United States v. Mason Shepherd

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0083p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 18-3993

v. │

│

│

MASON SHEPHERD, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:17-cr-00473-1—Jack Zouhary, District Judge.

Decided and Filed: May 1, 2019

Before: MERRITT, KETHLEDGE, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Claire R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant.

Tracey Ballard Tangeman, UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio, for

Appellee.

NALBANDIAN, J., delivered the opinion of the court in which KETHLEDGE, J., joined,

and MERRITT, J., joined in part. MERRITT, J. (pp. 10–12), delivered a separate opinion

concurring in part and dissenting in part.

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OPINION

_________________

NALBANDIAN, Circuit Judge. Mason Shepherd admitted to possessing several

thousand images and videos of child pornography and pleaded guilty to one count of receipt and

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distribution of child pornography under 18 U.S.C. § 2252(a)(2). The district court sentenced

Shepherd to 96 months in prison and six years of supervised release and also ordered him to pay

$25,000 in restitution to his victims, a $100 special assessment, and a $5,000 assessment under

the Justice for Victims of Trafficking Act (“JVTA”), codified at 18 U.S.C. § 3014. Shepherd

appeals the latter assessment. Under the JVTA, courts must impose the $5,000 assessment

against non-indigent persons convicted of five classes of crimes, including crimes related to the

sexual exploitation of children. On appeal, Shepherd argues that he was indigent at sentencing,

making him ineligible for the JVTA assessment. We disagree and AFFIRM.

I.

After Shepherd pleaded guilty but before sentencing, the United States Probation Office

prepared a presentence report (“PSR”), which provided the court with information about

Shepherd’s education, employment history, and finances. According to the PSR, Shepherd

obtained a high-school-equivalency degree in 2008 and earned certifications from a career school

as an emergency-medical technician and in fire safety. Shepherd then enlisted in the U.S. Navy

but became injured shortly after completing basic training and was honorably discharged in

2009. So Shepherd entered the private sector and held two jobs before his 2017 arrest: a part-

time position as a firefighter and emergency-medical technician with the Perry Township Fire

Department and a full-time position as a maintenance associate with the Allen County

Fairgrounds, earning $9 and $11 per hour, respectively. As to Shepherd’s finances, the PSR

identified an overdue bill for $439, and Shepherd self-reported $1,500 in unpaid medical

expenses. His only asset was a 1996 Dodge Ram, worth about $200, placing his total net worth

at negative $1,739.

At the sentencing hearing, Shepherd’s counsel asked the court to find that Shepherd was

indigent, which would make him ineligible for the JVTA assessment, and described Shepherd’s

financial obligations. The father of an 11-year-old son, Shepherd had been paying $350 in

monthly child support before his arrest; his counsel estimated that Shepherd will owe $30,000 in

support upon his release from prison. That obligation, along with the $25,000 in court-ordered

restitution, places Shepherd’s total financial liability at $55,000 when he exits prison.

No. 18-3993 United States v. Shepherd Page 3

And Shepherd’s counsel pointed to several factors hampering Shepherd’s ability to

satisfy his financial obligations. First, Shepherd’s expected earnings from prison jobs range

from $.12 to—at most—$.40 per hour. Shepherd’s counsel cast doubt on Shepherd’s ability to

earn enough to settle his financial obligations once he exits prison, both because of his limited

education and the fact that he must register as a sex offender. Thus, Shepherd’s counsel asked

the court to not impose the JVTA assessment.

The district court nonetheless ordered the JVTA assessment. Before sentencing ended,

the judge remarked that “when I combine the defendant’s ability to earn in the future, along with

his other obligations, I think it’s something that can be handled by the defendant in this case.”

(R. 41, Tr. at PageID #2088.) Shepherd’s counsel objected to the assessment at the close of

sentencing, preserving the issue for appeal.

II.

We first address our standard of review in this case of first impression before our court.

The parties ask us to review the district court’s decision to impose the assessment for abuse of

discretion, and it is true that we ordinarily review decisions to impose criminal fines under that

standard. See, e.g., United States v. Monus, 128 F.3d 376, 398 (6th Cir. 1997). But that standard

presupposes that the district court has discretion as to whether to impose the fine. Some statutes,

for example, tell the sentencing court to impose a fine “only to the extent that such fine or

penalty will not impair the ability of the defendant to make restitution.” 18 U.S.C. § 3572(b).

