1

In the first appeal of his sentence, we determined that

Judge Sharp "clearly erred" in enhancing Remillong's sentence by

two levels for an express threat of death in connection with the

bank robberies as defined by U.S.S.G. § 2B3.1(b)(2)(D) (presently

U.S.S.G. § 2B3.1(b)(2)(F)). United States v. Canzater, 994 F.2d

773, 775 (11th Cir.1993) (per curiam) (Remillong's case was

consolidated with that of defendant-appellant Darryl L. Canzater

on the issue of what language or action constitutes an express

threat of death). At the resentencing hearing, Judge Sharp

deleted the two-level, express-threat-of-death enhancement in

accordance with this court's mandate in Canzater, but then

enhanced Remillong's sentence by three levels pursuant to

U.S.S.G. § 2B3.1(b)(2)(E), for the possession of a dangerous

weapon during the bank robberies, when no weapon was involved,

and reaffirmed his previous sentencing order that Remillong make

restitution of $29,251.00. We note, however, that the

three-level enhancement appears to be Judge Sharp's attempt to

circumvent this court's direction in Canzater, where we explained

that "[t]he statement, "I have a gun' " may only be a bald

threat, which does not necessarily mean that a gun was present

during the commission of the robbery. Canzater, 994 F.2d at 775.

United States Court of Appeals, Eleventh Circuit.

No. 94-2647

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Carl REMILLONG, Defendant-Appellant.

June 19, 1995.

Appeal from the United States District Court for the Middle

District of Florida. (Nos. 91-7-Cr-ORL-18, 91-94-CR-ORL-18), G.

Kendall Sharp, Judge.

Before KRAVITCH, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Michael Carl Remillong appeals the district court's sentencing

order requiring him to make restitution of $29,251.00, the amount

that he pled guilty of robbing from ten banks. This is the third

time that we have reviewed Remillong's sentencing by Judge G.

Kendall Sharp in this case.1 See United States v. Canzater, 994
Remillong appealed Judge Sharp's amended sentencing

order on two bases: (1) the three-level enhancement for

possessing a dangerous weapon pursuant to § 2B3.1(b)(2)(E),

and (2) abuse of discretion for ordering restitution without

fully considering Remillong's financial condition and

ability to pay. Concerning possession of a dangerous

weapon, we vacated Remillong's sentence and "remand[ed] for

resentencing with directions that Remillong be resentenced

without the three-level enhancement for possession of a

dangerous weapon" in accordance with Canzater. United

States v. Remillong, No. 93-3034, at 3, 20 F.3d 1174 (11th

Cir. Apr. 12, 1994). As to the restitution portion of the

sentencing order, we remanded for consideration of

Remillong's financial condition and ability to pay

restitution. Id. at 3-4. When on remand Judge Sharp did

not follow our direction, this third appeal followed. 

F.2d 773 (11th Cir.1993) (per curiam) ("Remillong I "); United

States v. Remillong, No. 93-3034, 20 F.3d 1174 (11th Cir. Apr. 12,

1994) ("Remillong II "). In vacating and remanding the second

appeal of Judge Sharp's sentencing order for Remillong, we

explicitly explained to Judge Sharp:

The use of restitution as part of a sentence is governed

by 18 U.S.C. §§ 3663 and 3664. Section 3664(a) states as

follows:

(a) The court, in determining whether to order

restitution under section 3663 of this title and the

amount of such restitution, shall consider the amount of

the loss sustained by any victim as a result of the

offense, the financial resources of the defendant, the

financial needs and earning ability of the defendant and

the defendant's dependents, and such other factors as the

court deems appropriate.

Also, U.S.S.G. § 5E1.1 establishes rules for the district

courts to consider when imposing restitution. One element

which must be fully considered is the financial condition and

the ability of a defendant to pay. The record in this case

demonstrates that the district court failed to adequately

consider the statutory factor of ability to pay under 18

U.S.C. § 3664(a). This constitutes an abuse of discretion

requiring remand for resentencing in accordance with the

statute.

