UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4357
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES JESSE CLAY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00123-MR-1)
Submitted: February 14, 2012 Decided: February 22, 2012
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Angela Parrott, Acting Executive Director, Matthew R. Segal,
Fredilyn Sison, Allison Wexler, Assistant Federal Defenders,
Asheville, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Laura L. Ferris, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Jesse Clay pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2006). Following a successful appeal, the district court
resentenced Clay to thirty-five months’ imprisonment and ordered
him to reimburse the Government for court-appointed attorneys’
fees. The sole issue on appeal is whether the district court
erred in ordering reimbursement. We affirm in part, vacate in
part, and remand for resentencing.
We review a sentencing court’s resolution of legal
questions 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.” United States v. Moore, __ F.3d __,
2012 WL 208041, at *5 (4th Cir. Jan. 25, 2012).
Clay argues that the district court erred in ordering
reimbursement because he lacked the present ability to repay.
The Government responds that Clay will be able to pay upon
release because, it speculates, he is likely to obtain
employment. The Government’s argument, however, is foreclosed
by our decision in Moore, which held 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,
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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.
Id. at *6.
Because the district court ordered repayment of court-
appointed attorneys’ fees without identifying funds available to
do so, * we must vacate that portion of the district court’s
judgment and remand for resentencing. We affirm the judgment in
all other respects. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
*
The district court did not have the benefit of our
decision in Moore when it resentenced Clay.
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