UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5925

LARRY DARNELL MOORE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CR-93-270)

Argued: October 29, 1997

Decided: March 2, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and BULLOCK,

Chief United States District Judge for the Middle District of

North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Stuart Bruce, Deputy Federal Public Defender,

Greensboro, North Carolina, for Appellant. Kenneth Michel Smith,

Assistant United States Attorney, UNITED STATES ATTORNEY'S

OFFICE, Charlotte, North Carolina, for Appellee. ON BRIEF: William E. Martin, Federal Public Defender, Greensboro, North Carolina,

for Appellant. Mark T. Calloway, United States Attorney, Gretchen
C.F. Shappert, Assistant United States Attorney, UNITED STATES

ATTORNEY'S OFFICE, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

This case presents the question of whether the district court committed plain error in ordering the defendant to reimburse the Government for court-appointed attorney fees as a condition of supervised

release. For the reasons stated below, we conclude that the court did

not commit plain error and affirm the sentence imposed.

I.

On June 21, 1994, defendant-appellant Larry Darnell Moore

entered into a plea agreement to plead guilty to conspiracy to possess

and distribute a quantity of cocaine in violation of 21 U.S.C. § 846.

The parties agreed that the amount of cocaine known and reasonably

foreseeable to the defendant was in excess of 400 but less than 500

grams, and that the adjusted offense level was 24. J.A. at 14-20. The

Government sought an enhanced penalty on the basis of a prior felony

drug conviction. J.A. at 12-13.

The Presentence Report ("PSR") assigned career offender guideline

level 34 to Moore under U.S.S.G. § 4B1.1(B) for offenses carrying a

statutory maximum of twenty-five or more years. After a three-level

reduction for acceptance of responsibility, Moore's Total Offense

Level became thirty-one, which at Criminal History Category VI

resulted in a sentencing range of 188 to 232 months. J.A. at 93.

The district court accepted Moore's guilty plea and imposed a sentence of 188 months followed by a period of supervised release of six

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years. J.A. at 68-69. The court declined to impose a fine. The court

did order, however, that Moore reimburse the Government for the

costs of court-appointed counsel "on a schedule determined by the

Bureau of Prisons and/or the probation officer as appropriate." J.A. at

68-69. From this order, Moore appeals.1 

II.

Moore contends that the district court's order of reimbursement is

not supported by adequate factual findings regarding his ability to

pay. We disagree.

Pursuant to 18 U.S.C. § 3006A(f), before the court orders repayment of court-appointed counsel, the court must"find[ ] that funds are

available for payment from or on behalf of a person furnished representation." However, the district court need not make an explicit finding on the record that the defendant has the ability to pay. This court

may uphold reimbursement orders even if the district court did not

make a specific finding on availability of funds as long as there is sufficient evidence to support the court's decision and the defendant did

not object to that evidence. See United States v. Behnezhad, 907 F.2d

896, 900 (9th Cir. 1990); United States v. Gurtunca, 836 F.2d 283,

288 (7th Cir. 1987).

In this case, the district court had before it evidence to indicate that

Moore could reimburse the Government upon his release from incarceration. Moore had completed the eleventh grade and claimed to

have earned a GED while serving in the United States Marine Corps.

Moore had a good work history and possessed vocational skills as a

mechanic. J.A. at 65, 92-93. In addition, Moore had been paying rent

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1 Moore also argued in his assignments of error that the district court

committed plain error in applying U.S.S.G. § 4B1.1 when Application

Note 2 to that section was amended in the interim between preparation

of the Presentence Report and the date of sentencing. After Moore filed

this appeal and submitted his briefs, however, the United States Supreme

Court held this amendment to Application Note 2 invalid in United

States v. LaBonte, 117 S. Ct. 1673, modification denied, 117 S. Ct. 2505

(1997). As Moore's attorney conceded at oral argument, LaBonte renders

moot this first assignment of error.

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on a time-share cabin in Mocksville, North Carolina, at the rate of

$118.00 per month. J.A. at 93. Furthermore, he had already made partial payment of his attorney's fees.2 We also note that Moore signed

a plea agreement whereby he promised to reimburse the Government

for his attorney's services. J.A. at 16. These facts are sufficient to support the finding required by § 3006A(f).3

III.

