United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3387

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Ernest Lawrence Gray, *

* [PUBLISHED]

Appellant. *

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 Submitted: March 3, 1999

 Filed: April 15, 1999 

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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.

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PER CURIAM.

Ernest Lawrence Gray pleaded guilty to aiding and abetting firearm and armed

bank robbery violations. See 18 U.S.C. §§ 2, 924(c)(1), and 2113(a), (d). The district

court sentenced him to 157 months in prison and ordered restitution of approximately

$100,000 to the robbery victims, which “shall be paid in full immediately.” On

appeal, Gray does not challenge the amount of restitution ordered but argues that the

district court should have made findings as to his economic circumstances and should

have ordered a schedule of payments, or only nominal payments. Gray did not raise

these issues in the district court, so we review the restitution order for plain error.
1As we observed in United States v. Hines, 88 F.3d 661, 663-64 (8th Cir.

1996), “it is an abuse of discretion to impose as a condition of supervised release the

immediate payment of a fine if the defendant’s ability to pay that fine is based upon

post-supervised release income.” 

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A sentencing court must order full restitution of each crime victim’s loss. See

18 U.S.C. §§ 3663A(a)(1), 3664(f)(1)(A). The offender’s ability to pay is relevant

only in determining whether restitution should be paid by lump sum, a schedule of

payments, or nominal payments. See 18 U.S.C. §§ 3664(f)(2) and(3). The court has

substantial discretion in determining how restitution is to be paid but must consider

the statutory factors enumerated in § 3664(f)(2), including defendant’s financial

condition. See United States v. Rea, No. 98-2546, slip op. at 6-7 (8th Cir. Feb. 23,

1999). Here, the district court declined to impose a fine because of Gray’s inability

to pay, yet it ordered his substantial restitution obligation payable immediately. This

part of the restitution order appears to ignore the statutory payment factors set forth

in § 3664(f)(2)(A)-(C). 

We reverse for plain error only if substantial rights of the defendant are

affected. See United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en

banc). Were Gray to be released in the near future, the district court’s failure to

consider ability to pay under § 3664(f)(2) might well affect his substantial rights

because one condition of his supervised release is that he “shall pay any restitution

that remains unpaid at the commencement of the term of supervised release.”1

However, Gray is commencing a long prison term. If he is unable to satisfy the

restitution order while incarcerated, as seems likely, then he may apply to the district

court for an amended restitution order better suited to his post-release financial

circumstances, before he begins supervised release. At this time, the district court’s
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restitution order does not affect his substantial rights and therefore was not plain

error. 

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.