United States v. Ahidley

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 25, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
FO R TH E TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 06-2056

GARY RAYM OND AHID LEY, JR.,

Defendant - Appellant.

Appeal from the United States District Court
for the District of New M exico
(D.C. No. CR-05-480-RB)

M arc H. Robert, Assistant Federal Public Defender, Las Cruces, New M exico for
Defendant-Appellant.

David N. W illiams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New M exico, for Plaintiff-
Appellee

Before KELLY, EBEL, and HO LM ES, Circuit Judges.

HO LM ES, Circuit Judge

Gary Raymond Ahidley, Jr., pleaded guilty to assault with a dangerous

weapon (count 1), 18 U.S.C. § 113(a)(3), and assault resulting in serious bodily

injury (count 2), 18 U.S.C. § 113(a)(6), charges resulting from a crime he
comm itted in Indian Country, 18 U.S.C. § 1153. M r. Ahidley was sentenced to 41

months’ imprisonment.

M r. Ahidley’s offenses implicated the M andatory Victims Restitution Act

of 1996 (“M VRA”), 18 U.S.C. § 3663A. Restitution was ordered in the amount

of $22,537.13, with payment due immediately. M r. Ahidley now appeals the

restitution order. He contends that there was insufficient evidence to justify the

amount of the restitution award and that the district court erred in imposing an

immediate obligation to pay restitution, instead of establishing a reasonable

restitution payment schedule after considering his financial resources and other

legally-required factors.

W e have jurisdiction under 28 U.S.C. § 1291. W e AFFIRM the district

court’s order regarding the restitution amount. However, we conclude that the

district court plainly erred in imposing an immediate-payment restitution

obligation on M r. A hidley without consideration of the requisite M VRA factors.

Accordingly, we VAC ATE that aspect of its restitution order and REM AND for

the court to set an appropriate payment schedule.

I. BACKGROUND

On October 13, 2004, Defendant-Appellant Ahidley and his girlfriend Ava

Joyce Pollock, along with two of her children, were staying the night at his

cousin’s home. The couple had been drinking alcohol throughout the day, and

M r. Ahidley admitted he was intoxicated. According to M r. Ahidley, M s. Pollock

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was belittling him and “fussing” about his haircut. R. vol. II, Presentence

Investigation Report (PSR ) ¶ 12. He attempted to hold her to talk, but she pulled

away. This angered M r. Ahidley, and he pulled a pocket knife out and stabbed

M s. Pollock. One of M s. Pollock’s children witnessed the incident. The stabbing

occurred late in the evening, after 9:00 p.m.

M r. Ahidley claims he did not intend to stab M s. Pollock, but she was

“standing too close.” Id. After realizing she was injured, M s. Pollock woke the

defendant’s sister, Tracey Ahidley, who also was staying at the home, and asked

her for a ride to the hospital. M s. Ahidley drove M s. Pollock and her children to

the hospital in Ruidoso, New M exico.

The stab wound resulted in lacerations to M s. Pollock’s liver and kidney,

and a penetrating trauma to her ascending colon. The serious nature of the

wounds necessitated airlifting M s. Pollock to a hospital in Lubbock, Texas for

treatment and surgery. She remained in the hospital for one week. The treating

physician estimated eight weeks for recuperation, but he expected a full recovery.

M r. Ahidley pleaded guilty to the charges on July 11, 2005, and the U.S.

Probation Office prepared a Presentence Investigation Report (PSR). The PSR

noted that M r. Ahidley was a highschool dropout who apparently had no

specialized skills or training. M r. A hidley reported having no assets or liabilities.

The Probation Office’s examination of a credit report confirmed the latter (i.e.,

the absence of liabilities) and indicated that M r. Ahidley had no credit at all. At

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the time of his arrest, M r. Ahidley was living with, and being supported by,

family members. The PSR concluded that based upon his “financial situation,”

M r. Ahidley “does not have the means to pay a fine.” Id. ¶ 58.

