UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5593

ROBERT DALE SHEPARD,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Robert J. Staker, Senior District Judge.

(CR-94-48)

Submitted: April 16, 1996

Decided: April 30, 1996

Before MURNAGHAN and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jacqueline Ann Hallinan, Charleston, West Virginia, for Appellant.

Rebecca A. Betts, United States Attorney, Sharon M. Frazier, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Robert Dale Shepard ("Shepard") pleaded guilty to escaping from

custody and various burglary, theft, and firearms violations. On

appeal he contends that the district court erred in ordering restitution.

Specifically, Shepard claims that the district court failed to make adequate findings regarding Shepard's financial status and ability to pay

restitution; that the restitution to the City of Huntington, West Virginia, was improperly awarded for conduct which was not part of the

offense of conviction; and that the restitution order does not comply

with 18 U.S.C. § 3663(e)(1) (1988), which requires that victims be

compensated before third parties. For the reasons that follow, we

affirm the district court's order.

Pursuant to a plea agreement, Shepard pleaded guilty to one count

of postal burglary; one count of use of a firearm in relation to a crime

of violence; one count of escape from custody; two counts of felon

in possession of a firearm; and two counts of robbing a pharmacy.

One of the pharmacy robberies occurred in Huntington, West Virginia. During the robbery, the police were contacted and a high speed

chase ensued. The chase ended when Shepard stopped on a dead-end

gravel road. As two officers approached Shepard's vehicle, Shepard

shifted into reverse and struck them both. Shepard was immediately

subdued and arrested.

The district court sentenced Shepard to 360 months imprisonment

and ordered him to pay restitution in the amount of $14,733.84. Part

of the order included restitution in the amount of $6,272.58 to the

City of Huntington, West Virginia. The amount represents lost wages

and medical costs incurred as a result of the injuries suffered by the

police officers struck by Shepard in his vehicle after the pharmacy

robbery chase.

The presentence report calculated restitution and identified five

separate payees to receive the $14,733.84. The district court ordered

restitution as outlined in the presentence report. Further, the district

court explicitly found that Shepard would be able to pay the restitution by participating in the Inmate Financial Responsibility Program.

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Although the parties failed to include the plea agreement in the record

on appeal, Shepard does not dispute the government's assertion that

the plea agreement provided that, notwithstanding the offense of conviction, Shepard would make restitution as ordered by the court.

Because Shepard failed to object at sentencing to the imposition of

the restitution order, he has waived appellate review absent plain

error. See United States v. Castner, 50 F.3d 1267, 1277 (4th Cir.

1995). To reverse for plain error, this court must find (1) an error, (2)

which is plain, (3) which affects substantial rights, and which (4) seriously affects the fairness, integrity or public reputation of judicial

proceedings. Id.

Under 18 U.S.C.A. § 3664(a) (West 1985 & Supp. 1996), before

ordering restitution a district court must consider the financial

resources of the defendant, and the financial needs and earning ability

of the defendant and the defendant's dependents. See United States v.

Plumley, 993 F.2d 1140, 1142-43 (4th Cir. 1993), cert. denied, ___

U.S. ___, 62 U.S.L.W. 3252 (U.S. Oct. 4, 1993) (No. 93-5704). "The

district court must make explicit findings as to those factors enumerated in 18 U.S.C. § 3664(a) and such findings should be keyed to the

specific type and amount of restitution ordered." Id. at 1143 (citing

United States v. Bruchey, 810 F.2d 456, 459 (4th Cir. 1987)). In this

case, Shepard contends that the district court failed to make specific

findings regarding his ability to pay restitution. The Government

counters, however, that the district court specifically found that Shepard could pay restitution with monies earned through the Inmate

Responsibility Program. The presentence report which the district

court adopted shows that Shepard has excellent research and writing

skills and has worked as a paralegal. These findings by the district

court, although not explicit, sufficiently satisfied the requirements of

18 U.S.C. § 3664(a), so that it did not amount to plain error. Castner,

50 F.3d at 1277.

This court now analyzes restitution orders in two steps. United

States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995). Under

the first step, this court determines whether the parties agreed to a restitution amount in the plea agreement. Id. If so, then the plea agreement controls. Id. at 1148. Shepard's plea agreement specifically

provided that Shepard would pay restitution as ordered by the court,

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regardless of the offense of conviction. Therefore, the restitution

ordered by the district court was authorized, notwithstanding the

offense of conviction. Id. at 1147-48.

Finally, Shepard claims that the district court erred in failing to

properly prioritize the payees of the restitution in accordance with 18

U.S.C. § 3663(e)(1). However, as noted above, Shepard failed to

object at sentencing to the district court's restitution order. Thus, he

has waived appellate review since he suffered no prejudice as a result

of the district court's error. See Castner, 50 F.3d at 1277.

For the reasons discussed, we affirm the district court's order. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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