United States v. Gary Graves

Case: 17-11276 Document: 00514717132 Page: 1 Date Filed: 11/08/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-11276 United States Court of Appeals

Fifth Circuit

FILED

November 8, 2018

UNITED STATES OF AMERICA,

Lyle W. Cayce

Plaintiff-Appellee, Clerk

v.

GARY DON BOYD GRAVES,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before DAVIS, COSTA, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

Gary Don Boyd Graves pleaded guilty to one count of possessing child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district

court sentenced him to 108 months’ imprisonment followed by 10 years of

supervised release. It also ordered Graves to pay the $100 special assessment

as well as a $5,000 additional special assessment pursuant to the Justice for

Victims of Trafficking Act of 2015. See 18 U.S.C. §§ 3013(a)(2)(A), 3014(a)(3).

The additional $5,000 special assessment must be imposed on any non-

indigent person who commits certain offenses, including offenses related to

sexually exploiting children. See id. § 3014.

Case: 17-11276 Document: 00514717132 Page: 2 Date Filed: 11/08/2018

No. 17-11276

As part of his plea deal, Graves generally waived his right to appeal.

Notwithstanding that waiver, Graves filed this appeal to challenge the $5,000

special assessment on the basis of his purported indigence. Whether Graves

waived his right to challenge the special assessment is a close question. But it

is one we need not answer. We instead resolve this appeal on the merits and

hold § 3014 allows district courts to consider a defendant’s future earning

capacity when determining whether a defendant is indigent. Therefore, we

conclude the district court did not err in imposing the $5,000 special

assessment and affirm its judgment.

I.

On June 14, 2017, Graves was indicted for possessing pornographic

images of pre-pubescent children. Because the magistrate judge found that he

was “financially unable to obtain counsel,” the court appointed a public

defender. After consulting with his appointed counsel, Graves decided to

accept responsibility for his crime and pleaded guilty to possessing child

pornography that included images of children under the age of twelve.

In the plea agreement, the Government and Graves agreed to minimum

and maximum penalties for Graves’s crime. The possible penalties included:

(a) imprisonment; (b) a fine; (c) a term of supervised release; (d) a mandatory

special assessment of $100 and an additional mandatory special assessment of

$5,000 if the court found Graves not indigent; (e) restitution; (f) costs of

incarceration and supervision; and (g) forfeiture of property. In the plea

agreement, Graves acknowledged that “the actual sentence imposed (so long

as it is within the statutory maximum) is solely in the discretion of the Court.”

And Graves explicitly waived his right “to appeal the conviction, sentence, fine

and order of restitution or forfeiture in an amount to be determined by the

district court.” He did, however, reserve his right to appeal “a sentence

exceeding the statutory maximum punishment.”

2

Case: 17-11276 Document: 00514717132 Page: 3 Date Filed: 11/08/2018

No. 17-11276

In September 2017, after the plea agreement was signed, the probation

officer prepared a presentence investigation report (“PSR”). It included

information about Graves’s employment history and current financial status.

Because Graves had failed to provide requested information regarding his

finances, the probation officer relied on Graves’s June 2017 financial affidavit

in evaluating his financial condition. Based on that information, the PSR

determined Graves had no substantial assets, $874 in debt, and a monthly cash

flow of $50 after accounting for expenses. The PSR concluded that any fine or

$5,000 assessment should be imposed based on Graves’s future earning

capacity because he was employable. Graves disagreed. In his objections to

the PSR, Graves argued the court must consider only his financial condition at

the time of his sentencing, not his potential future earnings, in determining

whether to assess him $5,000.

Graves subsequently submitted additional documents showing he had

an income of $700 a month and up to $245 in monthly discretionary income.

As a result, the probation officer filed an addendum to the PSR, which updated

Graves’s financial information and reasoned that, based on Graves’s current

income, he “could pay a $5,000 assessment, in-full, in less than 2 years.” The

addendum also concluded that Graves would likely have an increased earning

potential after his release from prison. Graves continued to disagree.

