PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-4474
GEORGE LAMONT MOORE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Martin K. Reidinger, District Judge.
(3:09-cr-00018-MR-1)
Argued: October 28, 2011
Decided: January 25, 2012
Before TRAXLER, Chief Judge, and MOTZ and AGEE,
Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Agee wrote the opinion, in which Chief Judge
Traxler and Judge Motz joined.
2 UNITED STATES v. MOORE
COUNSEL
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Car-
olina, for Appellee. ON BRIEF: Claire J. Rauscher, Execu-
tive Director, Peter S. Adolf, Assistant Federal Defender,
FEDERAL DEFENDERS OF WESTERN NORTH CARO-
LINA, INC., Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Charlotte, North Caro-
lina, for Appellee.
OPINION
AGEE, Circuit Judge:
Police officers searched convicted felon George Lamont
Moore incident to an arrest and found a nine-millimeter hand-
gun. After being indicted as a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1), Moore moved to dis-
miss on the grounds that the statute violated his Second
Amendment rights. The district court denied the motion and
Moore entered a conditional guilty plea reserving the right to
raise the Second Amendment defense on appeal. As part of
Moore’s sentence on the § 922(g)(1) conviction, the district
court ordered that he repay the incurred court-appointed attor-
neys’ fees pursuant to 18 U.S.C. § 3006A(f). For the reasons
stated herein, we affirm the district court’s denial of the
motion to dismiss, but vacate the attorneys’ fees order and
remand for resentencing in part.
UNITED STATES v. MOORE 3
I.
Factual and Procedural Background
Prior to Moore’s arrest in this case, he had prior felony con-
victions for selling or delivering cocaine, three common law
robberies, and two assaults with a deadly weapon on a gov-
ernment official.1 In the case at bar, Charlotte, North Carolina
police arrested Moore on the street based on an outstanding
warrant for assault with a deadly weapon. While searching
Moore incident to this arrest, the officers found a nine-
millimeter handgun and ammunition. Moore told the police
after his arrest that he carried "the gun because of his fear of
being robbed, such robberies being prevalent in the neighbor-
hood in which he lived." J.A. 17.2 He was then charged as a
felon in possession of a firearm under 18 U.S.C. § 922(g)(1),
and as an armed career criminal under the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e).3
1
Moore’s criminal record is extensive, resulting in a total of 19 criminal
history points as reflected in his Presentence Investigation Report. In addi-
tion to his felony convictions, he has numerous additional non-felony con-
victions as an adult including assault, assault and battery, assault on a
government official, second-degree trespass, carrying a concealed gun,
and various drug and driving-related offenses. In total, he has been con-
victed of more than twenty offenses and arrested more than twenty other
times for charges that did not lead to convictions, generally because they
were dismissed.
2
Although the government does not point to any evidence contradicting
Moore’s claim that he carried the gun to protect himself, it contends on
brief that there is "no competent evidence in the record" to support the
assertion, other than Moore’s own statement to the police at the time of
his arrest. Br. of Appellee at 12 n.2.
3
In pertinent part, 18 U.S.C. § 922(g)(1) provides: "It shall be unlawful
for any person who has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year . . . to ship or transport
in interstate or foreign commerce, or possess in or affecting commerce,
any firearm or ammunition . . . ." We use the term felon in possession of
a firearm as a shorthand designation of a person in violation of
§ 922(g)(1).
4 UNITED STATES v. MOORE
Moore filed a motion to dismiss on various constitutional
grounds, which the district court denied. At that point, Moore
entered a conditional guilty plea, preserving for appeal the
issue of whether § 922(g)(1) violates the Second Amendment
in light of the Supreme Court’s ruling in District of Columbia
v. Heller, 554 U.S. 570 (2008).
The district court sentenced Moore under the ACCA to the
statutory minimum, fifteen years’ imprisonment, to be fol-
lowed by three years of supervised release. Although the court
found that Moore was indigent and qualified for a court-
appointed attorney under 18 U.S.C. § 3006A and that he
could not pay a fine or interest, it nonetheless ordered Moore
to reimburse the United States for the court-appointed attor-
neys’ fees at a rate of $50 per month beginning sixty days
after his release from prison. The district court adopted the
probation office’s recommendation that, because Moore has a
GED and some trade skills, he would be able to pay the $50
per month after his release. Moore objected to the fee reim-
bursement order.
On appeal, Moore assigns error both to imposition of the
attorneys’ fee reimbursement and the underlying § 922(g)(1)
conviction. We have jurisdiction of this appeal pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
Second Amendment Claim
A.
