FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VANCE YUKIO INOUYE,

Defendant-Appellant.

No. 14-10510

D.C. No.

1:09-cr-00115-SOM-1

OPINION

Appeal from the United States District Court

for the District of Hawaii

Susan Oki Mollway, Chief District Judge, Presiding

Argued and Submitted

February 12, 2016—Honolulu, Hawaii

Filed May 10, 2016

Before: Susan P. Graber, Jay S. Bybee,

and Morgan Christen, Circuit Judges.

Per Curiam Opinion
2 UNITED STATES V. INOUYE

SUMMARY*

Criminal Law

The panel affirmed the district court’s order setting a

restitution schedule in connection with the revocation of

supervised release.

The panel rejected Amicus’s arguments challenging the

reviewability of the merits. The panel wrote that the district

court’s judgment is final even though the district court is free

to adjust the restitution payment schedule, and held that a

generic appellate waiver does not waive the right to appeal

modification or revocation proceedings. The panel rejected

Amicus’s argument that a defendant must wait until a

restitution order is enforced for the order to be reviewable.

The panel held that the district court did not abuse its

discretion in setting the defendant’s restitution schedule at

8% of his gross monthly income. The panel held that the

district court committed no legal error when it considered the

defendant’s projected future income, a conclusion not

changed by the fact that the defendant was unemployed at the

time of his sentencing. As to application of the restitution

statute, the panel saw nothing in the district court’s order that

is illogical, implausible, or without support from the record.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. INOUYE 3

COUNSEL

Peter C. Wolff, Jr. (argued), Federal Public Defender,

Honolulu, Hawaii, for Defendant-Appellant.

Ronald G. Johnson (argued), Assistant United States

Attorney, and Florence T. Nakakuni, United States Attorney,

Honolulu, Hawaii, for Plaintiff-Appellee.

Victor D. Stone (argued), and Russell P. Butler, Upper

Marlboro, Maryland, for Amicus Curiae Maryland Crime

Victims’ Resource Center, Inc.

OPINION

PER CURIAM:

Defendant Vance Yukio Inouye appeals from an order

setting a restitution schedule in connection with the

revocation of his supervised release. We affirm.

I. FACTS

Inouye pleaded guilty to a count of wire fraud and a count

of conspiracy, in connection with a fraudulent mortgage

scheme he helped perpetuate. The district court sentenced

him to one month in prison, followed by three- and five-year

terms of supervised release, to be served concurrently. The

district court also ordered Inouye to be jointly and severally

liable for $274,401 in restitution—$74,401 to a victim family

and the remainder to a victim mortgage company. The order

required Inouye to pay restitution at a rate determined by the
4 UNITED STATES V. INOUYE

Probation Office, but no less than 10% of his gross monthly

income, once he was released from prison.

Consistent with the restitution order, Inouye began paying

restitution upon his release in May 2010. But from

November 2013 to May 2014, Inouye failed to pay. When

questioned about it, he lied to his probation officer, saying the

checks were in the mail. The Probation Office referred

Inouye to the district court for revocation proceedings, and

Inouye ultimately admitted to lying about his missed

payments.

The district court held the proceedings in abeyance

several times so that defense counsel could provide more

information regarding a restitution schedule. Inouye

consistently maintained that because of his financial straits

(he had no job, had barely ceased being homeless, and had

some significant debts), his schedule should be set at zero or

nominal payments at best. The Assistant U.S. Attorney

(“AUSA”) agreed.

The district court was unpersuaded, however, and

sentenced Inouye to one day in custody, 59 months of

supervised release, and restitution payments at a rate of 8%

of gross monthly income. Based on the AUSA’s position, the

district court did not expect any party to defend the judgment,

so it appointed the Maryland Crime Victims’ Resource

Center, Inc., as amicus curiae, to do so, and it issued a

detailed written order regarding restitution.

In its order, the court first made numerous findings about

Inouye and his general background. The court found he was

36 years old, had a high school education, had no substance

abuse problems, and was healthy. The court also found
UNITED STATES V. INOUYE 5

Inouye to be “well-groomed” with “a professional

demeanor,” “employable,” “industrious,” and “likely to find

new employment within a reasonable time.” Inouye had been

“steadily employed throughout his life,” making around $15

an hour “when he was paid hourly” and “between $3,000 and

$5,000 per month when working as a loan officer.” And

despite Inouye’s criminal conviction, for the four years he

was on supervised release, he had “for the most part”

remained employed, working as a car salesman and in a

startup beverage company.

