UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4906

RICHARD ALLEN WAGER,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Rock Hill.

Dennis W. Shedd, District Judge.

(CA-01-117-DWS)

Submitted: April 17, 2002

Decided: June 18, 2002

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

John H. Hare, Assistant Federal Public Defender, Columbia, South

Carolina, for Appellant. Marshall Prince, OFFICE OF THE UNITED

STATES ATTORNEY, Columbia, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Richard Allen Wager pled guilty before a magistrate judge to an

armed bank robbery he committed on January 16, 1996, in violation

of 18 U.S.C.A. § 2113(a), (d) (West 2000). The district court sentenced him to a 125-month prison term to be served concurrently with

another federal sentence for armed bank robbery. The court also

imposed a five-year term of supervised release and ordered Wager to

pay $7598 in restitution and a $100 special assessment. Wager

appeals his conviction and sentence. His attorney has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), raising

two issues but stating that, in counsel’s view, there are no meritorious

grounds for appeal. Wager has filed a pro se supplemental brief. We

affirm in part, vacate in part, and remand for further proceedings. 

Counsel first questions whether the magistrate judge properly conducted the Fed. R. Crim. P. 11 colloquy. Our review of the record

leads us to conclude that the magistrate judge fully complied with the

mandates of Rule 11 in accepting Wager’s guilty plea. See United

States v. Damon, 191 F.3d 561, 564 n.2 (4th Cir. 1999) (stating standard of review); United States v. Ciapponi, 77 F.3d 1247, 1251 (10th

Cir. 1996) (holding that taking guilty plea is permissible as "additional duty" for magistrate judge, that such proceedings do not violate

structural guarantees of U.S. Const. art. III, and that de novo review

by district court not required unless parties so demand). 

Next, counsel raises as a potential issue the calculation of Wager’s

sentence. Because Wager did not object to the probation officer’s recommendations in the presentence report, our review is for plain error.

United States v. Dinnall, 269 F.3d 418, 423 (4th Cir. 2001) (stating

standard of review). We find no plain error in the calculation of

Wager’s total offense level or criminal history category. 

Although not raised by counsel, we address the sufficiency of the

district court’s findings with regard to its restitution order. Wager did

not object to the adequacy of the district court’s findings or the presentence report’s recommendations at sentencing. Our review of the

restitution order therefore is limited to review for plain error. United

2 UNITED STATES v. WAGER
States v. Ubakanma, 215 F.3d 421, 427 (4th Cir. 2000) (stating standard of review). 

Before a district court orders restitution under the Victim and Witness Protection Act ("VWPA") (which applies to offenses, like

Wager’s, that were committed before April 24, 1996), see United

States v. Dawkins, 202 F.3d 711, 715 (4th Cir.), cert. denied, 529 U.S.

1121 (2000), it must consider defendant’s economic circumstances,

including his financial resources and the needs and earning ability of

him and his dependents. See 18 U.S.C.A. §§ 3663, 3664 (West 2000);

United States v. Bollin, 264 F.3d 391, 419-20 (4th Cir.), cert. denied,

122 S. Ct. 303 (2001). "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." United States v. Plumley, 993 F.2d 1140, 1143 (4th Cir.

1993) (citing United States v. Bruchey, 810 F.2d 456, 459 (4th Cir.

1987)). We have held that "[a] sentencing court satisfies its duty

[under the VWPA] to make specific findings if it adopts a presentence

report that contains adequate factual findings to allow effective appellate review of the fine or restitution." Bollin, 264 F.3d at 420 (internal

quotation marks and citations omitted); see United States v. Molen, 9

F.3d 1084, 1086-87 (4th Cir. 1993). 

Here, the presentence report’s findings were not "keyed to the specific type and amount of restitution ordered." Bruchey, 810 F.2d at

459. Wager’s presentence report noted that he was unable to pay a

fine, that he had no assets or liabilities, and that he had virtually no

employment history. In addition, the presentence report failed to

address Wager’s future earning ability either in prison, see United

States v. Walker, 83 F.3d 94 (4th Cir. 1996), or upon his release or

the restitution order’s effect on Wager’s existing obligation to pay

$17,374 in restitution as a result of his prior conviction for armed

bank robbery. We therefore find that the absence of any findings by

either the district court or the presentence report keyed specifically to

whether Wager is able to pay the restitution ordered and whether the

imposition of such restitution would be unduly harsh constitutes plain

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

1995). Accordingly, we vacate the district court’s restitution order

and remand for the court to make explicit findings regarding Wager’s

ability to pay. 

UNITED STATES v. WAGER 3
Finally, Wager contends in his pro se supplemental brief that the

Government did not timely file the indictment. We disagree. The

indictment was filed within the five-year statute of limitations period,

see 18 U.S.C.A. § 3282 (West 2000), and Wager has not shown that

the preindictment delay violated his rights to due process. See United

States v. Marion, 404 U.S. 307, 324 (1971). 

As required by Anders, we have examined the entire record and

find no other meritorious issues for appeal. Accordingly, we affirm

Wager’s conviction and sentence, except for the order of restitution.

We vacate the restitution order and remand for further proceedings.

This court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for further

review. If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client.

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 IN PART, VACATED IN PART, AND REMANDED

4 UNITED STATES v. WAGER