We first consider, de novo, whether Moore’s conviction
under § 922(g)(1) violates the Second Amendment.4 See
United States v. Bostic, 168 F.3d 718, 721 (4th Cir. 1999).
4
"A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed." U.S. Const., amend. II.
UNITED STATES v. MOORE 5
Moore argues that the Supreme Court held in Heller that
the Second Amendment guarantees an individual the right to
bear arms in self-defense irrespective of his status as a con-
victed felon. Moore contends that § 922(g)(1) is unconstitu-
tional on its face because it infringes on the basic right of self-
defense.5 As applied to him, Moore also argues that the statute
is unconstitutional and that his "prior convictions should not
be deemed to disqualify him from exercising his Second
Amendment right to protect himself." Br. of Appellant at 12.
Alternatively, Moore asks for remand to the district court to
develop an evidentiary record, arguing that procedure is
required by this court’s decision in United States v. Chester,
628 F.3d 673 (4th Cir. 2010).
In response, the government contends that the Second
Amendment right to bear arms, like all other constitutional
rights, is not absolute. Emphasizing the violent nature of
Moore’s criminal record, the government points to language
in Heller characterizing felon dispossession laws as presump-
tively lawful. See Heller, 554 U.S. at 626-27 & n.26 (identify-
ing the "longstanding prohibition[ ] on the possession of
firearms by felons" as a "presumptively lawful regulatory
measure[ ]"). Based on this language, the government posits
that Moore’s challenges to § 922(g)(1), as facially invalid,
fail. As to Moore’s as-applied challenge, the government
argues that if the Congress has sufficient interest in prohibit-
ing any person from possessing a firearm, it is a person like
Moore, a violent felon.
B.
We begin our analysis by noting the unanimous result
5
Although Moore’s brief is not entirely clear as to whether he is assert-
ing a facial challenge to the validity of § 922(g)(1), in addition to his as-
applied challenge, we conclude that the arguments in his brief are suffi-
ciently broad to constitute a facial challenge, and so we address both argu-
ments.
6 UNITED STATES v. MOORE
reached by every court of appeals that § 922(g)(1) is constitu-
tional, both on its face and as applied. The basis for the vari-
ous decisions by our sister circuits has varied, but all have
uniformly rejected challenges to § 922(g)(1), usually based at
least in part on the "presumptively lawful" language from
Heller. See, e.g., United States v. Torres-Rosario, 658 F.3d
110, 113 & n.1 (1st Cir. 2011) (rejecting both facial and as-
applied challenges to § 922(g)(1) based on Heller and noting
that "[a]ll of the circuits to face the issue post Heller have
rejected blanket challenges to felon in possession laws" and
citing cases from the Second, Third, Fifth, Sixth, Seventh,
Eighth, Ninth, Tenth and Eleventh Circuits); United States v.
Barton, 633 F.3d 168, 170–75 (3d Cir. 2011) (rejecting Sec-
ond Amendment challenge to § 922(g)(1) because of "pre-
sumptively lawful" language); United States v. Rozier, 598
F.3d 768, 770–71 (11th Cir.), cert. denied, 130 S. Ct. 3399
(2010) (same); United States v. Williams, 616 F.3d 685,
691–94 (7th Cir.), cert. denied, 131 S. Ct. 805 (2010) (reject-
ing facial Second Amendment challenge to § 922(g)(1) based
on presumptively lawful regulations, and utilizing the inter-
mediate scrutiny framework to address the defendant’s as-
applied challenge "without determining that it would be the
precise test applicable to all challenges to gun restrictions");
United States v. Vongxay, 594 F.3d 1111, 1114–15 (9th Cir.),
cert. denied, 131 S. Ct. 294 (2010) (relying on Heller to con-
clude that "felons are categorically different from the individ-
uals who have a fundamental right to bear arms"); United
States v. Khami, 362 F. App’x. 501, 507-08 (6th Cir.), cert.
denied, 130 S. Ct. 3345 (2010) (agreeing with other circuits
that Heller’s language "is sufficient to dispose of the claim
that § 922(g)(1) is unconstitutional"); United States v.
McCane, 573 F.3d 1037, 1047 (10th Cir. 2009), cert. denied,
130 S. Ct. 1686 (2010) (flatly rejecting Second Amendment
challenge to § 922(g)(1) based on Heller); United States v.