At the sentencing hearing, Graves argued that he was “most certainly

indigent” and urged the district court not to impose the $5,000 special

assessment. The Government countered that the court should consider

Graves’s future earning capacity in assessing his indigence. Pointing to

Graves’s education, which included some college courses, his employment

history, and the fact that he is able bodied, the Government argued Graves

would have the ability to make payments in the future. The district court

agreed. It found that Graves “is not indigent based upon his potential future

3

Case: 17-11276 Document: 00514717132 Page: 4 Date Filed: 11/08/2018

No. 17-11276

earning capacity” and imposed the $5,000 additional special assessment.

Graves preserved his objection to the special assessment. This appeal followed.

II.

As with other legal issues, we review the effect of an appeal waiver de

novo. United States v. Walters, 732 F.3d 489, 491 (5th Cir. 2013). We usually

employ a two-step inquiry, asking: (1) “whether the waiver was knowing and

voluntary” and (2) “whether, under the plain language of the plea agreement,

the waiver applies to the circumstances at issue.” United States v. Keele, 755

F.3d 752, 754 (5th Cir. 2014). In this case, however, neither party contests the

knowing and voluntary nature of the waiver. So we skip straight to step two—

whether the waiver bars the present appeal.

Graves’s appeal waiver expressly preserves his right to appeal “a

sentence exceeding the statutory maximum punishment.” He argues the

district court was not statutorily authorized to impose the $5,000 special

assessment because Graves is “an[ ] [ ]indigent person” under 18 U.S.C.

§ 3014(a)(3), and therefore, the sentence exceeds the statutory maximum. To

support his reading of the statutory-maximum exception to his appeal waiver,

Graves relies on appeals challenging the legality of restitution orders. Under

our precedent, an appeal waiver with a statutory-maximum exception does not

foreclose challenges to restitution awards that are unsupported by evidence of

the victims’ losses. See United States v. Chem. & Metal Indus., Inc., 677 F.3d

750, 752 (5th Cir. 2012); see also United States v. Winchel, 896 F.3d 387, 389

(5th Cir. 2018) (determining an appeal fell within a statutory-maximum

exception when “a court orders a defendant to pay restitution under § 2259

without determining that the defendant’s conduct proximately caused the

victim’s claimed losses” because “the amount of restitution necessarily exceeds

the statutory maximum”); Keele, 755 F.3d at 756 (noting “that, while defendant

has made no such argument on appeal herein, an ‘in excess of the statutory

4

Case: 17-11276 Document: 00514717132 Page: 5 Date Filed: 11/08/2018

No. 17-11276

maximum’ challenge, if properly raised on appeal, would not be barred by an

appeal waiver” (quoting Chem. & Metal Indus., Inc., 677 F.3d at 752)).

Arguably, appeals challenging restitution orders are analogous to appeals

challenging special assessments. After all, both types of appeals turn on

whether a statute authorizes the district court to demand money from the

defendant—and hence whether the district court exceeded the “statutory

maximum” in doing so.

The Government counters that a special assessment is more analogous

to a “fine,” which falls within the plain terms of Graves’s appeal waiver. The

appeal waiver provided: “The defendant waives the defendant’s rights . . . to

appeal the conviction, sentence, [or] fine.” The Government further argues

that, even if a special assessment were analogous to a restitution order, the

appeal waiver would still apply unless the record contained no evidence to

support it. See Chem. & Metal Indus., Inc., 677 F.3d at 752 (appeal waiver

does not bar challenge to restitution order where Government concedes “there

was no finding of loss”). By contrast here, the Government observes, ample

record evidence supports the district court’s finding that Graves would be able

to pay the $5,000 special assessment based on his future earning capacity.

Fortunately, we do not need to resolve the appeal-waiver question here

because this case is easily resolved on the merits. See United States v.

