F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

V A N C E Y U K

I O I N O U Y E , Defendant-Appellant. No. 14-10510

D.C. No. 1:09-cr-00115-SOM-1

OPI NI ON

Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway , Chief District J udg e, Presiding

Arg ued and Submitted F e bruary 12, 2016—Honolulu, Hawaii

F iled May

10, 2016

B e fore: Susan P. Graber, J ay S. B y bee, and Morg an Christen, Circuit J udg es.
Per Curiam OpinionU N I T E D S T A T E S V

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SUMMARY *

Crim inal Law

The panel affirmed the district court’s o rder setting a restitution schedule in c o n nectio n with the revocation o f supervised release.

The panel rejected Amicus’s a rg u ments challeng ing the reviewability

of the merits. The panel wrote that the district court’s judg ment is final even thoug h the district court is free to adjus t t h e restitution pay ment schedule, and held that a g ener ic appellate w aiver does not w aive the rig ht to appeal

mo d i f ication or r evocation proceeding s. The panel rejected Amicus’s argument that a defendant mu s t wait until a restitution order is enforced for the order to be reviewable.

The panel held that the district c ourt did not a b use its discretion in setting the defendant’s restitution sche d u le at 8 % of his g ross monthly income. The panel held that t h e district c ourt c ommitted no leg al error when it considered the defendant’s projected future income, a conclusion not chang ed by the fact that the defendant was unemploy ed at the time of his sentenc i n g. As to application of the restitution statute, the p anel saw nothing in the district court’s order that is illog ical, implausible, or without support from the record.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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COUNSEL

Peter C. W olff, J r. ( argued), F ederal Publi c D efender, Honolulu, Hawaii, for Defendant-Appellant.

Ronald G

. J ohnson (arg ued), Assistant United States Attorney
, and F lorence T. Nakakuni, United States Attorney
, Honolulu, Hawaii, for Plaintiff-Appellee.

Victor D. Stone (arg

ued), and Russell P. B utler, Upper Marlboro, Maryland, for Ami c us Curiae Mary land Crime Victims’ Resource Center, I nc.

OP INION

PER CURI AM:

Defendant Vance Yukio I nouy e a ppeals from an o rder setting a restitu tion schedule in connection with the revocation of his supervised release. W e affirm.

I . F ACTS

I nouy e p leaded g uilty to a count o f wire fraud and a count of conspiracy
, in connection w i t h a fraudulent mortg ag e scheme h e helped p erpetuate. T he dist r i c t court sentenced him to one month in prison, followed b y three- and five-y e ar term s of supervised release, to be served concurrently

. The district court also ordered I nouy e t o b e jointly and severally liable for $ 274,401 in restitution—$74,401 to a v ictim family and the remainder to a v ictim mortg ag e company

. T he order required I nouy e to pay restitution at a rate determined by theU N I T E D S T A T E S V

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Probation Office, but no less than 10% of his g ross monthly income, once he was released from prison.

Consistent with the restitution order, I nouy e beg an paying restitution u

pon h is r elease in May 2010. B u t from November 2 0 1 3 to May 2014, I nouy e failed to pay

. W h en questioned about it, he lied to his probation officer, saying the checks were in the mail. The Probation Of f i c e r eferred I nouy e to the district court for revo c ation p r oceeding s, a nd I nouy e ultimatel y admitted to ly ing about his missed pay ments.

The district court held the proceeding s in abey a nce several times so that de fense counsel could provide more information reg ard i ng a restitution schedule. I nouy e consistently m a i n tained that because of his financial straits (he had no job, had barely ceased be i n g homeless, and h ad

some sig nificant debts), h is schedule should be set at z ero o r nominal pay

ments a t best. T he Assistant U .S. A t t o r n ey (“AUSA”) ag

reed.

The district c o urt was unpersuad e d, however, a nd

sen t e n c ed I nouy e to o ne day in custody
, 59 months o f supervised release, and r estitution pay ments at a rate of 8% of g ross monthly income. B ased on the AUSA’s position, the district c ourt did not ex pect any party to defend the judg ment,

so it appointed the Mary land Crime Victims’ Res o u r c e Center, I nc., as amicus curiae, to do so, and i t i s s u e d a detailed written order reg arding restitution.