Remillong II, at 3-4 (quoting 18 U.S.C. § 3664(a)) (emphasis

added).
 2

Remillong has completed the incarceration portion of his

sentence. 

 3

Under 18 U.S.C. § 3663(a)(1), a district court "may order"

restitution as part of a sentence. Id. Thus, restitution is a

"discretionary, not mandatory, element of defendant's sentence,

and it can only be imposed if the sentencing court considers" a

defendant's financial ability to pay pursuant to § 3664(a). 

United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993). "After

considering the evidence, the district court may (1) impose

restitution payable immediately, (2) impose restitution payable

within a specified period or in specified installments consistent

with § 3663(f), (3) order the defendant, in lieu of monetary

restitution or in conjunction therewith, to perform services for

the benefit of the victim under Guidelines § 5E1.1(c), or (4)

decline to impose restitution pursuant to § 3663(d)." United

States v. Clark, 901 F.2d 855, 856-57 (10th Cir.1990). 

Following our Remillong II opinion, Remillong filed a motion

to correct his sentence. Judge Sharp, however, refused to

eliminate his restitution order. Judge Sharp handwrote across the

top of Remillong's motion to correct his sentence: "Because this

case involves a bank robbery and defendant had physical possession

of the money, restitution of $29,251.00 is appropriate." R1-57;

see Appendix. Consequently, this third appeal from Remillong's

sentencing ensued.2

 We review a district court's restitution order for abuse of

discretion.3

 United States v. Husky, 924 F.2d 223, 225 (11th

Cir.), cert. denied, 502 U.S. 833, 112 S.Ct. 111, 116 L.Ed.2d 81

(1991). The Victim and Witness Protection Act ("VWPA"), 18 U.S.C.

§§ 3663-64, authorizing restitution to victims of crimes,

"specifically directs a sentencing judge to consider not only the

victim's injury, but also "the financial resources of the

defendant, the financial needs and earning ability of the defendant

and the defendant's dependents, and such other factors as the court

deems appropriate.' " United States v. Barnette, 10 F.3d 1553,
1556 (11th Cir.) (quoting 18 U.S.C. § 3664(a)), cert. denied, ---

U.S. ----, 115 S.Ct. 74, 130 L.Ed.2d 28 (1994). "This requirement

ensures that a defendant will be able to pay restitution, and also

ensures that restitution payments will not unduly limit his right

to appeal." United States v. Kress, 944 F.2d 155, 163 (3d

Cir.1991), cert. denied, 502 U.S. 1092, 112 S.Ct. 1163, 117 L.Ed.2d

410 (1992); see United States v. McIlvain, 967 F.2d 1479, 1481

(10th Cir.1992) ("[W]hen a district court orders restitution it

must be consistent with a defendant's ability to pay."). "A

district court's failure to make a restitution order with which a

defendant could possibly be expected to comply threatens respect

for judicial orders generally." United States v. Bailey, 975 F.2d

1028, 1032 (4th Cir.1992); see United States v. Mahoney, 859 F.2d

47, 52 (7th Cir.1988) ("[A]n impossible order of restitution ... is

nothing but a sham, for the defendant has no chance of complying

with the same, thus defeating any hope of restitution and impeding

the rehabilitation process."). Thus, "we will not uphold the

district court's exercise of discretion if the record is devoid of

any evidence that the defendant is able to satisfy the restitution

order." United States v. Patty, 992 F.2d 1045, 1052 (10th

Cir.1993).