By contrast, the statute here uses mandatory language, leaving no room for discretion. Section

3014 states that the court “shall assess an amount of $5,000 on any non-indigent person or entity

convicted.” 18 U.S.C. § 3014(a) (emphasis added). In other words, the district court has no

choice but to impose the $5,000 assessment if it determines that the defendant is non-indigent.

And the opposite is also true: the district court cannot impose the assessment on an indigent

defendant. Because the district court has no discretion to exercise, we cannot review for abuse of

discretion.

Instead, we believe that the crux of this appeal presents two questions—one factual, the

other legal. See, e.g., Randall H. Warner, All Mixed Up about Mixed Questions, 7 J. App. Prac.

No. 18-3993 United States v. Shepherd Page 4

& Process 101, 132–36 (2005) (discussing application of definitions in statutes). Whether

Shepherd is indigent under 18 U.S.C. § 3014 is a question of fact that we review under the

clearly erroneous standard. See United States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008)

(reviewing district court’s factual findings at sentencing for clear error). To answer that

question, however, the district court first had to resolve a separate, legal question—what

constitutes indigence under § 3014. We review that legal question de novo. See Weinberger v.

United States, 268 F.3d 346, 351 (6th Cir. 2001) (reviewing district court’s application of

Sentencing Guidelines de novo).

III.

A.

We begin with the legal question: whether the district court applied the correct standard

for what constitutes indigence under § 3014. Shepherd acknowledges that several of our sister

circuits have said that a district court may consider both the defendant’s current ability to pay

and the defendant’s earnings capacity to resolve the indigency question. See, e.g., United States

v. Graves, 908 F.3d 137, 138 (5th Cir. 2018); United States v. Janatsch, 722 F. App’x 806, 811

(10th Cir. 2018); United States v. Lail, 736 F. App’x 381, 382 (4th Cir. 2018) (per curiam);

United States v. Kelley, 861 F.3d 790, 801 (8th Cir. 2017). But Shepherd also directs us to a

contrary decision, in which the district court declined to weigh the defendant’s earnings potential

in its indigency analysis, looking only to the defendant’s financial condition at the time of

sentencing. United States v. Medina, No. 15–2849, 2017 WL 3189900 (D.N.M. May 25, 2017).

Our analysis begins with the statute’s text. Section 3014 states that a court “shall assess

an amount of $5,000 on any non-indigent person or entity convicted of an offense

under . . . (3) chapter 110 (relating to sexual exploitation and other abuse of children).”

18 U.S.C. § 3014(a)(3). Congress did not define “non-indigent,” so we must give that term its

ordinary meaning at the time of the statute’s enactment. Keeley v. Whitaker, 910 F.3d 878, 882

(6th Cir. 2018); United States v. Grant, 636 F.3d 803, 810 (6th Cir. 2011). To determine

ordinary meaning, we first turn to dictionaries that are “roughly contemporaneous” with the

statute’s enactment. Freytag v. C.I.R., 501 U.S. 868, 920 (1991) (Scalia, J., concurring); see also

No. 18-3993 United States v. Shepherd Page 5

United States v. Zabawa, 719 F.3d 555, 559 (6th Cir. 2013) (“In determining [the ordinary

meaning], dictionaries are a good place to start.”). Black’s Law Dictionary defines indigent as

“[a] poor person,” but that does not tell us much, partly because it uses indigent as a noun while

the statute uses indigent as an adjective. Indigent, Black’s Law Dictionary 891 (10th ed. 2014).

More descriptive is Black’s definition of indigency, which it calls “[t]he quality, state, or

condition of a person who lacks the means of subsistence; extreme hardship or neediness;

poverty.” Indigency, Black’s Law Dictionary 891 (10th ed. 2014). That definition suggests that

indigency is a more dire condition than simply living paycheck-to-paycheck: it summons the

thought of one who earns no paycheck at all and instead relies on others for life’s basic

necessities.

