PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-4474

GEORGE LAMONT MOORE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Martin K. Reidinger, District Judge.

(3:09-cr-00018-MR-1)

Argued: October 28, 2011

Decided: January 25, 2012

Before TRAXLER, Chief Judge, and MOTZ and AGEE,

Circuit Judges.

Affirmed in part, vacated in part, and remanded by published

opinion. Judge Agee wrote the opinion, in which Chief Judge

Traxler and Judge Motz joined. 
COUNSEL

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF

WESTERN NORTH CAROLINA, INC., Asheville, North

Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF

THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Peter S. Adolf, Assistant Federal Defender,

FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne

M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

OPINION

AGEE, Circuit Judge:

Police officers searched convicted felon George Lamont

Moore incident to an arrest and found a nine-millimeter handgun. After being indicted as a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1), Moore moved to dismiss on the grounds that the statute violated his Second

Amendment rights. The district court denied the motion and

Moore entered a conditional guilty plea reserving the right to

raise the Second Amendment defense on appeal. As part of

Moore’s sentence on the § 922(g)(1) conviction, the district

court ordered that he repay the incurred court-appointed attorneys’ fees pursuant to 18 U.S.C. § 3006A(f). For the reasons

stated herein, we affirm the district court’s denial of the

motion to dismiss, but vacate the attorneys’ fees order and

remand for resentencing in part. 

2 UNITED STATES v. MOORE
I.

Factual and Procedural Background

Prior to Moore’s arrest in this case, he had prior felony convictions for selling or delivering cocaine, three common law

robberies, and two assaults with a deadly weapon on a government official.1

 In the case at bar, Charlotte, North Carolina

police arrested Moore on the street based on an outstanding

warrant for assault with a deadly weapon. While searching

Moore incident to this arrest, the officers found a ninemillimeter handgun and ammunition. Moore told the police

after his arrest that he carried "the gun because of his fear of

being robbed, such robberies being prevalent in the neighborhood in which he lived." J.A. 17.2

 He was then charged as a

felon in possession of a firearm under 18 U.S.C. § 922(g)(1),

and as an armed career criminal under the Armed Career

Criminal Act ("ACCA"), 18 U.S.C. § 924(e).3

1Moore’s criminal record is extensive, resulting in a total of 19 criminal

history points as reflected in his Presentence Investigation Report. In addition to his felony convictions, he has numerous additional non-felony convictions as an adult including assault, assault and battery, assault on a

government official, second-degree trespass, carrying a concealed gun,

and various drug and driving-related offenses. In total, he has been convicted of more than twenty offenses and arrested more than twenty other

times for charges that did not lead to convictions, generally because they

were dismissed. 

2Although the government does not point to any evidence contradicting

Moore’s claim that he carried the gun to protect himself, it contends on

brief that there is "no competent evidence in the record" to support the

assertion, other than Moore’s own statement to the police at the time of

his arrest. Br. of Appellee at 12 n.2. 

3

In pertinent part, 18 U.S.C. § 922(g)(1) provides: "It shall be unlawful

for any person who has been convicted in any court of, a crime punishable

by imprisonment for a term exceeding one year . . . to ship or transport

in interstate or foreign commerce, or possess in or affecting commerce,

any firearm or ammunition . . . ." We use the term felon in possession of

a firearm as a shorthand designation of a person in violation of

§ 922(g)(1). 

UNITED STATES v. MOORE 3
Moore filed a motion to dismiss on various constitutional

grounds, which the district court denied. At that point, Moore

entered a conditional guilty plea, preserving for appeal the

issue of whether § 922(g)(1) violates the Second Amendment

in light of the Supreme Court’s ruling in District of Columbia

v. Heller, 554 U.S. 570 (2008). 

The district court sentenced Moore under the ACCA to the

statutory minimum, fifteen years’ imprisonment, to be followed by three years of supervised release. Although the court

found that Moore was indigent and qualified for a courtappointed attorney under 18 U.S.C. § 3006A and that he

could not pay a fine or interest, it nonetheless ordered Moore

to reimburse the United States for the court-appointed attorneys’ fees at a rate of $50 per month beginning sixty days

after his release from prison. The district court adopted the

probation office’s recommendation that, because Moore has a

GED and some trade skills, he would be able to pay the $50

per month after his release. Moore objected to the fee reimbursement order. 

On appeal, Moore assigns error both to imposition of the

attorneys’ fee reimbursement and the underlying § 922(g)(1)

conviction. We have jurisdiction of this appeal pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

Second Amendment Claim

A.

