* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 11 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 03-2166

v. (D. New Mexico)CARLOS ENRIQUE GARCIACASTILLO, Defendant - Appellant. (D.C. No. CR-02-1676-WPJ)

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and LUCERO , Circuit Judges.

Carlos Enrique Garcia-Castillo (“Garcia-Castillo”) pleaded guilty in the District of New Mexico to a four-count superseding indictment stemming from his attempt to steal merchandise from a train near the United States-Mexico border. The charges were: (1) conspiracy to violate the la ws of the United States under 18 U.S.C. § 371 by committing a theft from an inter state shipment, in violation of1 Count Four is for Garcia-Castillo’s assault on Agen t Laird Hightower,

whose injuries did not require medical treatment. As explained below, this assault was not the basis for any part of the resti tution order at issue on appeal. -2- 18 U.S.C. § 659; by entering a train to commit a cr ime, in violation of 18 U.S.C. § 1991; and by breaking or entering carrier facilit ies, in violation of 18 U.S.C. § 2117; (2) trespassing upon a railroad car with in tent to commit a crime, in violation of 18 U.S.C. § 1991; (3) entering a railr oad car with intent to commit a theft, in violation of 18 U.S.C. § 2117; and (4) as saulting a federal officer, in violation of 18 U.S.C. § 111(a)(1). 1 Garcia-Castillo was sentenced pursuant to the Unite d States Sentencing Commission, Guidelines Manual (“USSG”), to twenty-four months in prison on each count, to be served concurrently, followed by three years of supervised release. He was also ordered to pay a special asse ssment of $250, and to pay immediately $76,594.73 in mandatory restitution, jo intly and severally with codefendant Carlos Ivan Aguirre, to reimburse the U .S. Department of Labor for treatment of injuries suffered by several law enfor cement agents during the commission of the crime. The district court also o rdered that deportation proceedings for Garcia-Castillo, a Mexican citizen, begin during the course of his

sentence. On appeal, Garcia-Castillo argues (1) that it was i mproper for the district court to order restitution because the assault on t he agents was outside the scope2 When the defendant raised Blakely before this court, the Supreme Court

had not yet issued United States v. Booker , 125 S. Ct. 738 (2005). However, raising Blakelywas sufficient to invoke Bookeras well. Accordingly, even though Garcia-Castillo did not address the applicat ion of Bookerto this case, we apply both cases and hereinafter refer to them coll ectively as Blakely/Booker

.

3 The charges against most of these individuals were dismissed for lack of evidence. -3- of the train-robbery conspiracy and because the res titution order violated the recent Supreme Court decision, Blakely v. Washingto n , 124 S. Ct. 2531 (2004); 2 and (2) even if the restitution order was proper, t he district court violated the express requirements of the applicable restitution statute by failing to take into account his financial condition when ordering the e ntire restitution amount due immediately. We affirm in part, vacate in part, an d remand for further consideration consistent with this order and judgme nt.

BACKGROUND Garcia-Castillo was arrested September 12, 2002, wi th twelve others 3 after he boarded a Union Pacific train near the United St ates-Mexico border in an attempt to steal the train’s cargo. The train was stopped on the siding in the Sunland Park, New Mexico, area while loaded with el ectronics, toys, fireworks, and canned goods that were being transported from L ong Beach, California, to Dallas, Texas. Because theft from cargo trains was an increasing problem, agents from both countries were conducting a sting operati on that day and were stationed-4-

in the cars of the train and in the surrounding are a. As the train rested, agents inside the train heard male voices speaking in Span ish outside the train. GarciaCastillo then appeared on top of a railroad car and entered it. Several agents were waiting in that car and Garcia-Castillo was taken i nto custody and handcuffed. Agents found in his possession a piece of wire and a lighter, materials that are used to “shunt,” or stop, trains. Outside the train, Agents Samantha Mikeska and Serg io Barrio were attempting to capture and arrest Eduardo Calderon, a/k/a “Lalo,” as he fled from the train to the Mexican border. Agent Mikeska jumped on his back and the two crashed into a cyclone fence marking the border between the two countries. Calderon shouted for help and five or six men on th e Mexican side of the fence tried to pull Calderon through a hole in the fence. Those men also began striking Mikeska and Barrio with their hands, fists, rocks, and bricks. The agents and Calderon were all eventually pulled through the hol e, and the assault continued until another agent fired a shot that caused the gr oup to scatter. Meanwhile, Garcia-Castillo, still in custody on the train, hea rd the commotion outside and attempted to escape by kicking Agent Laird Hightowe r in the leg, hamstring, and buttock. Mikeska and Barrio were transported to the hospital . Mikeska suffered a fractured orbital bone on her left eye, a fractured vertebra, head trauma, and a-5-

