As frаmed by the parties, this appeal poses two questions. The first concerns the preclusive effect, if any, of a waiver-of-appeal provision with respect to an order for restitution. The seсond concerns the appropriateness of the order itself. We bypass the first question and uphold the order on the merits.
The background events are easily recounted. On March 20, 2008, defendant-appellant Edgardo Salas-Fernández plead *47 ed guilty to counts charging him with violations of 18 U.S.C. §§ 1951(a) and 924(e)(1)(A.)(ii), respectively. His plea entailed an admission that he had taken part in the armed robbery of a Loomis-Fargo bank truсk, using a firearm and threats of violence.
The defendant tendered his guilty plea pursuant to a plea agreement that contained a waiver-of-appeal provision. That provision read:
The defendant hereby agrees that if this Honorable Court accepts this agreement and sentences him according to its terms and conditions, defendant waives and surrenders his right to appeal the judgment and sentence in this case.
The plea agreement also included a section labeled “Fines and Restitution,” but that section did not specify any restitutionary amount. Indeed, apart from that title, no mention of restitution appeared anywhere in the entire document.
Benedict Spinoza famously said, more than three centuries ago, that “[njature abhors a vacuum.” It is therefore unsurprising that the presentence investigation report (PSI Report) did address the possibility of restitution. Pertinently, it recommended that the district court order the defendant to pay, “jointly and severally” with five accomplices, the sum of $944,225, 1 which sum represented the unrecovered proceeds of the robbery. Neither the defendant’s sentencing memorandum nor his objections to the PSI Report addressed this recommendation.
On June 27, 2008, the district court sentenced the defendаnt to consecutive prison terms of forty-one and sixty-seven months on the two counts of conviction. Even though neither side had breathed a word about restitution, the court ordered the defendant to pay $157,370.88 in restitutiоn to Loomis-Fargo “forthwith.” The defendant did not object to this embellishment.
This timely appeal followed. In it, the defendant contests only the order for restitution.
As a threshold matter, the government urges that the waiver-of-аppeal provision bars this appeal. Although there is a clear majority view, the circuits are divided as to whether a waiver-of-appeal provision contained in a plea agreemеnt, which does not specifically refer to restitution, precludes a subsequent appeal of a restitutionary order.
Compare United States v. Oladimeji,
We see no need to plunge into these murky waters today. Courts should not rush to decide unsettled issues, especially where a division of authority exists. Because this appeal is easily resolved on the merits, we have the luxury of being able to bypass the preclusion issue today. Thus, we assume without deciding that the waiv *48 er-of-appeal provision does not pretermit the prosecution of this appeal.
This is the first time that the defendant has voiced an objection to the order for restitution. When a pаrty has failed to interpose a timely objection in the sentencing court, we review his ensuing claim of error only for plain error.
United States v. Dávila-González,
The defendant’s сlaim that the district court erred in ordering restitution has three dimensions. He contends that the court did not adequately explain its rationale, did not apportion the restitutionary amount based on relative culpability, and overreached in directing payment “forthwith.” We approach these remonstrances mindful of the terms of the relevant statute, namely, the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A.
The MVRA requires a district court to order a defendant to make restitution to victims of certain enumerated crimes of violence. The offenses of conviction in this case fall squarely within the maw of the statute. See id. § 3663A(c)(l)(A). Generically, then, restitution is available; and any ensuing order for restitution should be tailored to require return of the purloined property or its equivalent. Id. § 3663A(b).
The first defect perceived by the defendant — the absence of a detailed еxplication of the court’s reasoning — is not a defect at all/
Restitution serves as a mechanism for making a victim whole by restoring the monetary equivalent of losses suffered in consequence of the defendant’s criminal activity.
See United States v. Innarelli,
To be sure, the restitutionary amount must have a rational basis in the record. Id. But that does not mean that the court must recite book and verse in making an award.
In the сase at hand, simple arithmetic strips away any mystery about the origins of the amount. There were six known participants in the robbery of the bank truck, and the PSI Report put the amount of the total loss at $944,225. The cоurt ordered the defendant to pay restitution of $157,370.83. The inference is inescapable that the court established the restitutionary amount at one-sixth of the total loss.
This brings us to the defendant’s importunings about misapportionment. That claim rests on the premise that the sentencing court, for the purpose of restitution, should have divvied up the loss to reflect the relative culpability of the six participants in the heist. The dеfendant says that he played a bit part and, therefore, should bear a lesser share of the restitutionary burden.
The premise on which this argument rests is patently incorrect. A sentencing court is not required to consider
*49
an individual’s role in the offense when awarding restitution.
See United States v. Scott,
Of course, a sentencing court has some discretion as to how restitution should be apportioned among multiple defendants.
Scott,
That ends this aspect of the matter. The method that the court chose to employ here — dividing the loss equally among the responsible parties — was well within its discretion. Consequently, the defendant’s misapportionment claim fails.
The defendant’s finаl assignment of error posits that the district court overreached in ordering payment of restitution “forthwith.” In this regard, he alleges that the court did not adequately consider his financial circumstances and prospects.
The MVRA requires a court, in setting out a payment schedule, to consider a defendant’s financial circumstances and prospects.
Id.
§ 3664(f)(2). But “consideration,” in this context, does not require any elaborаte formality.
See United States v. Theodore,
In the instant case, the PSI Report included a detailed account of the defendant’s economic situation. In making this appraisal, the probation officer used, among other things, a financial statement submitted by the defendant and an Equifax credit report. The probation officer concluded that the defendant had $7,000 in еquity in his residence, owned three automobiles with an estimated aggregate value of $42,000, and had few liabilities. His sole prospect for income during incarceration seemed to be the monthly lease payments ($600) for rental of his residence.
We agree with the defendant that these figures do not show ready access to the amount of restitution that he was ordered to pay “forthwith.” But there is no reason to believe that the court shirked its duty to consider the defendant’s financial circumstances and prospects. Moreover, “[a] defendant’s impoverishment today is no assurance of future poverty, and hence, prеsent impecuniousness is not a bar to the imposition of restitution.”
Vaknin,
It is permissible for a sentencing court, in fashioning a restitutionary order, to take into account a defendant’s future earning capacity.
United States v. Lombardi
The short of it is that we find no abuse of discretion, let alone any plain error, in the district court’s order to pay restitution forthwith.
We need go no further. For the reasons elucidated above, we uphold the challenged order.
Affirmed.
Notes
. The PSI Report correctly states that the total amount stolen during the robbery was $944,225. However, in a later section of the PSI Reрort, it sets the total restitution amount at $932,225, mistakenly giving a credit to the perpetrators of $12,000.
. The defendant waived the right to appeal his sentence, but the waiver provision did not specifically mention orders for restitution (although restitution is a part of the sentence, see 18 U.S.C. § 3663A(a)(l)).