United States v. Simpson-ElUnited States v. Simpson-El
In the Intake Questionnaire, the plaintiff stated that he wanted to file a separate charge; and he ultimately followed through by separately submitting a charge. Thus, the majority focuses on the Charge rather than the Intake Questionnaire. Maj. Op. at 1290. The majority‘s focus is correct because the Intake Questionnaire never went to the employer. Id. As a result, the Intake Questionnaire is immaterial to the exhaustion requirement.
3. Conclusion
In my view, Mr. Jones
- waived a theory of exhaustion based on the Charge and
- failed to satisfy the exhaustion requirement based on the Intake Questionnaire.
Accordingly, I believe that the dismissal was correct. Because the majority concludes that the Charge suffices for exhaustion, I respectfully dissent.
Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, Acting United States Attorney, and Tanya Sue Wilson, Assistant United States Attorney, on the brief), Office of the United States Attorney, District of Kansas, Topeka, Kansas, for Appellee United States of America.
Before LUCERO and BACHARACH, Circuit Judges.*
BACHARACH, Circuit Judge.
This appeal involves a criminal defendant‘s obligation to pay restitution to the victims. A restitution payment schedule can be modified when the defendant‘s economic circumstances materially change. Here the criminal defendant obtained a cash settlement growing out of a tort action against the federal government. With this settlement, the district court had to decide whether the defendant‘s circumstances materially changed. The district court answered “yes” and applied most of the settlement funds to the restitution obligation. The defendant appeals, and we affirm.
1. The Restitution Order and the Settlement
The defendant owing restitution is Mr. Kappelle Simpson-El, who was convicted of crimes involving the sale of stolen cars. His sentence included a restitution obligation of $432,930.00. Since obtaining release, Mr. Simpson-El has paid at least 5% of his gross monthly income toward restitution.
Mr. Simpson-El was injured while serving his prison sentence at a federal prison. The injury was allegedly exacerbated by inadequate medical attention and a lack of treatment, leading Mr. Simpson-El to sue the federal government under the
2. The District Court‘s Ruling and Mr. Simpson-El‘s Arguments
The government sought modification of the restitution order based on a material change in economic circumstances, requesting an order for Mr. Simpson-El to pay the entire $200,000 as restitution. The district court granted the motion in part, applying $145,640 of the settlement funds toward restitution. Mr. Simpson-El makes two arguments on appeal:
- The district court erred in finding that the settlement funds constituted a “material change in economic circumstances” under
18 U.S.C. § 3664(k) . - The district court improperly applied
18 U.S.C. § 3664(n) .
We reject both arguments.
3. Standard of Review
Mr. Simpson-El contends that the standard is de novo review, and the government urges us to apply the abuse-of-discretion standard. For the sake of argument, we may assume that Mr. Simpson-El is right about the standard. See United States v. Grant, 235 F.3d 95, 99 (2d Cir. 2000) (stating that the court applies de novo review over “the legal question of ... what constitutes a ‘material change in the defendant‘s economic circumstances’ under section 3664(k)“). Under either de novo review or review for an abuse of discretion, we would affirm.
4. The district court did not err in finding that Mr. Simpson-El‘s settlement materially changed his economic circumstances.
Mr. Simpson-El argues that the district court erred substantively and procedurally in finding a material change in economic circumstances. Substantively, he contends that the settlement funds could not have constituted a change in economic circumstances because the settlement was intended to compensate for future income loss. Mr. Simpson-El also contends that the district court procedurally erred by failing to compare his current economic circumstances with his economic circumstances existing at the time of the restitution order.
a. Mr. Simpson-El‘s settlement constituted a material change in his economic circumstances.
Under
Mr. Simpson-El disagrees. His argument centers on the premise that the settlement “attempts [only] to (in part at least) make up for a lifetime of lost income.” Appellant‘s Opening Br. at 14. This argument rests on a questionable factual foundation, for the settlement might have included some compensation for non-economic harm. After all, the settlement resolved a suit in which Mr. Simpson-El had claimed “hedonic damage to his quality of life” as well as economic loss. R. vol. 1, at 98; see Hull ex rel. Hull v. United States, 971 F.2d 1499, 1502 (10th Cir. 1992) (differentiating between “economic losses” and “noneconomic losses” such as “loss of enjoyment of life“). Thus, Mr. Simpson-El acknowledges that
- presumably some part of the settlement involved compensation for lost quality of life1 and
- collection of damages for lost quality of life could involve a material change in economic circumstances.
Oral Arg. at 14:05-15:39.
Presumably not all of the settlement funds went toward “hedonic damage,” for Mr. Simpson-El‘s claim also sought recovery for losses in future income. Even there, however, the district court could reasonably view an immediate cash payment to Mr. Simpson-El as more valuable than the opportunity to earn the same amount in the future.
For example, assume that without the alleged tort, Mr. Simpson-El would have earned the same that he had earned before going to prison: $37,000 per year. With this assumption, he would have had to wait over five years to earn $200,000.
Now, assume that he suffered a loss in earning capacity because of the tort. Mr. Simpson-El testified that after his injury, he would earn $16,000 for one year. This projection would have entailed a loss of roughly 57% from what he had earned before going to prison. Let‘s assume that the sole cause of this reduction was the tort underlying the eventual settlement. With an annual loss in earning capacity, Mr. Simpson-El would have to wait 12½ years to earn $200,000.
With the settlement, Mr. Simpson-El obtains the entire $200,000 now, without having to wait more than 5 years (without the tort) or 12½ years (with the tort). Without the settlement, Mr. Simpson-El would theoretically have earned the same amount. But with the settlement, he no longer has to wait for the money. That time-savings could reasonably be viewed as a material change in economic circumstances. See United States v. Grant, 235 F.3d 95, 100-01 (2d Cir. 2000) (holding that newly created access to previously owned funds constitutes a material change in economic circumstances under
Mr. Simpson-El likens his circumstances to those in United States v. Grant, 715 F.3d 552 (4th Cir. 2013). The district court in Grant modified a restitution order by requiring the defendant to apply all of his income tax refunds toward restitution, without considering whether those refunds constituted a material change under
b. The district court provided an adequate explanation.
Mr. Simpson-El contends that the district court did not properly apply
The explanation was adequate, for it compared the economic circumstances before and after the sentencing. In this comparison, the court discussed (1) the allegations of loss of future income within the civil case and (2) the current employment and income level of the defendant. Based on these considerations, the district court concluded that the defendant remained able to meet his needs without dipping into the settlement proceeds.
The district court did not illustrate how Mr. Simpson-El‘s economic circumstances had changed, but there was no need to do so. The court stated the obvious: that there was now a substantial new fund that had not existed before the time of the settlement. Pointing to the newly created fund, the court relied on a readily apparent change: Before the settlement, Mr. Simpson-El would have had to wait years to earn $200,000; after the settlement, he would immediately recoup $200,000. With the newly created access to $200,000, the district court‘s simple explanation was adequate to inform the parties why the settlement would constitute a material change in economic circumstances. See United States v. Ahidley, 486 F.3d 1184, 1191 (10th Cir. 2007) (stating that when we review the explanations for the initial payment schedule, the standard is whether we can discern from the record that the district court considered the appropriate factors).
5. The district court did not rely on § 3664(n) .
Mr. Simpson-El argues that the district court erred in relying on
The district court mentioned
6. Conclusion
Because the district court properly applied