United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 1997 Decided December 5, 1997
No. 96-3172
United States of America,
Appellee
v.
Pauline Ngo Bapack,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00092-01)
Evelina J. Norwinski, Assistant Federal Public Defender,
argued the cause for the appellant. A.J. Kramer, Federal
Public Defender, was on brief.
Darryl Blane Brooks, Assistant United States Attorney,
argued the cause for the appellee. Mary Lou Leary, United
States Attorney, and John R. Fisher, Thomas J. Tourish, Jr.,
and Virginia Cheatham, Assistant United States Attorneys,
were on brief.
Before: Wald, Ginsburg and Henderson, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: A jury convict-
ed appellant Pauline Ngo Bapack of conspiring to defraud the
Government (18 U.S.C. s 286), submitting false Medicare and
Medicaid claims for payment (18 U.S.C. s 287), mail fraud (18
U.S.C. s 1341) and/or aiding and abetting (18 U.S.C. s 2)
these offenses. She was sentenced to twenty-seven months'
imprisonment and three years' supervised release and was
ordered to pay $100,506.00 in restitution, reduced by approxi-
mately $38,000 based on the amount recovered in civil forfei-
ture proceedings. She now appeals her sentence, claiming
that it was improperly enhanced under sections 2F1.1(b)(2)(A)
(more than minimal planning) and 3B1.1(c) (aggravating role)
of the United States Sentencing Guidelines (Guidelines) and
that she was erroneously ordered to pay restitution without
regard to her ability to pay.1 We affirm.
I. BACKGROUND
Bapack was the co-owner of Urgent Home Health Care
Services, Inc. (Corporation), which provided nursing care to
Medicaid and Medicare patients in their homes. She was
responsible for billing Medicaid for the services the Corpora-
tion provided. Because Medicaid and Medicare pay only for
services actually rendered, a home health care agency like the
Corporation simply cannot bill for the services prescribed in
the patient's Plan of Care (Plan). Instead the provider can
__________
1 Section 2F1.1(b)(2) of the Guidelines provides that "[i]f the
offense involved (A) more than minimal planning, ... increase [the
sentence] by 2 levels," and section 3B1.1(c) of the Guidelines states
that "[i]f the defendant was an organizer, leader, manager, or
supervisor in any criminal activity ... increase [the sentence] by 2
levels." United States Sentencing Commission, Guidelines Manu-
al, s 2F1.1(b)(2)(A) & s 3B1.1(c) (Nov. 1995).
bill Medicaid and Medicare only for the number and kinds of
treatment visits in fact made, which, for a variety of reasons,
may differ from those prescribed in the patient's Plan. Thus,
the provider typically generates billing invoices by reference
to attending nurses' time sheets, treatment notes and other
records.
The Corporation, however, did not do this. Instead, at
Bapack's (and co-defendant Pierre Yopa's) direction, it billed
Medicaid and Medicare for the number and type of visits
prescribed in the patient's Plan. As a result, it remitted
numerous invoices for services it did not perform; the evi-
dence presented at trial established that the Corporation,
under the superintendence of Bapack and Yopa, billed Medic-
aid and Medicare for more than 1,400 nurse visits that could
not be substantiated, the value of which totaled approximately
$100,506.00.
On a tip from a former Corporation employee, the Inspec-
tor General's Office of the United States Department of
Health and Human Services learned of the billing practices
and raided the Corporation's offices in November 1995. Af-
ter reviewing the records seized, and after subpoenaing sev-
eral Corporation nurses to testify, the grand jury returned an
eighteen-count indictment against Bapack and her co-
defendant, Pierre Yopa. Yopa was the other co-owner of the
Corporation and he was responsible for Medicare billing.
The Government's evidence included the testimony of Di-
ane Bouchaud, a nurse who had been a case manager for the
Corporation. Bouchaud testified that Bapack directed her
and other nurses to falsify records of nursing visits that were
not made. See 9/10/96 Trial Tr. 325, 333-36, 338. Zuliatu
Sillah, another nurse who served as the Corporation's Acting
Director of Nursing, testified that Bapack had instructed her
and others to fabricate records of nursing visits to assist in
meeting a survey administered by the District of Columbia
Department of Consumer and Regulatory Affairs (DCRA).
