Wednesday, July 10, 2013

Restitution Payment Change Without Consideration of Ability to Pay Equals Abuse of Discretion

US v. Grant: Grant pleaded guilty to theft of government property in Florida.  She was sentenced to probation and to pay restitution of $250 per month.  That amount was later reduced to $125.  Her probation was then transferred to Virginia.  Grant's probation officer, upon learning that Grant had received tax refund checks the prior two years, moved the district court to add a condition to Grant's probation that she apply "moneys received from income tax refunds" or other "unexpected financial gains" to her outstanding restitution balance.  This was to take into account her "receipt of an annual windfall."  The district court agreed and imposed the condition.

On appeal, the Fourth Circuit reversed.  The court began by noting that there had been no material change since Grant's sentencing in Florida, as the PSR accurately recounted her regular receipt of tax refunds for several years.  It also hinted that the Government's argument that the district court's ability to modify conditions of probation (and supervised release) allowed for a modification of restitution amounts, but did not decide that issue.  Instead, it assumed that the district court could have modified Grant's probation conditions, but that doing so in this case was an abuse of discretion.  While the MVRA requires the total amount of restitution to be awarded without reference to the defendant's ability to pay it, the rate at which she must pay the restitution is tied to her ability to do so.  Because the district court did not consider Grant's ability to pay the increased restitution rate before modifying her conditions, it abused its discretion.

Congrats to the Defender office in EDVA on the win!

NOTE: This case was decided on May 9, 2013

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