Non-legal dictionaries also compare the words indigent and indigency to poverty. See,

e.g., Indigent, Webster’s New World Dictionary 687 (3d ed. 1988) (“in poverty; poor; needy;

destitute”). We find the Oxford English Dictionary’s definition of indigency especially helpful:

in addition to defining that word as “penury; destitution,” the dictionary further describes

indigency as the “want of the means of subsistence.” Indigency, Oxford English Dictionary 868

(2d ed. 1989). Like Black’s definition of indigency, that definition implies that an indigent

person not only lives in poverty but also lacks the means—e.g., skills or education—to exit

poverty. We can infer from these definitions that the district court must resolve two basic

questions in assessing the defendant’s indigency: (1) Is the defendant impoverished now; and

(2) if so, does the defendant have the means to provide for himself so that he will not always be

impoverished?

The statute’s structure recommends the same inference. Under § 3014(g), which cross-

references 18 U.S.C. § 3613(b), the defendant’s obligation to pay the assessment does not end

until “the later of 20 years from the entry of judgment or 20 years after the release from

imprisonment of the person fined, or upon the death of the individual fined.” 18 U.S.C.

§ 3613(b). Because the defendant’s obligation to pay persists for at least twenty years after his

sentencing, it would make little sense for the district court to consider only the defendant’s

financial condition at the time of sentencing. That snapshot in time may not accurately represent

the defendant’s condition five, ten, or twenty years after sentencing. Rather, the defendant’s

No. 18-3993 United States v. Shepherd Page 6

employment prospects and earnings potential are probative of his ability to pay the assessment—

and are fair game for the court to consider at sentencing.

Finally, we note that each circuit that has considered this issue has agreed that the district

court may consider the defendant’s future financial condition—such as his earnings potential—

when making the indigency determination. See Graves, 908 F.3d at 141–42; Janatsch, 722 F.

App’x at 811; Lail, 736 F. App’x at 382; Kelley, 861 F.3d at 802; United States v. Strange, 692

F. App’x 346, 349 (9th Cir. 2017). Although Shepherd acknowledges that line of decisions, he

points to a district-court decision in which the court declined to look beyond the defendant’s

present financial condition when applying § 3014. Medina, 2017 WL 3189900, at *2. Indeed,

the court explained that it had “reviewed the cases contained in the government’s supplemental

brief, but none of those cases provide authority that the Court may impose the special assessment

fee based on a defendant’s hypothetical future earning capacity or the fact that a defendant held

regular employment in the past.” Id. We find Medina unpersuasive, largely because several

circuit courts, including the Tenth Circuit, have since provided the authority that the district court

found absent.

For these reasons, the district court’s decision to consider Shepherd’s earnings potential,

along with his present finances, was appropriate under § 3014.

B.

Whether the district court applied the correct legal standard is a separate question from

whether the district court correctly concluded that Shepherd is non-indigent. Shepherd argues

that the district court answered the latter question—a factual question—incorrectly. We review

the district court’s factual determination for clear error, and in doing so, we may reverse only if

we have the “definite and firm conviction that a mistake has been committed.” United States v.

Darwich, 337 F.3d 645, 663 (6th Cir. 2003) (quoting United States v. Latouf, 132 F.3d 320, 331

(6th Cir. 1997)).

At the outset, we note that the fact that the district court appointed Shepherd counsel is

probative but not dispositive of whether Shepherd is indigent under § 3014. The Criminal

Justice Act authorizes district courts to appoint counsel to defendants who are “financially

No. 18-3993 United States v. Shepherd Page 7

unable to obtain adequate representation.” 18 U.S.C. § 3006A(a). But “the standard of financial

inability is ‘something less than indigency or destitution.’” Brown v. United States, 716 F.

App’x 488, 492 (6th Cir. 2017) (quoting United States v. Harris, 707 F.2d 653, 660 (2d Cir.

1983)). This is a matter of common sense: a criminal defendant might be unable to pay a six-

figure legal bill and yet still possess the means of subsistence. Although all indigent defendants

might be financially unable to obtain adequate legal counsel, the inverse is not necessarily true.

That Shepherd has court-appointed counsel is not sufficient to support a finding of indigency.1

Shepherd points to his limited education and low earnings potential as signs of his

indigency. According to Shepherd, the fact that he has only a GED and vocational training

“limit[s] his reasonable future earning potential.” (Appellant Br. at 10.) In one sense, that may

be true. That Shepherd does not have a degree in engineering or computer science, for example,

may limit his future earnings. But as the government responds, one-third of working Americans

can claim a high-school diploma as their highest educational credential. Shepherd, by contrast,

has a high school diploma plus additional training as an emergency-medical technician—

evidence that, if anything, he is not indigent.