Relying on 18 U.S.C. § 3664(f)(2)—which directs district

courts to consider the various “financial resources,”

“projected earnings,” and “financial obligations” of the

defendant—the court then made findings about Inouye’s

finances. As of July 2014, only a couple of months prior to

sentencing, he had after-tax income of $2,197 a month. His

expenses at that time were $2,418.77 a month (exceeding his

income), which “included $1,350 for rent, $400 for groceries

for four individuals [Inouye and his three children who were

then living with him], $173 for electricity, $170 for

telephone, $160 for commuting expenses such as gas,

$100.69 for auto insurance, and $65.08 for internet.” Inouye

had no medical insurance. He had an unsecured medical debt

of $5,000. And he had a tax debt of $18,000, which IRS

officials informed him was “subordinate to his restitution

debt.” However, the court also concluded that Inouye’s

expenses were likely to be lower than they had been

previously, because his children were now living with his exwife, he had no apparent child-support obligations, and he

was now living with his aunt where “he is not presently being

charged for rent, utilities, or food.”
6 UNITED STATES V. INOUYE

Based on these findings, the court imposed a restitution

schedule at 8% of Inouye’s gross monthly income. Inouye

now appeals.

II. STANDARD OF REVIEW

We review a restitution order for “an abuse of discretion,

provided that it is within the bounds of the statutory

framework.” United States v. Gordon, 393 F.3d 1044, 1051

(9th Cir. 2004) (internal quotation marks omitted). “Factual

findings supporting an order of restitution are reviewed for

clear error. The legality of [the] order is reviewed de novo.” 

Id. (internal quotation marks and ellipsis omitted).

III. ANALYSIS

On appeal, Inouye argues that the district court abused its

discretion when it imposed an 8%-of-gross-income restitution

schedule because it considered his projected future earnings

and drew inferences about Inouye’s finances with “no support

in the record.” Amicus contends that we cannot review

Inouye’s appeal and that, alternatively, the district court did

not abuse its discretion. The government has changed its

position on appeal and now supports the judgment below.

We hold that Inouye’s appeal is reviewable, and we

affirm the district court’s order.

A. Reviewability of Inouye’s Appeal

As a threshold matter, we reject Amicus’s several

arguments aimed at challenging our ability to review the

merits of Inouye’s appeal. First, the district court judgment

is a final judgment even though the district court is free to
UNITED STATES V. INOUYE 7

adjust the restitution payment schedule. See 18 U.S.C.

§ 3664(o) (“A sentence that imposes an order of restitution is

a final judgment notwithstanding the fact that . . . such a

sentence can subsequently be . . . corrected[,] . . . appealed

and modified[,] . . . amended[,] . . . adjusted[,] . . . [or] the

defendant may be resentenced . . . .”). Second, nothing in

“the language of [Inouye’s original 2009] waiver

encompasses [Inouye’s] right to appeal” the consequences of

a subsequent revocation proceeding. United States v. Nunez,

223 F.3d 956, 958 (9th Cir. 2000) (internal quotation marks

omitted). Accordingly, he cannot be said to have “knowingly

and voluntarily” waived his right to appeal the district court’s

decision here. Id.(internal quotation marks omitted); see also

United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009)

(holding that a defendant did not, pursuant to his plea

agreement, waive his right to appeal the district court’s

decision that it lacked jurisdiction to modify his sentence

because the plea agreement encompassed only the right to

appeal “the sentence imposed” (internal quotation marks and

ellipsis omitted)). We agree with the courts of appeals that

have addressed this and similar situations: A generic

appellate waiver does not waive the right to appeal

modification or revocation proceedings. See United States v.

Wilson, 707 F.3d 412, 415–16 (3d Cir. 2013) (collecting

cases from the Tenth and Eleventh Circuits); United States v.

Lonjose, 663 F.3d 1292, 1301–02 (10th Cir. 2011) (collecting

cases from the Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,

and Eleventh Circuits). And finally, Amicus cites no

authority to support its position that a defendant must wait

until a restitution order is enforced against him for the order

to be reviewable. Amicus’s citation to Stack v. Boyle,

342 U.S. 1, 6 (1951)—which held that the proper procedure

for challenging bail as unlawfully fixed in violation of the

Eighth Amendment is to file a motion for reduction of bail
8 UNITED STATES V. INOUYE

instead of collaterally attacking it on habeas review—is

inapposite. There is no obstacle, jurisdictional or otherwise,

to our review of the merits.