Id. at 412-13, 418-19, 436-38. The Corporation was required
to meet DCRA requirements, including complying with the
surveys, to be a certified Medicare provider.
On September 16, 1996, the jury returned a general ver-
dict, finding both Bapack and Yopa guilty on all counts. The
district court sentenced Bapack on December 9, 1996. Con-
cluding that her offenses involved "more than minimal plan-
ning," it enhanced her sentence by two levels pursuant to
section 2F1.1(b)(2)(A) of the Guidelines. 12/9/96 Sentencing
Tr. 20. The court also found that, under section 3B1.1(c) of
the Guidelines, an additional two-level enhancement was ap-
propriate for Bapack's role as an "organizer, leader, manager,
or supervisor":
Well, [appellant] clearly was, at the very least, a manager
or supervisor. There was at least more than one partici-
pant other than Ms. Bapack herself. The testimony is
that she was, in fact, a manager of the enterprise that
was found guilty of defrauding Medicare.
Id. at 18. The presentence investigation report (Report),
which the district court adopted in the Judgment in a Crimi-
nal Case (Judgment), also recited that "[f]ormer employees
testified that Ms. Ngo Bapack, [sic] asked some of the staff
members to create nursing records so that the patient's file
would falsely reflect that nurses had followed the doctors'
orders and reflect that the nurse visits had been consistent
with the 'Plans of Care.' " 11/20/96 Report p 11.
Finally, the district court ordered Bapack to pay restitu-
tion:
You shall pay a total restitution in the amount of
$100,506.... The Court finds you do not possess the
ability to pay a fine, the cost of imprisonment, or supervi-
sion unless otherwise determined by the Bureau of Pris-
ons. In view of your financial status and your need to
secure employment upon release to begin paying your
restitution payments, an alternative sanction is not rec-
ommended.... Finally, I want to note for the record
that there is a companion civil case that's running along-
side this case. It's a forfeiture case.... And the effect
of that forfeiture entered on the sentencing in this case is
as follows: It doesn't affect the level of loss for purposes
of the sentence. But I believe it will operate to reduce
the amount of restitution that [co-defendant] and Ms.
Bapack will have to make. And so the final orders will
reflect a restitution amount which is the approximately
hundred thousand dollars that I recited minus the ap-
proximately $38,000 that has been seized and forfeited.
And also, for the record, that restitution amount will
necessarily be joint and several for whatever effect that
has if Mr. Yopa is ever apprehended and returned and
sentenced.
12/9/96 Sentencing Tr. 22, 24 (reporter's indenting and para-
graph structure omitted). The Report noted "[b]ased on her
current financial status, it does not appear that [appellant]
has the ability to pay a fine, the costs of incarceration and/or
supervision, in addition to her restitution obligation, if or-
dered by the court." 11/20/96 Report p 57. It also noted that
"the Government reported that when the seizure warrant was
executed on March 4, 1996, the defendant had a [bank]
balance of $102,645.17." 2 Id. The district court then or-
dered Bapack to pay restitution in the amount of
$62,294.50.3 Bapack contested neither the restitution order
__________
2 The Government's sentencing memorandum indicated that this
amount was held in two Crestar Bank accounts. (Appellee App.
Tab H at 10 n.4.) Neither the sentencing memorandum nor the
Report indicates, however, whether and to what extent Bapack (as
distinguished from her co-defendant) had access to the accounts.
Moreover, there is no record indication that the district court relied
on this information in ordering restitution.
