United States v. Vance Inouye
821 F.3d 1152
9th Cir.2016Background
- Inouye pleaded guilty to wire fraud and conspiracy related to a mortgage-fraud scheme and was sentenced in 2009 to one month custody, concurrent supervised release terms, and $274,401 restitution (jointly and severally).
- The original restitution order delegated payment rate to probation but required no less than 10% of gross monthly income once released.
- Inouye paid after release but stopped paying from Nov 2013–May 2014 and lied to his probation officer about missed payments; he admitted the lie at revocation proceedings.
- At revocation, the district court imposed one day in custody, 59 months supervised release, and a restitution payment schedule fixed at 8% of gross monthly income.
- The court found Inouye employable with a history of steady work, current after-tax monthly income of $2,197 (expenses $2,418.77), prior debts (medical and tax), and changed living circumstances likely to reduce near-term expenses.
- Inouye appealed the 8% schedule arguing the court improperly relied on projected future earnings and unsupported inferences; amicus argued the appeal was not reviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability of appeal | United States: appeal is reviewable | Amicus: judgment not final / waiver / must wait until enforcement | Appeal is reviewable; restitution judgment is final; generic appellate waiver does not bar appeal of revocation/modification proceedings; no need to wait for enforcement |
| Consideration of projected earnings in setting restitution | Government: district court may consider projected earnings under § 3664(f)(2) | Inouye: court erred by relying on projected future income while he was unemployed | Court may and must consider projected earnings; no legal error in doing so |
| Abuse of discretion in setting 8% of gross income | Government: schedule within statutory bounds given findings | Inouye: findings unsupported, ignored PSR cash flow and insurance facts | No abuse of discretion; findings supported by record and logical (expenses likely to fall; 8% of $0 is $0 if unemployed) |
| Ability to modify schedule later | — | Inouye: sought ability to reduce to nominal/zero payments | Court noted Inouye can seek modification later; appointment of amicus to defend judgment irrelevant to appealability |
Key Cases Cited
- United States v. Gordon, 393 F.3d 1044 (9th Cir.) (standard of review for restitution orders)
- United States v. Nunez, 223 F.3d 956 (9th Cir.) (limits of appellate waivers)
- United States v. Leniear, 574 F.3d 668 (9th Cir.) (plea waiver scope)
- United States v. Wilson, 707 F.3d 412 (3d Cir.) (generic waiver does not cover revocation appeals)
- United States v. Lonjose, 663 F.3d 1292 (10th Cir.) (collecting circuit decisions on waiver scope)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir.) (abuse-of-discretion framework)
- United States v. Booth, 309 F.3d 566 (9th Cir.) (consideration of future ability to pay in restitution schedule)
- United States v. Bogart, 576 F.3d 565 (6th Cir.) (must evaluate projected earnings under § 3664(f)(2))
- United States v. Calbat, 266 F.3d 358 (5th Cir.) (financial resources and projected earnings are mandatory factors)
- United States v. Viemont, 91 F.3d 946 (7th Cir.) (no abuse where defendant has negative net worth if court has necessary financial information)