laceration on her forehead. Barrio suffered severa l fractures to his skull, resulting in seizures, dizziness, migraine headaches, and emo tional problems. It is uncertain whether he will be able to return to work

. Garcia-Castillo pleaded guilty in the District of N ew Mexico to the charges outlined above. His plea agreement contained a “Wa iver of Appeal Rights” provision, and the government sought to enforce the waiver resulting in a dismissal of this appeal by filing a Motion for Enf orcement of the Plea Agreement, as required by United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc). The language of the waiver provision wa s narrow and did not in any way refer to the restitution order. Applying the p rinciples of Hahn , a panel of this court denied the motion because the restitution ord er was not encompassed in the waiver. The waiver provision is at best ambiguous with respect to the issue in question. However, the panel decision determined o nly that the appeal could go forward. It did not address, and has no bearing on , the merits of the appeal. Accordingly, we now address the merits of the issue s outlined above.

DISCUSSION I. Imposition of Restitution Garcia-Castillo first argues that the district court erred by ordering restitution because he was not involved in the assa ult on Mikeska and Barrio and-6-

should not be responsible for their injuries. He a sserts that two conspiracies existed in this case: the conspiracy to rob the tr ain, to which he pleaded guilty, and a separate conspiracy to aid Calderon’s escape, which resulted in harm to the agents. He contends that it was not foreseeable th at the train-robbery conspiracy would result in the melee at the international bord er which resulted in the agents’ injuries. Garcia-Castillo also argues that the res titution was imposed in violation of Blakely/Bookerbecause a jury did not make the factual findings u nderlying the restitution order. We reject these arguments on mu ltiple grounds.

A. We first turn to Garcia-Castillo’s argument that th e agents’ injuries were not within the scope of the train-robbery conspirac y and were not foreseeable. “We review the legality of a restitution order de n ovo.” United States v. Nichols , 169 F.3d 1255, 1278 (10th Cir. 1999). “Factual fin dings underlying a restitution order are reviewed for clear error and the amount o f restitution for an abuse of discretion.” Id. Federal courts may order restitution only as “expli citly empowered by statute.” Id. at 1278 (internal quotation omitted). The Victim and Witness Protection Act (“VWPA”) provides that a court may o rder restitution to any victim of an offense. 18 U.S.C. § 3663(a)(1)(A). The Mandatory Victims-7-

Restitution Act (“MVRA”), which amended the VWPA in 1996 and under which the restitution was ordered in this case, defines “ victim” as a person directly and proximately harmed as a resul t of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity , any person directly harmed by the defendant’s criminal conductin the course of the scheme, conspiracy, or pattern. Id. at § 3663A(2). The MVRA requires restitution for victims of violent crimes. Id. at § 3663A(c)(1). The parties do not dispute thatconspiracy to rob a train is a violent crime under the MVRA. A restitution award under these statutes is authori zed only for losses caused by the conduct underlying the conviction. United S tates v. Brewer , 983 F.2d 181, 183-84 (10th Cir. 1993) (citing Hughey v. United St ates , 495 U.S. 411, 420 (1990)). Nonetheless, “[a] conspiracy participant is legally liable for all reasonably foreseeable acts of his or her coconspir ators in furtherance of the conspiracy.” Id. at 185. See also United States v. Osborne , 332 F.3d 1307, 1314 (10th Cir. 2003) (“The losses caused by the entire conspiracy, not just the losses caused by those acts committed by the defendant, ca n be attributed to the defendant when the court orders restitution.” (inte rnal quotation omitted)); Nichols , 169 F.3d at 1278 (“[A] criminal defendant who participates in a conspiracy is liable in restitution for all losses flowing from that conspiracy.”) (internal quotation omitted).-8-