B. The Restitution Schedule

The district court did not abuse its discretion in setting

Inouye’s restitution schedule at 8% of his gross monthly

income. When assessingwhether a restitution schedule under

18 U.S.C. § 3664(f)(2) was an abuse of discretion, we follow

a two-step inquiry: First, we determine whether the lower

court applied the correct legal rule, and second, we determine

whether the application of that rule or standard was illogical,

implausible, or without support from any inferences that can

be drawn from the record. United States v. Hinkson, 585 F.3d

1247, 1261–62 (9th Cir. 2009) (en banc); see also United

States v. Booth, 309 F.3d 566, 575 n.6 (9th Cir. 2002) (“A

restitution order is reviewed for abuse of discretion if it is

within the bounds of the statutory framework.”). Inouye fails

to make out a case at either step, so we affirm.

First, contrary to Inouye’s repeated assertion, the district

court committed no legal error when it considered Inouye’s

projected future income. To the contrary. By law the district

court “shall . . . specify . . . the schedule according to which[]

the restitution is to be paid, in consideration of . . . projected

earnings and other income of the defendant.” 18 U.S.C.

§ 3664(f)(2)(B) (emphasis added). As we have made clear

regarding § 3664(f)(2)(A), “a sentencing court must consider

the defendant’s financial resources in setting a restitution

payment schedule.” Ward v. Chavez, 678 F.3d 1042, 1052

(9th Cir. 2012) (emphasis added). The same holds true for

§ 3664(f)(2)(B)—a district court must consider projected

earnings when imposing restitution. See, e.g., United States
UNITED STATES V. INOUYE 9

v. Bogart, 576 F.3d 565, 574 (6th Cir. 2009) (holding that

§ 3664(f)(2) “provides that district courts must evaluate” the

“financial resources,” “projected earnings,” and “financial

obligations” of the defendant (emphasis added) (internal

quotation marks omitted)); United States v. Calbat, 266 F.3d

358, 366 (5th Cir. 2001) (holding that “the financial resources

and other assets of the defendant; projected earnings and

other income of the defendant; and any financial obligations

of the defendant, including obligations to dependents” are

“mandatory factors” for consideration in setting a restitution

schedule). That conclusion is not changed by the fact that

Inouye was unemployed at the time of his sentencing (a state

of affairs likely to be true in many sentencing proceedings). 

See, e.g., Booth, 309 F.3d at 576 (holding that a $500-permonth schedule was not an abuse of discretion, even though

the defendant claimed that “his circumstances do not permit

any payment,” because the defendant could “reasonably look

forward to being able to pay [that amount] after his term of

imprisonment”); Bogart, 576 F.3d at 574–75, 574 n.4 (noting

that restitution schedule was proper in light of the defendant’s

“potential earning capacity” despite a recorded monthly cash

flow of $193, only $200 in his checking account, over

$400,000 in debts, and defendant’s statement that he was

“just released from prison” and had unknown prospects

(internal quotation marks omitted)); United States v. Viemont,

91 F.3d 946, 951 (7th Cir. 1996) (“If a district court possesses

the necessaryinformation regarding the financial condition of

a defendant, there is no abuse of discretion in ordering

restitution—even where the defendant has a negative net

worth and a monthly cash flow of zero.” (alteration and

internal quotation marks omitted)).

Second, as to the application of the restitution statute, we

fail to see anything in the district court’s order that is
10 UNITED STATES V. INOUYE

illogical, implausible, or without support from the record.

Hinkson, 585 F.3d at 1261–62. The district court did not

“ignore[] the cash flow report that was in the PSR,” nor did

it “ignore[] that [Inouye] was not paying medical insurance.” 

The court recognized both of those facts explicitly. And the

court’s determination that Inouye’s expenses in the

immediate future were likely to be lower than they had been

had ample support in the record. The court did not abuse its

discretion by concluding that Inouye’s expenses would be

less when he was no longer living with his children, paying

rent, or paying for utilities. Finally, we note, as did the

district court, that if Inouye has no job, then 8% of $0.00 is

$0.00, and he suffers no real prejudice. Inouye is free to seek

further modification of his restitution schedule as his

circumstances continue to evolve.

AFFIRMED.