While we have determined that a "defendant's indigency at the

time of sentencing is not a bar to an order of restitution under

the VWPA," United States v. Stevens, 909 F.2d 431, 435 (11th

Cir.1990), we nonetheless have required that the district court

evaluate the defendant's financial condition and ability to pay

before determining the restitution amount, United States v. Cobbs,
 4

When district courts have ordered restitution without

consideration of financial ability to pay, other circuits have

remanded for this specific evaluation under § 3664(a). See,

e.g., United States v. Turcks, 41 F.3d 893 (3d Cir.1994); United

States v. Johnson-Wilder, 29 F.3d 1100, 1105-07 (7th Cir.1994); 

United States v. Lively, 20 F.3d 193, 203-04 (6th Cir.1994); Kok

v. United States, 17 F.3d 247, 251 (8th Cir.1994); United States

v. Molen, 9 F.3d 1084, 1087 (4th Cir.1993), cert. denied, ---

U.S. ----, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); United States

v. Newman, 6 F.3d 623, 631 (9th Cir.1993); United States v.

Tortora, 994 F.2d 79, 81 (2d Cir.1993); United States v.

McIlvain, 967 F.2d 1479, 1480-82 (10th Cir.1992). 

 5

Other circuits have held that restitution under the VWPA

does not include consequential damages, such as attorney fees and

expenses. See Virgin Islands v. Davis, 43 F.3d 41, 46-47 (3d

Cir.1994); United States v. Patty, 992 F.2d 1045, 1049 (10th

Cir.1993); United States v. Mullins, 971 F.2d 1138, 1147 (4th

Cir.1992); United States v. Arvanitis, 902 F.2d 489, 497 (7th

Cir.1990); United States v. Barany, 884 F.2d 1255, 1261 (9th

Cir.1989); United States v. Mitchell, 876 F.2d 1178, 1184 (5th

Cir.1989); see also United States v. Husky, 924 F.2d 223, 225-27

(11th Cir.) (finding restitution unavailable for mental anguish),

cert. denied, 502 U.S. 833, 112 S.Ct. 111, 116 L.Ed.2d 81 (1991). 

967 F.2d 1555, 1558 (11th Cir.1992) (per curiam); Stevens, 909

F.2d at 435.4 See United States v. Logar, 975 F.2d 958, 964 (3d

Cir.1992) (holding that, while restitution can be legally ordered

for indigent defendants, a sentencing court must consider and find

that the defendant has the future financial ability to pay the

restitution ordered, or the restitution order is purely

speculative). Further, we have held under Hughey v. United States,

495 U.S. 411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990),

that the "district court is authorized to order restitution only

for the loss caused by the specific conduct underlying the offense

of conviction."5

 Cobbs, 967 F.2d at 1559. Judge Sharp, however,

"apparently focused only on the amount of loss to the victim[s]"

without considering Remillong's future ability to pay the ordered

restitution as required by section 3664(a). United States v.
 6

Remillong's PSR shows that he has a high school education

and that he worked sporadically at minimum wage for several years

before the robberies. 

 7See United States v. McIlvain, 967 F.2d 1479, 1481 (10th

Cir.1992) ("The potential for repayment cannot be based on mere

chance."). In McIlvain, both the government and defendant agreed

that the record at sentencing "did not contain a basis on which

to order the payment of restitution" of $160,248.00, where the

defendant had "no assets, no steady employment, no source of

income, a high school education, ... debt of $700[,] ... had

sought Aid to Families with Dependent Children and lived with his

mother"; thus, he had no "present ability to pay" and no

"significant future earning capacity." Id.; see United States

v. Grimes, 967 F.2d 1468, 1473 (10th Cir.) (holding abuse of

discretion to order defendants to pay restitution of $128,279.05

for which their PSRs indicated that they had "neither the assets

nor the earning potential to pay"), cert. denied, --- U.S. ----,

113 S.Ct. 355, 121 L.Ed.2d 269 (1992); United States v. Kelley,

929 F.2d 582, 587 (10th Cir.) (although PSR showed that

sixty-year-old defendant had little work experience and the

district court "recognized that she had no present ability to pay

anything," it erroneously ordered restitution of $192,092.00),

Newman, 6 F.3d 623, 631 (9th Cir.1993).