We first consider, de novo, whether Moore’s conviction

under § 922(g)(1) violates the Second Amendment.4See

United States v. Bostic, 168 F.3d 718, 721 (4th Cir. 1999). 

4

"A well regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not be

infringed." U.S. Const., amend. II. 

4 UNITED STATES v. MOORE
Moore argues that the Supreme Court held in Heller that

the Second Amendment guarantees an individual the right to

bear arms in self-defense irrespective of his status as a convicted felon. Moore contends that § 922(g)(1) is unconstitutional on its face because it infringes on the basic right of selfdefense.5

 As applied to him, Moore also argues that the statute

is unconstitutional and that his "prior convictions should not

be deemed to disqualify him from exercising his Second

Amendment right to protect himself." Br. of Appellant at 12.

Alternatively, Moore asks for remand to the district court to

develop an evidentiary record, arguing that procedure is

required by this court’s decision in United States v. Chester,

628 F.3d 673 (4th Cir. 2010). 

In response, the government contends that the Second

Amendment right to bear arms, like all other constitutional

rights, is not absolute. Emphasizing the violent nature of

Moore’s criminal record, the government points to language

in Heller characterizing felon dispossession laws as presumptively lawful. See Heller, 554 U.S. at 626-27 & n.26 (identifying the "longstanding prohibition[ ] on the possession of

firearms by felons" as a "presumptively lawful regulatory

measure[ ]"). Based on this language, the government posits

that Moore’s challenges to § 922(g)(1), as facially invalid,

fail. As to Moore’s as-applied challenge, the government

argues that if the Congress has sufficient interest in prohibiting any person from possessing a firearm, it is a person like

Moore, a violent felon. 

B.

We begin our analysis by noting the unanimous result

5Although Moore’s brief is not entirely clear as to whether he is asserting a facial challenge to the validity of § 922(g)(1), in addition to his asapplied challenge, we conclude that the arguments in his brief are sufficiently broad to constitute a facial challenge, and so we address both arguments. 

UNITED STATES v. MOORE 5
reached by every court of appeals that § 922(g)(1) is constitutional, both on its face and as applied. The basis for the various decisions by our sister circuits has varied, but all have

uniformly rejected challenges to § 922(g)(1), usually based at

least in part on the "presumptively lawful" language from

Heller. See, e.g., United States v. Torres-Rosario, 658 F.3d

110, 113 & n.1 (1st Cir. 2011) (rejecting both facial and asapplied challenges to § 922(g)(1) based on Heller and noting

that "[a]ll of the circuits to face the issue post Heller have

rejected blanket challenges to felon in possession laws" and

citing cases from the Second, Third, Fifth, Sixth, Seventh,

Eighth, Ninth, Tenth and Eleventh Circuits); United States v.

Barton, 633 F.3d 168, 170–75 (3d Cir. 2011) (rejecting Second Amendment challenge to § 922(g)(1) because of "presumptively lawful" language); United States v. Rozier, 598

F.3d 768, 770–71 (11th Cir.), cert. denied, 130 S. Ct. 3399

(2010) (same); United States v. Williams, 616 F.3d 685,

691–94 (7th Cir.), cert. denied, 131 S. Ct. 805 (2010) (rejecting facial Second Amendment challenge to § 922(g)(1) based

on presumptively lawful regulations, and utilizing the intermediate scrutiny framework to address the defendant’s asapplied challenge "without determining that it would be the

precise test applicable to all challenges to gun restrictions");

United States v. Vongxay, 594 F.3d 1111, 1114–15 (9th Cir.),

cert. denied, 131 S. Ct. 294 (2010) (relying on Heller to conclude that "felons are categorically different from the individuals who have a fundamental right to bear arms"); United

States v. Khami, 362 F. App’x. 501, 507-08 (6th Cir.), cert.

denied, 130 S. Ct. 3345 (2010) (agreeing with other circuits

that Heller’s language "is sufficient to dispose of the claim

that § 922(g)(1) is unconstitutional"); United States v.

McCane, 573 F.3d 1037, 1047 (10th Cir. 2009), cert. denied,

130 S. Ct. 1686 (2010) (flatly rejecting Second Amendment

challenge to § 922(g)(1) based on Heller); United States v.

