United States v. Jeffrey DyeUnited States v. Jeffrey Dye
The district court properly concluded Holmes failed to allege sufficient facts to permit an inference that she suffered an adverse employment action because of her race. It is undisputed that Holmes‘s termination was recommended by the Executive Director, who had promoted Holmes about ten months earlier. See Herr v. Airborne Freight Corp., 130 F.3d 359, 362-63 (8th Cir.1997) (fact that the same person both hired and fired plaintiff within a fairly short time creates strong evidence that discrimination was not a factor motivating the termination). Holmes was given a hearing before the Housing Authority‘s Board, composed of four African-Americans and one Caucasian, which took the issue of Holmes‘s termination under advisement for two weeks and held a retreat to review the entire FIC program. The Board decided to reorganize and relocate the entire program due to lack of performance and to terminate all FIC employees. Holmes later applied for three different jobs with the FIC, but was not hired because the Board decided she was not the most qualified person for the positions. The Board hired African-Americans to fill two of the jobs and a Caucasian to fill the other job. In affidavits, the Board members stated race was not a factor in the decision to reorganize and relocate the FIC program and to terminate Holmes. Holmes did not contest the affidavits.
In her appeal, Holmes relies on signed statements of three coworkers, two of which state the Executive Director said she would “beg and crawl on her knees to the Board” before letting Holmes get the Executive Director job. We agree with the district court that even if the statements were sworn or certified as required by
We thus affirm the district court.
Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
[UNPUBLISHED]
PER CURIAM.
Congress has expressly given courts the power to modify restitution orders in appropriate circumstances. Under
Dye first contends the district court lacked jurisdiction to grant the Government‘s motion because the Government had not contacted each victim before filing its motion. Instead, the Government had notified most of the victims when it filed its order, and stated it would notify the rest within the next five days. The Government notified all of the victims well before the district court entered its order. Thus, the Government satisfied its statutory duty. See Grant, 235 F.3d at 100.
Dye next contends the district court could not alter the restitution order because the parties dispute whether the property was physically received by the Government before or after sentencing. Dye asserts the Government and district court knew of the property when the restitution order was entered because the offense conduct section of the presentence report states $1261 had been found in Dye‘s pants pocket, and the stipulation of facts regarding sentencing states a computer was found in Dye‘s home. The Government points out the financial condition section of the presentence report does not mention the cash or computer as assets.
A material change in a defendant‘s economic circumstances is identified by an objective comparison of a defendant‘s financial condition before and after a sentence is imposed. Id. A court‘s later understanding that it had sentenced a defendant without full knowledge of his assets alone does not constitute a material change in economic circumstances. Id. Nevertheless, when funds or property are not available to a defendant until after a prosecution, and are later released or made available, the defendant has had a material change in economic circumstances that might affect the defendant‘s ability to pay restitution. Id. at 100-01. That is what happened here. The cash and computer were seized by the Ohio police, and held for use as evidence against Dye. At some point, they were transferred by the Ohio police to the Government, and were not available to Dye until after his prosecution. Besides,
Dye next argues the district court could not revise the restitution payment plan without articulating that it had reconsidered and rebalanced the factors in
Dye last claims the doctrine of equitable estoppel bars the Government and district court from revising the restitution payment plan to include the property that existed at sentencing, but was not included in the formation of the initial payment plan. Because Dye does not allege the Government committed affirmative mis
We thus affirm the district court. We deny Dye‘s motion to strike and suppress the Government‘s brief based on noncompliance with
A true copy.
McMILLIAN, FAGG, and BOWMAN
Circuit Judges