United States v. Beverly, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 13, 2006
No. 05-14067
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-00211-CR-F-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH E. BEVERLY, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Alabama
_________________________

(March 13, 2006)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Appellant Kenneth E. Beverly, Jr., appeals the district court’s restitution

order requiring monthly payments of $500 and holding him jointly and severally
liable for $18,000 in losses. Pursuant to a negotiated plea, Beverly pled guilty to

one count of aiding and abetting in the theft of government property, in violation of

18 U.S.C. §§ 641 and 2. Based upon the uncontested facts as contained in the

Presentence Investigation Report (“PSI”), Beverly, with his codefendant Walter

Alexander, stole approximately $2,000 worth of electronics equipment per week

from Maxwell Air Force Base Exchange. Beverly participated in the scheme for

approximately 9 weeks, while Alexander participated for 15 weeks.

On appeal, Beverly argues that the district court erred by failing to consider

his economic and family situation, as required by the Mandatory Victims

Restitution Act (“MVRA”). Specifically, Beverly contends that the district court

should have considered his income and his financial obligations to his family, in

determining the restitution payment schedule. Beverly asserts that the district court

ordered him to pay $500 a month despite his negative net income. Beverly states

that even without the $570 per month payments on his Chevrolet Tahoe, which the

PSI recommended that he sell, he has a negative net monthly income.

We review the legality of a restitution order de novo and the factual findings

underlying a restitution order for clear error. United States v. Hasson, 333 F.3d

1264, 1275 (11th Cir. 2003).

The MVRA states that “when sentencing a defendant convicted of [certain

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property offenses], the court shall order . . . that the defendant make restitution

to the victim of the offense.” 18 U.S.C. § 3663A(a)(1). In crafting the restitution

payment schedule, the district court must consider (1) the financial resources and

other assets of the defendant, (2) the projected earnings and other income of the

defendant, and (3) any financial obligations of the defendant, including obligations

to dependents. 18 U.S.C. § 3664(f)(2)(A)-(C). “The burden of demonstrating the

financial resources of the defendant and the financial needs of the defendant’s

dependents, shall be on the defendant.” 18 U.S.C. § 3664(e).

Because there is evidence in the record supporting the district court’s order,

and because Beverly failed to present evidence of his inability to pay the ordered

amount, we conclude that the district court adequately considered Beverly’s

financial situation.

Next, Beverly argues that he was less culpable for the offense than

Alexander, as he only provided the boxes in which the stolen items were hidden

and was involved in the scheme for a shorter period of time. He states that he was

ordered to pay $18,000 in restitution jointly and severally with Alexander at a rate

of $500 a month, while Alexander was only required to pay $200 a month. He

contends that the district court should have structured the repayment schedules to

reflect his lesser degree of culpability.

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Again, we review the legality of a restitution order de novo and the factual

findings underlying a restitution order for clear error. Hasson, 333 F.3d at 1275.

“If the court finds that more than 1 defendant has contributed to the loss of a

victim, the court may make each defendant liable for payment of the full amount of

restitution or may apportion liability among the defendants to reflect the level of

contribution to the victim’s loss and economic circumstances of each defendant.”

18 U.S.C. § 3664(h).

Because the district court had the discretion to apportion liability among

codefendants, and did so by holding Beverly jointly and severally liable for

$18,000 while holding Alexander jointly and severally liable for the total $30,000

of loss, we conclude that the district court did not err in imposing its restitution

order.

For the above-stated reasons, we affirm the district court’s restitution order.

AFFIRMED.