However, the PSR noted that the M VRA was applicable to M r. Ahidley’s

case and required the district court to order restitution for his criminal conduct,

without consideration of M r. Ahidley’s ability to pay. The initial PSR stated that

M r. Ahidley owed restitution to Cardiology Consultants in the amount of $30 and

Lubbock Diagnostic Radiology in the amount of $1,044. The report noted

M edicaid officials would be submitting a request for restitution within 90 days.

On October 18, 2005, the Probation Office amended the PSR to include a

request for restitution in the amount of $21,463.13 from the New M exico Human

Services Department, M edical Assistance Division (“NM HSD ”). The claim was

submitted on an apparent form letter, 1 stating that the NM HSD M edicaid program

provided assistance to M s. Pollock for treatment “that may be related to the

accident that occurred on or around October 14, 2004.” R. vol. II, PSR

1
The letter directly responded to the question of costs incurred by
NM HSD for M s. Pollock’s treatment by stating a specific figure. However, it
also included considerable boilerplate language that could not have been intended
for the U.S. Probation Office; instead, it was better suited for comm unications
with counsel of injured persons receiving M edicaid-funded medical treatment.
For example, it cautioned the following: “At the mom ent you receive settlement
proceeds or a court award on behalf of your client in this matter, a duty as an
obligor arises on your part to repay [NM ]HSD , after reasonable attorney fees and
costs have been deducted, and prior to distribution of any remaining balance to
your client.” R. vol. II, PSR Addendum, NM HSD Letter at 1 (Oct. 18, 2005)
(emphasis added).

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Addendum, NM HSD Letter at 1 (Oct. 18, 2005).

On January 27, 2006, more than three months after the PSR was initially

amended, M r. Ahidley filed a sentencing memorandum objecting to certain

aspects of the report. See R. vol. I, Doc. 34. M r. Ahidley mentioned the PSR’s

restitution figure in a brief passage of his memorandum. Id. at 12. He devoted

the bulk of his energy, however, to challenging the PSR’s findings (a) that M s.

Pollock suffered “an injury between serious and life-threatening”; and (b) that the

appropriate criminal history category was III. Id. at 4. On February 6, 2006, the

Probation Office filed another addendum. It represented to the court that the

addendum “fairly state[d] any objections that have been made.” Id. vol. II, PSR

Addendum at 1 (Feb. 6, 2006). The addendum addressed M r. Ahidley’s

objections concerning the bodily injury enhancement and his criminal history. It

made no mention, however, of the restitution amount. M ore specifically, it did

not aver that M r. A hidley had raised any objections concerning restitution.

The district court sentenced M r. Ahidley on February 10, 2006. During the

sentencing hearing, when the topic turned to restitution, M r. Ahidley’s counsel

interposed an objection. 2 He stated, “Y our H onor, one thing about

2
The government contends that M r. Ahidley has effectively forfeited
appellate review of this sufficiency-of-the-evidence issue concerning the
restitution award by waiting until the sentencing proceedings to raise the issue.
M r. Ahidley insists, however, that he lodged an earlier objection addressing this
issue in his January 2006 sentencing memorandum. W e need not resolve this
timing dispute. The district court chose to address M r. Ahidley’s objection
(continued...)

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restitution. I assume that there’s evidence supporting that. It was my intention to

object to the restitution, if the Court doesn’t have evidence before it supporting

the restitution award.” R. vol. III, Tr. Sentencing Hearing at 40-41 (Feb. 10,

2006). The court noted the objection, but referred to “numerous claims” listed in

the PSR. Id. at 41. It ordered restitution in the amount cited by the Probation

Office (i.e., $22,537.13), which the government noted was “around [$]21,000.”

Id. 3 The court declined to impose a fine “[b]ased upon M r. Ahidley’s resources.”