In this case, the district court implicitly found t hat Garcia-Castillo was responsible for the agents’ harm:

THE COURT: Do you take any position on this [issue of restitution], Mr. Harwood? MR. HARWOOD [Garcia-Castillo’s counsel]: Yes, Your Honor. I fear we may be dealing with a theoretical issue because Mr. Garcia has absolutely no ability to pay any res titution, but for the Court to order restitution, I think the Court needs to find that the injuries suffered by the agents were somehow causal ly connected to Mr. Garcia-Castillo, and that’s simply not the case from the uncontested facts in the presentence report. He pled guilty to a conspiracy to burglarize a trai n. . . . At the time these other unknown individuals, who may or may not have even been part of this train burglary conspiracy, i njured the other two agents, Mr. Garcia was on the ground in custody in handcuffs. It’s not a foreseeable result of a train burglary. Nobody was armed . . . when they started the burglary, and we don’t even know if the people who ended up injuring these agents were part of the conspiracy or just other people in the area, so I d on’t think it would be appropriate, Your Honor.
THE COURT: I find and conclude that the Mandatory Restitution Act requires me to impose restitution , and therefore, part of this Judgment and Commitment will require that t he defendant make restitution to the United States Department of Labor . . . in the amount of $75,594.73 [sic]. Tr. of Sentencing Hr’g at 10-11, R. Vol. IV (emphas is added). Because the district court allowed defense counsel to expound o n the issue, and immediately thereafter ordered the full amount of restitution, it is apparent that the court found that the agents’ injuries flowed from the conspirac y to rob the train.-9-

The record supports that finding. The conduct unde rlying the conspiracy conviction was Garcia-Castillo’s agreement with Cal deron and others to steal merchandise from the train. It is foreseeable thatduring a criminal act such as this, law enforcement agents could confront and see k to apprehend the thieves, and that bodily harm could result from the encounte r, whether during an attempted escape across the border or otherwise. T he conspiracy was the direct cause of the agents’ injuries. We therefore hold t hat the harm inflicted on Mikeska and Barrio was in the course of the conspir acy to which Garcia-Castillo pleaded guilty, and the restitution order was, ther efore, required by statute.

B. We now consider Garcia-Castillo’s contention that t he restitution order violated Blakely/Booker , because: (1) the judge, rather than a jury, foun d the facts underlying the restitution order, and (2) the judge did so under a preponderance of evidence standard, in accordance w ith 18 U.S.C. § 3664(e), rather than under a beyond a reasonable doubt stand ard. Garcia-Castillo contends that only a jury could have made the factual findin gs supporting the restitution order as to “the scope of the conspiracy that Mr. G arcia-Castillo joined, whether the melee involving the two injured agents was in f urtherance of that conspiracy,-10-

whether the injuries to those agents were foreseeab le to Mr. Garcia-Castillo, and the amount of restitution due for those injuries.” Appellant’s Supp. Br. at 8. In Blakely , the Supreme Court reiterated the holding of Appre ndi v. New Jersey , 530 U.S. 466 (2000), that “‘[o]ther than the factof a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved bey ond a reasonable doubt.’” Blakely , 124 S. Ct. at 2536 (quoting Apprendi , 530 U.S. at 490). In applying this holding to Washington state’s determinate sentencin g scheme, Blakelyclarified that the “statutory maximum” is “not the maximum se ntence a judge may impose after finding additional facts, but the maximum he may impose withoutany additional findings.” Id. at 2537. Recently, Bookerapplied Blakelyto the federal sentencing guidelines, rendering them advisory rath er than mandatory. Booker held that “[a]ny fact (other than a prior convictio n) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty must be admitted by the defendant or prov ed to a jury beyond a reasonable doubt.” Booker , 125 S. Ct. at 756. For any one of three independ ent reasons, we reject Garcia-Castillo’s Blakely /Bookerargument.-11-