3 Bapack's Judgment orders restitution in the amount of
$72,294.50, which is $10,000.00 more than the district court's oral
sentence. The Government attributes the difference to a simple
arithmetic error: the amount of loss, $100,506.00, less the amount
recovered in forfeiture proceedings, $38,211.50, should have resulted
in a restitution order in the amount of $62,294.50, not $72,294.50. It
suggests that we let the district court resolve the matter without
remand (pursuant to Fed. R. Crim. P. 36) and without delaying
consideration of the merits. See Appellee Br. at 25 n.14. We think
the preferable procedure is to conform the written sentence to the
oral one. See Bartone v. United States, 375 U.S. 52, 53 (1963)
("This error, in enlarging the sentence in the absence of petitioner,
nor the enhancement for more than minimal planning. She
did argue, however, that there was insufficient evidence to
support the aggravating role enhancement. 12/9/96 Sentenc-
ing Tr. 12-13. Bapack timely appealed and we now affirm.
II. DISCUSSION
A. Aggravating Role Enhancement
Bapack first contends that because there was no evidence
to establish her role as a supervisor or manager of another
participant in the crimes with which she was charged, the
district court erred in enhancing her sentence pursuant to
section 3B1.1(c) of the Guidelines. We review the sentencing
court's finding for clear error.4 See United States v. Baylor,
97 F.3d 542, 548 (D.C. Cir. 1996); United States v. Kelley, 36
F.3d 1118, 1128 (D.C. Cir. 1994) ("[W]e give due deference to
the district court's application of the sentencing guidelines to
the facts, and we accept the district court's findings of fact
unless they are clearly erroneous.").
At sentencing, it is the Government's burden to demon-
strate by a fair preponderance of the evidence that an en-
hancement is warranted. See United States v. Cruz, 120 F.3d
1, 2 (1st Cir. 1997) (en banc). Thus, to support an aggrava-
ting role enhancement, the Government must show that more
likely than not the defendant organized, led, managed or
supervised the crime. See United States Sentencing Com-
__________
was so plain in light of the requirements of Rule 43 that it should
have been dealt with by the Court of Appeals, even though it had
not been alleged as error."). Accordingly, we hereby conform the
written and oral restitution orders, revising the Judgment to re-
quire restitution of $62,294.50, the amount the district court plainly
intended to order.
4 While she also asserts the district court applied the wrong legal
standard (Appellant Br. 8), we find nothing in the sentencing
transcript to support her assertion.
mission, Guidelines Manual, s 3B1.1 application note 2
[hereinafter Guidelines Manual].5 The Guidelines direct the
sentencing judge to consider several factors, including
the exercise of decision making authority, the nature of
participation in the commission of the offense, the re-
cruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of partic-
ipation in planning and organizing the offense, the nature
and scope of the illegal activity, and the degree of control
and authority exercised over others.
Id. application note 4; accord United States v. Thomas, 114
F.3d 228, 261 (D.C. Cir. 1997) ("The Sentencing Guidelines
instruct the sentencing court to consider the numerous fac-
tors listed above, no one of which is determinative.") (empha-
sis added), petition for cert. filed, No. 97-6660 (U.S. Nov. 6,
1997).
Mere "control over a scheme rather than over a participant
in a scheme," however, does not warrant a sentencing adjust-
ment pursuant to section 3B1.1(c).6 United States v. Gort-
__________
5 The Commentary to the Guidelines binds the sentencing court
to the same extent as the Guidelines themselves. See Stinson v.
United States, 508 U.S. 36, 45 (1993).
6 The Commentary recites that "[a]n upward departure may be
warranted, however, in the case of a defendant who did not orga-
nize, lead, manage, or supervise another participant, but who never-
theless exercised management responsibility over the property,
assets, or activities of a criminal organization." Guidelines Manu-
al, s 3B1.1 application note 2. Because the district court indicated
that it was adjusting Bapack's sentence, rather than upwardly
departing, however, we cannot affirm the sentence on the basis of
her evident role in exercising "management responsibility over the
property, assets, or activities of" the Corporation. See United
States v. Jobe, 101 F.3d 1046, 1048 (5th Cir. 1996) ("As the district
court did not order an upward departure, this ground of enhance-
ment is unavailable to sustain the enhancement on appeal."), cert.
denied 118 S. Ct. 81 (1997); but cf. United States v. Giraldo, 111
F.3d 21, 24 (5th Cir. 1997) (although sentencing judge improperly
relied on asset management theory to adjust sentence instead of
upwardly departing, court declined to vacate sentence because
evidence also supported adjustment making Guidelines application
error harmless).