2
(...continued)
concerning the restitution amount, which it w as entitled to do. See Fed. R. Crim.
P. 32(i)(1)(D) (providing that a court “may, for good cause, allow a party to make
a new objection at any time before sentence is imposed”); see also United States
v. Chung, 261 F.3d 536, 538-39 (5th Cir. 2001) (noting that the district court was
required only “to make findings on timely objections and on objections that it
considers in its discretion”). Therefore, we are content to reach the issue on
appeal and apply the abuse-of-discretion standard of review.

3
The district court’s intentions regarding the amount of restitution that
it was ordering are illuminated by this exchange between the court and the
Assistant U.S. Attorney (AUSA):

[AUSA ]: M y understanding is that Probation came up with a
figure around the figure that the victim provided, which
is around [$]21,000. I don’t know the exact figure. It’s
around [$]21,000.

[COURT]: And that’s the figure that I saw in the report.

[AUSA ]: Yeah.

[COURT]: And I w ill – I’m going to order that restitution. . . .

R. vol. III, Tr. Sentencing Hearing at 41 (Feb. 10, 2006). The “report” referenced
(continued...)

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Id.

The district court was silent at the sentencing hearing regarding the

schedule of payments – that is, about the timetable that would control M r.

Ahidley’s obligation to pay the restitution. In its written judgment docketed three

days after the sentencing, however, the district court specifically addressed this

issue. It stated: “The restitution will be paid immediately.” Id. Doc. 39, at 5.

II. D ISC USSIO N

W e review the legality of an order of restitution de novo. See United States

v. Nichols, 169 F.3d 1255, 1278 (10th Cir. 1999). The factual findings supporting

restitution are reviewed for clear error and the amount of restitution for abuse of

discretion. See United States v. Osborne, 332 F.3d 1307, 1314 (10th Cir. 2003).

M r. Ahidley acknowledges that he did not preserve an objection to the restitution

payment schedule; however, w e may review for plain error. See United States v.

Overholt, 307 F.3d 1231, 1253 (10th Cir. 2002); see also Fed. R. Crim. P. 52(b)

(“A plain error that affects substantial rights may be considered even though it

was not brought to the court’s attention.”). 4

3
(...continued)
by the court was of course the PSR and the figure in it w as $22,537.13.
4
The elements of the plain-error standard are now familiar. As the
Supreme Court re-stated them in Johnson v. United States, 520 U.S. 461 (1997):

Under that test, before an appellate court can correct an error
not raised at trial, there must be (1) “error,” (2) that is “plain,”
(continued...)

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 A. Am ount of Restitution

Because M r. Ahidley was convicted of a crime of violence, the M VRA

required the district court to order restitution to the victims of the offense. See 18

U.S.C. §§ 3663A(a)(1), (c)(1)(A)(i) (requiring restitution for crimes of violence);

see also 18 U.S.C. § 16 (defining “crime of violence”). The M VRA calls for

restitution in the “full amount of each victim’s losses as determined by the court

and without consideration of the economic circumstances of the defendant.” 18

U.S.C. § 3664(f)(1)(A). This amount should include costs for the necessary

medical services for recovery. See id. § 3663A(b)(2)(A).

W e have recognized that “the determination of restitution is not an exact

science and that the calculation of a loss need not be precise.” United States v.

Kravchuk, 335 F.3d 1147, 1157 (10th Cir. 2003). In assessing the reliability of

loss figures, courts are permitted to draw inferences from the totality of the

circumstances through an exercise of “logical and probabilistic reasoning.”

4
(...continued)
and (3) that “affect[s] substantial rights.” If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
“seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.”

520 U.S. at 466-67 (quoting United States v. Olano, 507 U.S. 725, 732
(1993); internal quotation marks and citations omitted). An error is plain if
it is “clear” or “obvious.” Id. 467. And the Court in Johnson clarified that
“it is enough that an error be ‘plain’ at the time of appellate consideration.”
Id. at 468.

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United States v. Atencio, 435 F.3d 1222, 1232 (10th Cir. 2006) (internal

quotations omitted; quoting United States v. Jones, 44 F.3d 860, 865 (10th Cir.

1995)) (noting that an appellate court will uphold a criminal conviction when the

jury's factual inferences in support of the verdict are based upon logical and

probabilistic reasoning).