Anderson, 559 F.3d 348, 352 n.6 (5th Cir.), cert. denied, 129
S. Ct. 2814 (2009) (same); United States v. Stuckey, 317 F.
App’x. 48, 50 (2d Cir. 2009) (same); see also United States
v. Joos, 638 F.3d 581, 586 (8th Cir. 2011) (rejecting a facial
UNITED STATES v. MOORE 7
challenge to § 922(g)(1) and citing to a prior Eighth Circuit
decision, which relied on Heller to reject a facial challenge to
§ 922(g)(3)). Apparently we are one of the few circuits yet to
publish an opinion on this issue. We now join with our sister
courts and hold § 922(g)(1) to be a constitutionally valid stat-
ute.
Since the Supreme Court’s decision in Heller, we have
come to address claims of the constitutional invalidity of a
firearms possession statute under the framework set out in
Chester. See United States v. Staten, ___ F.3d ___, 2011 WL
6016976 (4th Cir. Dec. 5, 2011) (§ 922(g)(9)); United States
v. Chapman, ___ F.3d ___, 2012 WL 11235 (4th Cir. Jan. 4,
2011) (§ 922(g)(8)). These cases, unlike the case at bar, chal-
lenged statutory restrictions on domestic violence misdemean-
ants (Chester and Staten), and certain persons subject to
domestic violence protective orders (Chapman) which the
Supreme Court did not specifically identify as presumptively
lawful regulatory measures in Heller. Our analysis in those
cases thus had no reason to denote any specific difference in
analysis between firearms restrictions which were specifically
mentioned in Heller as presumptively lawful regulatory mea-
sures and those that were not.
As we noted in Chester, the Supreme Court explicitly
stated in Heller that "nothing in our opinion should be taken
to cast doubt on longstanding prohibitions on the possession
of firearms by felons. . . ." 628 F.3d at 679 (citing Heller,
[554 U.S. at 626])). The Supreme Court further identified
such felon in possession laws, like § 922(g)(1), as "presump-
tively lawful regulatory measures." Heller, 554 U.S. at 626-
27, n.26. We believe this differentiation by the Supreme Court
has some impact on the Second Amendment Chester analysis
when the regulatory measure at issue is such an identified pre-
sumptively lawful regulatory measure. In effect, the Chester
analysis is more streamlined when a presumptively lawful
regulatory measure is under review.
8 UNITED STATES v. MOORE
To the extent that Moore, or any similarly situated defen-
dant, raises a facial challenge to the validity of § 922(g)(1),
the clear declaration in Heller that such felon in possession
laws are a presumptively lawful regulatory measure resolves
that challenge fairly quickly. As we noted in Chester:
It is unclear to us whether Heller was suggesting that
"longstanding prohibitions" such as these [firearm
possession by felons] were historically understood to
be valid limitations on the right to bear arms or did
not violate the Second Amendment for some other
reason.
Id. at 679.6 We then referenced a similar conclusion by the
Third Circuit in United States v. Marzzarella, 614 F.3d 85, 91
(3d Cir. 2010):
6
We further observed in Chester that
it appears to us that the historical data is not conclusive on the
question of whether the founding era understanding was that the
Second Amendment did not apply to felons. See Williams, 616
F.3d at 692 (noting that "[t]he academic writing on the subject of
whether felons were excluded from firearm possession at the time
of the founding is inconclusive at best" (internal quotation marks
omitted)); [United States v. ]Skoien, 614 F.3d [638, 650-51 (7th
Cir. 2010) (en banc)] (Sykes, J., dissenting) ("[S]cholars disagree
about the extent to which felons-let alone misdemeanants-were
considered excluded from the right to bear arms during the
founding era. . . . We simply cannot say with any certainty that
persons convicted of a domestic-violence misdemeanor are
wholly excluded from the Second Amendment right as originally
understood."). United States v. McCane, 573 F.3d 1037, 1048
(10th Cir. 2009) (Tymkovich, J., concurring) ("[T]he felon dis-
possession dictum may lack the ‘longstanding’ historical basis
that Heller ascribes to it. Indeed, the scope of what Heller
describes as ‘longstanding prohibitions on the possession of fire-
arms by felons’ . . . is far from clear.").
628 F.3d at 680-81.
UNITED STATES v. MOORE 9
We recognize the phrase ‘presumptively lawful’
could have different meanings under newly enunci-
ated Second Amendment doctrine. On the one hand,
this language could be read to suggest the identified
restrictions are presumptively lawful because they
regulate conduct outside the scope of the Second
Amendment. On the other hand, it may suggest the
restrictions are presumptively lawful because they
pass muster under any standard of scrutiny.
Chester, 628 F.3d at 679.