Shepherd also notes that he will have to register as a sex offender upon his release from

prison, which he claims will also limit his earnings potential. That fact may also be objectively

true, but it does not compel the district court to find him indigent. To the contrary, Shepherd’s

argument conflicts with the statute, which contemplates assessing sex offenders. Section 3014,

which Congress titled the “Justice for Victims of Trafficking Act of 2015,” applies to defendants

whose convictions fall under five chapters of the criminal code. Two of those chapters, 109A

and 110, relate to sexual abuse and the sexual exploitation of minors, respectively—crimes for

which the defendant, like Shepherd, may have to register as a sex offender. 18 U.S.C.

§ 3014(a)(2)–(3). Thus, Shepherd cannot use his sex-offender status to shield him from paying

the assessment.

The closer question is whether Shepherd’s financial obligations—$25,000 in restitution

and as much as $30,000 in child support—render him indigent. Although Shepherd had been

1We also note that the district court’s exercise of discretion to waive Shepherd’s criminal fines—for

reasons the district court did not state on the record—does not change our analysis.

No. 18-3993 United States v. Shepherd Page 8

current on his child support payments before he was incarcerated, his hourly wage will decline

significantly while he is in prison and yet his $350 monthly support payment may not.2 And

Shepherd’s responsibility to pay $25,000 in restitution will begin the day he exits prison. All

told, Shepherd will owe as much as $55,000 upon his release from prison, calling into question

his ability to pay that sum plus the $5,000 assessment.

To be sure, these are nontrivial obligations, especially for someone with a negative net

worth at sentencing. But time is on Shepherd’s side. Shepherd was 29 years old at sentencing,

meaning that if he serves his full, 96-month sentence, he will leave prison well before he turns

40 and with many years of future employability. And Shepherd has 20 years after his release

from prison to pay the assessment. By budgeting, Shepherd need only save $250 each year or

under $5 per week to stay on pace. As the judge remarked at sentencing, “when I combine the

defendant’s ability to earn in the future, along with his other obligations, I think it’s something

that can be handled by the defendant in this case.” (R. 41, Tr. at PageID #2088.) We agree.

The district court made no error in its factual determination.

C.

As a last resort, Shepherd argues that the district court erred by failing to make an explicit

finding of his non-indigency. But the statute requires no such finding, and in general, district

courts “retain considerable latitude in deciding which arguments to discuss and how much

explanation is necessary.” United States v. Mitchell, 295 F. App’x 799, 804 (6th Cir. 2008).

Indeed, the court has “done its duty” if the “‘record makes clear that the sentencing judge

listened to each argument,’ ‘considered the supporting evidence,’ was ‘fully aware’ of the

defendant’s circumstances and ‘took them into account’ in sentencing him.” Id. (quoting Rita v.

United States, 551 U.S. 338, 358 (2007)). While the district court did not expressly state that

Shepherd is “non-indigent,” it concluded as much when it imposed the $5,000 assessment after

hearing argument from both sides about Shepherd’s finances, education, and employment

history. And the district court justified that decision, in part, by noting Shepherd’s “ability to

earn in the future.” (Id.) Still more, the district court’s finding was specific enough to prompt an

2Shepherd’s counsel acknowledged the possibility that Shepherd’s monthly payment could decrease while

he is in prison.

No. 18-3993 United States v. Shepherd Page 9

objection to the assessment from Shepherd’s counsel, thus preserving this issue for appeal. As a

result, Shepherd’s argument is unavailing.

IV.

For these reasons, we AFFIRM the district court’s judgment imposing the $5,000 JVTA

assessment.

No. 18-3993 United States v. Shepherd Page 10

________________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

________________________________________________________

MERRITT, Circuit Judge, concurring in part and dissenting in part. I agree that in

determining indigency under 18 U.S.C. § 3014(a), District Courts should examine future earning

potential alongside present ability to pay. But nowhere does the majority say whose burden it is

to show the fact of indigency or non-indigency. It is defendant’s.

