concurring in part and dissenting in part.
In Part I of this opinion, I -write separately to explain my agreement with the majority that the district court abused its discretion by ordering restitution in the amount of $1,285,243.25 without considering adequately the defendant’s earning ability. In Part II of this opinion, I express my disagreement with the majority’s determination that a district court may delegate the task of setting a defendant’s restitution payment schedule to the Bureau of Prisons while the defendant is incarcerated, and to a probation officer upon the defendant’s release. Because I believe that the district court’s delegation of authority in setting the defendant’s restitution payment schedule was improper, I respectfully dissent from Part III.D of the majority opinion.
I. Amount of Restitution
_ I agree that the district court properly ordered restitution under the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663 (1994), as opposed to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, but that the district court abused its discretion when setting the amount of restitution. According to the VWPA, the sentencing court, when deciding whether to assess restitution, must 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.” 18 U.S.C. 3664(a) (1994) (emphasis added).
By requiring Weinberger to pay $1,285,243.25 in restitution within five years from his release from prison, see 18 U.S.C. § 3663(f)(2)(B) (1994), the district court failed to consider adequately the defendant’s “earning ability.” Complying with the restitution order within the five-year time period mandated by the statute would require Weinberger to pay over $200,000 a year, or to earn over $400,000 pre-tax dollars per year immediately following his release from a 41 month prison sentence, even accounting for the district court’s $370,624 erroneous order of restitution to the IRS. In light of the fact that this defendant never legally earned more than $68,000 in a year and is now disbarred from his former profession, there is no indication that the defendant would be able to earn almost six times the amount he earned prior to his criminal conviction upon his release from prison.
The district court’s only analysis of Weinberger’s future earning potential was to note at the sentencing hearing that he was an “exceptional person, talented, intelligent, with many options open to him,” J.A. at 72, and to state in its order of judgment that it had considered the probation office’s report on the defendant’s financial situation and prospects for future employment, J.A. at 67. The probation office’s report on which the district court relied noted only that Weinberger “is well educated and capable of obtaining and maintaining gainful employment. As a result, he is capable of paying restitution.” J.A. at 174. While it is true that a defendant’s intelligence, education, and employment record are appropriate factors for a district court to consider when fashioning a restitution order, see United States v. Sanders, 95 F.3d 449, 457 (6th Cir.1996), the invocation of these factors should not insulate from meaningful review the district court’s order of a specific amount of restitution. The district court’s reliance on these factors merely indicates to this *365court that the district court properly considered whether the defendant could pay restitution at all. See id. at 456-57. In order for this court to conclude that the district court did not abuse its discretion in setting the amount of restitution, there must be some evidence before the district court, whether in the presentence report, or in any other submission to the court, that the defendant has the potential to earn the amount of money required to pay off the order of restitution. The fact that Weinberger earned $68,000 in one year prior to his criminal activities does not support the district court’s conclusion that he can earn over $400,000 upon his release from prison, nor are any other facts in the record which could support the district court’s order of full restitution, notwithstanding Weinberger’s education and his talents.
There is recent case law in our circuit which states that “a district court must have, at a minimum, some indication that a defendant will be able to pay the amount of restitution ordered.” United States v. Dunigan, 163 F.3d 979, 982 (6th Cir.1999) (emphasis added). That panel also noted that “ordering restitution in an amount that a defendant cannot possibly pay ‘threatens respect for judicial orders generally’ and provides the defendant with ‘less incentive to seek remunerative, rehabilitative, and non-criminal employment.’ ” Id. (citing United States v. Fuentes, 107 F.3d 1515, 1529 n. 26 (11th Cir.1997)). In this case, I believe it is clear, as the probation office concluded, that the defendant will have the ability to pay some amount of restitution, but that the district court’s order of full restitution, which is premised on the defendant’s ability to earn almost six times his income prior to his criminal eon-viction, does not adequately contemplate the defendant’s future earning ability. Although I cannot rule out the possibility in every case, I believe that, in most cases, it is highly unlikely that any defendant could earn substantially more than he earned prior to his incarceration immediately following his release from prison, much less nearly six times the amount of his previous legal income. Because I do not believe the district court had any indication that the defendant in this case will have the ability to earn over one million dollars in five years, I believe that the district court’s order of full restitution “threatens respect for judicial orders generally” and is an abuse of discretion. I therefore join the majority in reversing the district court’s order of full restitution and remanding for reconsideration of the amount of restitution.