Whichever meaning the Supreme Court had in mind
negates a facial challenge to a felon in possession statute like
§ 922(g)(1). If such restrictions were outside the scope of Sec-
ond Amendment coverage at ratification, then obviously it is
not within Second Amendment protection now. On the other
hand, if a § 922(g)(1)-type statute has some Second Amend-
ment coverage, the fact it is "presumptively lawful" indicates
it must "pass muster under any standard of scrutiny." Under
the well recognized standard for assessing a facial challenge
to the constitutionality of a statute, the Supreme Court has
long declared that a statute cannot be held unconstitutional if
it has constitutional application. Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 449 (2008) ("[A] facial
challenge must fail where the statute has a ‘plainly legitimate
sweep.’") (quoting Washington v. Glucksberg, 521 U.S. 702,
739-40 & n.7 (1997) (Stevens, J., concurring in judgments));
see also United States v. Salerno, 481 U.S. 739, 745 (1987)
("A facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which
the Act would be valid"). Since clearly there are cases where
felon firearm possession is constitutionally limited,
§ 922(g)(1) survives a facial challenge. See Wash. State
Grange, 552 U.S. at 449. Thus, we have no difficulty in con-
cluding that § 922(g)(1) is constitutionally valid on its face.
10 UNITED STATES v. MOORE
Determining that § 922(g)(1) is valid on its face, however,
does not resolve Moore’s as-applied challenge. As we recog-
nized in Chester, Heller seemed to leave this issue open. "In
fact, the phrase ‘presumptively lawful regulatory measures’
suggests the possibility that one or more of these ‘longstand-
ing’ regulations ‘could be unconstitutional in the face of an
as-applied challenge.’ United States v. Williams, 616 F.3d
685, 692 (7th Cir. 2010)." 628 F.3d at 679 (emphasis in Ches-
ter).
In asserting his as–applied challenge, of course, Moore can-
not "obtain relief based on arguments that a differently situ-
ated person might present," United States v. Skoien, 614 F.3d
638, 645 (7th Cir. 2010) (en banc), or based on "other situa-
tions not before the Court." Broadrick v. Oklahoma, 413 U.S.
601, 610 (1973). Moreover, the Supreme Court’s declaration
in Heller that felon in possession statutes are "presumptively
lawful regulatory measures" reinforces the fact that a litigant
claiming an otherwise constitutional enactment is invalid as
applied to him must show that his factual circumstances
remove his challenge from the realm of ordinary challenges.
Moore’s as-applied challenge relies heavily on his assertion
that he was carrying a firearm on the day he was arrested to
protect himself from being robbed in his sketchy neighbor-
hood. He contends that the conduct underlying his conviction
thus implicates the core right of the Second Amendment: the
right of a "law-abiding, responsible citizen to possess and
carry a weapon for self-defense." Chester, 628 F.3d at 683
(citing Heller, [554 U.S. at 635](emphasis in Chester)).
We cannot agree with Moore’s argument that, because he
was carrying the weapon for protection,7 his conduct was
7
We also need not to decide in this case whether the right of self-
defense outside the home, where Moore was arrested, is part of the "cen-
tral component" of the Second Amendment. See United States v. Mascian-
daro, 638 F.3d 458, 467 (4th Cir. 2011) (noting that "a considerable
degree of uncertainty remains as to the scope of that right beyond the
home"). The resolution of this discrete issue is unnecessary to the analysis
in this case for the reasons given herein.
UNITED STATES v. MOORE 11
therefore absolutely protected by the Second Amendment.
Moore simply does not fall within the category of citizens to
which the Heller court ascribed the Second Amendment pro-
tection of "the right of law-abiding responsible citizens to use
arms in defense of hearth and home." 554 U.S. at 635
(emphasis added). However the Supreme Court may come to
define a "law-abiding responsible citizen" for Second Amend-
ment purposes, Moore surely would not fall within that group.
Most notably, Moore’s three prior felony convictions for
common law robbery and two prior convictions for assault
with a deadly weapon on a government official clearly dem-
onstrate that he is far from a law-abiding, responsible citizen.
Cf. Chester, 628 F.3d at 683; see also supra note 1 (summa-
rizing Moore’s extensive criminal history).
Indeed, Moore acknowledges that his argument is
"weaken[ed]" by his "prior convictions, including several con-
victions for assaults and robberies." Br. of Appellant at 11.