The statute specifies that a mandatory $5,000 special assessment on non-indigent

defendants shall be collected in the same manner as a criminal fine. 18 U.S.C. § 3014(f). The

burden is usually on a defendant to establish that he is unable to pay a criminal fine. See

generally United States v. Martin, 83 F. App’x 83, 84 (6th Cir. 2003) (“The defendant bears

the burden of establishing his present and future inability to pay all or part of a fine.”); U.S.S.G.

§ 5E1.2(a). Other courts have said the defendant’s burden of proof in the criminal fine context

applies to the special assessment in 18 U.S.C. § 3014(a). See, e.g., United States v. Streaty,

735 F. App’x 140, 140 (5th Cir. 2018) (per curiam) (“This court has yet to articulate a test for

determining whether a defendant is indigent for purposes of § 3014. As such, this court applies

the standard that otherwise applies to fines assessed in criminal cases.”); United States v. Lail,

736 F. App’x 381, 382 (4th Cir. 2018) (per curiam).

As the majority states, we review decisions to impose criminal fines under an abuse of

discretion standard; here there is no discretion to exercise because the special assessment is

mandatory. I agree that the determination of indigency under § 3014 is a question of fact we

should review for clear error. So the question in this case is whether the District Court clearly

erred in determining that the defendant did not meet his burden to show he could not pay. It

erred because he has carried that burden. If the defendant had negative $1,739 to his name

before entering prison, it is unclear to me how 96 months in jail, 72 months of supervised

release, and a sex offender designation will enhance his ability to pay down these fines. It was

clear error to assume that a man with a $200 car and $1,939 in unpaid bills can “handle” a

$5,000 penalty because he is not yet old. Why add another $5,000 onto a ledger that will likely

never be satisfied?

No. 18-3993 United States v. Shepherd Page 11

Predicting a defendant’s financial prospects after prison is inherently guesswork.

Because this defendant is young, it is reasonable to assume he will work upon release. If we

assume that the defendant will find paid work, generate capital, or win the lottery at some point

during his post-incarceration life, then why should he avoid paying the $5,000 assessment

mandated by Congress? But we can make a different series of assumptions. For example, that a

long prison sentence will diminish this offender’s employability. Or that prison, rather than

rehabilitating, will stigmatize him and lower his earning capacity upon release. The latter series

of assumptions is grounded in fact whereas the former is grounded in speculation. He has no

money now. Assuming he will have money later is not supported by anything in the record.

Other defendants were found non-indigent under this statute because they had assets. In

Kelley, the defendant was an Eagle Scout with a college degree. United States v. Kelley,

861 F.3d 790, 802 (8th Cir. 2017). In Lail, the defendant was expected to have a total net worth

of $74,500 after selling his residence. 736 F. App’x at 382. And in Graves, the defendant

possessed a GED, some college education, had a wide range of vocational skills, a long history

of employment, and had previously earned $40,000 per year. United States v. Graves, 908 F.3d

137, 143 (5th Cir. 2018). The defendant in this case has emergency medical technician training:

but who would trust a sex offender in an ambulance? Comparing these defendants and

examining the Presentence Report’s recitation of the defendant’s assets (or lack thereof), I am

compelled to conclude that Shepherd is indigent. Because the assumption that Shepherd will

have greater financial capacity after prison is not grounded in fact, the District Court clearly

erred in finding that Shepherd has not carried his burden to show he is indigent. I am “left with

the definite and firm conviction that a mistake has been made.” United States v. Jeross, 521 F.3d

562, 569 (6th Cir. 2008).

I also disagree with the majority as to whether the District Court made a finding on

indigency. The majority states: “While the district court did not expressly state that Shepherd is

‘non-indigent,’ it concluded as much when it imposed the $5,000 assessment after hearing

argument from both sides about Shepherd’s finances, education, and employment history.” This

sentence is confusing because it effectively says that the District Court did not make a finding on

indigency—but then says that it did. This confusion arises because the District Court simply

No. 18-3993 United States v. Shepherd Page 12

ordered that the $5,000 penalty be assessed, but did not explicitly state whether the defendant

was indigent or not. [R.41, Page ID 2088]. Because the $5,000 may only be assessed upon a

“non-indigent person,” the majority assumes that by applying the assessment, the District Court

was necessarily finding that the defendant was such a “non-indigent” person. But that is not

what the District Court said. It said only that it was ordering the assessment and that defendant

could “handle[]” the restitution order. [R.41, Page ID 2088]. This was insufficient.