United States v. Remillong

United States Court of Appeals, Eleventh Circuit.

No. 94-2647

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Carl REMILLONG, Defendant-Appellant.

June 19, 1995.

Appeal from the United States District Court for the Middle
District of Florida. (Nos. 91-7-Cr-ORL-18, 91-94-CR-ORL-18), G.
Kendall Sharp, Judge.
Before KRAVITCH, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Michael Carl Remillong appeals the district court's sentencing

order requiring him to make restitution of $29,251.00, the amount

that he pled guilty of robbing from ten banks. This is the third

time that we have reviewed Remillong's sentencing by Judge G.

Kendall Sharp in this case.1 See United States v. Canzater, 994

1
In the first appeal of his sentence, we determined that
Judge Sharp "clearly erred" in enhancing Remillong's sentence by
two levels for an express threat of death in connection with the
bank robberies as defined by U.S.S.G. § 2B3.1(b)(2)(D) (presently
U.S.S.G. § 2B3.1(b)(2)(F)). United States v. Canzater, 994 F.2d
773, 775 (11th Cir.1993) (per curiam) (Remillong's case was
consolidated with that of defendant-appellant Darryl L. Canzater
on the issue of what language or action constitutes an express
threat of death). At the resentencing hearing, Judge Sharp
deleted the two-level, express-threat-of-death enhancement in
accordance with this court's mandate in Canzater, but then
enhanced Remillong's sentence by three levels pursuant to
U.S.S.G. § 2B3.1(b)(2)(E), for the possession of a dangerous
weapon during the bank robberies, when no weapon was involved,
and reaffirmed his previous sentencing order that Remillong make
restitution of $29,251.00. We note, however, that the
three-level enhancement appears to be Judge Sharp's attempt to
circumvent this court's direction in Canzater, where we explained
that "[t]he statement, "I have a gun' " may only be a bald
threat, which does not necessarily mean that a gun was present
during the commission of the robbery. Canzater, 994 F.2d at 775.
F.2d 773 (11th Cir.1993) (per curiam) ("Remillong I "); United

States v. Remillong, No. 93-3034, 20 F.3d 1174 (11th Cir. Apr. 12,

1994) ("Remillong II "). In vacating and remanding the second

appeal of Judge Sharp's sentencing order for Remillong, we

explicitly explained to Judge Sharp:

The use of restitution as part of a sentence is governed
by 18 U.S.C. §§ 3663 and 3664. Section 3664(a) states as
follows:

(a) The court, in determining whether to order
restitution under section 3663 of this title and the
amount of such restitution, shall consider the amount of
the loss sustained by any victim as a result of the
offense, the financial resources of the defendant, the
financial needs and earning ability of the defendant and
the defendant's dependents, and such other factors as the
court deems appropriate.

Also, U.S.S.G. § 5E1.1 establishes rules for the district
courts to consider when imposing restitution. One element
which must be fully considered is the financial condition and
the ability of a defendant to pay. The record in this case
demonstrates that the district court failed to adequately
consider the statutory factor of ability to pay under 18
U.S.C. § 3664(a). This constitutes an abuse of discretion
requiring remand for resentencing in accordance with the
statute.

Remillong II, at 3-4 (quoting 18 U.S.C. § 3664(a)) (emphasis

added).

Remillong appealed Judge Sharp's amended sentencing
order on two bases: (1) the three-level enhancement for
possessing a dangerous weapon pursuant to § 2B3.1(b)(2)(E),
and (2) abuse of discretion for ordering restitution without
fully considering Remillong's financial condition and
ability to pay. Concerning possession of a dangerous
weapon, we vacated Remillong's sentence and "remand[ed] for
resentencing with directions that Remillong be resentenced
without the three-level enhancement for possession of a
dangerous weapon" in accordance with Canzater. United
States v. Remillong, No. 93-3034, at 3, 20 F.3d 1174 (11th
Cir. Apr. 12, 1994). As to the restitution portion of the
sentencing order, we remanded for consideration of
Remillong's financial condition and ability to pay
restitution. Id. at 3-4. When on remand Judge Sharp did
not follow our direction, this third appeal followed.
 Following our Remillong II opinion, Remillong filed a motion