DiDonato, 109 F.3d 318, 322 (6th Cir. 1997) (emphasis added).
Instead "the defendant must have been the organizer, leader,
manager, or supervisor of one or more participants." Guide-
lines Manual, s 3B1.1 application note 2 (emphasis added).
A "participant" is a "person who is criminally responsible for
the commission of the offense, but need not have been
convicted." Id. application note 1. In turn, a person is
"criminally responsible" if he "commit[s] all of the elements of
a statutory crime with the requisite mens rea." United
States v. Badaracco, 954 F.2d 928, 934-35 (3d Cir. 1992).
This does not mean, however, that to qualify as a "partici-
pant" a person must be found criminally responsible as a
principal or culpable in the same crime of which the supervis-
ing defendant was convicted: "[J]ust as a party who knowing-
ly assists a criminal enterprise is criminally responsible under
principles of accessory liability, a party who gives knowing
aid in some part of the criminal enterprise is a 'criminally
responsible party' under the Guidelines." United States v.
Hall, 101 F.3d 1174, 1178 (7th Cir. 1996). Thus, "the facts
that none of [the participants] benefitted from the commission
of the offense or were convicted of any offenses arising from
the criminal activity do not necessarily determine the ultimate
issue." United States v. Braun, 60 F.3d 451, 453 (8th Cir.
1995).
Bapack argues that none of the nurses who falsified treat-
ment records and time sheets at her instruction can be
considered criminally responsible for the crimes of which she
was convicted because (1) none of the nurses was involved in
the billing and (2) the falsified records were not used to bill
Medicaid or Medicare but instead were used only to meet the
DCRA certification survey. In her view, therefore, none of
the supervised nurses had "the specific intent to facilitate
Medicare/Medicaid fraud." (Appellant Reply Br. 3.) In
short, Bapack asserts that, to the extent the nurses she
supervised contributed to the offenses of which she was
ultimately convicted, they did so unwittingly.7
__________
7 She also argues that the only other "participant" in the charged
crimes, her business partner and co-defendant Yopa, was not shown
Her contentions are beside the point as they are mistakenly
predicated on the assumption that only supervision of "partic-
ipants" in the crimes with which she was charged, or of which
she was convicted, warrants a section 3B1.1(c) enhancement.
To the contrary, as provided by the Guidelines as well as
circuit precedent, "[t]he determination of a defendant's role in
the offense is to be made on the basis of all conduct within
the scope of s 1B1.3 ... and not solely on the basis of
elements and acts cited in the count of conviction." 8 Guide-
lines Manual, s 3B1.1 introductory commentary (emphasis
added); accord United States v. Caballero, 936 F.2d 1292,
1298 (D.C. Cir. 1991) ("[W]e conclude that section 3B1 allows
the sentencing judge to look to the contours of the underlying
__________
or even alleged to have been supervised, managed or led by her.
Because we find sufficient evidence that Bapack supervised nurses
in the commission of certain crimes with which both she and the
involved nurses could have been charged, we do not reach the issue
of Bapack's role vis--vis her co-defendant.
8 Section 1B1.3 defines "relevant conduct" as:
(1)(A) all acts and omissions committed, aided, abetted, coun-
seled, commanded, induced, procured, or willfully caused by the
defendant; and (B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or enterprise un-
dertaken by the defendant in concert with others, whether or
not charged as a conspiracy), all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertak-
en criminal activity, that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for
that offense; (2) solely with respect to offenses of a character
for which s 3D1.2(d) would require grouping of multiple
counts, all acts and omissions described in subdivisions (1)(A)
and (1)(B) above that were part of the same course of conduct
or common scheme or plan as the offense of conviction; (3) all
harm that resulted from the acts and omissions specified in
subsections (a)(1) and (a)(2) above, and all harm that was the
object of such acts and omissions; and (4) any other informa-
tion specified in the applicable guideline.