Childers, No. 17-40621, 2018 WL 5259393, at *1 (5th Cir. Oct. 19, 2018) (per

curiam) (denying motion for summary dismissal of a challenge to the $5,000

special assessment when the defendant’s claim would fail even if it was not

barred by the appeal waiver); United States v. Smith, 528 F.3d 423, 424 (5th

Cir. 2008) (declining “to address the issue of whether a general appeal waiver

bars review of a restitution order when the plea agreement does not discuss

restitution” because the “appeal is more easily resolved on the merits”).

5

Case: 17-11276 Document: 00514717132 Page: 6 Date Filed: 11/08/2018

No. 17-11276

III.

Whether Graves is “a[ ] non-indigent person” is a factual question we

review for clear error. United States v. Streaty, 735 F. App’x 140, 140 (5th Cir.

2018) (per curiam). Whether the district court applied the correct legal

standard in assessing Graves’s non-indigence, however, is a question of law we

review de novo. Pedcor Mgmt. Co. Welfare Benefit Plan v. Nations Pers. of Tex.,

Inc., 343 F.3d 355, 358 (5th Cir. 2003).

A.

1.

“We start, of course, with the statutory text.” BP Am. Prod. Co. v.

Burton, 549 U.S. 84, 91 (2006). “Unless otherwise defined, statutory terms are

generally interpreted in accordance with their ordinary meaning.” Id. Here

the statutory text provides in relevant part:

[I]n addition to the assessment imposed under section 3013, the

court shall assess an amount of $5,000 on any non-indigent person

or entity convicted of an offense under . . . chapter 110 (relating to

sexual exploitation and other abuse of children) . . . .

18 U.S.C. § 3014(a)(3). The parties focus our textual exegesis on one phrase—

“any non-indigent person”—and ask us to decide whether district courts may

consider future earning capacity in determining non-indigence in this context.

They can. That is so for three reasons.

First, the ordinary meaning of “indigent” includes a forward-looking

assessment of the defendant’s means. The word includes someone who is

presently “[w]anting,” “lacking,” or “destitute”; but it also includes someone

who is “[d]estitute of . . . means of comfortable subsistence.” WEBSTER’S NEW

INTERNATIONAL DICTIONARY 1266 (2d ed. 1954) (emphasis added). “Means”

refers to a person’s capabilities—whether a person has or lacks the capacity to

earn subsistence. The ordinary meaning of “indigent” therefore includes both

6

Case: 17-11276 Document: 00514717132 Page: 7 Date Filed: 11/08/2018

No. 17-11276

someone who is poor today and someone who lacks the means to earn the

necessaries of life in the future.

Second, “[t]ext may not be divorced from context.” Univ. of Tex. Sw. Med.

Ctr. v. Nassar, 570 U.S. 338, 356 (2013); see also ANTONIN SCALIA & BRYAN

GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 56 (2012).

Here, the statutory context shows that a district court’s decision to impose the

assessment is forward-looking to the defendant’s future ability to pay.

Section 3014 mandates “the court shall assess an amount of $5,000 on

any non-indigent person” convicted of certain offenses, and the assessments

shall be used to provide services to trafficking victims. 18 U.S.C. § 3014(a), (c),

(h) (emphasis added). By denying district courts discretion to impose the

$5,000 additional special assessment, Congress made clear the assessment is

a mandatory part of the sentence for an enumerated offense. See Valdez v.

Cockrell, 274 F.3d 941, 950 (5th Cir. 2001) (“The word ‘shall’ is mandatory in

meaning.”).

Not only must the special assessment be imposed today, the

responsibility to pay it also persists well into the future. To increase the

possibility the assessments would be collected and used to help victims,

Congress stipulated the obligation to pay the assessment would continue for

twenty years after the release from imprisonment or the entry of judgment,

whichever is later. See 18 U.S.C. §§ 3014(g), 3613(b). 1 The duration of that

statutory obligation further underscores that a district court must impose the

assessment unless it finds the defendant could not pay it today—or at any point

for the next twenty years.