II. Delegation of Authority to Set Restitution Payment Schedule
I disagree with the majority’s determination that it is permissible for the district court to delegate to the Bureau of Prisons and the defendant’s probation officer the task of setting his restitution payment schedule. There is presently a split among the courts of appeals on this issue.1 The Second, Third, Fourth, Fifth, and Seventh Circuits have held that it is impermissible to delegate the task of scheduling post-incarceration restitution payments to a probation officer. See United States v. Coates, 178 F.3d 681, 685 (3d Cir.1999) (explaining that Constitution and applicable provision of the Mandatory Victims Restitution Act, 18 U.S.C. § 3664(f)(2), like its counterpart in the Victim and Witness Protection Act, 18 U.S.C. § 3663(f)(1) (1994), forbids district court to delegate *366authority to set payment schedule); United States v. Mohammad, 53 F.3d 1426, 1438-39 (7th Cir.1995); United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir.1995) (holding that “making decisions about the amount of restitution, the amount of installments, and their timing is a judicial function and therefore is non-delegable”); United States v. Porter, 41 F.3d 68, 71 (2d Cir.1994); United States v. Albro, 32 F.3d 173, 174 (5th Cir.1994); see also United States v. Merric, 166 F.3d 406, 409 (1st Cir.1999) (holding that district court may not delegate to probation officer authority to set payment schedule for a fine). Likewise, the Second, Fourth, and Seventh Circuits have held that it is similarly impermissible to delegate the scheduling of restitution to the Federal Bureau of Prisons while the defendant is incarcerated. See United States v. Pandiello, 184 F.3d 682, 688 (7th Cir.1999) (noting that “concerns about shifting responsibility from the Article III judge to another entity” are the same whether the district court delegates its authority to a probation officer or the Inmate Financial Responsibility Program); United States v. Mortimer, 94 F.3d 89, 91 (2d Cir.1996); United States v. Miller, 77 F.3d 71, 78 (4th Cir.1996). Only the Ninth and Eleventh Circuits have adopted contrary rules with regard to delegation to a probation officer, see United States v. Fuentes, 107 F.3d 1515, 1529 n. 25 (11th Cir.1997) (circuit precedent permits. district court to delegate setting of restitution schedule); United States v. Barany, 884 F.2d 1255, 1259-60 (9th Cir.1989), cert. denied, 493 U.S. 1034, 110 S.Ct. 755, 107 L.Ed.2d 771 (1990) (holding, with respect to the now-repealed Federal Probation Act, 18 U.S.C. § 3651, that district court may leave restitution schedule to probation officer’s discretion), and to the Bureau of Prisons, see Montano-Figueroa v. Crabtree, 162 F.3d 548, 550 (9th Cir.1998) (fine).
Upon consideration of the case law, I believe that the position adopted by the substantial majority of circuits is the better one. The applicable statutory language makes clear that it is the province of “the court,” and the court alone, to fix the amount of restitution, determine whether the restitution should be paid in a lump sum or in installments, and then, if the latter, establish the amount of each installment. See 18 U.S.C. § 3663(f)(1) (1994) (stating that the “the court may require that [the] defendant make restitution ... within a specified period or in specified installments”); 18 U.S.C. § 3572(d) (1994) (noting, in relation to a defendant sentenced to pay a monetary penalty, that “the court” will provide for payment either on a date certain or in equal monthly installments “over the period provided by the court,” unless “the court” decides otherwise); see also 18 U.S.C.A. § 3664(f) (2000) (current statute echoing language in former § 3663(f)); 18 U.S.C.A. § 3572(d)(l)-(2) (2000) (stating in current statute that, for defendant required to pay restitution, “court” will provide for payment on a date certain or in equal monthly installments unless “the court establishes another schedule” and that “length of time over which scheduled payments will be made shall be set by the court”). Only when the court has established the restitution amount and payment schedule may the Bureau of Prisons or a probation officer then enforce that order.2
*367Sentencing a defendant is a core judicial act. As the statutory language makes clear, deciding whether to impose restitution and at what rate is a part of the sentencing process. See, e.g., 18 U.S.C. § 3663(a)(1) (1994) (stating that when sentencing a defendant, court may order that the defendant make restitution to victim of offense): Given that the imposition of a restitution order is an element of sentencing, I agree with the Fourth Circuit that the applicable statutes must be read as conferring exclusive authority upon the courts with regard to their power to set the amount of restitution and the payment schedule. See Johnson, 48 F.3d at 808. Of course, courts may use “nonjudicial officers to support judicial functions, as long as a judicial officer retains and exercises ultimate responsibility.” Id. at 809. But they may not delegate their authority to set the timing of restitution payments to a non-Article III entity without running afoul of the Constitution.
While I appreciate the potentially difficult task that the district court may face in setting a reasonable restitution schedule at sentencing, particularly when, as Judge Cohn notes in his concurring opinion, the defendant faces a lengthy incarceration period and the court cannot anticipate when the defendant will likely be able to obtain employment so as to begin making restitution upon his release, I believe that the Constitution and the plain language of the applicable statutes will not admit of any other arrangement. Therefore, I respectfully dissent from Part III.D of the majority’s opinion.
. As the majority noted, this circuit has not yet commented upon the delegation question in a published opinion. The unpublished opinions which the majority finds persuasive are not binding on any court in this circuit.
. I note that while 18 U.S.C. § 3603(9) (1994) (currently codified at 18 U.S.C.A. § 3603(10) (2000)) permits a probation officer to "perform any other duty that the court may designate,” this statutory grant of authority is implicitly cabined by the constitutional requirement that the judiciary "exercise ultimate responsibility for resolving the case or controversy.” See Johnson, 48 F.3d at 809. Therefore, the district court may not *367delegate the final authority to determine the restitution payment schedule, although the district court may, consistent with Article III, review and approve a payment plan initially conceived by a probation officer.