Moore also contends that the district court erred by delegating to

the United States Probation Office the responsibility to determine the

amount and timing of his repayment of court-appointed attorney fees.

See United States v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995) (holding that sentencing courts may not delegate decisions about the

amount and timing of restitution payments). Because Moore failed to

object to this alleged error, we review only for plain error. See United

States v. Olano, 507 U.S. 725, 730 (1993); see also Fed. R. Crim. P.

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2 On September 26, 1994, Moore's attorney had moved for a change of

status from retained to appointed, indicating that he had originally been

retained upon payment of $700.00. Moore's custodial status apparently

prevented him from earning more money to pay his attorney. The court

granted the attorney's request on the understanding that any fee application submitted would reflect the $700.00 credit already paid. J.A. at 46-

49.

3 Moore also contends that even if he had the funds to reimburse the

Government for his court-appointed counsel the district court did not

have the power to make reimbursement a condition of supervised release.

We disagree. A district court's authority to set conditions of supervised

release is governed by 18 U.S.C. § 3583(d). This provision states that a

district court may impose conditions on supervised release if they are

reasonably related to the factors set forth in 18 U.S.C. §§ 3553(a)(1),

(a)(2)(B), (a)(2)(C), and (a)(2)(D). We believe that requiring a defendant

to reimburse the Government for the cost of his court-appointed attorney

may deter him from committing another crime. See Black's Law

Dictionary at 405 (5th ed. 1979) (defining "deterrent" as "[a]nything

which impedes or has a tendency to prevent") (emphasis added). Because

reimbursement is reasonably related to the goal of deterrence, the district

court had the authority to impose it as a condition of Moore's supervised

release. See 18 U.S.C. § 3553(a)(2)(B) (listing "deterrence to criminal

conduct" as an appropriate factor for consideration).

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52(b) ("Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.").

Under the Supreme Court's interpretation of Federal Rule of Criminal Procedure 52(b) in Olano, we have authority to correct forfeited

error only if it is "plain" or obvious, and if the defendant has carried

his burden of showing that the error affected his"substantial rights."

Olano, 507 U.S. at 732-36. Even then, we have discretion to decline

to correct the error unless we conclude that it"seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings." Id. at

736 (quoting United States v. Atkinson , 297 U.S. 157, 160 (1936))

(internal quotation marks omitted).

In applying this analysis here, we conclude that the district court's

delegation to the United States Probation Office of the responsibility

to determine the timing and amount of Moore's reimbursement of

court-appointed attorney's fees does not constitute plain error. Even

if we assume arguendo that the district court erred in delegating this

responsibility to the United States Probation Office and that this error

was sufficiently clear to satisfy plain-error analysis, we conclude that

Moore has not shown that the error affected his"substantial rights."

In most cases, affecting a defendant's substantial rights is synonymous with prejudice to the defendant.4 The defendant has the burden

of demonstrating prejudice on appeal. See id. at 734; Fed. R. Crim.

P. 52(b). Moore has not shown that he was prejudiced by the district

court's delegation to the United States Probation Office of the responsibility to determine the amount and timing of his reimbursement of

court-appointed attorney fees. These issues are relatively minor determinations in Moore's conviction and sentence. Furthermore, if Moore

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4 The Supreme Court in Olano expressly declined to consider whether

the phrase "affecting substantial rights" is always "synonymous with

`prejudicial.'" Olano, 507 U.S. at 735. Rather, the Court speculated that

"[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome," such as structural

errors. Id. Structural errors, or defects affecting the framework within

which the trial proceeds, exist only in a limited class of cases. See

Johnson v. United States, 117 S. Ct. 1544, 1549-50 (1997) (collecting

cases).

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has difficulty meeting the amount and schedule of payments set by

the United States Probation Office, he can petition the district court

for modification. See 18 U.S.C. § 3583(e)(2) and Fed. R. Crim. P.

32.1(b). Finally, should the Government attempt to revoke his supervised release for non-payment, he may assert lack of funds as a

defense. See Gurtunca, 836 F.2d at 289. Because the court's alleged

error does not affect Moore's substantial rights, it cannot constitute

plain error under Federal Rule of Criminal Procedure 52(b).

For the foregoing reasons, the district court's judgment is affirmed.

AFFIRMED

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