concurring:
I concur in the remand for resentencing. I agree with my colleagues that a district judge may not delegate the scheduling of installment payments to a probation officer. *72However, I have an additional problem with the order in question.
The district judge sought in that order to require full restitution of over $169,000 but on a payment schedule that would allow appellant “to maintain a modest lifestyle and provide for [her]self and [her] child.” I am perplexed by this order because, under the statute, the restitution must be completed within five years. 18 U.S.C. § 3579(f)(2). Given that appellant is presently indigent and is unlikely to find highly remunerative employment upon her release from prison as a convicted embezzler, she cannot conceivably repay over $169,000 within five years of her release, much less simultaneously maintain a modest lifestyle and provide for her child.
Section 3664(a) requires the sentencing court to take into account “the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents.” 18 U.S.C. § 3664(a). Ordering restitution of the full amount of the victim’s loss no matter how far beyond any prospective ability of the defendant to pay is flatly inconsistent with that provision. Caselaw in our circuit and others is not to the contrary.
Other circuits require that restitution be limited to amounts that have some reasonable probability of being within the defendant’s means. See United States v. Bailey, 975 F.2d 1028, 1032 (4th Cir.1992) (requiring defendant be able to “feasibly comply” with restitution order); United States v. Logar, 975 F.2d 958, 962-64 (3d Cir.1992) (requiring realistic chance that defendant be able to pay restitution); United States v. Grimes, 967 F.2d 1468, 1473 (10th Cir.) (refusing to uphold restitution order “absent any evidence the defendant is able to satisfy [it]”), cert. denied, — U.S. —, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992); United States v. Rogat, 924 F.2d 983, 985 (10th Cir.) (holding possibility of repayment “cannot be based solely on chance”), cert. denied, 499 U.S. 982, 111 S.Ct. 1637, 113 L.Ed.2d 732 (1991); United States v. Mitchell, 893 F.2d 935, 936 n. 1 (8th Cir.1990) (“[W]e do not accept the government’s argument that, regardless of a defendant’s present ability to pay, an unreasonably high amount of restitution is proper on the chance that the defendant may win the lottery.”); United States v. Mahoney, 859 F.2d 47, 51 n. 6 (7th Cir.1988) (“The prospect of the defendant’s winning a lottery — present in any case — is too remote a possibility to justify the restitution order in this case.”); United States v. Sleight, 808 F.2d 1012, 1021 (3d Cir.1987) (restitution order should not be one that “a defendant cannot realistically pay”).
Although our decision in United States v. Atkinson, 788 F.2d 900 (2d Cir.1986), suggests that considerable guesswork may be involved in setting a restitution figure for indigents, id. at 904, it did not authorize amounts that cannot be repaid without Hollywood miracles. Nor does United States v. Brown, 744 F.2d 905 (2d Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984), or United States v. Gelb, 944 F.2d 52 (2d Cir.1991), stand for the proposition that an order of restitution need not take into account likely ability to pay. Rather, they state only that current indigency does not bar any order of restitution whatsoever. These cases are further distinguishable on the facts. In Atkinson and Brown the orders of restitution were not beyond the realm of possibility, each entailing annual payments of less than $6,000. Atkinson, 788 F.2d at 901; Brown, 744 F.2d at 908. Gelb involved an order of restitution of $5 million, and we remanded for reconsideration in light of the factors set out in Section 3664 and pointedly noted for the district court’s benefit that the award of restitution could be less than the full amount of loss. Gelb, 944 F.2d at 56-57. The order before us thus seems inconsistent with Gelb and the caselaw of other circuits because the district court never explained how repayment of $169,000 in 5 years — whatever the repayment schedule — can be reconciled either with appellant’s meager prospects for remunerative employment or with an expectation that she will be able to lead a modest lifestyle and provide for her child.
I appreciate that a judge who orders full restitution in circumstances such as the present case generally anticipates — as my colleagues suggest — that he or she can reduce the amount should it prove to be beyond the defendant’s means. However, as my colleagues also note, the statute contemplates that the judgment as to ability to pay be *73made, at least in a preliminary fashion, at sentencing,1 and for a good reason. A defendant subject to an impossible restitution order may be tempted to pay little or nothing because partial restitution offers no assurance of being considered by the court as satisfaction of the order. As a result, a defendant subject to an impossible restitution order has less incentive to seek remunerative, rehabilitative, and non-criminal employment and to maximize his or her income than a defendant subject to a difficult but doable order. Indeed, the only goal of sentencing that is fulfilled by an impossible order is to provide against a situation in which the defendant has secreted assets or encounters a one-in-a-million windfall such as winning a lottery. However, even if principles of finality do prevent the government from seeking to increase the ordered restitution, as my colleagues suggest, the law of perjury and the ability of a victim to bring a civil action are reasonable safeguards against such events.
I would therefore remand for resentencing at a level of restitution consonant with some reasonable estimate of the future means of appellant.
. In United States v. Broyde, 22 F.3d 441 (2d Cir.1994), we affirmed a restitution order for the full loss to the victim that required future proceedings to determine the final amount. However, doubt existed as to the fullness of the defendant's financial disclosure. Broyde is thus a very limited exception to the otherwise universally recognized rule that the amount must be set at sentencing.