M r. Ahidley argues that the NM HSD letter requesting restitution in the

amount of $21,463.13 is insufficient evidence on which to base the restitution

amount because it does not detail the actual medical services rendered to M s.

Pollock. He further asserts that there is nothing to demonstrate that the treatment

M s. Pollock received, for which NM HSD claimed reimbursement, was limited to

injuries caused by his offense. M r. Ahidley hinges his argument on a Seventh

Circuit decision and the equivocal language of the NM HSD letter, which requests

reimbursement for treatment that “may be related to” the incident.

W e are unpersuaded by M r. Ahidley’s arguments. Nothing in the record

would have given the district court a reason to question the loss amount claimed

by NM HSD . Furthermore, its probable accuracy was supported by inferences that

the district court could have reasonably made from the evidence regarding the

severity of M s. Pollock’s injuries and the medical interventions undertaken to

treat her. In other w ords, the amount claimed by NM HSD for M s. Pollock’s

medical care is consistent with the expenditures one might reasonably expect to

be required to medically treat someone under similar circumstances.

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 In commenting on the extent of the injuries that M r. Ahidley inflicted upon

her, M s. Pollock stated:

[M r. Ahidley] was the reason why I was in this hospital and
had to have surgery done. I was in the hospital for about one
week. I had surgery on my liver and kidney. M y liver was
stitched, but my kidney was left alone because it was cut in
half. I was suppose [sic] to go for a check-up, but I haven’t
because of the cost. For about two months after I left the
hospital a home health nurse came twice a day to clean my
wounds on my stomach and right side.

R. vol. II, PSR ¶ 23-24. In sum, a hospital incurred costs to treat M s. Pollock,

including performing surgery to repair her vital organs, and providing her with a

bed, and presumably nursing care, for one week. And, after the surgery, M s.

Pollock still needed costly treatment; home healthcare providers treated her for

about two months. In light of these facts, the $21,463.13 figure that NM HSD

claimed as reimbursement for covering the costs of M s. Pollock’s treatment seems

entirely reasonable. And the district court could properly conclude by a

preponderance of the evidence that it w as accurate.

The Probation Office made a specific request to NM HSD for information

related to costs that it incurred for the medical treatment of M s. Pollock’s

injuries, which M r. Ahidley caused on October 13, 2004. One cannot reasonably

conclude that, in responding to this federal governmental entity, NM HSD would

have elected to include costs associated with any other treatment. Nor has there

been any credible suggestion that M s. Pollock suffered injuries around October

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13 th that were unrelated to M r. Ahidley’s criminal conduct. The fact that NM HSD

could have employed more unqualified language in its letter – something more

direct than the phrase “may be related to” – is of little significance. Although

directly addressing the question of costs incurred in connection with M s.

Pollock’s treatment, NM HSD’s correspondence was basically a generic form

letter. See supra note 1. The district court properly relied upon the NM HSD

letter in setting the amount of restitution.

M r. Ahidley’s contrary argument relies on United States v. M enza, 137 F.3d

533 (7th Cir. 1998). There, the Seventh Circuit vacated a restitution award and

remanded for an evidentiary hearing because it concluded that the sentencing

court had not developed an adequate record to permit appellate review. M enza,

137 F.3d at 538-40. In particular, the Seventh Circuit concluded that the

sentencing court had given “an inadequate explanation and insufficient reasoning”

regarding its acceptance “on their face” of invoices of the Drug Enforcement

Administration and defendant’s landlord and that it needed to determine “whether

the losses incurred by the DEA and M eriter [the landlord] are specifically

attributed to and directly related to” the criminal conduct that formed the basis for

defendant’s convictions. Id. at 538, 540.