Anderson, 559 F.3d 348, 352 n.6 (5th Cir.), cert. denied, 129

S. Ct. 2814 (2009) (same); United States v. Stuckey, 317 F.

App’x. 48, 50 (2d Cir. 2009) (same); see also United States

v. Joos, 638 F.3d 581, 586 (8th Cir. 2011) (rejecting a facial

6 UNITED STATES v. MOORE
challenge to § 922(g)(1) and citing to a prior Eighth Circuit

decision, which relied on Heller to reject a facial challenge to

§ 922(g)(3)). Apparently we are one of the few circuits yet to

publish an opinion on this issue. We now join with our sister

courts and hold § 922(g)(1) to be a constitutionally valid statute.

Since the Supreme Court’s decision in Heller, we have

come to address claims of the constitutional invalidity of a

firearms possession statute under the framework set out in

Chester. See United States v. Staten, ___ F.3d ___, 2011 WL

6016976 (4th Cir. Dec. 5, 2011) (§ 922(g)(9)); United States

v. Chapman, ___ F.3d ___, 2012 WL 11235 (4th Cir. Jan. 4,

2011) (§ 922(g)(8)). These cases, unlike the case at bar, challenged statutory restrictions on domestic violence misdemeanants (Chester and Staten), and certain persons subject to

domestic violence protective orders (Chapman) which the

Supreme Court did not specifically identify as presumptively

lawful regulatory measures in Heller. Our analysis in those

cases thus had no reason to denote any specific difference in

analysis between firearms restrictions which were specifically

mentioned in Heller as presumptively lawful regulatory measures and those that were not. 

As we noted in Chester, the Supreme Court explicitly

stated in Heller that "nothing in our opinion should be taken

to cast doubt on longstanding prohibitions on the possession

of firearms by felons. . . ." 628 F.3d at 679 (citing Heller,

[554 U.S. at 626])). The Supreme Court further identified

such felon in possession laws, like § 922(g)(1), as "presumptively lawful regulatory measures." Heller, 554 U.S. at 626-

27, n.26. We believe this differentiation by the Supreme Court

has some impact on the Second Amendment Chester analysis

when the regulatory measure at issue is such an identified presumptively lawful regulatory measure. In effect, the Chester

analysis is more streamlined when a presumptively lawful

regulatory measure is under review.

UNITED STATES v. MOORE 7
To the extent that Moore, or any similarly situated defendant, raises a facial challenge to the validity of § 922(g)(1),

the clear declaration in Heller that such felon in possession

laws are a presumptively lawful regulatory measure resolves

that challenge fairly quickly. As we noted in Chester:

It is unclear to us whether Heller was suggesting that

"longstanding prohibitions" such as these [firearm

possession by felons] were historically understood to

be valid limitations on the right to bear arms or did

not violate the Second Amendment for some other

reason. 

Id. at 679.6 We then referenced a similar conclusion by the

Third Circuit in United States v. Marzzarella, 614 F.3d 85, 91

(3d Cir. 2010):

6We further observed in Chester that 

it appears to us that the historical data is not conclusive on the

question of whether the founding era understanding was that the

Second Amendment did not apply to felons. See Williams, 616

F.3d at 692 (noting that "[t]he academic writing on the subject of

whether felons were excluded from firearm possession at the time

of the founding is inconclusive at best" (internal quotation marks

omitted)); [United States v. ]Skoien, 614 F.3d [638, 650-51 (7th

Cir. 2010) (en banc)] (Sykes, J., dissenting) ("[S]cholars disagree

about the extent to which felons-let alone misdemeanants-were

considered excluded from the right to bear arms during the

founding era. . . . We simply cannot say with any certainty that

persons convicted of a domestic-violence misdemeanor are

wholly excluded from the Second Amendment right as originally

understood."). United States v. McCane, 573 F.3d 1037, 1048

(10th Cir. 2009) (Tymkovich, J., concurring) ("[T]he felon dispossession dictum may lack the ‘longstanding’ historical basis

that Heller ascribes to it. Indeed, the scope of what Heller

describes as ‘longstanding prohibitions on the possession of firearms by felons’ . . . is far from clear."). 

628 F.3d at 680-81. 

8 UNITED STATES v. MOORE
We recognize the phrase ‘presumptively lawful’

could have different meanings under newly enunciated Second Amendment doctrine. On the one hand,

this language could be read to suggest the identified

restrictions are presumptively lawful because they

regulate conduct outside the scope of the Second

Amendment. On the other hand, it may suggest the

restrictions are presumptively lawful because they

pass muster under any standard of scrutiny.

