UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5555

TOINETTA MONDS NELSON, a/k/a

Toinetta M. Nelson,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CR-95-19-AW)

Argued: April 11, 1997

Decided: June 4, 1997

Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael T. CitaraManis, Assistant Federal Public

Defender, Greenbelt, Maryland, for Appellant. Larry David Adams,

Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

ON BRIEF: James K. Bredar, Federal Public Defender, Greenbelt,

Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,

Greenbelt, Maryland, 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Unpublished opinions are not binding precedent in this circuit.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:

Toinetta Nelson (Nelson) pled guilty to theft of government property. See 18 U.S.C. § 641. She now appeals the portion of the district

court's judgment that orders her to pay $19,607.69 in restitution in

such installments as directed by the United States Probation Office.

For the following reasons, we affirm.

I.

On March 31, 1995, Nelson pled guilty to one count of theft of

government property. See id. Specifically, Nelson pled guilty to stealing imprest funds from the Office of Oceanic and Atmospheric

Research, National Oceanic and Atmospheric Administration, United

States Department of Commerce, where she was employed.

The presentence investigation report (PSR) prepared in anticipation

of Nelson's sentencing calculated the government's loss from the

theft at $19,607.69. The district court adopted both the recommended

factual findings and the application of the provisions of the United

States Sentencing Guidelines to Nelson's case as set forth in the PSR.

Accordingly, the district court sentenced Nelson to five years probation on the specific conditions that: (1) she serve four months of home

confinement with an electronic monitoring device; and (2) she pay

$19,607.69 in restitution. Without objection from Nelson, the district

court ordered Nelson to pay the restitution in "installments as directed

by the U.S. Probation Office . . . ." (J.A. 37). Asserting her inability

to pay the amount of restitution ordered, Nelson subsequently

requested reconsideration of the restitution order, which the district

court denied. Nelson noted a timely appeal.

II.

On appeal, Nelson contends the district court's order of restitution

is not supported by adequate factual findings regarding her ability to

pay and the financial needs of her dependents. We disagree.

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Title 18, United States Code § 3663, authorizes district courts to

order defendants to pay restitution to any victim of an offense committed in violation of Title 18 or other specified sections. In determining whether to order restitution under § 3663 and the amount of such

restitution, a district court must "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." 18 U.S.C. § 3664(a). "In order to assure

effective appellate review of restitution orders, this circuit requires

sentencing courts to make specific, explicit findings of fact on each

of the factors set forth in § 3664(a)." United States v. Molen, 9 F.3d

1084, 1086 (4th Cir. 1993) (collecting cases). These findings must

key a defendant's financial resources, financial needs, and earning

ability to the type and amount of restitution. See id. In addition, the

district court must make a factual determination regarding whether

the defendant can feasibly comply with the order without undue hardship to himself or his dependants. See id. In satisfying these requirements, a district court may: (1) specifically articulate its findings

regarding each factor on the record; or (2) adopt a PSR that adequately recites recommended factual findings. See id.

Here, the district court articulated some separate findings and

adopted those recommended in Nelson's PSR. After reviewing the

relevant factual findings separately made by the district court and the

relevant factual findings recited in the PSR that were adopted by the

district court, we conclude that while they are not a model of clarity,

they are nonetheless adequate to meet the requirements just outlined.

Accordingly, we decline Nelson's request that we vacate and remand

the district court's order of restitution.

III.

Nelson also contends the district court erred by delegating to the

United States Probation Office the responsibility to determine the

amount and timing of her restitutionary installment payments. 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 restitutionary installment payments). Because Nelson

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

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See United States v. Olano, 113 S. Ct. 1770, 1776 (1993); see also

Fed. R. Crim. P. 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 plain error analysis clarified by the Supreme Court in

Olano, an appellate court has the discretion to correct a forfeited error

under Federal Rule of Criminal Procedure 52(b), where: (1) there is

an error; (2) the error is plain; (3) the error affects substantial rights;

and (4) the court determines, after examining the particulars of each

case, that the error seriously affects the fairness, integrity or public

reputation of judicial proceedings. See Olano , 113 S. Ct. at 1776.

Applying this analysis here, we conclude the district court's delegation of the responsibility to determine the timing and amount of

Nelson's restitutionary installment payments to the United States Probation Office does not constitute plain error under Federal Rule of

Criminal Procedure 52(b). We do not hesitate to conclude that the district court erred by delegating the responsibility of determining the

timing and amount of Nelson's restitutionary installment payments to

the United States Probation Office. See Johnson , 48 F.3d at 809

("[M]aking decisions about the amount of restitution, the amount of

installments, and their timing is a judicial function and therefore is

non-delegable."). Nor do we hesitate to conclude that the error is plain

in the sense that our circuit precedent clearly prohibits the district

court's delegation. See id.; see also Olano, 113 S. Ct. at 1777 (defining "plain" as synonymous with clear or, equivalently, obvious).

We do, however, conclude that the error did not affect Nelson's

substantial rights. See Olano, 113 S. Ct. at 1776. In most cases, affecting a defendant's substantial rights is synonymous with prejudice to

the defendant. See id. at 1778. Furthermore, when reviewing for plain

error under Federal Rule of Criminal Procedure 52(b), "[i]t is the

defendant rather than the Government who bears the burden of persuasion with respect to prejudice." See id. Nelson has not shown that

she was prejudiced by the district court delegating to the United

States Probation Office the responsibility to determine the amount

and timing of her restitutionary installment payments. The timing and

amount of Nelson's restitutionary installment payments are minor

determinations in the entire scheme of Nelson's conviction and sen-

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tence. Indeed, the district court did not delegate responsibility for

making the far more important determination of the total amount of

restitution owed by Nelson. Furthermore, if the amount and timing of

restitutionary installment payments set by the United States Probation

Office are not agreeable to Nelson, she can petition the district court

for modification. See 18 U.S.C. § 3563(c); Fed. R. Crim. P. 32.1(b).

Because the error does not affect Nelson's substantial rights, the error

cannot constitute plain error under Federal Rule of Criminal Procedure 52(b).*

IV.

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

AFFIRMED

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*Because the error does not affect Nelson's substantial rights, we need

not consider whether the error seriously affects the fairness, integrity or

public reputation of judicial proceedings. See Olano, 113 S. Ct. at 1776.

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