1. Restitution is not punishment Blakely/Bookerapply only to judicial fact-finding that increases a criminal punishmentin violation of the Sixth Amendment. Blakely , 124 S. Ct. at 2536 (applying its rule to “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to ajury” (emphasis added)). Restitution ordered under the VWPA and MVRA, howeve r, is not criminal punishment. “‘[T]he VWPA’s purpose is not to punish defendants or to provide a windfall for crime victims, but to ensure that vict ims, to the greatest extent possible, are made whole for their losses.’” Nicho ls , 169 F.3d at 1279 (quoting United States v. Arutunoff , 1 F.3d 1112, 1121 (10th Cir. 1993)) (emphasis added). See also United States v. Hampshire , 95 F.3d 999, 1006 (10th Cir. 1996) (“[T]he VWPA seeks to compensate victims rather than punish defendants .” (emphasis added)). Although the question in Nichol s was whether restitution was criminal punishment barring ex post facto applicati on of the law, 169 F.3d at 1279-80, the principle does not change simply becau se we are examining the issue in a Sixth Amendment context. We acknowledge that this reasoning is somewhat in t ension with our recent case United States v. Wooten , 377 F.3d 1134, 1144 & n.1 (10th Cir.), cert. denied , 125 S. Ct. 510 (2004), which held that Apprendi and Blakelydid not apply to a restitution order because the amount ord ered did not exceed any-12-

prescribed statutory maximum. Wooten , 377 F.3d at 1144 & n.1. Wooten noted in dicta that “courts commonly regard . . . restitu tion orders as criminal penalties,” but concluded Apprendi still did not apply because the defendant never contended that the restitution order exceeded the amount of the victim’s harm, or the statutory maximum under the MVRA. Id. at 1144-45; 18 U.S.C. § 3663A(b).
Wooten , however, did not explain its divergence in dicta from our controlling precedent in Nichols , Hampshire , and Arutunoff holding that restitution is not punishment. And, it is a well-e stablished rule in this circuit that an earlier decision that has not been overturned en banc or by express supervening Supreme Court authority, takes precedence over a later, conflicting decision. See United States v. Prentiss , 206 F.3d 960, 965 n.2 (10th Cir. 2000) (“[T]o the extent that a more recent panel decision conflicts with . . . prior Tenth Circuit authority, we are bound by the earlier case.”). We therefore adhere to the holding that4 Whether restitution is criminal punishment and whet her restitution is

subject to Apprendi , Blakely , and Bookerare by no means settled questions in courts across the country. Compare United States v. Behrman , 235 F.3d 1049, 1054 (7th Cir. 2000) (Apprendi does not apply to restitution because it is not criminal punishment but rather a “classic civil rem edy,” and, alternatively, MVRA does not have a statutory maximum); United States v . Szarwark , 168 F.3d 993, 998 (7th Cir. 1999) (restitution ordered under the MVRA is not criminal punishment); United States v. Wilson , __ F. Supp. 2d. __, No. 2:03-CR-00882- PGC, 2005 WL 78552, at *16-18 (D. Utah Jan. 13, 200 5) (historical precedents compel conclusion that restitution is not criminal punishment, and Booker addressed constitutionality of sentencing guideline s, not the MVRA); United States v. Visinaiz , 344 F. Supp. 2d 1310, 1318-26 (D. Utah 2004) (dis cussing extensively reasons why restitution is not criminal punishment); andUnited States v. Einstman , 325 F. Supp. 2d 373, 382 (S.D.N.Y. 2004) (stating uncertainty about whether restitution is criminal punishment but none theless concluding that Congress intended judge, not jury, to order restitu tion); withUnited States v. Ross , 279 F.3d 600, 609 (8th Cir. 2002) (restitution is a criminal penalty); United States v. Bearden , 274 F.3d 1031, 1042 n.4 (6th Cir. 2001) (stating Seventh Circuit’s decision in Behrman at odds with case law in other circuits holding th at restitution is punishment); andUnited States v. Williams , 128 F.3d 1239, 1241 (8th Cir 1997) (restitution is a criminal penalty). -13- restitution is not criminal punishment. 4 Blakely/Bookertherefore do not apply to the restitution order.