to correct his sentence. Judge Sharp, however, refused to

eliminate his restitution order. Judge Sharp handwrote across the

top of Remillong's motion to correct his sentence: "Because this

case involves a bank robbery and defendant had physical possession

of the money, restitution of $29,251.00 is appropriate." R1-57;

see Appendix. Consequently, this third appeal from Remillong's

sentencing ensued.2

We review a district court's restitution order for abuse of

discretion.3 United States v. Husky, 924 F.2d 223, 225 (11th

Cir.), cert. denied, 502 U.S. 833, 112 S.Ct. 111, 116 L.Ed.2d 81

(1991). The Victim and Witness Protection Act ("VWPA"), 18 U.S.C.

§§ 3663-64, authorizing restitution to victims of crimes,

"specifically directs a sentencing judge to consider not only the

victim's injury, but also "the financial resources of the

defendant, the financial needs and earning ability of the defendant

and the defendant's dependents, and such other factors as the court

deems appropriate.' " United States v. Barnette, 10 F.3d 1553,

2
Remillong has completed the incarceration portion of his
sentence.
3
Under 18 U.S.C. § 3663(a)(1), a district court "may order"
restitution as part of a sentence. Id. Thus, restitution is a
"discretionary, not mandatory, element of defendant's sentence,
and it can only be imposed if the sentencing court considers" a
defendant's financial ability to pay pursuant to § 3664(a).
United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993). "After
considering the evidence, the district court may (1) impose
restitution payable immediately, (2) impose restitution payable
within a specified period or in specified installments consistent
with § 3663(f), (3) order the defendant, in lieu of monetary
restitution or in conjunction therewith, to perform services for
the benefit of the victim under Guidelines § 5E1.1(c), or (4)
decline to impose restitution pursuant to § 3663(d)." United
States v. Clark, 901 F.2d 855, 856-57 (10th Cir.1990).
1556 (11th Cir.) (quoting 18 U.S.C. § 3664(a)), cert. denied, ---

U.S. ----, 115 S.Ct. 74, 130 L.Ed.2d 28 (1994). "This requirement

ensures that a defendant will be able to pay restitution, and also

ensures that restitution payments will not unduly limit his right

to appeal." United States v. Kress, 944 F.2d 155, 163 (3d

Cir.1991), cert. denied, 502 U.S. 1092, 112 S.Ct. 1163, 117 L.Ed.2d

410 (1992); see United States v. McIlvain, 967 F.2d 1479, 1481

(10th Cir.1992) ("[W]hen a district court orders restitution it

must be consistent with a defendant's ability to pay."). "A

district court's failure to make a restitution order with which a

defendant could possibly be expected to comply threatens respect

for judicial orders generally." United States v. Bailey, 975 F.2d

1028, 1032 (4th Cir.1992); see United States v. Mahoney, 859 F.2d

47, 52 (7th Cir.1988) ("[A]n impossible order of restitution ... is

nothing but a sham, for the defendant has no chance of complying

with the same, thus defeating any hope of restitution and impeding

the rehabilitation process."). Thus, "we will not uphold the

district court's exercise of discretion if the record is devoid of

any evidence that the defendant is able to satisfy the restitution

order." United States v. Patty, 992 F.2d 1045, 1052 (10th

Cir.1993).