Particularly in light of his extensive and violent criminal his-
tory, Moore’s conduct here is plainly outside the scope of the
Second Amendment. See, e.g., Torres-Rosario, 658 F.3d at
113 (rejecting an as-applied challenge to § 922(g)(1) by a
convicted felon with no violent felony convictions, and con-
cluding that his two prior serious drug convictions were suffi-
cient to support the ban against his possession of firearms,
especially in light of the established connection between drug
dealing and violence); Williams, 616 F.3d at 693 ("Williams,
as a violent felon, is not the ideal candidate to challenge the
constitutionality of § 922(g)(1)."); Barton, 633 F.3d at 175
("18 U.S.C. § 922(g)(1) is . . . constitutional as applied to Bar-
ton because he has presented no facts distinguishing his cir-
cumstances from those of other felons who are categorically
unprotected by the Second Amendment.") In short, Moore has
presented nothing to rebut the presumptive lawfulness of
§ 922(g)(1) as applied to him.
We do not foreclose the possibility that a case might exist
in which an as-applied Second Amendment challenge to
12 UNITED STATES v. MOORE
§ 922(g)(1) could succeed. But while we acknowledge such a
showing theoretically could be made, Moore is not remotely
close. As we just noted, Moore undoubtedly flunks the "law-
abiding responsible citizen" requirement. Moreover, Moore’s
proffered reason for possessing a firearm, "his fear of being
robbed, such robberies being prevalent in the neighborhood in
which he lived" is far too vague and unsubstantiated to
remove his case from the typical felon in possession case.
Accordingly, Moore has not rebutted the presumption that the
presumptively lawful regulatory measure of the long standing
prohibition on felon firearm possession is unconstitutional as
applied to him.
Therefore, we hold that § 922(g)(1) is constitutional as
applied to Moore and the district court did not err in denying
Moore’s motion to dismiss.
III.
Reimbursement of Attorneys’ Fees
A.
We next consider whether the district court erred in order-
ing Moore to repay his court-appointed attorneys’ fees under
18 U.S.C. § 3006A. The interpretation of a statute, like the
meaning of § 3006A(c) and (f) in the case at bar, is reviewed
de novo. United States v. Weaver, 659 F.3d 353, 356 (4th Cir.
2011) ("[An] issue of statutory interpretation is one that we
review de novo.") (citation omitted). In the context of sentenc-
ing, we review the district court’s legal determinations de
novo, and its factual findings for clear error. United States v.
Osborne, 514 F.3d 377, 387 (4th Cir. 2008). In reviewing the
district court’s application of the factual findings, as in the
reimbursement order here, we apply an abuse of discretion
standard. See, e.g., United States v. Holman, 532 F.3d 284,
288 (4th Cir. 2008) (conditions of supervised release are
reviewed for an abuse of discretion); cf. United States v. Left-
UNITED STATES v. MOORE 13
wich, 628 F.3d 665, 667 (4th Cir. 2010) (district court’s resti-
tution order is reviewed for abuse of discretion). In actual
practice, this division of standards of review is not always
easy to differentiate and is of limited practical import where
the district court commits an error as a matter of law.8 The
district court made such an error in this case which requires
the sentencing order, as it relates to the attorney fee reim-
bursement, be vacated and remanded.
B.
The Criminal Justice Act, 18 U.S.C. § 3006A ("CJA"),
requires the government to provide adequate legal representa-
tion for criminal defendants unable to pay for such services
when, like Moore, they are charged with a federal felony
offense. 18 U.S.C. § 3006A(a)(1)(A). There is no issue in this
case that Moore was, in fact, indigent and qualified for a court
appointed attorney under the CJA.
That statute also provides that "[i]f, at any time after the
appointment of counsel . . . the court finds that the person is
financially able to obtain counsel or to make partial payment
for the representation, it may . . . authorize payment as pro-
vided in subsection (f), as the interests of justice may dictate."
18 U.S.C. § 3006A(c). Subsection (f) further authorizes a
court to order repayment of attorneys’ fees under certain cir-
cumstances:
Whenever . . . the court finds that funds are available
for payment from or on behalf of a person furnished
representation, it may authorize or direct that such
8
See Koon v. United States, 518 U.S. 81, 100 (1996) ("Little turns, how-
ever, on whether we label review of this particular question abuse of dis-
cretion or de novo, for an abuse-of-discretion standard does not mean a
mistake of law is beyond appellate correction. A district court by defini-
tion abuses its discretion when it makes an error of law.") (internal cita-
tions omitted).
14 UNITED STATES v. MOORE
funds be paid to the appointed attorney . . . or to the
court for deposit in the Treasury as a reimbursement
to the appropriation, current at the time of payment,
to carry out the provisions of this section.