Chester, 628 F.3d at 679.

Whichever meaning the Supreme Court had in mind

negates a facial challenge to a felon in possession statute like

§ 922(g)(1). If such restrictions were outside the scope of Second Amendment coverage at ratification, then obviously it is

not within Second Amendment protection now. On the other

hand, if a § 922(g)(1)-type statute has some Second Amendment coverage, the fact it is "presumptively lawful" indicates

it must "pass muster under any standard of scrutiny." Under

the well recognized standard for assessing a facial challenge

to the constitutionality of a statute, the Supreme Court has

long declared that a statute cannot be held unconstitutional if

it has constitutional application. Wash. State Grange v. Wash.

State Republican Party, 552 U.S. 442, 449 (2008) ("[A] facial

challenge must fail where the statute has a ‘plainly legitimate

sweep.’") (quoting Washington v. Glucksberg, 521 U.S. 702,

739-40 & n.7 (1997) (Stevens, J., concurring in judgments));

see also United States v. Salerno, 481 U.S. 739, 745 (1987)

("A facial challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully, since the challenger

must establish that no set of circumstances exists under which

the Act would be valid"). Since clearly there are cases where

felon firearm possession is constitutionally limited,

§ 922(g)(1) survives a facial challenge. See Wash. State

Grange, 552 U.S. at 449. Thus, we have no difficulty in concluding that § 922(g)(1) is constitutionally valid on its face.

UNITED STATES v. MOORE 9
Determining that § 922(g)(1) is valid on its face, however,

does not resolve Moore’s as-applied challenge. As we recognized in Chester, Heller seemed to leave this issue open. "In

fact, the phrase ‘presumptively lawful regulatory measures’

suggests the possibility that one or more of these ‘longstanding’ regulations ‘could be unconstitutional in the face of an

as-applied challenge.’ United States v. Williams, 616 F.3d

685, 692 (7th Cir. 2010)." 628 F.3d at 679 (emphasis in Chester).

In asserting his as–applied challenge, of course, Moore cannot "obtain relief based on arguments that a differently situated person might present," United States v. Skoien, 614 F.3d

638, 645 (7th Cir. 2010) (en banc), or based on "other situations not before the Court." Broadrick v. Oklahoma, 413 U.S.

601, 610 (1973). Moreover, the Supreme Court’s declaration

in Heller that felon in possession statutes are "presumptively

lawful regulatory measures" reinforces the fact that a litigant

claiming an otherwise constitutional enactment is invalid as

applied to him must show that his factual circumstances

remove his challenge from the realm of ordinary challenges.

Moore’s as-applied challenge relies heavily on his assertion

that he was carrying a firearm on the day he was arrested to

protect himself from being robbed in his sketchy neighborhood. He contends that the conduct underlying his conviction

thus implicates the core right of the Second Amendment: the

right of a "law-abiding, responsible citizen to possess and

carry a weapon for self-defense." Chester, 628 F.3d at 683

(citing Heller, [554 U.S. at 635](emphasis in Chester)). 

We cannot agree with Moore’s argument that, because he

was carrying the weapon for protection,7 his conduct was

7We also need not to decide in this case whether the right of selfdefense outside the home, where Moore was arrested, is part of the "central component" of the Second Amendment. See United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011) (noting that "a considerable

degree of uncertainty remains as to the scope of that right beyond the

home"). The resolution of this discrete issue is unnecessary to the analysis

in this case for the reasons given herein. 

10 UNITED STATES v. MOORE
therefore absolutely protected by the Second Amendment.

Moore simply does not fall within the category of citizens to

which the Heller court ascribed the Second Amendment protection of "the right of law-abiding responsible citizens to use

arms in defense of hearth and home." 554 U.S. at 635

(emphasis added). However the Supreme Court may come to

define a "law-abiding responsible citizen" for Second Amendment purposes, Moore surely would not fall within that group.

Most notably, Moore’s three prior felony convictions for

common law robbery and two prior convictions for assault

with a deadly weapon on a government official clearly demonstrate that he is far from a law-abiding, responsible citizen.

Cf. Chester, 628 F.3d at 683; see also supra note 1 (summarizing Moore’s extensive criminal history). 

Indeed, Moore acknowledges that his argument is

"weaken[ed]" by his "prior convictions, including several convictions for assaults and robberies." Br. of Appellant at 11.