Guidelines Manual, s 1B1.3(a)(1)-(4) (emphasis added).
scheme itself rather than the mere elements of the offense
charged.") (internal quotations omitted; emphasis added),
cert. denied, 502 U.S. 1061 (1992). Accordingly, the district
court was free to consider Bapack's role with respect to all
crimes, charged or otherwise, "that were part of the same
course of conduct or common scheme or plan as the offense of
conviction." Guidelines Manual, s 1B1.3(a)(2).9 In other
words, application of the section 3B1.1(c) enhancement does
not require a finding that Bapack supervised "participants"
who were unindicted co-conspirators or accessories in the
crimes of which she was convicted. Rather, it is enough that
the "participants" she supervised were culpably involved in
uncharged crimes "that were part of the same course of
conduct or common scheme or plan as the offense of convic-
tion." Id.
We therefore have no trouble concluding that Bapack su-
pervised or managed at least one other "participant." Specif-
ically, the testimony of at least two Corporation nurses
(Bouchaud and Sillah), as well as the representations made in
the Report, establish by well more than a fair preponderance
of the evidence that Bapack supervised the knowing creation
of a materially false document.10 Although the Government
elected not to pursue it, the knowing falsification of records is
a violation of 18 U.S.C. s 1001, for which both Bapack and
the involved nurses could have been prosecuted.11 The nurs-
__________
9 Section 1B1.3(a)(2) of the Guidelines applies because section
3D1.2(d) requires that Bapack's fraud and conspiracy convictions be
grouped.
10 Indeed, Bouchaud's testimony was so suggestive of her criminal
culpability it prompted defense counsel to inquire whether she had
been granted immunity. See 9/10/96 Trial Tr. 336:11-338:16.
11 Section 1001, in relevant part, provides:
[W]hoever, in any matter within the jurisdiction of the execu-
tive, legislative, or judicial branch of the Government of the
United States, knowingly and willingly--... (2) makes any
materially false, fictitious, or fraudulent statement or represen-
tation; or (3) makes or uses any false writing or document
knowing the same to contain any material false, fictitious, or
es' actions were indisputably "part of the same course of
conduct or common scheme or plan as the offense[s]" of which
Bapack was convicted. Although they admitted only that
they falsified records for the DCRA certification require-
ments, a jury might reasonably disbelieve their knowledge
was so limited and conclude from the totality of the circum-
stances that the nurses were well aware that the falsified
records would ultimately be submitted to the Medicaid pro-
gram.12 Accordingly, the district court did not clearly err in
finding Bapack played an aggravating role in the offenses.
B. Cumulative Application of Sections
3B1.1(c) and 2F1.1(b)(2)(A)
Bapack next argues that by cumulatively enhancing her
sentence for her managerial role and for more than minimal
planning, the sentencing court punished her twice for the
same conduct. Since Bapack did not raise the double-
counting argument below, we review the district court's deci-
sion for plain error. See United States v. Plunkett, 125 F.3d
873, 874-75 (D.C. Cir. 1995). The Guidelines provide:
Absent an instruction to the contrary, the adjustments
from different guideline sections are applied cumulatively
__________
fraudulent statement or entry; shall be fined under this title or
imprisoned not more than 5 years, or both.
18 U.S.C.A. s 1001(a) (West Supp. 1997) (paragraph structure
omitted). Bouchaud's testimony (see supra note 10,) also suggested
that she might have been prosecuted for submitting false claims in
violation of 18 U.S.C. s 287, providing yet another basis for enhanc-
ing Bapack's sentence pursuant to section 3B1.1(c).
12 In any event, because DCRA acts as an agent for the United
States Department of Health and Human Services (HHS) regarding
D.C. Medicare certifications, 9/9/96 Trial Tr. 200-205, the DCRA
survey itself may qualify as a "matter within the jurisdiction of the
executive ... branch of the Government of the United States." Cf.
United States v. Murphy, 935 F.2d 899, 900 n.1 (7th Cir. 1991) ("As
we have previously held, HHS' regulatory oversight and provision
of funding for Illinois' AFDC program establishes the applicability
of s 1001 to that program.").