The defendant bears the burden of demonstrating his financial

resources by a preponderance of the evidence. 18 U.S.C. § 3664(d).

At sentencing, Remillong testified that he had no financial ability

to pay the ordered restitution, no cash flow and no money in a

bank. R5-9. Additionally, he testified that he committed the bank

robberies because he "needed money" because of his "economic

problems" resulting from not having a job. Id. at 7. Remillong's

Presentence Report ("PSR") shows that his only asset was a 1979

Ford pickup truck valued at approximately $1,000.00, and that he

had a loan liability of $3,000.00. 6 The PSR, which Judge Sharp

adopted at sentencing, states that "it does not appear that

[Remillong] has the ability to pay a fine." PSR at 15. No

evidence was presented to show future ability to pay the

restitution ordered.7 Despite this record evidence and in blatant
cert. denied, 502 U.S. 926, 112 S.Ct. 341, 116 L.Ed.2d 280

(1991); cf. United States v. Bondurant, 39 F.3d 665, 668 (6th

Cir.1994) (affirming restitution of $4,736.48 because of

defendant's "intelligence and relatively extensive academic

background, and his likely ability to secure a job and repay the

small amount at issue"). Additionally, other circuits

specifically inquire into future earning capacity in determining

whether the record supports a restitution order. See United

States v. Ramilo, 986 F.2d 333, 336 (9th Cir.1993); United

States v. Rogat, 924 F.2d 983, 985 (10th Cir.1991); United

States v. Paden, 908 F.2d 1229, 1237 (5th Cir.1990), cert.

denied, 498 U.S. 1039, 111 S.Ct. 710, 112 L.Ed.2d 699 (1991); 

United States v. McClellan, 868 F.2d 210, 212-13 (7th Cir.1989); 

United States v. Brown, 744 F.2d 905, 911 (2d Cir.1984). 

contravention of the adopted PSR, Judge Sharp ordered restitution

of the cumulative amount taken from the ten banks.

We have determined that district courts are not required to

make factual findings whenever they impose a restitution order if

the appellate record provides sufficient reasons for the decision

to order full restitution. United States v. Hairston, 888 F.2d

1349, 1352-53 (11th Cir.1989); accord United States v. Lombardo,

35 F.3d 526, 529-30 (11th Cir.1994) (per curiam). Our review of

the record in this case, particularly the PSR, causes us to believe

that Judge Sharp "effectively ignored the requirements of the

statute" by failing to consider evidence of Remillong's financial

inability to pay the ordered restitution in the record before him.

Bailey, 975 F.2d at 1032. "A defendant claiming that the district

judge failed to consider a mandatory sentencing factor [under

section 3664(a) ] must show either that (1) it is not improbable

that the judge failed to consider the mandatory factor and was

influenced thereby, or (2) the judge explicitly repudiated the

mandatory factor." United States v. Murphy, 28 F.3d 38, 41 (7th
 8

Accord United States v. Reese, 998 F.2d 1275, 1280-81 (5th

Cir.1993) ("An order of restitution will be reversed on appeal

only when the defendant shows that it is probable that the court

failed to consider a mandatory factor and the failure to consider

the mandatory factor influenced the court."). 

 9

Judge Sharp has shown himself capable of considering

financial ability to pay restitution; in a previous case, he

ordered restitution to be one half of the amounts shown in the

PSR. United States v. Stevens, 909 F.2d 431, 434-35 (11th

Cir.1990). 

 10As the government candidly recognizes in its appellate

brief:

Given this Court's ruling [in Remillong II ], the

district court on remand should have addressed

explicitly its consideration of the "ability to pay"

factor. Instead, the district court noted merely that

Cir.1994).8 Clearly, Remillong has satisfied both parts of this

disjunctive standard. See United States v. Clark, 901 F.2d 855,

857 (10th Cir.1990) (vacating restitution order in bank

embezzlement case because district court abused its discretion by

not considering the defendant's proof by a preponderance of the

evidence of his inability to pay the restitution order when ordered

or in the near future).