Particularly in light of his extensive and violent criminal history, Moore’s conduct here is plainly outside the scope of the

Second Amendment. See, e.g., Torres-Rosario, 658 F.3d at

113 (rejecting an as-applied challenge to § 922(g)(1) by a

convicted felon with no violent felony convictions, and concluding that his two prior serious drug convictions were sufficient to support the ban against his possession of firearms,

especially in light of the established connection between drug

dealing and violence); Williams, 616 F.3d at 693 ("Williams,

as a violent felon, is not the ideal candidate to challenge the

constitutionality of § 922(g)(1)."); Barton, 633 F.3d at 175

("18 U.S.C. § 922(g)(1) is . . . constitutional as applied to Barton because he has presented no facts distinguishing his circumstances from those of other felons who are categorically

unprotected by the Second Amendment.") In short, Moore has

presented nothing to rebut the presumptive lawfulness of

§ 922(g)(1) as applied to him. 

We do not foreclose the possibility that a case might exist

in which an as-applied Second Amendment challenge to

UNITED STATES v. MOORE 11
§ 922(g)(1) could succeed. But while we acknowledge such a

showing theoretically could be made, Moore is not remotely

close. As we just noted, Moore undoubtedly flunks the "lawabiding responsible citizen" requirement. Moreover, Moore’s

proffered reason for possessing a firearm, "his fear of being

robbed, such robberies being prevalent in the neighborhood in

which he lived" is far too vague and unsubstantiated to

remove his case from the typical felon in possession case.

Accordingly, Moore has not rebutted the presumption that the

presumptively lawful regulatory measure of the long standing

prohibition on felon firearm possession is unconstitutional as

applied to him. 

Therefore, we hold that § 922(g)(1) is constitutional as

applied to Moore and the district court did not err in denying

Moore’s motion to dismiss.

III.

Reimbursement of Attorneys’ Fees

A.

We next consider whether the district court erred in ordering Moore to repay his court-appointed attorneys’ fees under

18 U.S.C. § 3006A. The interpretation of a statute, like the

meaning of § 3006A(c) and (f) in the case at bar, is reviewed

de novo. United States v. Weaver, 659 F.3d 353, 356 (4th Cir.

2011) ("[An] issue of statutory interpretation is one that we

review de novo.") (citation omitted). In the context of sentencing, we review the district court’s legal determinations de

novo, and its factual findings for clear error. United States v.

Osborne, 514 F.3d 377, 387 (4th Cir. 2008). In reviewing the

district court’s application of the factual findings, as in the

reimbursement order here, we apply an abuse of discretion

standard. See, e.g., United States v. Holman, 532 F.3d 284,

288 (4th Cir. 2008) (conditions of supervised release are

reviewed for an abuse of discretion); cf. United States v. Left12 UNITED STATES v. MOORE
wich, 628 F.3d 665, 667 (4th Cir. 2010) (district court’s restitution order is reviewed for abuse of discretion). In actual

practice, this division of standards of review is not always

easy to differentiate and is of limited practical import where

the district court commits an error as a matter of law.8 The

district court made such an error in this case which requires

the sentencing order, as it relates to the attorney fee reimbursement, be vacated and remanded. 

B.

The Criminal Justice Act, 18 U.S.C. § 3006A ("CJA"),

requires the government to provide adequate legal representation for criminal defendants unable to pay for such services

when, like Moore, they are charged with a federal felony

offense. 18 U.S.C. § 3006A(a)(1)(A). There is no issue in this

case that Moore was, in fact, indigent and qualified for a court

appointed attorney under the CJA.

That statute also provides that "[i]f, at any time after the

appointment of counsel . . . the court finds that the person is

financially able to obtain counsel or to make partial payment

for the representation, it may . . . authorize payment as provided in subsection (f), as the interests of justice may dictate."

18 U.S.C. § 3006A(c). Subsection (f) further authorizes a

court to order repayment of attorneys’ fees under certain circumstances: 

Whenever . . . the court finds that funds are available

for payment from or on behalf of a person furnished

representation, it may authorize or direct that such

8

See Koon v. United States, 518 U.S. 81, 100 (1996) ("Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a

mistake of law is beyond appellate correction. A district court by definition abuses its discretion when it makes an error of law.") (internal citations omitted). 

UNITED STATES v. MOORE 13
funds be paid to the appointed attorney . . . or to the

court for deposit in the Treasury as a reimbursement

to the appropriation, current at the time of payment,

to carry out the provisions of this section.