(added together). For example, the adjustments from
s 2F1.1(b)(2) (more than minimal planning) and
s 3B1.1 (Aggravating Role) are applied cumulatively.
Guidelines Manual, s 1B1.1 application note 4(p 2) (emphasis
added). Nevertheless Bapack encourages us to set aside the
enhancement for more than minimal planning, asserting that
the holding in United States v. Gottfried, 58 F.3d 648, 653
(D.C. Cir. 1995), supports her. We disagree. In Gottfried,
we had to decide whether enhancements for more than mini-
mal planning and for abuse of a position of trust were
duplicative. See 58 F.3d at 652-53. We held that, because
the two enhancements were based on separate elements of
the defendant's offense, their cumulative application did not
punish him twice for the same conduct. Id. at 653. In
Gottfried we noted in dicta two Sixth Circuit cases "to the
same effect." Id. Although those cases--United States v.
Chichy, 1 F.3d 1501, 1507 (6th Cir. 1993), and United States
v. Romano, 970 F.2d 164, 167 (6th Cir. 1992)--held that
enhancements for an organizing role and for more than
minimal planning could be impermissibly duplicative, they did
not involve a situation in which a different element supported
each enhancement. Bapack's case is plainly distinguishable
from those cases because her sentence was enhanced for her
managerial/supervisory role and for more than minimal plan-
ning. Moreover, as the Sixth Circuit has since acknowledged,
both Chichy and Romano were overruled in 1993 when the
Sentencing Commission amended the Commentary to section
1B1.1 to include the unequivocal language quoted above. See
United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996)
("The Sentencing Commission's regulations have thus abro-
gated the holdings of Romano and Chichy."). [B]ecause "the
force of the [Guidelines] commentary is near complete," Unit-
ed States v. Smaw, 22 F.3d 330, 333 (D.C. Cir. 1994), we, like
the Sixth Circuit, think that Application Note 4 to section
1B1.1 of the Guidelines is dispositive.
The enhancements Bapack received were based on differ-
ent elements of the offenses of which she was convicted. The
aggravating role enhancement (as Bapack herself argues) was
based on her directing nurses to falsify records of treatment
visits that were not made whereas the more than minimal
planning enhancement was based on the overarching fraudu-
lent billing scheme Bapack and her co-defendant engineered.
Thus, contrary to her contention, Bapack was not found to
have engaged in more than minimal planning because she
supervised or managed a "participant," nor was she found to
have supervised or managed a "participant" because she
engaged in more than minimal planning. Accordingly, the
district court did not err, much less plainly err, in cumulative-
ly applying sections 3B1.1(c) and 2F1.1(b)(2)(A) of the Guide-
lines to enhance Bapack's sentence.
C. The Restitution Order
Finally Bapack contends that the district court erred in
ordering restitution both because it apparently failed to con-
sider her ability to pay and because the available evidence
demonstrated that she could not make restitution.13 Bapack
specifically asserts that, as the Report indicates, she has four
minor children living in Cameroon, her debts exceed her
assets and she is subject to deportation proceedings upon
release from federal custody. For these reasons, she asserts,
the court erred in ordering restitution in any amount. Be-
cause Bapack did not contest the restitution order below, we
review it for plain error. See Plunkett, 125 F.3d at 874-75;
United States v. Davis, 117 F.3d 459, 462 (11th Cir.), cert.
denied, 118 S. Ct. 355; United States v. Zink, 107 F.3d 716,
718 (9th Cir. 1997); United States v. Castner, 50 F.3d 1267,
1277 (4th Cir. 1995).
The Guidelines direct that "[i]n determining whether to
impose an order of restitution, and the amount of restitution,
the court shall consider the amount of loss the victim suffered
__________
13 Although the restitution provisions of Title 18, 18 U.S.C.A.
ss 3663 et seq. (West Supp. 1997), have recently been amended to
make restitution mandatory in cases like this one, we apply the
provisions in effect at the time Bapack was sentenced. See United
States v. Thompson, 113 F.3d 13, 15 n.1 (2d Cir. 1997) (concluding
that retroactive application of mandatory restitution provisions rais-
es ex post facto concerns).
as a result of the offense, the financial resources of the
defendant, the financial needs of the defendant and his depen-
dents, and other factors the court deems appropriate."