2. Garcia-Castillo admitted the facts underlying the restitution order Alternatively, and assuming arguendo that restitution is criminal punishment subject to Blakely/Booker , the Sixth Amendment is still not implicated because Blakely /Bookerdo not apply to sentences based on facts which have been admitted by the defendant or found by a jury. Blakely , 124 S. Ct. at 2537; Booker , 125 S. Ct. at 756. By entering into the plea agr eement,-14-

Garcia-Castillo admitted the facts underlying the r estitution order, namely, that the agents’ injuries were caused by the conspiracy. In the plea agreement, Garcia-Castillo waived his r ight to “have a trial by jury” and agreed to “plead guilty to a four-count S uperseding Indictment” charging him with the counts described above. PleaAgreement at 1, 2, R. Vol. I, doc. 137. The plea agreement also informed Garcia- Castillo that a guilty plea to the conspiracy charge would subject him to “restitu tion as may be ordered by the Court, including, if applicable, mandatory restitut ion under 18 U.S.C. § 3663A.” Id. at 3. Moreover, the indictment contained the foll owing description of the assault on the agents as an overt act in furtheranc e of the train-robbery conspiracy: On September 12, 2002, after being observed by law enforcement officers, several of Defendant Garcia-Castillo’s un indicted coconspirators fled from the area near the train. Se veral of these, and other unindicted co-conspirators, threw bricks, roc ks, and sticks at FBI Special Agent Samantha Mikeska and FBI Special Agent Sergio Barrio in an effort to help another unidentified co -conspirator escape from FBI Special Agent Samantha Mikeska. Superseding Indictment at 4, R. Vol. I, doc. 139. Garcia-Castillo’s counsel for the first time objected to this overt act at the pl ea hearing and again at the sentencing hearing; but at no time did he ask that the overt act be stricken from the indictment, and he never sought to modify or vo id the plea agreement and go to trial. The fact is that Garcia-Castillo entered into the plea bargain5 We decline Garcia-Castillo’s invitation to apply th e “superveningdecision” doctrine of Anixter v. Home-Stake Prod. C o. , 77 F.3d 1215, 1231 (10th Cir. 1996), to the Blakely /Bookerissue in this case. -15- unconditionally and is bound by its terms and what it encompasses. A defendant who pleads guilty admits to all of the factual alle gations contained in the indictment, including overt acts in furtherance of a conspiracy, and the legal consequences of those acts. United States v. Wilks , 58 F.3d 1518, 1523 (10th Cir. 1995); Spencer v. Hunter , 139 F.2d 828, 829 (10th Cir. 1944). See also United
States v. Brown , 164 F.3d 518, 521 (10th Cir. 1998) (“An unconditi onal plea of guilty is an admission of all material facts allege d in the charge.”); United States v. Powell , 159 F.3d 500, 503 (10th Cir. 1998) (same). There fore, Garcia-Castillo admitted that the conspiracy to which he pleaded gu ilty encompassed the agents’ injuries, and the Sixth Amendment is not implicated by the restitution order.

3. Alternatively, the district court did not commit plain error when it ordered restitution As further alternative argument, assuming arguendo that restitution is criminal punishment, that Blakely /Bookerapply, and that Garcia-Castillo did not admit the facts underlying the restitution order, w e review this claim for plain error. The defendant raised this issue for the fir st time in a Supplemental Brief in this court. He did not present it below. 5 Booker , 125 S. Ct. at 769 (“[W]e expect-16-

reviewing courts to apply ordinary prudential doctr ines, determining, for example, whether the issue was raised below and whether it f ails the ‘plain-error’ test.”); United States v. Maldonado-Ramires , 384 F.3d 1228, 1230 n.1 (10th Cir. 2004); United States v. Sanchez-Cruz , 392 F.3d 1196, 1201 (10th Cir. 2004). Reversal under the plain error standard requires (1 ) an error, (2) that is plain, and that (3) affects substantial rights. Un ited States v. Olano , 507 U.S. 725, 732 (1993). The burden is on the defendant to demonstrate that the error affected his substantial rights. United States v. Vonn , 535 U.S. 55, 63 (2002). If these three conditions are met, the reviewing courtmay in its discretion correct the error if the error (4) “seriously affects the f airness, integrity or public reputation of judicial proceedings.” Olano , 507 U.S. at 732 (internal quotation marks omitted). In the unique circumstances of this case, we need n ot examine the third and fourth prongs of the plain-error test because we co nclude that even if, arguendo , there was error, it certainly was not plain, as the foregoing discussion indicates. For an error to be “plain,” it must be “clear or ob vious” and “contrary to wellsettled law.” United States v. McSwain , 197 F.3d 472, 481 (10th Cir. 1999). As noted above, there is a lack of uniformity in the l aw of this circuit, and of our sister circuits, on whether restitution is criminal punishment and therefore subject to the Sixth Amendment principles announced in Appr endi , Blakely , and Booker