18 U.S.C. § 3006A(f). 

Moore argues that the order requiring him to repay his

attorneys’ fees during his supervised release term is unlawful

because § 3006A(f) only allows a court to order reimbursement when it determines the defendant has funds that are currently available for payment. He points to the use of the

present tense ("funds are available") in the statute’s language

to support that argument, as well as to out-of-circuit authority.

Because the district court’s order was based on a speculative

ability to pay in the future, Moore argues that the order violates § 3006(A)(f).

The government concedes that, in this circuit, there are no

published cases upholding a reimbursement order based on

future payments from assets not currently accessible. It relies

on two unpublished cases, however, which upheld such

forward-looking reimbursement orders. See United States v.

Jackson, 1998 WL 386109 (4th Cir. June 19, 1998) (unpublished); United States v. Moore, 1998 WL 85296 (4th Cir.

Mar. 2, 1998) (unpublished). In neither of these cases was

there an explicit finding that funds were then available to the

defendant for a reimbursement payment. The government also

argues that forward-looking reimbursement orders are authorized because the CJA generally vests significant discretion in

district courts for sentencing purposes. Thus, the government

concludes, the order here should not be overturned.

In analyzing the district court’s order, we start with the

plain language of the statute. Weaver, 659 F.3d at 356 ("The

starting point for any issue of statutory interpretation is the

language of the statute itself. It is well established that when

the statute’s language is plain, the sole function of the courts

14 UNITED STATES v. MOORE
. . . is to enforce it according to its terms.") (citations and quotation marks omitted). In the case at bar, subsection (f) allows

the recovery of the cost of court-appointed attorneys’ fees if

"the court finds" that "funds are available for payment from

or on behalf of a person being furnished representation." 18

U.S.C. § 3006A(f). When read in conjunction with subsection

(c), then, which authorizes repayment under subsection (f)

after "the court finds that the person is financially able . . . to

make partial payment for the representation," the statute

clearly requires a finding of a defendant’s ability to make payments as a condition precedent to an order of reimbursement.

Any such finding must be based on evidence before the court,

and thus in the record, and not on speculation or hypothesis.

Given the statute’s plain language, then, we are compelled to

hold that the district court must base the reimbursement order

on a finding that there are specific funds, assets, or asset

streams (or the fixed right to those funds, assets or asset

streams) that are (1) identified by the court and (2) available

to the defendant for the repayment of the court-appointed

attorneys’ fees. 

Our holding requiring a specific finding of ability to pay

and identification of the source of payment is in accord with

similar conclusions of our sister circuits. See, e.g., United

States v. Wilson, 597 F.3d 353, 358 (6th Cir. 2010) ("A thorough inquiry into the defendant’s finances, though not a full

adversarial hearing, should precede" any order requiring a

repayment of attorneys’ fees); United States v. Danielson, 325

F.3d 1054, 1076-77 (9th Cir. 2003) (affirming order denying

reimbursement of fees where district court could not "make

any definitive finding as to [the defendant’s] ability to pay");

United States v. McGiffen, 267 F.3d 581, 589 (7th Cir. 2001)

("requir[ing] that a district court make appropriate findings of

availability[,]" such as "whether the contribution would

impose an extreme hardship on the defendant, whether it

would interfere with his obligations to his family, and whether

there were third parties with valid claims to the funds[,]" and

noting that "[o]ur sister circuits similarly require that there be

UNITED STATES v. MOORE 15
evidence that the district court made specific inquiries into the

defendant’s financial circumstances and obligations" before

requiring a defendant to repay funds pursuant to § 3006A(f));

United States v. Evans, 155 F.3d 245, 252 n.8 (3d Cir. 1998)

(before entering a reimbursement order, a district court has a

"responsibility to inquire into the defendant’s current financial

status"); United States v. Fraza, 106 F.3d 1050, 1056 (1st Cir.

1997) (reversing order of reimbursement where the district

court failed to make findings as to defendant’s "financial viability").9

The Sixth Circuit’s decision in Wilson is a case in which

the district court made the required CJA findings. In Wilson,

the defendant was ordered to repay $52,305 in attorneys’ fees

after his acquittal, having received free representation

throughout his criminal proceedings, including a six-week

trial. 597 F.3d at 355-56. Although the defendant had received

free court-appointed representation, the court subsequently

learned that Wilson had significant assets at the time of trial.