18 U.S.C. § 3006A(f).
Moore argues that the order requiring him to repay his
attorneys’ fees during his supervised release term is unlawful
because § 3006A(f) only allows a court to order reimburse-
ment when it determines the defendant has funds that are cur-
rently available for payment. He points to the use of the
present tense ("funds are available") in the statute’s language
to support that argument, as well as to out-of-circuit authority.
Because the district court’s order was based on a speculative
ability to pay in the future, Moore argues that the order vio-
lates § 3006(A)(f).
The government concedes that, in this circuit, there are no
published cases upholding a reimbursement order based on
future payments from assets not currently accessible. It relies
on two unpublished cases, however, which upheld such
forward-looking reimbursement orders. See United States v.
Jackson, 1998 WL 386109 (4th Cir. June 19, 1998) (unpub-
lished); United States v. Moore, 1998 WL 85296 (4th Cir.
Mar. 2, 1998) (unpublished). In neither of these cases was
there an explicit finding that funds were then available to the
defendant for a reimbursement payment. The government also
argues that forward-looking reimbursement orders are autho-
rized because the CJA generally vests significant discretion in
district courts for sentencing purposes. Thus, the government
concludes, the order here should not be overturned.
In analyzing the district court’s order, we start with the
plain language of the statute. Weaver, 659 F.3d at 356 ("The
starting point for any issue of statutory interpretation is the
language of the statute itself. It is well established that when
the statute’s language is plain, the sole function of the courts
UNITED STATES v. MOORE 15
. . . is to enforce it according to its terms.") (citations and quo-
tation marks omitted). In the case at bar, subsection (f) allows
the recovery of the cost of court-appointed attorneys’ fees if
"the court finds" that "funds are available for payment from
or on behalf of a person being furnished representation." 18
U.S.C. § 3006A(f). When read in conjunction with subsection
(c), then, which authorizes repayment under subsection (f)
after "the court finds that the person is financially able . . . to
make partial payment for the representation," the statute
clearly requires a finding of a defendant’s ability to make pay-
ments as a condition precedent to an order of reimbursement.
Any such finding must be based on evidence before the court,
and thus in the record, and not on speculation or hypothesis.
Given the statute’s plain language, then, we are compelled to
hold that the district court must base the reimbursement order
on a finding that there are specific funds, assets, or asset
streams (or the fixed right to those funds, assets or asset
streams) that are (1) identified by the court and (2) available
to the defendant for the repayment of the court-appointed
attorneys’ fees.
Our holding requiring a specific finding of ability to pay
and identification of the source of payment is in accord with
similar conclusions of our sister circuits. See, e.g., United
States v. Wilson, 597 F.3d 353, 358 (6th Cir. 2010) ("A thor-
ough inquiry into the defendant’s finances, though not a full
adversarial hearing, should precede" any order requiring a
repayment of attorneys’ fees); United States v. Danielson, 325
F.3d 1054, 1076-77 (9th Cir. 2003) (affirming order denying
reimbursement of fees where district court could not "make
any definitive finding as to [the defendant’s] ability to pay");
United States v. McGiffen, 267 F.3d 581, 589 (7th Cir. 2001)
("requir[ing] that a district court make appropriate findings of
availability[,]" such as "whether the contribution would
impose an extreme hardship on the defendant, whether it
would interfere with his obligations to his family, and whether
there were third parties with valid claims to the funds[,]" and
noting that "[o]ur sister circuits similarly require that there be
16 UNITED STATES v. MOORE
evidence that the district court made specific inquiries into the
defendant’s financial circumstances and obligations" before
requiring a defendant to repay funds pursuant to § 3006A(f));
United States v. Evans, 155 F.3d 245, 252 n.8 (3d Cir. 1998)
(before entering a reimbursement order, a district court has a
"responsibility to inquire into the defendant’s current financial
status"); United States v. Fraza, 106 F.3d 1050, 1056 (1st Cir.
1997) (reversing order of reimbursement where the district
court failed to make findings as to defendant’s "financial viabil-
ity").9
The Sixth Circuit’s decision in Wilson is a case in which
the district court made the required CJA findings. In Wilson,
the defendant was ordered to repay $52,305 in attorneys’ fees
after his acquittal, having received free representation
throughout his criminal proceedings, including a six-week
trial. 597 F.3d at 355-56. Although the defendant had received
free court-appointed representation, the court subsequently
learned that Wilson had significant assets at the time of trial.
