Appeal from the United States District Court for the Eastern District of Arkansas.
The opinion of the court was delivered by: Loken, Circuit Judge.
Submitted: September 23, 2011
Before LOKEN, BEAM, and MURPHY, Circuit Judges.
Goldie Lujoyce Holt pleaded guilty to aiding and abetting a scheme to defraud Wal-Mart of more than $675,000 by the use of fictitious money transfers. Holt stipulated in the plea agreement to $265,747.32 in restitution to victim Wal-Mart. The Presentence Investigation Report ("PSR") recommended that her sentence include that obligation, as the Mandatory Victims Restitution Act (MVRA) required. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). Just before her July 2008 sentencing, Holt transferred a substantial portion of her cash assets to her boyfriend. She subsequently violated a condition of supervised release by failing to make two scheduled restitution payments. After several hearings, the district court*fn1 revoked supervised release, determined that Holt's pre-sentencing transfer was fraudulent, and sentenced her to one year and one day in prison. Holt appeals, arguing the court abused its discretion because she did not willfully violate the terms of her supervised release. We affirm.
The PSR reported that Holt's largest asset was a $65,000 savings account, the remains of a March 2008 insurance settlement resulting from a fire that destroyed her home. At the July sentencing, the district court learned that Holt transferred $43,540 from this account to her boyfriend, Robert Crouch, which he used the day before sentencing to purchase a $92,000 home. Although the $43,540 from Holt provided the entire down payment, Crouch was the only person named on the deed to the home. The court sentenced Holt to thirty months in prison, three years of supervised release, and $265,747.32 in restitution. It ordered her to pay $10,000 restitution within sixty days, noting she had specifically agreed to sell an automobile and a parcel of vacant real property to make that payment. The court also ordered government counsel to prepare and submit for defense counsel's review "language for me to put in the judgment and commitment" that would make the money transferred to Crouch "attachable under the MVRA." After briefing and another hearing, in September 2008 the court entered an Amended Order of Restitution that modified the restitution payment schedule to order that Holt pay $43,540 within 60 days of the Amended Order. The court found this amount reasonable based on equity in the home and the remaining $20,000 of insurance proceeds, but it did not "require that payment of the $43,540 come from any specific asset."
Holt served her prison term and commenced supervised release in June 2010. Two months later, the government requested a show-cause hearing on her failure to make either the $10,000 or the $43,540 lump sum restitution payments. Holt's response argued that supervised release may not be revoked absent a finding that she willfully violated the court's restitution orders; that she used the $43,540 to provide a home for their daughter while in prison and for Holt after her release; that the home is in Crouch's name so she has no ability to sell it; that the car had been wrecked; and that she had not sold the vacant lot because of a tax lien and the cost of an appraisal. On March 3, 2011, after two show cause hearings and a revocation hearing at which Holt testified at length, the court found Holt guilty of willful failure to pay her restitution obligations, revoked her supervised release for failure to comply with the condition that she pay restitution as scheduled, and sentenced her to one year and one day in prison. Regarding the $43,540 obligation, the court explained:
I find that her transfer of this money to Mr. Crouch on the eve of sentencing was fraudulent and fraud on the Court. . . . And I think it meets all of the factors under 28 [U.S.C.] Section 3304(b)(2).
I've considered the alternatives to imprisonment and I don't believe any of them will suffice under all the facts and circumstances of this case. . . [She has] flagrantly disregard[ed] orders of the Court.
A district court may revoke supervised release if it "finds by a preponderance of the evidence that the defendant violated a condition of supervised release." 18 U.S.C. § 3583(e)(3). In determining the appropriate punishment, if revocation is based on a failure to pay restitution, the court must consider, in addition to the sentencing factors in 18 U.S.C. § 3553(a), "the willfulness in failing to comply with the . . . restitution order, and any other circumstances that may have a bearing on the defendant's ability or failure to comply with the order." 18 U.S.C. § 3613A(a)(2).
These statutory requirements derive from the Supreme Court's decision in Bearden v. Georgia, 461 U.S. 660, 672 (1983), where the Court applied the Equal Protection and Due Process clauses of the Fourteenth Amendment and held:
that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment . . . . If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment.
Whether Holt willfully refused to pay or acquire the resources to pay restitution are findings of fact that we review for clear error; if the failure to pay was willful, the district court is not constitutionally required to consider alternative measures of ...