While we have determined that a "defendant's indigency at the

time of sentencing is not a bar to an order of restitution under

the VWPA," United States v. Stevens, 909 F.2d 431, 435 (11th

Cir.1990), we nonetheless have required that the district court

evaluate the defendant's financial condition and ability to pay

before determining the restitution amount, United States v. Cobbs,
967 F.2d 1555, 1558 (11th Cir.1992) (per curiam); Stevens, 909

F.2d at 435.4 See United States v. Logar, 975 F.2d 958, 964 (3d

Cir.1992) (holding that, while restitution can be legally ordered

for indigent defendants, a sentencing court must consider and find

that the defendant has the future financial ability to pay the

restitution ordered, or the restitution order is purely

speculative). Further, we have held underHughey v. United States,

495 U.S. 411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990),

that the "district court is authorized to order restitution only

for the loss caused by the specific conduct underlying the offense

of conviction."5 Cobbs, 967 F.2d at 1559. Judge Sharp, however,

"apparently focused only on the amount of loss to the victim[s]"

without considering Remillong's future ability to pay the ordered

restitution as required by section 3664(a). United States v.

4
When district courts have ordered restitution without
consideration of financial ability to pay, other circuits have
remanded for this specific evaluation under § 3664(a). See,
e.g., United States v. Turcks, 41 F.3d 893 (3d Cir.1994); United
States v. Johnson-Wilder, 29 F.3d 1100, 1105-07 (7th Cir.1994);
United States v. Lively, 20 F.3d 193, 203-04 (6th Cir.1994); Kok
v. United States, 17 F.3d 247, 251 (8th Cir.1994); United States
v. Molen, 9 F.3d 1084, 1087 (4th Cir.1993), cert. denied, ---
U.S. ----, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); United States
v. Newman, 6 F.3d 623, 631 (9th Cir.1993); United States v.
Tortora, 994 F.2d 79, 81 (2d Cir.1993); United States v.
McIlvain, 967 F.2d 1479, 1480-82 (10th Cir.1992).
5
Other circuits have held that restitution under the VWPA
does not include consequential damages, such as attorney fees and
expenses. See Virgin Islands v. Davis, 43 F.3d 41, 46-47 (3d
Cir.1994); United States v. Patty, 992 F.2d 1045, 1049 (10th
Cir.1993); United States v. Mullins, 971 F.2d 1138, 1147 (4th
Cir.1992); United States v. Arvanitis, 902 F.2d 489, 497 (7th
Cir.1990); United States v. Barany, 884 F.2d 1255, 1261 (9th
Cir.1989); United States v. Mitchell, 876 F.2d 1178, 1184 (5th
Cir.1989); see also United States v. Husky, 924 F.2d 223, 225-27
(11th Cir.) (finding restitution unavailable for mental anguish),
cert. denied, 502 U.S. 833, 112 S.Ct. 111, 116 L.Ed.2d 81 (1991).
Newman, 6 F.3d 623, 631 (9th Cir.1993).

The defendant bears the burden of demonstrating his financial

resources by a preponderance of the evidence. 18 U.S.C. § 3664(d).

At sentencing, Remillong testified that he had no financial ability

to pay the ordered restitution, no cash flow and no money in a

bank. R5-9. Additionally, he testified that he committed the bank

robberies because he "needed money" because of his "economic

problems" resulting from not having a job. Id. at 7. Remillong's

Presentence Report ("PSR") shows that his only asset was a 1979
Ford pickup truck valued at approximately $1,000.00, and that he
6
had a loan liability of $3,000.00. The PSR, which Judge Sharp