The repayment was based on specific findings that, in the year
his trial began, for example, Wilson had income of approxi-
mately $134,000 and had spent over $18,000 in restaurant and
wine tabs. Id. He also was currently out of prison and earning
income. Id. at 357. In reviewing the order of reimbursement,
the Wilson court stated the general rule that "[a] thorough
9
As we previously noted, the government relies heavily on our prior
unpublished decisions in United States v. Jackson, 1998 WL 386109 (4th
Cir. June 19, 1998) (unpublished) and United States v. Moore, 1998 WL
85296 (4th Cir. Mar. 2, 1998) (unpublished). Both opinions held that "the
district court need not make an explicit finding on the record that the
defendant has the ability to pay." That conclusion, as indicated above, was
in error. To the extent those decisions are contrary to our holding herein,
those decisions have no precedential effect and are not binding on this
panel. Local Rule 32.1. Moreover, in both of those cases, the defendants
had agreed to make reimbursement in their plea agreements and appar-
ently did not object to the imposition of the reimbursement order at sen-
tencing. Jackson, 1998 WL 386109, at *4; Moore, 1998 WL 85296, at *1.
Further, in Moore, the defendant had already made partial payment of his
attorney’s fees.
UNITED STATES v. MOORE 17
inquiry into the defendant’s finances, though not a full adver-
sarial hearing, should precede an order of reimbursement." Id.
at 358. Because the district court had performed the requisite
inquiry, the Sixth Circuit affirmed the reimbursement order.
In contradistinction to the thorough inquiry conducted by
the district court in Wilson, the de minimis findings by the
district court regarding Moore’s financial capacity and ability
to pay are stark.10 Effectively, the district court made no find-
ings under § 3006A(c) that Moore "is financially able . . . to
make partial payment for the representation or under
§ 3006A(f) that "funds are available for payment." Instead,
the court simply adopted the probation officer’s standing $50
a month repayment plan.
The record, to the extent there is one, showed Moore had
virtually no income over a period of years and had no assets
or other things of value. The mere fact that he has a GED and
some work training (although no steady work history) does
not support a finding that "funds are available." Unlike the
income stream in Wilson, which was a readily identifiable
asset, the theoretical income stream here, years down the road
after completion of a fifteen-year sentence, was based purely
on speculation with no basis in fact.
10
In Wilson, the magistrate judge held a separate hearing solely on the
issue of the defendant’s finances and issued a 26-page report, which satis-
fied the requirement of a "thorough inquiry." 597 F.3d at 358. Our refer-
ence to Wilson, however should not be interpreted as an indication that
such an in-depth analysis is necessary or required by § 3006A(f) in every
case. Rather, the level of detail required for such a finding will vary based
on the facts and circumstances of each particular defendant. In Wilson, for
example, the defendant’s finances were apparently quite complex and may
have warranted lengthier treatment. In the more typical case, the findings
may not require a lengthy written order or separate hearing. See, e.g.,
United States v. Embry, 128 F.3d 584, 586 (7th Cir. 1997) (no abuse of
discretion where, before ordering reimbursement, the district court made
the appropriate inquiry into defendant’s finances and "topped it off with
written findings"); McGiffen, 267 F.3d at 589 (a formal evidentiary hear-
ing is not always required, but specific findings are).
18 UNITED STATES v. MOORE
Of particular note in the case at bar is that the district court
specifically found that Moore, who was clearly eligible for a
court-appointed attorney, did "not have the ability to pay a
fine or interest." J.A. 75. Nonetheless, the court accepted the
apparently standard and factually unsupported recommenda-
tion of the probation office that Moore’s GED and training
meant he would be able to earn an amount of money suffi-
cient to repay $50 per month,11 and thus ordered Moore to
repay that amount while on supervised release. In so doing,
the district court made no finding that there were any identifi-
able funds or assets available to Moore. To the contrary, the
district court expressly adopted the PSR, which states that
"[Moore] does not appear to have the financial resources to
make an immediate monetary payment." J.A. 126.
Because the district court failed to make the specific find-
ings required by § 3006A(c) or (f) to support an order of reim-
bursement, its judgment at sentencing, insofar as it required
a reimbursement of attorneys’ fees, was in error.
To provide additional direction to district courts, we cau-
tion that our holding should not be interpreted as imposing an
overly restrictive definition of "available," such as one that
only permits an order of reimbursement if a defendant has
cash or funds in a bank account which are immediately avail-
able to him to be withdrawn. Put differently, availability is not
limited only to currently liquid assets at the time reimburse-
ment is ordered. Instead, a repayment order may be based on
identified funds and assets, even if those assets will not
become liquid until a future date, such as the escrow payment
from an upcoming sale of real property, the scheduled dis-
bursement of proceeds from a trust, or continuing payments
under a promissory note or contract. See Wilson, 597 F.3d at
11
The defendant argued, and the government did not deny, that it is cus-
tomary for probation officers in the Western District of North Carolina to
suggest at least that amount for every defendant regardless of the defen-
dant’s present income or assets.