I n its order, the court first made numerous finding s about I nouy e and his g e neral backg round. The court found he was 3 6 y e ar s o ld, had a hig h school e ducation, had no substance abuse problems, and w as healthy

. The court a lso f oundU N I T E D S T A T E S V

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I nouy e to be “wel l

- g roomed” with “a professional demeanor,” “ employ able,” “industrious,” and “likely to find

new employ

ment within a reasonable time.” I nouy e had been “steadily employ ed throug hout his life,” making around $15

an hour “when he was paid hourly ” and “between $3,000 a nd $5,000 per m o n t h w hen working as a loan officer.” A nd despite I nouy e’s criminal conviction, for the four y ears he

was on s u p e r v i s ed release, he had “ for the most part” remained employ ed
, w o rking as a car salesman and in a startup beverag e company

. Rely ing on 18 U.S.C. § 3 664(f)(2)—which directs district courts to consider the various “financial r esources,” “projected earning s,” an d “ f inancial oblig ations” of the defendant—the cour t t h en made f inding s about I nouy e’s finances. As of J uly 2014, only a couple of months prior to sentencing
, he had after-tax income of $2,197 a month. His

ex p enses at that time were $2,418.77 a month (ex ceeding his income), w hich “included $ 1,350 for rent, $400 for g roceries for four individuals [ I nouy e and his three children who were then living with hi m ]
, $173 for electricity
, $170 for telephone, $ 1 6 0 for commuting e x penses such as g as, $100.69 for auto insurance, a nd $65.08 for internet.” I nouy e had no medical insurance. He h ad an unsecured medical d ebt of $5,000. And h e h a d a tax debt of $18,000, w hich I RS officials informed him w as “subo r d i n ate to his restitution debt.” However, the court a lso c oncluded that I nouy e’s

ex p enses were likely to be lower than they had been previously
, because his children were now living with his ex

wife, he had no apparent c hi l d

- s upport oblig ations, and he

was now living with his a

unt where “he is not presently being charg ed for rent, utilities, or food.”U N I T E D S T A T E S V

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B a sed on these finding s, the court impose d a restitution schedule at 8% of I nouy e’s g ross monthly inc o m e

. I nouy e now appeals.

I I

. STANDARD OF REVI EW

W e review a restitution order for “an abuse of discretion, provided that it is with i n the bounds of the statutory framework.” United States v. Gordon , 393 F .3d 1044, 1051 (9th Cir. 2004) (internal quotation marks omitted). “F actual finding s supporting an orde r of restitution are reviewed for clear e rror. The leg ality of [ the] order is reviewed d e novo.” Id. (internal quotation marks and ellipsis omitted).

I I I

. ANAL YSI S

On appeal, I nouy e argues that the district court abused its d i s c r e tion when it imposed an 8%-of-gross-income res t i t ut i o n schedule because it considered his projected fu t u re earning s and drew inferences about I nouy e’s finances with “no support in the re cord.” Amicus contends that we cannot r eview I nouy e’s appeal and that, alternatively
, t h e d i strict court did not a buse its discretion. The g o vernment has chang e d i t s position on appeal and now supports the judg ment below.

W e hold that I nouy e’s appeal is r eviewable
, a n d 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 cha l l e n g ing our ability to review the

m e r i ts of I nouy e’s appeal. F irst, the district court judg men t is a final j u d g m ent e ven thoug h the district court is free toU N I T E D S T A T E S V

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adjust t h e restitution pay ment schedule. See 1 8 U .S.C. § 3664(o) ( “A sentence that imposes an o rder of r estitution is

a final judg ment n otwithstanding the fact that

. . . such a sentence c an s u b s e q u ently be

. . . corrected[ ,]

. . . appealed and modified[ ,]

. . . amended[ ,]

. . . adjusted[ ,]

. . . [ or] the defendant may be resen t e n c e d

. . . .”). Second, nothing in “the lang uag e of [ I nouy e’s orig inal 2009] w aiver encompasses [ I nouy e’s] rig ht to appeal” the consequences o f

a subsequent revocation proceeding

. United States v. Nunez , 223 F .3d 9 5 6
, 958 (9th Cir. 2000) (internal quotation marks omitted). According ly
, he c annot be said to have “knowing ly and voluntarily ” waived h is rig h t to a ppeal the district court’s decision here. Id. (internal quotation marks omitted); see also United States v. Leniear , 574 F .3d 6 68, 672 (9th Cir. 200 9 ) (holding that a defend a n t did not, pursuant to his plea ag reement, w aive his rig ht to appea l the district court’s decision that it lacked jurisdiction to modify h is sentence because the plea ag reement encompassed only the rig ht to appeal “the sentence imposed” (internal quotation marks a nd ellipsis omitted)). W e ag ree with the courts of appeals that have addressed this and similar situations: A g eneric appellate w a i v er does not waive the rig ht to appeal modification or revocation proceeding s. See United States v

. W ilson
, 707 F. 3 d 4 12, 4 15–16 (3d Cir. 2013) (collecting

cases from the Tenth a

n d Eleventh Circuits); United States v

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

cases from the F if

t h
, Six th, Seventh, Eig hth, Ninth, Tenth, and Eleventh Circuits). And f i n a lly
, Amicus cites no
a uthority to support its position that a defendant must w a i t until a restitution order is enforced a g ainst 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 pro cedure for challeng ing bail as unlawfully fi x e d i n violation of the Eig hth Amendment is to f i l e a m otion for r eduction of bailU N I T E D S T A T E S V

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instead of collaterally attacking it on h abeas review—is inapposite. There is no obstacle, jurisdictional or otherwise, to our review of the merits.

