[DO NOT PUBLISH]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.
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