1In contrast, the obligation to pay the $100 special assessment “ceases five years after

the date of the judgment.” 18 U.S.C. § 3013(c).

7

Case: 17-11276 Document: 00514717132 Page: 8 Date Filed: 11/08/2018

No. 17-11276

As if that were not enough, Congress also directed the Government to

collect the $5,000 special assessment like a fine. See 18 U.S.C. § 3014(f) (“The

amount assessed under subsection (a) shall . . . be collected in the manner that

fines are collected in criminal cases.”). And a defendant’s future earning

capacity is relevant to determining indigence for criminal fines. For example,

the Federal Sentencing Guidelines provide courts “shall impose a fine in all

cases, except where the defendant establishes that he is unable to pay and is

not likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a) (emphasis

added). Accordingly, when determining what fine amount to impose, courts

may “consider the defendant’s ability to pay in light of his earning capacity and

financial resources.” United States v. Altamirano, 11 F.3d 52, 53 (5th Cir.

1993). In this context—a mandatory assessment, collectable for 20 years,

treated like a fine—a district court’s indigency finding should include

consideration of the defendant’s future ability to pay.

Third, our reading of the phrase “any non-indigent person” in § 3014

comports with that of our sister circuits. See United States v. Janatsch, 722 F.

App’x 806, 811 (10th Cir. 2018) (“[T]he district court here did not err in

concluding that [the defendant] would have the ability to pay the special

assessment in the future.”); United States v. Kelley, 861 F.3d 790, 801 (8th Cir.

2017) (concluding, “that in the context of § 3014 indigence determinations, an

analysis of both a defendant’s current financial situation and his ability to pay

in the future is appropriate in determining his ‘non-indigent’ status”); United

States v. Strange, 692 F. App’x 346, 349 (9th Cir. 2017) (concluding “the district

court properly took into account that [the defendant] was ‘able-bodied’ ” and

affirming its imposition of the $5,000 special assessment). Graves offers no

argument that would justify creating a circuit split on this issue. See Alfaro v.

Comm’r of Internal Revenue, 349 F.3d 225, 229 (5th Cir. 2003) (“We are always

chary to create a circuit split.”).

8

Case: 17-11276 Document: 00514717132 Page: 9 Date Filed: 11/08/2018

No. 17-11276

2.

Graves argues only that indigency must be determined once and for all

at the time of sentencing—a single snapshot of the defendant’s bank account

and employment. But this interpretation ignores the statutory context that

informs the meaning of “non-indigent.” As discussed above, the statutory

context demonstrates the assessment of a defendant’s financial condition

should consider future earning capacity, especially in light of the fact that the

statute authorizes the payment obligation to last for twenty years after

judgment. See 18 U.S.C. § 3014(g).

Given that text may never be taken out of context, it is obviously true

the word “indigent” could carry different meanings in different contexts. As

Justice Goldberg has observed, indigence “must be conceived as a relative

concept” and defined in light of the context or “with reference to the particular

right asserted.” Hardy v. United States, 375 U.S. 277, 289 n.7 (1964)

(Goldberg, J., concurring;) see also 7 OXFORD ENGLISH DICTIONARY 868 (2d ed.

1989) (defining “indigent” by reference to something else—“falling short of the

proper measure or standard”). Accordingly, when evaluating whether a

defendant is indigent and should be allowed to proceed in forma pauperis, a

court “assesses a defendant’s immediate ability to pay because ‘any person

haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial

unless counsel is provided for him.’ ” Kelley, 861 F.3d at 800 (emphasis added)

(quoting Martinez v. Ryan, 566 U.S. 1, 12 (2012)).

But when evaluating whether a defendant is indigent for purposes of his

ability to pay $5,000 over the span of twenty years, it would be nonsensical for

a court to limit itself to considering only a defendant’s immediate ability to pay.