Guidelines Manual, s 5E1.1 background p 3 (paraphrasing
18 U.S.C. s 3664(a)). The Guidelines do not, however, re-
quire a sentencing judge to make specific factual findings
regarding the factors. On the contrary, they instruct that
"[i]f the court does not order restitution or orders only
partial restitution, it must state its reasons for doing so." Id.
background p 2.
As we have observed in the analogous context of assessing
a defendant's ability to pay a fine, because
[t]he guidelines set forth no requirement ... that the
sentencing court make express findings on this ques-
tion[,] ... we decline to create one. So long as the
sentencing judge in fact considers ability to pay, he is in
compliance with the guidelines' mandates. Thus, where
the record demonstrates that the judge considered that
factor before imposing the fine, the appellate court will
not reverse the fine merely because no express finding
was made but will review the finding of ability to pay
necessarily implied by such consideration.
United States v. Mastropierro, 931 F.2d 905, 906 (D.C. Cir.
1991). In applying this rule, we join the clear majority of our
sister circuits. See, e.g., Davis, 117 F.3d at 463 (11th Cir.
1997) (noting that specific factual findings not required);
United States v. Sanders, 95 F.3d 449, 456 (6th Cir. 1996)
(similar); United States v. Giwah, 84 F.3d 109, 114 (2d Cir.
1996) (similar); United States v. Newman, 49 F.3d 1, 10 (1st
Cir. 1995) (similar); United States v. Gio, 7 F.3d 1279, 1291
(7th Cir. 1993) (similar); United States v. Ramilo, 986 F.2d
333, 335 (9th Cir. 1993) (similar); United States v. Rogat, 924
F.2d 983, 986 (10th Cir.) (similar), cert. denied, 499 U.S. 982
(1991); United States v. Ryan, 874 F.2d 1052, 1053 (5th Cir.)
(concluding that legislative predecessor to 18 U.S.C.
s 3664(a)
did not require specific findings), cert. denied, 489 U.S. 1019
(1989).14
We conclude that the record adequately evinces the district
court's consideration of Bapack's ability to pay, the only one
of the required factors she challenges. In particular, we note
that the court adopted the unchallenged ability-to-pay find-
ings of the Report, which discussed Bapack's financial worth,
past work history and future ability to pay. The judge also
stated "[t]he Court finds you do not possess the ability to pay
a fine, the cost of imprisonment, or supervision[;] ... [i]n
view of your financial status and your need to secure employ-
ment upon release to begin paying your restitution payments,
an alternative sanction [fines, etc.] is not recommended."
12/9/96 Sentencing Tr. 22. These indicia of the court's consid-
eration of Bapack's ability to pay restitution satisfy us that it
considered the required factors in ordering her to pay restitu-
tion. See Davis, 117 F.3d at 464 (record reflected consider-
ation of defendant's ability to pay where sentencing judge
adopted presentence report regarding defendant's financial
circumstances and where defendant was given opportunity to
object but did not); Castner, 50 F.3d at 1278 (sentencing
judge's failure to make specific factual findings regarding
defendant's ability to pay restitution was not plain error
where judge adopted presentence report that considered 18
U.S.C. s 3664(a) factors); United States v. Mizrachi, 48 F.3d
651, 657 (2d Cir. 1995) (upholding restitution order where
presentence report contained detailed discussion of 18 U.S.C.
s 3664(a) factors and where court mentioned restitution in
connection with its decision not to assess fine or incarceration
costs); Nelson, 5 F.3d at 258 (record reflected consideration
of defendant's ability to pay restitution where sentencing
judge determined "[d]efendant does not have a financial
ability to pay a fine, costs of incarceration, community con-
finement, or supervision, and, therefore, [the court] waives
__________
14 We therefore reject the approach of the Third Circuit and the
Fourth Circuit, which seem to require specific findings as to each of
the factors listed in 18 U.S.C. s 3664(a). See United States v.
