said is mandatory forfeiture is mandatory the one hundred dollars special assessment per count is mandatory even fines at least according to the guidelines shall be imposed absent the defendant sustaining the burden of indigency so presume here i'm sorry who's got the burden here well there is it would seem to me that it's a statutory prerequisite for doing it and therefore before imposed it has to be there or to my knowledge there were two circuit cases cited by the government where the burden the the court said they were on reported but the court said that it was a defendant's burden there is nothing in the nd circuit or any other circuit as far as i can tell now there's little  term non indigency which is different from what appears in any of the other penalties or some meaning that the drafters at least i can presume there was some meaning they intended the courts the drafters have given little between what he just wrote here when he checked off the box and there's a conflict between that and what he did when he imposed the five thousand dollars right so far i don't know if i call it a conflict because it lease the court said distinguish between fines which can be substantially more than five thousand dollars what did he do and what should we do i'm sorry what did the court do that wrong that we should fix and  we should return to this court to make a finding on that is yes absolutely as far as you're concerned the government may have a well i'm not sure what their position would be given the government other circuits that have passed on this have all said future ability so for purposes of this argument i'm not contesting future of the only why not well because i mean i'm looking at the statute and any convicted of an offense under the relevant provision the that looks like present tense present situation under forgive me under i know all those other circuits have disagreed but i just go back to simple grammar and it means non indigen time of the imposition that would be to me the most natural reading i don't see why you're abandoning that well you want to change your well if i have one vote i certainly willing to but i think that is the least i feel uncomfortable arguing the other side and i'll let the government do that but the one thing i will say is that this is converted to a civil death for twenty years yes so  so how's a court possibly going to know whether someone who is currently indigent will suddenly after twenty years of prison wind hell be hell when he gets out fifties hell bein fifties last i heard it was not so easy for convicted felons to get jobs particularly people convicted of this kind of crime yes so what pos and we have nothing no findings from the district court do we that says oh i know that when he gets out he is going to be able to pay his fine nothing like that but right then and that is why my emphasis is on the lack of findings nobody raises below i'm seeking what if we send him back for findings we need to make clear to district judge whether we're talking about present or future is my point yes are we reviewing is our system back up there were there was no argument about this but this is there was for the order that you must pay the united states a special assessment of three hundred dollars which i'll be doing mediately and they j v t a assessment of five thousand dollars the district court on page thirty nine dollars of the sentencing and thirty nine dollars of my appendix sense and it's simply says now i'm going to impose a mandatory special assessment of three hundred dollars on you together with the j v t a assessment of five thousand dollars so nobody gave any consideration to this we know that the defendant didn't have present ability to pay not only was he assigned counsel but he had a twelve thousand dollars to two dollars should imposed on him he had two thousand dollars in credit card debt he had a wife who was bipolar was working from home and he had a son who was receiving social security benefits for asperger's syndrome so he and he had no money in the bank now and future said somebody who is going to spend at least seventeen years in jail assuming he gets good time and is in the mid fifty's when he gets out his job prospects are pretty dim especially he will be a registered sex offender for life so that it would seem that at least there has to be fact findings at that point then counsel can raise the issue of whether or  good morning your honors and may it please the court my name is justin rodriguez i'm an assistant united states attorney for the southern district of new york and i represent the united states on this appeal as i did before the district court judge pauley did not commit any error let alone thousand dollars that's correct and what's critical is that this case is before the court on plain error review and in that posture mysteries are you know has not cited any precedent from this court or the supreme court that clearly or obviously undermines the results in the district court and that alone is not of course because it's a matter of st impression in this circuit yes that's correct your honor so you're not saying requires in this context that the error be clear obvious we're not subject to reasonable decision so if for example the only reasonable and natural reading of the statute is that it refers to the invention seat at the time of the imposition of that fine i know that's not your position but assuming that were true then since who is uncontested  indigent at the time it would be plainer would it not if if that's what the court found that it was clear from just the statute and that no decision was necessary to come up with that fair enough your honor but in this context i would i would point the point the court to two aspects of this that i know you're on i wouldn't suggest that at all but what i would point the court to in this  in this particular statute i think not the text as well as the context indicate that the assessment that a district court should be making is not just indigen non indigency at the time of sentencing but rather the defendant's future ability to pay a special assessment i believe it was the th circuit in shepherd looked at a few dictionary definitions of indigency and what they were what really guided their decision and i think it should guide this court's decision as well is that in looking at the definition of indigent it includes someone who is destitute of the means of comfortable subsistence someone who lacks the means of subsistence that focus on a person's