.6 As noted above, Garcia-Castillo’s attorney did make reference to his

client’s financial situation at the sentencing hear ing when he stated: “I fear we may be dealing with a theoretical issue because Mr. Garcia has absolutely no ability to pay any restitution . . . .” Tr. of Sen tencing Hr’g at 10, R. Vol. IV. However, this statement is not specific enough to b e construed as raising the manner-of-payment issue. -17- See supran. 4. There is one point of commonality, however: our research failed to yield a single case in which an order of restitu tion was reversed under Apprendi , Blakely , or Booker . We did find one recent case in which this circui t reversed and remanded because the district court failed to order mandatory restitution under the MVRA. United States v. Barto n , 366 F.3d 1160, 1167 (10th Cir. 2004). Therefore, because it is far from “cle ar” or “well-settled” whether and how restitution implicates the Sixth Amendment, there was no plain error.

II. Manner of Payment Garcia-Castillo next contends that even if the rest itution order was proper, the district court erred by requiring the full amou nt, plus interest and penalties, to be due immediately without considering his financia l condition. Garcia-Castillo’s attorney did not raise this issue below. 6 We therefore review for plain error. The MVRA states: In each order of restitution, the court shallorder restitution to each victim in the full amount of each victim’s losses a s determined by the court and without consideration of the economic circumstances of the defendant.7 Under the VWPA, in contrast with the MVRA, a distri ct court is required

to consider the financial resources of the defendan t and the defendant’s future earning capacity in deciding even whether to order restitution. See United States v. Haddock , 50 F.3d 835, 837-38 (10th Cir. 1995). -18- . . . Upon determination of the amount of restitution owe d to each victim, the court shall , pursuant to section 3572, specify in the restitution order the manner in which, and the schedule accordi ng to which, the restitution is to be paid, in consideration of—

(A) the financial resources and other assets of the defendant, including whether any of these assets ar e jointly controlled; (B) projected earnings and other income of the defendant; and (C) any financial obligations of the defendant; inc luding obligations to dependents. A restitution order may direct the defendant to mak e a single, lumpsum payment, partial payments at specified interval s, in-kind payments, or a combination of payments at specified intervals and inkind payments. A restitution order may direct the defendant to mak e nominal periodic payments if the court finds from facts on the record that the economic circumstances of the defendant do not allo w the payment of any amount of a restitution order, and do not al low for the payment of the full amount of the restitution orderin the foreseeable future under any reasonable schedule of payments. 18 U.S.C. § 3664(f)(1)-(3) (emphasis added). A dis trict court is therefore to disregard a defendant’s financial condition when de termining the amountof restitution to be paid, but it is to consider a def endant’s financial condition when determining the mannerin which the restitution should be paid, whether i n accordance with a schedule, by nominal payment, or in a lump sum. 7 United-19-

States v. Coates , 178 F.3d 681, 683-84 (3d Cir. 1999); United State s v. Myers , 198 F.3d 160, 168-69 (5th Cir. 1999). The presentence report noted that Garcia-Castillo h ad no income or assets and only a grade-school education. As conceded by government counsel at oral argument, the district court violated the statute b y ordering the full amount of restitution due immediately without contemplating t he defendant’s ability to pay, a payment schedule, or nominal payments. Coates , 178 F.3d at 684; Myers , 198 F.3d at 169. We therefore vacate the portion of th e restitution order that directs immediate full payment and remand to the district c ourt to consider an appropriate manner of payment.

CONCLUSION Garcia-Castillo’s restitution order is AFFIRMED, ex cept for the requirement that he pay the full amount of restitut ion immediately, which is VACATED and REMANDED to the district court for cons ideration of GarciaCastillo’s financial circumstances in determining t he manner in which payment shall be made.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge