United States v. Gary Graves, 908 F.3d 137

Background

Defendant Gary Graves pleaded guilty to possession of child pornography and faced a mandatory $100 special assessment plus an additional $5,000 special assessment under 18 U.S.C. § 3014 if found non-indigent.
Graves initially was appointed counsel after a magistrate found he was financially unable to obtain counsel; he later pleaded guilty and signed an appeal waiver that reserved only challenges to sentences exceeding statutory maximums.
The PSR (and addendum) reported limited current income ($700–$1,000/month) but noted prior earnings (~$40,000/year), employability, vocational skills, and potential for higher future earnings, recommending consideration of future earning capacity for the $5,000 assessment.
At sentencing the district court found Graves non-indigent based on his education, work history, prior earnings, vocational skills, and ability to work, and imposed the $5,000 assessment; Graves appealed arguing indigence.
The Fifth Circuit assumed arguendo the appeal was not waived but resolved the case on the merits: it held § 3014 permits consideration of future earning capacity when determining indigence and found no clear error in the district court’s non-indigence finding.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 3014 permits considering future earning capacity when determining if a person is "non-indigent" for the $5,000 special assessment	Graves: indigence should be judged only by present financial condition at sentencing	Government: courts may consider future earning capacity given the assessment is collectible like a fine and enforceable for 20 years	Held: Courts may consider future earning capacity in § 3014 indigence determinations (de novo review of legal standard)
Whether the district court clearly erred in finding Graves non-indigent	Graves: his current low income and PSR show he is indigent	Government: PSR facts (education, prior $40k earnings, vocational skills, able-bodied) support non-indigence	Held: No clear error; factual findings supported non-indigence (clear-error review)
Whether Graves’s appeal was barred by his plea appeal waiver	Graves: statutory-maximum exception to waiver applies because imposing assessment on an indigent person would be unauthorized	Government: the waiver covers fines/assessments; even if analogous to restitution, record supports the assessment	Held: Court avoided waiver issue and decided the appeal on the merits (did not resolve waiver question)
Whether earlier appointment of counsel (magistrate finding indigence) conflicts with later non-indigence finding	Graves: appointment indicates indigence and forecloses later non-indigence finding	Government: appointment reflects immediate ability to pay and preliminary information; sentencing uses fuller PSR and may consider future ability	Held: No conflict; different contexts and information justify different findings

Key Cases Cited

United States v. Walters, 732 F.3d 489 (5th Cir. 2013) (standard for reviewing scope of appeal waivers)
United States v. Keele, 755 F.3d 752 (5th Cir. 2014) (interpreting appeal-waiver statutory-maximum exception)
United States v. Chem. & Metal Indus., Inc., 677 F.3d 750 (5th Cir. 2012) (when waiver does not bar challenge due to lack of evidentiary support)
United States v. Winchel, 896 F.3d 387 (5th Cir. 2018) (statutory-maximum discussion in restitution context)
United States v. Smith, 528 F.3d 423 (5th Cir. 2008) (resolving appeal on the merits rather than waiver question)
United States v. Altamirano, 11 F.3d 52 (5th Cir. 1993) (courts may consider earning capacity when setting fines)
Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001) (interpretation of mandatory statutory language)
Martinez v. Ryan, 566 U.S. 1 (2012) (context for indigency in appointment-of-counsel analyses)
United States v. Lewis, 104 F.3d 690 (5th Cir. 1996) (restitution and consideration of future ability to pay)
United States v. Kelley, 861 F.3d 790 (8th Cir. 2017) (holding future ability to pay is relevant to § 3014 indigence determinations)