1The Honorable John B. Jones, United States District Judge for the District of

South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-2695

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United States of America,

Appellee,

v.

David Lane McGlothlin,

Appellant.

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Appeal from the United States

District Court for the

Eastern District of Arkansas.

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Submitted: January 9, 2001

 Filed: May 8, 2001

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Before WOLLMAN, Chief Judge, and HANSEN, Circuit Judge, and JONES1,

District Judge. 

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HANSEN, Circuit Judge.

David McGlothlin pleaded guilty to a thirteen-count indictment. McGlothlin's

illegal activities included transporting stolen vehicles, being a felon in possession of a

firearm, theft of a firearm, transporting a stolen firearm, and transporting stolen

property in violation of 18 U.S.C. §§ 2312, 922(g), (i),(j), 924(a)(2), and 2314 (1994).
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(R. at 4.) Pursuant to the United States Sentencing Guidelines, the district court

sentenced McGlothlin to 96 months imprisonment, three years supervised release, and

ordered him to pay $97,724.49 in restitution to his victims, which was to be paid "in

full immediately." (R. at 74.). Special instructions included in the judgment provided

that "beginning the first month of supervised release, payments will be a minimum of

10 percent of the defendant's net monthly household income." (Id.) McGlothlin

requested that the district court further provide him with a repayment schedule for the

time he was to be imprisoned; however, the court refused. On appeal, McGlothlin does

not challenge the amount of restitution ordered and instead contests the manner and

schedule in which the court ordered him to pay it. He asserts that his case should be

remanded so the district court may craft a payment plan commensurate with his ability

to pay during his incarceration. We agree.

We review the district court's determination of a defendant's ability to pay

restitution for an abuse of discretion. United States v. Riebold, 135 F.3d 1226, 1231

(8th Cir.), cert. denied, 524 U.S. 944 (1998). Pursuant to the Mandatory Victims

Restitution Act of 1996 (MVRA), 18 U.S.C. § 3664 (Supp. II 1996), restitution is

required for certain crimes, id. § 3663A(c)(1), and district courts are obligated to

impose restitution in the full amount of a victim's losses "without consideration of the

economic circumstances of the defendant." Id. § 3664(f)(1)(A). In this case, the

financial loss to the victims was in excess of $613,000, directly resulting from

McGlothlin's theft of their tractors, trailers, and attendant cargo. The district court

credited McGlothlin for the recovered property, leaving him responsible for the

$97,724.49 loss still outstanding. "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." United States v. Gray, 175 F.3d 617, 617-18 (8th Cir.)

(referencing 18 U.S.C. § 3664(f)(3)(A)), cert. denied, 528 U.S. 909 (1999). Thus, the

district court has substantial discretion in determining how restitution is to be paid.

See 18 U.S.C. § 3664(f)(2). 
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At sentencing, the district court acknowledged McGlothlin's financial

circumstances and waived payment of a fine but seemed to ignore the statutory

payment factors provided by § 3664(f)(2)(A)-(C) by imposing immediate payment of

the full amount of restitution. The Presentence Investigation Report noted that

McGlothlin had no income and no assets, which indicated that he had no ability to pay

the restitution immediately. The district court remarked that "[restitution] is mandatory

but I don't think he will ever pay it . . . but, anyway, restitution is imposed because it

is mandatory under the statute." (Sentencing Tr. at 5.) Given McGlothlin's financial

circumstances, we conclude that the district court abused its discretion. The district

court was correct that restitution in this case is statutorily mandated, but instead of

demanding immediate payment, which it acknowledged was not feasible, the district

court needed to fashion a payment schedule that designated a specific percentage of

McGlothlin's monthly earnings while incarcerated toward his restitution obligation. See

18 U.S.C. § 3664(f)(1)(B)(2)(A) ("Upon determination of the amount of restitution

owed to each victim, the court shall . . . specify . . . the schedule according to which,

the restitution is to be paid, in consideration of . . . the financial resources and other

assets of the defendant."); see also United States v. Myers, 198 F.3d 160, 169 (5th Cir.

1999) (finding it erroneous for sentencing court to order $40,000 in restitution due

immediately and remanding on the issue of schedule of payment when defendant had

no ability to pay in lump sum), cert. denied, 530 U.S. 1220 (2000); United States v.

Kinlock, 174 F.3d 297, 298, 301 (2d Cir. 1999) (vacating and remanding restitution

order when district court failed to set minimal payment schedule for incarceration

period and instead ordered restitution "due and payable immediately."); United States

v. Rea, 169 F.3d. 1111, 1114 (8th Cir. 1999) (remanding on restitution issue when

district court neglected to consider defendant's financial circumstances in ordering him

to pay $750 per month while incarcerated), vacated on other grounds, 530 U.S. 1201

(2000).

McGlothlin further argues that the district court impermissibly delegated the

payment schedule during incarceration to the Bureau of Prisons (BOP). During the
2The intent of the IFRP is to assist inmates in meeting their imposed financial

obligations, including paying fines and restitution. 28 C.F.R. §§ 545.10-545.11 (1999).

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sentencing colloquy, McGlothlin's attorney requested that McGlothlin be allowed to

begin paying his restitution once he secured a job in prison. The district court replied,

"I am not going to get into that. . . . I will let the Bureau of Prisons tackle that

problem" and ordered that payment was due immediately. (Sentencing Tr. at 14.) We

believe that the district court in this instance was intimating that the BOP would collect

restitution to the maximum degree possible through its Inmate Financial Responsibility

Plan (IFRP) while McGlothlin was incarcerated.2 We have previously upheld the

calculating of a defendant's ability to pay a statutorily imposed obligation based on the

defendant's likely prison earnings through the IFRP. United States v. Turner, 975 F.2d

490, 498 (8th Cir. 1992), cert. denied, 506 U.S. 1082 (1993). That being said, the

MVRA provides that the manner of payments and "the length of time over which

scheduled payments will be made shall be set by the court." 18 U.S.C. § 3572(d)(2)

(Supp. II 1996). We interpret this statement to require the district court to set a

detailed payment schedule at sentencing. See, e.g., United States v. Coates, 178 F.3d

681, 685 (3d Cir. 1999) (recognizing that federal regulations allow the BOP to

determine payment schedules for monetary penalties but finding the plain language of

the MVRA vesting authority in the district courts trumps the regulations); United States

v. Mortimer, 94 F.3d 89, 91 (2d Cir. 1996) (holding that the district court may not leave

to the BOP the responsibility of devising an inmate restitution payment schedule

pursuant to the IFRP); United States v. Miller, 77 F.3d 71, 78 (4th Cir. 1996) (holding

that "a district court may not delegate its authority to set the amount and timing of fine

payments to the Bureau of Prisons or the probation officer").

Accordingly, we vacate and remand the restitution order with instructions for the

district court to impose a detailed restitution payment schedule to commence while

McGlothlin is incarcerated.
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A true copy.

Attest:

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