After specifically being instructed by this court in Remillong

II to assess on remand Remillong's financial capability to pay

restitution pursuant to section 3664(a), Judge Sharp's cryptic

handwritten notation that Remillong owes full restitution because

he once had physical possession of the money is more than

irresponsible, it is defiant. Far from performing the assessment

that he specifically was instructed to conduct in Remillong II,9

Judge Sharp's cursory handwritten notation dashed at the top of

Remillong's motion to correct his sentence evidences Judge Sharp's

disregard for this court's instruction and mandate.10 The problem
Remillong "had physical possession" of the stolen money

and then found that restitution was appropriate. The

district court's comment was inadequate. It does not

directly indicate that the court considered Remillong's

ability to pay restitution. As a result, this Court

should remand for further proceedings on this issue.

Appellee's Brief at 10 (citation omitted) (emphasis added). 

in this case is not that restitution was ordered, but that Judge

Sharp failed to evaluate Remillong's financial ability to pay as

statutorily required and as mandated by this court.

Regrettably, this case is not an aberration. We previously

have reversed and/or remanded cases to Judge Sharp for failing to

provide factual and legal explanations for his rulings or actions.

See, e.g., Imperial Residential Design, Inc. v. Palms Dev. Group,

Inc., 29 F.3d 581, 583 (11th Cir.1994) (per curiam) ("Before we can

effectively review this appeal, we need an explanation from the

district court about its factual and legal conclusions on the

standing issue."); Rodgers ex rel. Jones v. Bowen, 790 F.2d 1550,

1553 (11th Cir.1986) ("In the absence of prior resort to less

severe sanctions which were available, we conclude that the

district court abused its discretion in dismissing ... [the]

action" [of plaintiff-appellant for slight delay in paying the

filing fee after denying her application to proceed in forma

pauperis ].); United States v. Bergouignan, 764 F.2d 1503, 1507

(11th Cir.1985) ("When the government's failure to support its

allegation ... is coupled with the district court's failure to

explain its reasons for denying the motion to dismiss, ... we have

no way of ascertaining whether the motion was properly denied....

Given the paucity of the record before us, we have no alternative
but to remand to the district court for a determination of the

number of excludable days, if any, between the arrest and the

dismissal of the complaint."), cert. denied, 484 U.S. 1044, 108

S.Ct. 778, 98 L.Ed.2d 864 (1988).

We have gently chided Judge Sharp for his failure to provide

reasoning for dismissing a claim " "without prejudice and without

leave to amend' " by stating that, "[w]hile the failure of a lower

court to give reasons for its disposition of an action makes review

difficult, it does not necessarily preclude affirmance where

appropriate reasons for dismissal are readily apparent." Grant v.

County of Seminole, 817 F.2d 731, 732 (11th Cir.1987) (per curiam).

We also have used the severe remedy of reassigning a case when

Judge Sharp abused his discretion by refusing to grant an

evidentiary hearing. United States v. Yesil, 991 F.2d 1527, 1533

(11th Cir.1992). Analogous to discretion being limited in ordering

restitution by considering the financial ability of the defendant

to pay, we explained to Judge Sharp in Yesil that discretionary

acceptance of a plea agreement " obligate[s] " the district court

"to accept the government's proffered information," causing the

court to lose "its usual discretion to determine whether or not to

grant a party's request for an evidentiary hearing." Id. at 1532.

In reversing, remanding and reassigning that case, we held that

Judge Sharp "abused this limited discretion when he refused to

grant the requested Rule 35 evidentiary hearings." Id.