B

. The Restitution Schedule

T he d istrict court did not abuse its discretion in s e t t i n g I nouy e ’ s restitution schedule at 8% of his g ross monthly income. W hen assessing whether a restitution schedule under 18 U.S.C. § 3664(f)(2) was an abuse of discretion, we f ollow

a two-step inquiry : F irst, we determine whether the lower court applied the correct leg al rule, and second, we determine whether the application of that rule or standard was illog ical, implausible, or without support from any inferences that can be drawn from the r ecord. United States v

. Hinkson
, 585 F .3d 1247, 1261–62 (9th Cir. 2009) ( e n banc); see also United States v. B ooth
, 309 F .3d 566, 5 75 n.6 (9th Cir. 2002) (“A restitutio n o r d e r is reviewed for abuse of discretion if it is within the bounds of the statutory f ramework.”). I nouy e f

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

F irst, contrary

to I nouy e’s repeated assertion, the district court committed no leg al error w hen it considered I nouy e’s projected future income. To the contrary

. B y law the district court “ shall

. . . specify

. . . the schedule a ccording to w hich[ ] the restitution is to b e p aid, in c onsideration of

. . . projected earnings and other income o f the defendant.” 1 8 U .S.C. § 3664(f)( 2 ) ( B) ( emphasis added). As we have made clear reg arding § 3664(f)(2)(A), “a sentencing court must consider the defendant’s financial resources in setting a restitution pay ment schedule.” W

ard v. Chavez
, 678 F .3d 10 4 2
, 1 0 5 2 (9th Cir. 2012) (emphasis a d d ed). The same holds true for § 3 664(f)(2)(B )—a distric t court must consider projected earning s when imposing restitution. S ee, e.g. , United StatesU N I T E D S T A T E S V

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v

. B o g a rt , 576 F .3d 565, 574 (6th Cir. 2009) (holding tha t § 3664(f)(2) “provides that district courts must evaluate” the “financial resources,” “project ed earning s,” and “financial oblig ations” 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 de f en dant; projected earning s a nd other income of the defendant; and any f inancial o blig ations of the defendant, including oblig a tions to depend e n t s ” a re “mandatory factors” for c o n sideration in setting a restitution schedul e )

. T hat conclusion is not c hang ed by the f act that I nouy e was unemploy ed at the time of his sentencing (a state of affairs likely to be true in man y s e n tencing proceeding s). S e e , e.g. , B ooth
, 309 F .3d at 576 (holding that a $500-pe r

month schedule was not an abuse of discretion, even thoug h the defendant claimed that “his circumstances do not p ermit any pay ment,” because the defendant could “reasonably look f o rward to being able to pay [ that amount] after his t er m o f imprisonment”); Bogart , 576 F .3d at 574–75, 574 n.4 (noting that restitution schedule was proper in lig ht 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, a

nd defendant’s statement that he was “just released from prison” and h ad unknown pr o s pects (internal q u otation marks omitted)); United States v. Viemont , 91 F .3d 946, 951 (7th Cir. 1 996) ( “I f a district court p ossesses the necessary information reg arding the f inancial condition o f

a defendan t , there is no abuse o f discretion in ordering restitution—even where the defendant h a s a neg ative net worth and a monthly cash flow of z ero.” (a l t e r ation a nd internal quotation marks omitted)).

Second, as to the application of the restitution statute, we fail to see any

thing in t h e district court’s order that isU N I T E D S T A T E S V

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illog ical, implausible, or without su p p o r t from the record. Hinkson
, 5 85 F .3d at 1261–62. T h e district court did not “ig nore [ ] the c ash flow r eport that was in the PSR,” nor did it “ig nore[ ] that [ I nouy e] was not paying medical insurance.” The court recog

niz e d both of those facts ex plicitly

. And the court’s d etermination that I n ouy e’s ex penses 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 discretio n by concluding that I nouy e ’s ex penses would be less when h e was no long er living with his children, paying rent, o r paying for u tiliti e s

. F inally
, we note, as did the di s t r i c t court, that if I nouy e has no job, then 8% of $0.00 is $0.00, and he suffers no real prejudice. I nouy e is free to seek further modificat ion o f his restitution schedule as his circumstances continue to evolve.

AF F IRMED

.