M enza is readily distinguishable. The two invoices at issue in M enza raised

more questions than they answered. It was undisputed that the reimbursement

amount claimed in the DEA’s invoice included costs for the disposal of “non-

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criminal” items that were not related to defendant’s offense. Id. at 536. In that

circumstance, the failure of the invoice to itemize costs – thereby identifying

clean-up costs related to the offense conduct – w as a major deficiency. Further,

the landlord’s invoice raised a significant possibility of double-counting, in that it

showed that the landlord was seeking reimbursement for environmental

assessment and clean-up work that appeared to be similar to the kind of activities

for w hich the DEA was separately seeking reimbursement. Id. at 539. Given the

problem atic nature of these invoices, it is hardly surprising that the Seventh

Circuit questioned why the sentencing court would accept them on their face.

In contrast to M enza, the documentation at issue here – on its face –

established with reasonable certainty the losses recoverable through a restitution

order. In particular, it did not raise concerns about the inclusion of non-

recoverable costs. This documentation related to one thing and one thing only –

the costs incurred by NM HSD for care provided to M s. Pollack for injuries she

suffered on O ctober 13, 2004 at M r. Ahidley’s hands. Given this singular focus,

unlike the situation in M enza, the district court would not have been impeded in

arriving at a proper restitution amount by the absence of a specific itemization of

costs. Accordingly, M r. Ahidley’s reliance on M enza is misplaced. W e conclude

that the district court did not abuse its discretion in setting the restitution amount.

B. Paym ent Schedule

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 The M VRA outlines the procedure for issuing and enforcing restitution

orders and provides that the district court “shall . . . specify in the restitution

order the manner in which, and the schedule according to which, the restitution is

to be paid.” 18 U.S.C. § 3664(f)(2). “The court is granted considerable

discretion in structuring a payment schedule.” Overholt, 307 F.3d at 1255. The

statute provides:

A restitution order may direct the defendant to make a single,
lump-sum payment, partial payments at specified intervals, in-
kind payments, or a combination of payments at specified
intervals and in-kind payments.

18 U.S.C. § 3664(f)(3)(A). Furthermore, when the court finds from the evidence

that the defendant’s “economic circumstances” do not permit him (a) to pay

currently any amount of a restitution order, and (b) to pay “the full amount of a

restitution order in the foreseeable future under any reasonable schedule of

payments,” it may enter an order “direct[ing] the defendant to make nominal

periodic payments.” Id. § 3664(f)(3)(B).

In determining a payment schedule, the statute expressly instructs the court

to consider certain factors regarding an individual defendant, including the

defendant’s financial resources, his other assets (including whether jointly or

individually controlled), his projected earnings and other income, and his

financial obligations. See id. § 3664(f)(2)(A)-(C). Although extensive remarks

are not necessary, we must be able to discern from the record that this

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consideration has taken place. See United States v. Coates, 178 F.3d 681, 684 (3d

Cir. 1999) (Alito, J.) (rejecting the government’s argument that the district court

may “satisfy its duties under section 3664 through its silence”). W e “decline to

enter the zone of appellate speculation” as to whether a district court has

considered § 3664(f)(2) factors. Kravchuk, 335 F.3d at 1159 (internal quotation

marks omitted; quoting United States v. Zanghi, 209 F.3d 1201, 1205 (10th Cir.

2000)).

In United States v. Zunie, 444 F.3d 1230 (10th Cir. 2006), we recently

addressed the requirement that a district court set a restitution payment schedule

“in light of the statutory factors.” 444 F.3d at 1238. There, the defendant alleged

that the district court erred by (1) imposing restitution “without regard” to his

“indigence”; and (2) ordering to be due immediately the total amount of

restitution. Id. W e deemed it unnecessary to go beyond the first contention of

error. W e confirmed that under the M VRA a district court must consider a

defendant’s financial resources and the other § 3664(f)(2) factors in setting “an

appropriate restitution payment schedule.” Id. W e remanded for such

consideration.

In the language of § 3664(f)(2), the district court’s restitution payment

schedule in this case required M r. Ahidley to pay a “single, lump-sum payment.”