Copple, 74 F.3d 479, 482 (3d Cir. 1996); United States v. Piche, 981
F.2d 706, 718 (4th Cir. 1992), cert. denied, 568 U.S. 916 (1993).
the interests on the fine, costs of incarceration, community
confinement and supervision in this case").
The cases Bapack relies on are easily distinguished from
hers. In Thompson, 113 F.3d at 16, the Second Circuit was
not satisfied that the sentencing judge had considered the
required factors because, unlike here, the judge refrained
from fining the defendant without comment on the defen-
dant's ability to pay either a fine or restitution. In Sanders,
95 F.3d at 456, the sentencing judge stated that he was
"required" to order restitution whereas his restitution order
was instead held to be discretionary and the Sixth Circuit was
uncertain, in view of a silent record, that the required factors
had been considered. There is nothing in the record here
that leads us to conclude that the district court believed it had
to order restitution and thus Sanders is inapposite. Finally,
in United States v. Remillong, 55 F.3d 572 (11th Cir. 1995),
the Eleventh Circuit remanded the defendant's sentence to
the district court for the third time because the only evidence
of consideration of the required factors consisted of the
sentencing judge's handwritten note on the Judgment, which
indicated only that restitution was appropriate because the
defendant had at one time had physical custody of the stolen
money. See 55 F.3d at 574.
Nor do we find plain error in the sentencing court's conclu-
sion that Bapack should be ordered to pay restitution in the
amount of $62,294.50. Bapack bore the burden at sentencing
of demonstrating by a fair preponderance of the evidence her
financial condition. See 18 U.S.C. s 3664(d) ("The burden of
demonstrating the financial resources of the defendant and
the financial needs of the defendant and such defendant's
dependents shall be on the defendant."). To prevail on
appeal she must "show that the record is devoid of any
evidence that [she] is able to satisfy the restitution order."
Davis, 117 F.3d at 459 (internal quotation marks omitted;
emphasis added). The "burden is particularly acute under
the plain error standard of review." Id. Bapack has not
satisfied her appellate burden, as the Report's unchallenged
ability to pay findings suffice to sustain the restitution or-
der.15 See United States v. Twitty, 107 F.3d 1482, 1494 n.14
(11th Cir.) (sentencing court entitled to rely on uncontrovert-
ed findings of presentence report in deeming defendant able
to pay restitution), cert. denied, 118 S. Ct. 253 (1997). Ac-
cordingly, we conclude that the district court did not plainly
err in ordering Bapack to pay restitution in the amount of
$62,294.50. Cf. Castner, 50 F.3d at 1278 ("Although Appel-
lants at time of sentencing had a negative net monthly cash
flow, this does not necessarily indicate an inability to pay,
particularly when their [presentence reports] reflect past
success in business and above average earning capacities.");
Nelson, 5 F.3d at 259 (holding that although defendant had
negative net worth at time of sentencing, record indicated he
"demonstrated considerable talent in perpetrating his
crime[,]" and thus "[t]he restitution order gives [him] an
incentive to apply these talents in a lawful manner upon
release to make his victim whole").
III. CONCLUSION
For the foregoing reasons, we conclude that the district
court correctly (1) enhanced Bapack's sentence pursuant to
section 3B1.1(c) of the Guidelines, (2) cumulatively enhanced
her sentence pursuant to sections 3B1.1(c) and 2F1.1(b)(2)(A)
of the Guidelines and (3) ordered her to pay restitution in the
amount of $62,294.50. Accordingly, Pauline Ngo Bapack's
sentence is
Affirmed.
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15 The Report noted as to Bapack's ability to satisfy a future (and
joint) restitution obligation: (1) she has made a good living since
seeking asylum in this country in 1984; (2) she is trained as a
nurse; (3) she has a long and stable history of successful employ-
ment as a nurse; and (4) she possesses entrepreneurial talent as
evidenced by her ability to obtain the necessary certifications for,
and launch, her own home health care agency. See Report pp 44-
57.