means is a forward looking assessment a court should say and should assess whether it not only does the person right now have the money in hand to pay the special assessment but do they have the means to pay that special assessment in the time allotted for under the statute now the statute here night interpretation for a moment how possibly could a judge even remotely begin to do that someone is currently indigent and they're going to be in prison for a minimum of seventeen years and possibly a full twenty they've been convicted of a crime that has carries considerable stigma so what rational pay in that case fines but in this case a special assessment with the earnings that they earn while in prison and here there's every expectation that mr reserve can work while in prison as the court noted in hernandez on average federal inmates that work can earn up to one thousand dollars a year in prison and that number was based on an administrative office of the us courts publication from one thousand nine hundred and two so there is reason to believe that the current and future average yearly earnings of federal inmates are actually even higher the court also in united states this court in the united states versus thompson recognized that a fine may be imposed on a defendant who is presently indigent if the record contains evidence of his capacity to pay the fine from prison earnings so it's entirely possible that when i checked the b o p website this morning mr rezai was expected to be released in october of two thousand and thirty four so in fifteen years he may very well be able to pay the entirety of that five thousand dollars special assessment while working in prison over the next fifteen years but there are other factors that a court can look to as well so when congress and  will show such an amount of five thousand dollars on any non indigent person that was meaningless language because since anyone convicted under this crime would spend at least seventeen years in prison and since they would average one thousand dollars a year congress who's just wasting its time putting that language in because under your interpretation you can pay it off during their for sure during their years in prison i don't think that's quite right for several reasons your honor st of all the five thousand dollars special assessment may be imposed in cases where there is no mandatory minimum when someone is sentenced to a term of probation a term to time served so it's certainly not the case that in every instance where this special assessment will be imposed someone will be going to prison for for any period of time the nd response to that is that there are a category of people who district court can determine at the time of sentencing are indigent and those people are to use the language from shepherd not just people who are living paycheck to paycheck or maybe living paycheck to paycheck but someone who there's no basis to believe that they will ever earn any paycheck at all and instead will have to rely on others for life's basic necessities and how do we reviewing this or you figure that  so there weren't any findings below about any of this right so your honor that what there was below is a clear indication from judge pauley and he says on page thirty three of the sentencing transcript that this court has reviewed the pre sentence report and he also adopted the findings of fact in the pre sentence report and this is paragraph one hundred and forty dollars the probation department says that the court challenge that's an amount of five thousand dollars or on any non indigent person in a covered case so i think on plain error review there is no special incantation that was required of judge pauley given the posture below where mysteries are you know did not object even though he had notice of this in the p s r and the fact support the uncontested facts in the record support his findings and i'll just go through a couple of those st mysteries are you has a wide range of vocational skills that's not disputed he's skilled by his own admission in basic plumbing painting flooring tile work he can use all of those skills presumably in prison but also when he is released to make payments and payments that we're talking about here over a thirty five year period for five thousand dollars comes yes and again there's no as i mentioned there's no requirement in the statute that the judge make any explicit findings or make any special incantation to be a requirement of appellate review of the child findings that we review right well on plane air review this court certainly has the ability to do that based on what the record supports so not only the wide range of vocational skills the long history of employment and the fact that m rezai is in good health and able bodied all of those factors more than support especially on plane air or review the result reached in the district court thank you are you know one thing that might help save us all a lot of time since we're spinning our wheels around something is for the government which i on occasion have had occasion to do not in this district of course to remind the court that it might be helpful was the court making finding this issue  if you small point one the government argues in a special skills a special skills skills that the government is referring to in the probation report is that his father taught him to paint to help with plumbing and other such thing he's never been employed in any occupation that require that is employment at the time had employed for seventeen years as a doorman in a concierge in various houses i suspect with as is as a registered sex offender that would not be available to him in the future he also in terms of a one thousand dollars that's a maximum he has a twelve thousand dollars to two dollars sion in order of priority that comes st as it's prioritized in the in the sentencing law and also that there is a portion of it that has to go to every day care soap other things that commissary accounts that inmates make they certainly can assess him a substantial portion of that but it isn't as if it's all twelve thousand dollars now the court is standard of review of facts and there are none here would be clear and convincing so there are no facts for his court to review the legal novo it's presented to the court because there is never any interpretation or finding by the district court implicit findings probably might be ok in some cases for example defendant had one one hundred thousand dollars in the bank