## United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 23

- 1847

___________________________
United States of America

Plaintiff - Appellant

v.
Jason Robert Wesely

Defendant - Appellee

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No. 23

- 1854

___________________________
United States of America

Plaintiff - Appellant

v.

Jesus Rafael Diaz

- Figueroa

Defendant - Appellee

____________ Appeal s from United States District Court for the Southern District of Iowa - Eastern

____________
Submitted: December 11, 2023 Filed: March 20, 2024

____________-2- Before ERICKSON, MELLOY, and STRAS, Circuit Judges.

____________
STRAS, Circuit Judge

.

The Justice for Victims of Trafficking Act provides that district courts “ shall assess an amount of $5,000 on any non

- indigent person” convicted of sexual exploitation of a child . 18 U.S.C. § 3014 (a)(3). Both Jason Wesely and Jesus
Diaz

- Figueroa had qualifying convictions, but finding s of indigency meant that
neither had to pay the assessment. We reverse and remand in Diaz

- Figueroa’s case.

I.

Unless a defendant is indigent, a district court has no choice but to impose the special assessment. 1 See id. § 3014(a) ; United States v. Kelley , 861 F.3d 790, 801 ( 8th Cir. 2017) (“exclud[ing] discretionary decisions by the court once

non

- indigence has been determined”). As we have explained, indigenc y depends on

“ a defendant’s current financial situation and his ability to pay in the future.” Kelley

, 861 F.3d at 801 (emphas i s added). What matters, in other words, is a defendant’s ability to pay, now or later. See id. ; cf. 18 U.S.C. § § 3014(g) , 3613(b) (imposing a
20

- year collection period).

A n appreciable net worth at the time of sentencing generally requires the special assessment, regardless of future earning power. See United States v. Mung

, 989 F.3d 639, 645 (8th Cir. 2021)

. Alternatively

, defendants who have future “earning [] capacity” because of their young age, good health, “education, skills, [or] work experience” are also eligible for it

. United States v. Otradovec , 72 F.4th 794, 797 (7th Cir. 2023); see also United States v. Meek , 32 F.4th 576, 581 (6th Cir. 2022)

1 In addition to imposing a special assessment

, the statute specifies where to deposit the funds: the Domestic Trafficking Victims’ Fund. 18 U.S.C. § 3014(d). From there, it directs the Attorney General and Secretary of Health and Human Services “to award grants or enhance victims’ programming.” Id. § 3014(e).-3- (reasoning that a defendant was not indigent because he was “a college graduate who ha[d] worked in a number of fields” and would likely “resume th[o]se efforts” after release). Either way

, the burden to establish otherwise rests with the defendant. See Kelley , 861 F.3d at 800 n.5.

II.

O verturning a finding of indigence on appeal requires a showing of clear

error. 2 See id. at 801

. It is a steep hill to climb. We will reverse only if we are “definite[ly] and firm [ly]” conv inced that the district court made “ a mistake ,” Oden v. Share Smith Enters., Inc. , 27 F.4th 631, 633 (8th Cir. 2022) (citation omitted) , not just that we would have “ weighed the evidence differently ,” Anderson v. Bessemer City
, 470 U.S. 564, 574 (1985).

A.

At the time of sentencing

, Wesely was a few months short of his fortieth birthday with a single asset to his name: a savings account with a balance of $24.12.
He had sold his other assets for the benefit of his two children . A s he noted during
allocution , he owed state

- ordered spousal and child support in the amount of $2,500 per month, which he could not afford given his lack of assets or employment

.

His future earning capacity looked equally bleak. It is true that he had once earned $65,000 per year in the Iowa National Guard. But prison likely put an end to his military career

. And h is military disability benefits remained in limbo

.

2 Wesely ’s position is that plain -error review applies . The government , however, specifically asked the district court to impose the special assessment at sentencing , which preserve d the issue for appeal

. See Fed. R. Crim. P. 51(b); see also United States v. Poitra , 648 F.3d 884, 892 (8th Cir. 2011) (explaining that plain

- error review incentivizes “timely objections that allow the district court

. . . [to] adjudicate the dispute

. . . [and] resolve any alleged errors” (citations omitted))

.-4- To sum up, he had one asset , but it was not enough to pay the special

assessment. T he district court also could not count on future income, given that Wesely was facing a possible suspension of his disability benefits and had uncertain post

- prison job prospects. We cannot overturn a finding of indigence on mere guesswork

. See Anderson , 470 U.S. at 574.

B.

But there is more than guesswork available in Diaz

- Figueroa ’s case

. At the time of sentencing, he had a net worth of approximately $120,000

, split between $90,000 in home equity and almost $30,000 in a joint checking account

. He also had a car and some debt, but they largely canceled each other out

.

Even discounting his future job prospects, Diaz

- Figueroa’s current assets left plenty of room to pay the $5,000 special assessment

. After all, a positive net worth “at the time of sentencing ,” Mung , 989 F.3d at 645 (involving “$8,000 in [a] bank account and no debt or liabilities”), can “preclude [] a finding of indigence” under § 3014, Kelley , 861 F.3d at 802. C f. United States v. Barthman , 983 F.3d 318,
322

– 23 (8th Cir. 2020) (reversing because the defendant “ha[d] a negative net worth of $166,903” and would be “nearly 80 years old, if not older, when

. . . released from custody”).

It makes no difference that the district court had already ordered $48,000 in
restitution. Even if we assume that court

- ordered restitution is a relevant
consideration under § 3014, subtracting the award still left Diaz

- Figueroa with a positive net worth of over $70,000, even if much of it was in home equity. Cf. 18
U.S.C. § 3014(b) (prioritizing the payment of all “court

- ordered fines,

. . . restitution,” and other “victim

- compensation” obligations before the payment of the $5,000 special assessment). A net worth that high

, while hardly a fortune, does not
make someone indigent either

. The district court’s finding to the contrary was clearly erroneous. See Kelley , 861 F.3d at 801.-5- III.

We accordingly reverse and remand for further proceedings for
Diaz

- Figueroa, but otherwise affirm.

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