July 21, 2019

Tenth Circuit: Courts Should Consider Ability to Pay and Effect on Paying Restitution When Imposing Fines

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vigil on Thursday, May 12, 2011.

The Tenth Circuit reversed the district court’s sentence, vacated Petitioner’s sentence, and remanded for resentencing. Petitioner was arrested after police pulled him over and found a vast cache of counterfeit identifications and other materials indicative of identity theft. Petitioner reached a plea deal with the government; at sentencing, the district court applied a two-level enhancement under the Sentencing Guidelines, which allowed the enhancement where “the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property.” The district court also imposed a $10,000 fine over Petitioner’s objection, despite the finding in the Presentence Report that he did not appear able to pay a fine. Petitioner contends that the district court erred in both applying the enhancement and imposing the fine. He argues that the enhancement only applies where a defendant actually has sold stolen property, and there is no evidence that he ever sold stolen property in this case. Also, he argues that the imposition of the fine was improper in light of his inability to pay a fine and his obligation to pay restitution.

The Court agreed with Petitioner. The district court did not make any findings of fact as to whether Petitioner actually sold any stolen property. Instead, the court based its application of the enhancement on “what [Petitioner] was about, what he had in his possession and what he admitted to doing with this property that he would steal and make use of. . . . This reflects a legal conclusion that using stolen property equates with selling stolen property,” a conclusion that is incorrect. As to the fine, the Court the found that although the fine was well within the applicable guidelines, the record does not reflect “the district court’s consideration of the pertinent factors prior to imposing the fine.” The Presentence Report found that Petitioner did not appear to be able to pay a fine and the district court did not address at all the issue of his ability to pay. No reason at all was provided by the court for imposing the fine. Additionally, the district court did not consider whether the imposition of the fine might impair Petitioner’s ability to pay the restitution ordered. Under these circumstances, the district court abused its discretion in imposing the fine.

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