     Case: 14-10725      Document: 00513189956         Page: 1    Date Filed: 09/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 14-10725                                 FILED
                                  Summary Calendar                       September 11, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VENCENT SCALES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CR-231


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       This court’s opinion issued September 8, 2015 is hereby withdrawn, and
the following opinion is substituted.
       Vencent Scales pled guilty to theft of government funds and was
sentenced to 60 months of imprisonment and three years of supervised release.
The district court also ordered Scales to pay restitution of $29,427.37, payable
immediately. Scales challenges the district court’s restitution order, arguing


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-10725

that the district court failed to give adequate consideration to his financial
circumstances or ability to pay restitution.
      Because Scales failed to raise the issue in the district court, we review
for plain error. See United States v. Arledge, 553 F.3d 881, 900 (5th Cir. 2008).
To demonstrate plain error, Scales must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). An error is not clear or obvious if it is “subject to
reasonable debate.” United States v. Ellis, 564 F.3d 370, 377–78 (5th Cir.
2009). If Scales makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See Puckett, 556 U.S. at 135.
      The Mandatory Victims Restitution Act (“MVRA”) instructs courts to
order the full amount of restitution without regard to a defendant’s ability to
pay but to consider the defendant’s resources, earnings, and obligations when
setting a payment schedule.      See 18 U.S.C. § 3664(f)(1)(A), (2).     As the
government stated in the presentence report (“PSR”) in this case, Scales suffers
from mental health problems, has no assets, and has not been employed since
2009. He receives Supplemental Security Income benefits of $699 per month,
but that amount is subject to garnishment for outstanding child support
payments. As a result, the PSR states that Scales “does not have the financial
resources to pay a fine and make restitution payments.”
      We have held that a district court plainly erred by ordering a defendant
to pay immediate restitution when he lacked the resources do so. See United
States v. Myers, 198 F.3d 160, 169 (5th Cir. 1999). In contrast, we held that a
court did not plainly err when it ordered restitution payable immediately and
imposed monthly payments but did not require the full amount to be paid prior




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                                  No. 14-10725

to the end of supervised release. See United States v. Miller, 406 F.3d 323, 328
(5th Cir. 2005).
      The district court here ordered restitution in a specific amount payable
immediately.       The court then stated that nonpayment would not violate
Scales’s conditions of supervised release if his payments were made “as
provided in defendant’s conditions of supervised release.” Those conditions
required, though, that the entire $29,427.37 be paid no later than 60 days prior
to the end of his supervised release. We interpret these provisions, whether so
intended or not, to make failure to pay the entire amount by the end of the
supervised release period a violation of the relevant conditions that could
subject Scales to additional imprisonment.
      This case falls between Myers and Miller. Although Scales need not pay
the full amount of the restitution immediately, he must do so by 60 days prior
to the end of his term of supervised release or else be in violation of the
conditions of his supervision. We vacated a similar sentence when a defendant
lacked the resources to pay the full amount of restitution prior to the end of his
supervised release. See United States v. Calbat, 266 F.3d 358, 366 (5th Cir.
2001). In that case the defendant raised the proper objection in the district
court; we applied an abuse of discretion standard and vacated the sentence.
See id. The import of Calbat and Myers is that a sentencing court errs, plainly
and otherwise, when it sets a payment schedule for a defendant, who clearly
has insufficient financial resources, that requires payment of all restitution as
a condition of his supervised release.
      In this case, the only evidence is that Scales does not have the ability to
pay much if any of the restitution within the prescribed time period. The
district court therefore plainly erred in requiring that the restitution be paid
in full 60 days prior to the end of Scales’s term of supervised release.



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                          No. 14-10725

 We VACATE the sentence and REMAND for resentencing.




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