The repayment was based on specific findings that, in the year

his trial began, for example, Wilson had income of approximately $134,000 and had spent over $18,000 in restaurant and

wine tabs. Id. He also was currently out of prison and earning

income. Id. at 357. In reviewing the order of reimbursement,

the Wilson court stated the general rule that "[a] thorough

9As we previously noted, the government relies heavily on our prior

unpublished decisions in United States v. Jackson, 1998 WL 386109 (4th

Cir. June 19, 1998) (unpublished) and United States v. Moore, 1998 WL

85296 (4th Cir. Mar. 2, 1998) (unpublished). Both opinions held that "the

district court need not make an explicit finding on the record that the

defendant has the ability to pay." That conclusion, as indicated above, was

in error. To the extent those decisions are contrary to our holding herein,

those decisions have no precedential effect and are not binding on this

panel. Local Rule 32.1. Moreover, in both of those cases, the defendants

had agreed to make reimbursement in their plea agreements and apparently did not object to the imposition of the reimbursement order at sentencing. Jackson, 1998 WL 386109, at *4; Moore, 1998 WL 85296, at *1.

Further, in Moore, the defendant had already made partial payment of his

attorney’s fees. 

16 UNITED STATES v. MOORE
inquiry into the defendant’s finances, though not a full adversarial hearing, should precede an order of reimbursement." Id.

at 358. Because the district court had performed the requisite

inquiry, the Sixth Circuit affirmed the reimbursement order.

In contradistinction to the thorough inquiry conducted by

the district court in Wilson, the de minimis findings by the

district court regarding Moore’s financial capacity and ability

to pay are stark.10 Effectively, the district court made no findings under § 3006A(c) that Moore "is financially able . . . to

make partial payment for the representation or under

§ 3006A(f) that "funds are available for payment." Instead,

the court simply adopted the probation officer’s standing $50

a month repayment plan. 

The record, to the extent there is one, showed Moore had

virtually no income over a period of years and had no assets

or other things of value. The mere fact that he has a GED and

some work training (although no steady work history) does

not support a finding that "funds are available." Unlike the

income stream in Wilson, which was a readily identifiable

asset, the theoretical income stream here, years down the road

after completion of a fifteen-year sentence, was based purely

on speculation with no basis in fact. 

10In Wilson, the magistrate judge held a separate hearing solely on the

issue of the defendant’s finances and issued a 26-page report, which satisfied the requirement of a "thorough inquiry." 597 F.3d at 358. Our reference to Wilson, however should not be interpreted as an indication that

such an in-depth analysis is necessary or required by § 3006A(f) in every

case. Rather, the level of detail required for such a finding will vary based

on the facts and circumstances of each particular defendant. In Wilson, for

example, the defendant’s finances were apparently quite complex and may

have warranted lengthier treatment. In the more typical case, the findings

may not require a lengthy written order or separate hearing. See, e.g.,

United States v. Embry, 128 F.3d 584, 586 (7th Cir. 1997) (no abuse of

discretion where, before ordering reimbursement, the district court made

the appropriate inquiry into defendant’s finances and "topped it off with

written findings"); McGiffen, 267 F.3d at 589 (a formal evidentiary hearing is not always required, but specific findings are). 

UNITED STATES v. MOORE 17
Of particular note in the case at bar is that the district court

specifically found that Moore, who was clearly eligible for a

court-appointed attorney, did "not have the ability to pay a

fine or interest." J.A. 75. Nonetheless, the court accepted the

apparently standard and factually unsupported recommendation of the probation office that Moore’s GED and training

meant he would be able to earn an amount of money sufficient to repay $50 per month,11 and thus ordered Moore to

repay that amount while on supervised release. In so doing,

the district court made no finding that there were any identifiable funds or assets available to Moore. To the contrary, the

district court expressly adopted the PSR, which states that

"[Moore] does not appear to have the financial resources to

make an immediate monetary payment." J.A. 126. 

Because the district court failed to make the specific findings required by § 3006A(c) or (f) to support an order of reimbursement, its judgment at sentencing, insofar as it required

a reimbursement of attorneys’ fees, was in error. 

To provide additional direction to district courts, we caution that our holding should not be interpreted as imposing an

overly restrictive definition of "available," such as one that

only permits an order of reimbursement if a defendant has

cash or funds in a bank account which are immediately available to him to be withdrawn. Put differently, availability is not

limited only to currently liquid assets at the time reimbursement is ordered. Instead, a repayment order may be based on

identified funds and assets, even if those assets will not

become liquid until a future date, such as the escrow payment

from an upcoming sale of real property, the scheduled disbursement of proceeds from a trust, or continuing payments

under a promissory note or contract. See Wilson, 597 F.3d at

11The defendant argued, and the government did not deny, that it is customary for probation officers in the Western District of North Carolina to

suggest at least that amount for every defendant regardless of the defendant’s present income or assets. 