Additionally, we specifically have addressed Judge Sharp's

handwritten notations for failing to give reasons for dispositive

orders. Seamon v. Vaughan, 921 F.2d 1217, 1220 (11th Cir.1991)
(per curiam). In vacating and remanding Judge Sharp's

discretionary attorney fees award, we explained:

The basis for the district court's award of attorney fees

is unclear. The court failed to make any findings of fact to

support the $25,000.00 amount. Its only explanation was a

cryptic handwritten comment relating to duplication of

attorney services. The district court did not explain why it

eliminated half of the claimed attorney fees as duplicative.

As a result, we are unable to review the district court's

exercise of discretion, either on appeal or cross-appeal.

Id. (emphasis added).

We are greatly troubled that Judge Sharp continues to ignore

or circumvent specific directives and mandates from this court in

his adjudication of cases before him. His deliberate defiance of

our mandate in Remillong II, however, not only shows a disregard

for our explicit instruction, complete with our quoting the

governing statute to him, but also disregard for Remillong, who is

before Judge Sharp for a just resolution of his case.

Additionally, this third sentencing appeal in this case exemplifies

the judicial inefficiency that results from such obstinate conduct.

Apparently, the only way that we can obtain compliance from

Judge Sharp in this case is to outright reverse or vacate his

rulings with the instruction that he cannot rule a particular way,

as evidenced by Remillong's first two sentencing appeals. See

supra note 1. When he had the opportunity to exercise discretion,

as with the evaluation of Remillong's ability to pay restitution,

Judge Sharp stubbornly persisted in his questioned decision without

reasonable explanation or justification. We again hold that Judge

Sharp abused his discretion in complying with the requirements of

section 3664(a) in evaluating Remillong's ability to pay

restitution and, further, specifically defied our mandate in
 11"We have the authority to order reassignment of a criminal

case to another district judge as part of our supervisory

authority over the district courts in this Circuit." United

States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.1989) (per

curiam); see 28 U.S.C. § 2106. In determining whether to

reassign a case, we consider "(1) whether the original judge

would have difficulty putting his previous views and findings

aside; (2) whether reassignment is appropriate to preserve the

appearance of justice; (3) whether reassignment would entail

waste and duplication out of proportion to gains realized from

reassignment." Id. As we have explained in our opinion, this

case clearly meets these criteria for reassignment. 

Additionally, we have held that "cases that have maintained a

"stalemated posture' because of the district judge's

intransigence require reassignment to another judge." United

States v. White, 846 F.2d 678, 695 (11th Cir.) (quoting Brooks v.

Central Bank, 717 F.2d 1340, 1343 (11th Cir.1983) (per curiam))

(emphasis added), cert. denied, 488 U.S. 984, 109 S.Ct. 537, 538,

102 L.Ed.2d 568 (1988). 

 12We are cognizant that we have determined that a district

court is not obligated to make explicit factual findings

concerning financial condition as to ability to pay restitution

if the record provides an adequate basis for review. United

States v. Hairston, 888 F.2d 1349, 1352-53 (11th Cir.1989). The

present record cannot provide a sufficient basis for review

because the 1991 PSR likely is obsolete since Remillong is no

Remillong II. From Judge Sharp's rulings on the two prior remands

in this case, we have no confidence that he will perform the

appropriate evaluation of Remillong's financial condition on

another remand concerning the same restitution issue.

 Accordingly, we VACATE Remillong's restitution order and

REMAND this case to the Chief Judge of the Middle District of

Florida to REASSIGN to a different district judge for further

proceedings consistent with this opinion.11 As we have explained

herein, the present record will not support a conclusion that

Remillong presently or in the foreseeable future can pay the

cumulative amount taken from the victim banks of $29,251.00. It

appears that an evidentiary hearing would be useful in assessing

Remillong's present and future ability to pay restitution.12
longer incarcerated and knowledge of his present occupation,

obligations and responsibilities as well as future earning

capacity would be helpful in determining appropriate restitution. 

Additionally, after three sentencing appeals, a proper assessment

of Remillong's financial condition has yet to be undertaken. 

CA(95)2860,SIZE-1 PAGE,TYPE-PI