The court’s w ritten judgment provided: “The restitution will be paid

immediately.” R. vol. I, Doc. 39 at 5. Nothing in the record, however, indicates

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that the district court engaged in the requisite consideration of the statutory

factors, including M r. Ahidley’s financial resources. Indeed, at the sentencing

hearing, the district court was completely silent about the subject of a restitution

payment schedule. Therefore, the court would not have had any occasion to

engage in the mandated statutory analysis.

In failing to consider on the record the § 3664(f)(2) factors in imposing a

restitution payment schedule on M r. Ahidley, it is beyond peradventure that the

district court erred. See Zunie, 444 F.3d at 1238 (“remand[ing] for the district

court to set an appropriate payment schedule in light of the statutory factors”).

As the government correctly suggests, however, the real question is w hether it

comm itted plain error. The government “concedes that if Zunie was decided

under a plain error standard, this Court must remand this case and instruct the

district court to set a payment schedule.” A ple. Br. at 13. It contends, however,

that Zunie’s text leaves the reader in doubt regarding the standard of review that

the court used in concluding that the district court erred. That lack of clarity, the

government reasons, allows for the possibility that Zunie was decided under a less

demanding standard of review than plain error, such that its holding of error

should not dictate the result here.

It is true the text of Zunie is not clear regarding its guiding standard of

review. For the reasons noted below, however, we do not believe that clearing

the murky waters on this point has any controlling effect on the outcome of this

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case. Nonetheless, reliable information concerning the standard of review at work

in Zunie could be directly relevant to our assessment of the weight to give to its

holding. Consequently, we have reviewed certain publicly-filed records in Zunie. 5

They strongly suggest that Zunie was not decided under a plain-error standard of

review. Regarding the restitution challenge, in Zunie the government did not

argue for application of the plain-error standard, and the defendant was silent

about it. See Aple. Br. at 27; Aplt. Op. Br. at 23, 25; Aplt. Reply Br. at 6-8. The

defendant did express concerns about the restitution award at the sentencing

hearing. See Tr. Sentencing Hearing at 23-24 (D. N.M ., Case No. 03-1453,

August 31, 2004). The parties apparently deemed defendant’s sentencing

arguments to be sufficient to preserve the issue of the restitution payment

schedule for appellate review.

Therefore, Zunie is probably not on all fours with this case; unquestionably,

5
Although we are not obliged to do so, we may exercise our discretion
to take judicial notice of publicly-filed records in our court and certain other
courts concerning matters that bear directly upon the disposition of the case at
hand. See St. Louis Baptist Temple v. Fed. Deposit Ins. Corp., 605 F.2d 1169,
1172 (10th Cir. 1979) (“[I]t has been held that federal courts, in appropriate
circumstances, may take notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to
matters at issue.”); see also Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th
Cir. 2000) (“W e note, however, that the court is permitted to take judicial notice
of its own files and records, as w ell as facts w hich are a matter of public
record.”), abrogated on other grounds by M cGregor v. Gibson, 248 F.3d 946
(10th Cir. 2000). Here, we have elected to examine publicly-filed records in the
Zunie litigation, including the appellate briefs, the criminal judgment, and the
transcript of the sentencing proceeding.

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plain-error review is appropriate here. However, this fact is of little moment. W e

have no difficulty concluding that a district court’s failure to follow the

unambiguous mandate of § 3664(f)(2) to consider a defendant’s financial

resources and related factors is error that is clear and obvious, and, under the

particular circumstances of this case, it is an error that should be recognized. See

Coates, 178 F.3d at 681; cf. United States v. Thingpen, 456 F.3d 766, 771 (7th

Cir. 2006) (holding that district court plainly erred when it effectively failed to

set a statutorily-required restitution payment schedule by “rul[ing] that the entire

amount of the restitution was due and payable in sixty days after sentencing”). 6

The M VRA was on the books for almost ten years at the time of M r.