18 UNITED STATES v. MOORE
360 ("A court . . . might find a defendant ‘financially able’ to

pay based on money pending in escrow even though those

funds will not become ‘available for payment’ until some

future date."); see also Br. of Appellant at 15 (Moore

acknowledging a reimbursement order can be based on a

defendant’s "income stream"). The crucial factor in complying with the statutory mandates in § 3006A(c) ("the court

finds that the person is financially able") and § 3006A(f) ("the

court finds the funds are available for payment") is that the

sentencing court indeed make a finding on the record identifying the specific assets "available" for reimbursement of attorneys’ fees and how those assets qualify the defendant as

financially eligible to pay. 

Because the district court did not comply with the statutory

mandate here, we vacate that portion of the district court’s

judgment requiring Moore to repay his court-appointed attorneys’ fees, and remand for resentencing consistent with this

opinion,12 as to that issue only. 

C.

Our holding on the validity of the reimbursement order

here is a narrow one; it is not intended to address or resolve

all issues of when a defendant’s "funds are available for payment" as that will require a fact-specific analysis in each case.

Neither do we address whether the repayment of attorneys’

fees as a condition of supervised release is a permitted condition. That issue, one which has led to a split of authority

among the United States Courts of Appeals,13 and which this

12We note for clarification that the only part of the sentencing order

being vacated is that regarding the reimbursement of attorneys’ fees. No

other portion of the sentencing order is affected. 

13Compare Evans, 155 F.3d at 250-52 & n.8 (rejecting imposition of

counsel fees as a condition of supervised release because it is not consistent with the statutory goals of 18 U.S.C. § 3553(a)(2)(B)-(D), but recognizing that the court could impose a separate reimbursement order under

UNITED STATES v. MOORE 19
Court apparently has not yet addressed in a published opinion,14

was neither briefed nor fully argued by the parties and is

therefore not squarely presented in this case. Moreover,

because we have found the reimbursement order here

improper on other grounds, we need not decide that issue.

Similarly, we do not decide today whether the district court

in Moore’s case could impose repayment of fees at a later

date, such as while Moore is actually serving his supervised

release term, either as a condition of release or as a separate

§ 3006A(f) order, assuming it makes the requisite finding that

Moore has funds or assets available for repayment. We limit

our holding here to the following: on the current record, the

district court erred by failing to make the mandatory statutory

findings that "funds are available" to Moore for repayment as

required to order reimbursement under the CJA. 

§ 3006A(f)); United States v. Eyler, 67 F.3d 1386, 1393 (9th Cir. 1995)

(reimbursement of counsel fees cannot be a condition of supervised

release); United States v. Turner, 628 F.2d 461, 466-67 (5th Cir. 1980)

(same as to probation); with United States v. Merric, 166 F.3d 406,

411–12 (1st Cir. 1999) (declining to follow Judicial Conference recommendation that prohibits reimbursement of CJA fees as a "condition of

probation," see VII Administrative Office of U.S. Courts, Guide to Judiciary Policies & Procedures, ch. 2, pt. A, § 230.40(d), and instead holding

that a district court could make repayment of CJA fees a condition of

supervised release); United States v. Gurtunca, 836 F.2d 283, 288-89 (7th

Cir. 1987) (repayment of counsel fees is a permissible condition of probation); United States v. Santarpio, 560 F.2d 448, 455-56 (1st Cir. 1977)

(same). 

14But see United States v. Johnson, 138 F.3d 115, 120 (4th Cir. 1998)

(not addressing issue directly, but stating that the original monetary obligations imposed at the time of defendant’s original judgment of conviction, which included an order to reimburse the government for the costs

of CJA counsel, survived the revocation of his supervised release); Jackson, 1998 WL 386109, at *4 (unpublished decision holding the district

court had such authority, without citation to any Fourth Circuit case);

Moore, 1998 WL 85296, at *1 n.3 (same). 

20 UNITED STATES v. MOORE
IV.

For the reasons stated above, the judgment of the district

court is affirmed in part and vacated in part. This case is

remanded to the district court for resentencing consistent with

this opinion. 

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED

UNITED STATES v. MOORE 21