adopted at sentencing, states that "it does not appear that

[Remillong] has the ability to pay a fine." PSR at 15. No

evidence was presented to show future ability to pay the

restitution ordered.7 Despite this record evidence and in blatant

6
Remillong's PSR shows that he has a high school education
and that he worked sporadically at minimum wage for several years
before the robberies.
7
See United States v. McIlvain, 967 F.2d 1479, 1481 (10th
Cir.1992) ("The potential for repayment cannot be based on mere
chance."). In McIlvain, both the government and defendant agreed
that the record at sentencing "did not contain a basis on which
to order the payment of restitution" of $160,248.00, where the
defendant had "no assets, no steady employment, no source of
income, a high school education, ... debt of $700[,] ... had
sought Aid to Families with Dependent Children and lived with his
mother"; thus, he had no "present ability to pay" and no
"significant future earning capacity." Id.; see United States
v. Grimes, 967 F.2d 1468, 1473 (10th Cir.) (holding abuse of
discretion to order defendants to pay restitution of $128,279.05
for which their PSRs indicated that they had "neither the assets
nor the earning potential to pay"), cert. denied, --- U.S. ----,
113 S.Ct. 355, 121 L.Ed.2d 269 (1992); United States v. Kelley,
929 F.2d 582, 587 (10th Cir.) (although PSR showed that
sixty-year-old defendant had little work experience and the
district court "recognized that she had no present ability to pay
anything," it erroneously ordered restitution of $192,092.00),
contravention of the adopted PSR, Judge Sharp ordered restitution

of the cumulative amount taken from the ten banks.

We have determined that district courts are not required to

make factual findings whenever they impose a restitution order if

the appellate record provides sufficient reasons for the decision

to order full restitution. United States v. Hairston, 888 F.2d

1349, 1352-53 (11th Cir.1989); accord United States v. Lombardo,

35 F.3d 526, 529-30 (11th Cir.1994) (per curiam). Our review of

the record in this case, particularly the PSR, causes us to believe

that Judge Sharp "effectively ignored the requirements of the

statute" by failing to consider evidence of Remillong's financial

inability to pay the ordered restitution in the record before him.

Bailey, 975 F.2d at 1032. "A defendant claiming that the district

judge failed to consider a mandatory sentencing factor [under

section 3664(a) ] must show either that (1) it is not improbable

that the judge failed to consider the mandatory factor and was

influenced thereby, or (2) the judge explicitly repudiated the

mandatory factor." United States v. Murphy, 28 F.3d 38, 41 (7th

cert. denied, 502 U.S. 926, 112 S.Ct. 341, 116 L.Ed.2d 280
(1991); cf. United States v. Bondurant, 39 F.3d 665, 668 (6th
Cir.1994) (affirming restitution of $4,736.48 because of
defendant's "intelligence and relatively extensive academic
background, and his likely ability to secure a job and repay the
small amount at issue"). Additionally, other circuits
specifically inquire into future earning capacity in determining
whether the record supports a restitution order. See United
States v. Ramilo, 986 F.2d 333, 336 (9th Cir.1993); United
States v. Rogat, 924 F.2d 983, 985 (10th Cir.1991); United
States v. Paden, 908 F.2d 1229, 1237 (5th Cir.1990), cert.
denied, 498 U.S. 1039, 111 S.Ct. 710, 112 L.Ed.2d 699 (1991);
United States v. McClellan, 868 F.2d 210, 212-13 (7th Cir.1989);
United States v. Brown, 744 F.2d 905, 911 (2d Cir.1984).
Cir.1994).8 Clearly, Remillong has satisfied both parts of this

disjunctive standard. See United States v. Clark, 901 F.2d 855,

857 (10th Cir.1990) (vacating restitution order in bank

embezzlement case because district court abused its discretion by

not considering the defendant's proof by a preponderance of the

evidence of his inability to pay the restitution order when ordered

or in the near future).

After specifically being instructed by this court in Remillong

II to assess on remand Remillong's financial capability to pay

restitution pursuant to section 3664(a), Judge Sharp's cryptic

handwritten notation that Remillong owes full restitution because

he once had physical possession of the money is more than

irresponsible, it is defiant. Far from performing the assessment

that he specifically was instructed to conduct in Remillong II,9

Judge Sharp's cursory handwritten notation dashed at the top of

Remillong's motion to correct his sentence evidences Judge Sharp's

disregard for this court's instruction and mandate.10 The problem

8
Accord United States v. Reese, 998 F.2d 1275, 1280-81 (5th
Cir.1993) ("An order of restitution will be reversed on appeal
only when the defendant shows that it is probable that the court
failed to consider a mandatory factor and the failure to consider
the mandatory factor influenced the court.").
9
Judge Sharp has shown himself capable of considering
financial ability to pay restitution; in a previous case, he
ordered restitution to be one half of the amounts shown in the
PSR. United States v. Stevens, 909 F.2d 431, 434-35 (11th
Cir.1990).
10
As the government candidly recognizes in its appellate
brief:

Given this Court's ruling [in Remillong II ], the
district court on remand should have addressed
explicitly its consideration of the "ability to pay"
factor. Instead, the district court noted merely that
in this case is not that restitution was ordered, but that Judge

Sharp failed to evaluate Remillong's financial ability to pay as

statutorily required and as mandated by this court.

Regrettably, this case is not an aberration. We previously

have reversed and/or remanded cases to Judge Sharp for failing to

provide factual and legal explanations for his rulings or actions.

See, e.g., Imperial Residential Design, Inc. v. Palms Dev. Group,

Inc., 29 F.3d 581, 583 (11th Cir.1994) (per curiam) ("Before we can

effectively review this appeal, we need an explanation from the

district court about its factual and legal conclusions on the

standing issue."); Rodgers ex rel. Jones v. Bowen, 790 F.2d 1550,

1553 (11th Cir.1986) ("In the absence of prior resort to less

severe sanctions which were available, we conclude that the

district court abused its discretion in dismissing ... [the]

action" [of plaintiff-appellant for slight delay in paying the

filing fee after denying her application to proceed in forma

pauperis ].); United States v. Bergouignan, 764 F.2d 1503, 1507

(11th Cir.1985) ("When the government's failure to support its

allegation ... is coupled with the district court's failure to

explain its reasons for denying the motion to dismiss, ... we have

no way of ascertaining whether the motion was properly denied....

Given the paucity of the record before us, we have no alternative

Remillong "had physical possession" of the stolen money
and then found that restitution was appropriate. The
district court's comment was inadequate. It does not
directly indicate that the court considered Remillong's
ability to pay restitution. As a result, this Court
should remand for further proceedings on this issue.

Appellee's Brief at 10 (citation omitted) (emphasis added).
but to remand to the district court for a determination of the

number of excludable days, if any, between the arrest and the

dismissal of the complaint."), cert. denied, 484 U.S. 1044, 108

S.Ct. 778, 98 L.Ed.2d 864 (1988).

We have gently chided Judge Sharp for his failure to provide

reasoning for dismissing a claim " "without prejudice and without

leave to amend' " by stating that, "[w]hile the failure of a lower

court to give reasons for its disposition of an action makes review

difficult, it does not necessarily preclude affirmance where

appropriate reasons for dismissal are readily apparent." Grant v.

County of Seminole, 817 F.2d 731, 732 (11th Cir.1987) (per curiam).

We also have used the severe remedy of reassigning a case when

Judge Sharp abused his discretion by refusing to grant an

evidentiary hearing. United States v. Yesil, 991 F.2d 1527, 1533

(11th Cir.1992). Analogous to discretion being limited in ordering

restitution by considering the financial ability of the defendant

to pay, we explained to Judge Sharp in Yesil that discretionary

acceptance of a plea agreement " obligate[s] " the district court

"to accept the government's proffered information," causing the

court to lose "its usual discretion to determine whether or not to

grant a party's request for an evidentiary hearing." Id. at 1532.

In reversing, remanding and reassigning that case, we held that

Judge Sharp "abused this limited discretion when he refused to

grant the requested Rule 35 evidentiary hearings." Id.