Ahidley’s sentencing hearing and § 3664(f)(2)’s command is unambiguous. A

district court must set the restitution payment schedule “in consideration of”

certain characteristics of a defendant, including the defendant’s financial

resources. The failure to do so is obvious error. Only a few years after the

6
In an unpublished opinion of our court, on similar facts, we applied
the plain error standard and determined that the district court plainly erred in
ordering the defendant, jointly and severally with his co-defendants, to pay
$76,594.73 in restitution immediately, without giving consideration to
defendant’s financial condition. See United States v. Garcia-Castillo, 127 Fed.
App’x. 385, 386, 393 (10th Cir. 2005). There, according to the PSR, defendant
“had no income or assets and only a grade-school education.” Id. W e “vacat[ed]
the portion of the restitution order that directs immediate full payment and
remand[ed] to the district court to consider an appropriate manner of payment.”
Id. at 394. Although Garcia-Castillo is not binding precedent, its analysis is
persuasive on these facts.

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passage of the M VRA, the Third Circuit recognized this in Coates. It succinctly

stated: “Since the M VRA mandates that district courts schedule restitution

payments after taking into account the defendant’s financial resources, the

District Court’s failure to do so here constitutes plain error.” 178 F.3d at 684.

Despite the presence of contrary authority in other circuits, 7 we reached a

similar result in Overholt, focusing on the unambiguous language of the statute

and its structure. W e stated: “In light of this statutory scheme, we see no room

for delegation by the district court with respect to payment schedules for

restitution.” 307 F.3d at 1256. Accordingly, under a plain-error standard, we

reversed the district court’s restitution order that was “essentially delegating the

preparation of a payment schedule to the Bureau of Prison and the probation

office” and remanded “for the sole purpose of establishing a schedule.” Id. 1255,

1256. Accordingly, the district court’s failure here to consider on the record the §

3664(f)(2) factors is error of an obvious nature.

Further, it is an error that affects M r. Ahidley’s substantial rights and

seriously impacts the fairness and integrity of judicial proceedings. M ost

7
In at least one circuit, a district court need not consider on the record
the § 3664(f)(2) factors in establishing a restitution payment schedule. In United
States v. Nucci, 364 F.3d 419, 422 (2d Cir. 2004), the Second Circuit rejected the
notion that the district court “committed error, plain or otherwise, by failing to
consider 18 U.S.C. § 3664(f)(2)’s mandatory factors in setting his restitution
amount.” 364 F.3d at 421. As in Overholt, however, we do not believe the
presence of contrary circuit authority should control our determination of whether
the district court’s error was plain.

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importantly, under an appropriate and reasonable consideration of the §

3664(f)(2) factors, it seems virtually certain that the district court would not have

settled on the option of imposing an immediate-payment obligation on M r.

Ahidley.

The PSR indicated that M r. Ahidley, a highschool dropout with no

specialized skills, had no financial assets and was being supported by his family

when he was arrested. It further concluded that M r. Ahidley did not have the

financial w herewithal to pay a fine. Indeed, the district court appeared to

acknowledge M r. A hidley’s impecunious state by waiving imposition of the fine.

On these facts, it would appear almost beyond question that M r. Ahidley could

not make an immediate, single lump-sum payment of over $22,500. See United

States v. M yers, 198 F.3d 160, 168-69 (5th Cir. 1999) (holding as to $40,000

restitution award that the district “plainly erred in requiring immediate payment

of the restitution” when defendant had a negative net worth and no income); see

also supra note 6 (discussing our unpublished decision in Garcia-Castillo,

reversing under a plain error standard an immediate-payment restitution order in

the amount of $76,594.73, where defendant had no income and “only a grade-

school education”).

Having concluded that the district court plainly erred, we vacate the

schedule-of-payments portion of M r. Ahidley’s sentence and remand for the

district court to determine an appropriate payment schedule with reference to the

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§ 3664(f)(2) factors.

III. C ON CLU SIO N

The district court’s order regarding the restitution amount is AFFIRM ED.

However, we VAC ATE that portion of its restitution order establishing the

schedule of payments and R EM AND for the district court to impose an

appropriate payment schedule consistent w ith this opinion.

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