restitution payment schedule.1 The district court did not
abuse its discretion, and we affirm.
A defendant who (1) fails to challenge the district court's calculation of
restitution, either at his sentencing hearing or on direct appeal, and (2) fails to
demonstrate the existence of exceptional circumstances that would excuse such
failure, waives his right to object to the initial restitution calculation. Cani v.
United States, 331 F.3d 1210, 1213–14 (11th Cir. 2003). Even if a defendant
waives his right to object to the initial restitution calculation, however, a district
court can modify a restitution order to reflect “a bona fide change in the
defendant's financial condition, either positive or negative.” Id. at 1215, citing 18
U.S.C. § 3664(k).
Keys failed to challenge the district court’s restitution calculation either at
his sentencing hearing or on direct appeal, and has failed to demonstrate the
existence of exceptional circumstances that would excuse such failure.
Consequently, he has waived his right to object to the initial restitution
calculation. See id. at 1213–14. Furthermore, Keys has failed to demonstrate that
1
Keys also asserts the district court’s jury instructions were erroneous and that the district
court’s construction of 18 U.S.C. § 371 “violated the principles of Due Process and ex post facto
clauses. These arguments are not properly before this Court, as neither of these issues were raised
in Keys’ motions below. See United States v. Kent, 175 F.3d 870, 871 n.1 (11th Cir. 1999).
2
his economic circumstances have changed in any way since the imposition of his
sentence, thereby justifying a modification to the restitution order. Accordingly,
Keys’ “present financial status is no different from that contemplated by the
district court when it imposed the restitution order.” See id. at 1216. The district
court did not err in denying his motions.
AFFIRMED.
3