Additionally, we specifically have addressed Judge Sharp's

handwritten notations for failing to give reasons for dispositive

orders. Seamon v. Vaughan, 921 F.2d 1217, 1220 (11th Cir.1991)
(per curiam). In vacating and remanding Judge Sharp's

discretionary attorney fees award, we explained:

The basis for the district court's award of attorney fees
is unclear. The court failed to make any findings of fact to
support the $25,000.00 amount. Its only explanation was a
cryptic handwritten comment relating to duplication of
attorney services. The district court did not explain why it
eliminated half of the claimed attorney fees as duplicative.
As a result, we are unable to review the district court's
exercise of discretion, either on appeal or cross-appeal.

Id. (emphasis added).

We are greatly troubled that Judge Sharp continues to ignore

or circumvent specific directives and mandates from this court in

his adjudication of cases before him. His deliberate defiance of

our mandate in Remillong II, however, not only shows a disregard

for our explicit instruction, complete with our quoting the

governing statute to him, but also disregard for Remillong, who is

before Judge Sharp for a just resolution of his case.

Additionally, this third sentencing appeal in this case exemplifies

the judicial inefficiency that results from such obstinate conduct.

Apparently, the only way that we can obtain compliance from

Judge Sharp in this case is to outright reverse or vacate his

rulings with the instruction that he cannot rule a particular way,

as evidenced by Remillong's first two sentencing appeals. See

supra note 1. When he had the opportunity to exercise discretion,

as with the evaluation of Remillong's ability to pay restitution,

Judge Sharp stubbornly persisted in his questioned decision without

reasonable explanation or justification. We again hold that Judge

Sharp abused his discretion in complying with the requirements of

section 3664(a) in evaluating Remillong's ability to pay

restitution and, further, specifically defied our mandate in
Remillong II. From Judge Sharp's rulings on the two prior remands

in this case, we have no confidence that he will perform the

appropriate evaluation of Remillong's financial condition on

another remand concerning the same restitution issue.

Accordingly, we VACATE Remillong's restitution order and

REMAND this case to the Chief Judge of the Middle District of

Florida to REASSIGN to a different district judge for further

proceedings consistent with this opinion. 11 As we have explained

herein, the present record will not support a conclusion that

Remillong presently or in the foreseeable future can pay the

cumulative amount taken from the victim banks of $29,251.00. It

appears that an evidentiary hearing would be useful in assessing

Remillong's present and future ability to pay restitution.12

11
"We have the authority to order reassignment of a criminal
case to another district judge as part of our supervisory
authority over the district courts in this Circuit." United
States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.1989) (per
curiam); see 28 U.S.C. § 2106. In determining whether to
reassign a case, we consider "(1) whether the original judge
would have difficulty putting his previous views and findings
aside; (2) whether reassignment is appropriate to preserve the
appearance of justice; (3) whether reassignment would entail
waste and duplication out of proportion to gains realized from
reassignment." Id. As we have explained in our opinion, this
case clearly meets these criteria for reassignment.
Additionally, we have held that "cases that have maintained a
"stalemated posture' because of the district judge's
intransigence require reassignment to another judge." United
States v. White, 846 F.2d 678, 695 (11th Cir.) (quoting Brooks v.
Central Bank, 717 F.2d 1340, 1343 (11th Cir.1983) (per curiam))
(emphasis added), cert. denied, 488 U.S. 984, 109 S.Ct. 537, 538,
102 L.Ed.2d 568 (1988).
12
We are cognizant that we have determined that a district
court is not obligated to make explicit factual findings
concerning financial condition as to ability to pay restitution
if the record provides an adequate basis for review. United
States v. Hairston, 888 F.2d 1349, 1352-53 (11th Cir.1989). The
present record cannot provide a sufficient basis for review
because the 1991 PSR likely is obsolete since Remillong is no
 CA(95)2860,SIZE-1 PAGE,TYPE-PI

longer incarcerated and knowledge of his present occupation,
obligations and responsibilities as well as future earning
capacity would be helpful in determining appropriate restitution.
Additionally, after three sentencing appeals, a proper assessment
of Remillong's financial condition has yet to be undertaken.