See id. at 801 (“Because the special assessment under § 3014 deals with

sentencing-phase considerations, the indigence analyses of similar post-

conviction assessments are more helpful than the analysis used for

9

Case: 17-11276 Document: 00514717132 Page: 10 Date Filed: 11/08/2018

No. 17-11276

determining IFP status or appointed counsel.”); cf. United States v. Lewis, 104

F.3d 690, 694 (5th Cir. 1996) (per curiam) (“In determining an amount of

restitution to be paid, the district court considers not only a defendant’s

present financial resources, but also his future ability to pay.”).

B.

Because we conclude the district court applied the correct legal standard

in assessing Graves’s indigence, Graves must show the district court clearly

erred by finding he was not indigent. He fails to make this showing.

The district court found Graves was non-indigent based on evidence he

(1) took accelerated placement courses in high school, obtained his GED, and

briefly attended college; (2) had a wide range of vocational skills; (3) had a long

history of employment; (4) had previously earned $40,000 annually; and (5)

was able bodied. Graves does not argue that any of these factual findings are

wrong, much less clearly erroneous. 2 Nor can Graves argue, in light of our

holding above, these facts are legally irrelevant.

Graves likewise cannot argue these fact findings are irreconcilable with

the magistrate judge’s earlier determination that Graves was financially

unable to obtain counsel. See United States v. Perez, 693 F. App’x 364, 365 (5th

Cir. 2017) (per curiam) (“Contrary to [the defendant’s] contention, a conclusion

of non-indigency is not precluded by other orders entered in the case that

depended on financial status.”). When determining whether a defendant is

unable to afford counsel, a court considers “a defendant’s immediate ability to

2 Graves argues only that the district court’s non-indigency finding was “implausible”

based on the income reported in the PSR and PSR addendum. According to these documents,

Graves’s income while on pre-trial release was between $700 and $1,000 a month. Graves

argued that the evidence thus showed his income fell below the federal poverty level of

$12,060 for an individual. Once again, this argument ignores that the district court could

consider Graves’s future earning capacity. And, given that Graves previously earned $40,000

a year, it was not unreasonable for the district court to conclude he could earn a higher income

and that he therefore was not indigent.

10

Case: 17-11276 Document: 00514717132 Page: 11 Date Filed: 11/08/2018

No. 17-11276

pay” and bases its decision on preliminary financial information. Kelley, 861

F.3d at 800; see Perez, 693 F. App’x at 365 (explaining that “a magistrate

judge’s analysis of preliminary financial information, when undertaking the

task of ensuring [the defendant’s] Sixth Amendment right to counsel, [does not]

bar[ ] a later conclusion of non-indigency based on the more revealing

information about [the defendant’s] total net worth given in the presentence

report”). In contrast, when assessing whether a defendant is unable to pay a

$5,000 special assessment, a court considers the defendant’s current and

future financial condition and bases its decision on the additional information

provided in a PSR. That Graves was entitled to appointed counsel thus does

not undermine the district court’s later finding that he was not indigent.

The district court’s decision not to impose a separate fine of $25,000 to

$250,000 is similarly reconcilable with its decision to impose the $5,000 special

assessment. It should go without saying that a defendant may not have the

same ability to pay $5,000 as he would have to pay five to fifty times that

amount. See Perez, 693 F. App’x at 365 (rejecting a defendant’s argument “that

the non-imposition of a fine impacts the additional special assessment decision,

given that the fine range of $50,000 to $250,000 vastly exceeds the sum of the

additional special assessments”). Accordingly, none of Graves’s arguments

leaves us “with the definite and firm conviction that a mistake has been made.”

Cordova-Soto, 804 F.3d at 718. We therefore find no clear error in the district

court’s conclusion that Graves is non-indigent under § 3014.

* * *

Because the district court applied the correct legal standard and did not

clearly err in finding Graves is “a[ ] non-indigent person” under 18 U.S.C.

§ 3014, the district court’s judgment is AFFIRMED.

11