UNITED STATES v. MOORE 19
360 ("A court . . . might find a defendant ‘financially able’ to
pay based on money pending in escrow even though those
funds will not become ‘available for payment’ until some
future date."); see also Br. of Appellant at 15 (Moore
acknowledging a reimbursement order can be based on a
defendant’s "income stream"). The crucial factor in comply-
ing with the statutory mandates in § 3006A(c) ("the court
finds that the person is financially able") and § 3006A(f) ("the
court finds the funds are available for payment") is that the
sentencing court indeed make a finding on the record identify-
ing the specific assets "available" for reimbursement of attor-
neys’ fees and how those assets qualify the defendant as
financially eligible to pay.
Because the district court did not comply with the statutory
mandate here, we vacate that portion of the district court’s
judgment requiring Moore to repay his court-appointed attor-
neys’ fees, and remand for resentencing consistent with this
opinion,12 as to that issue only.
C.
Our holding on the validity of the reimbursement order
here is a narrow one; it is not intended to address or resolve
all issues of when a defendant’s "funds are available for pay-
ment" as that will require a fact-specific analysis in each case.
Neither do we address whether the repayment of attorneys’
fees as a condition of supervised release is a permitted condi-
tion. That issue, one which has led to a split of authority
among the United States Courts of Appeals,13 and which this
12
We note for clarification that the only part of the sentencing order
being vacated is that regarding the reimbursement of attorneys’ fees. No
other portion of the sentencing order is affected.
13
Compare Evans, 155 F.3d at 250-52 & n.8 (rejecting imposition of
counsel fees as a condition of supervised release because it is not consis-
tent with the statutory goals of 18 U.S.C. § 3553(a)(2)(B)-(D), but recog-
nizing that the court could impose a separate reimbursement order under
20 UNITED STATES v. MOORE
Court apparently has not yet addressed in a published opinion,14
was neither briefed nor fully argued by the parties and is
therefore not squarely presented in this case. Moreover,
because we have found the reimbursement order here
improper on other grounds, we need not decide that issue.
Similarly, we do not decide today whether the district court
in Moore’s case could impose repayment of fees at a later
date, such as while Moore is actually serving his supervised
release term, either as a condition of release or as a separate
§ 3006A(f) order, assuming it makes the requisite finding that
Moore has funds or assets available for repayment. We limit
our holding here to the following: on the current record, the
district court erred by failing to make the mandatory statutory
findings that "funds are available" to Moore for repayment as
required to order reimbursement under the CJA.
§ 3006A(f)); United States v. Eyler, 67 F.3d 1386, 1393 (9th Cir. 1995)
(reimbursement of counsel fees cannot be a condition of supervised
release); United States v. Turner, 628 F.2d 461, 466-67 (5th Cir. 1980)
(same as to probation); with United States v. Merric, 166 F.3d 406,
411–12 (1st Cir. 1999) (declining to follow Judicial Conference recom-
mendation that prohibits reimbursement of CJA fees as a "condition of
probation," see VII Administrative Office of U.S. Courts, Guide to Judi-
ciary Policies & Procedures, ch. 2, pt. A, § 230.40(d), and instead holding
that a district court could make repayment of CJA fees a condition of
supervised release); United States v. Gurtunca, 836 F.2d 283, 288-89 (7th
Cir. 1987) (repayment of counsel fees is a permissible condition of proba-
tion); United States v. Santarpio, 560 F.2d 448, 455-56 (1st Cir. 1977)
(same).
14
But see United States v. Johnson, 138 F.3d 115, 120 (4th Cir. 1998)
(not addressing issue directly, but stating that the original monetary obli-
gations imposed at the time of defendant’s original judgment of convic-
tion, which included an order to reimburse the government for the costs
of CJA counsel, survived the revocation of his supervised release); Jack-
son, 1998 WL 386109, at *4 (unpublished decision holding the district
court had such authority, without citation to any Fourth Circuit case);
Moore, 1998 WL 85296, at *1 n.3 (same).
UNITED STATES v. MOORE 21
IV.
For the reasons stated above, the judgment of the district
court is affirmed in part and vacated in part. This case is
remanded to the district court for resentencing consistent with
this opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED