     Case: 09-40491     Document: 00511133909          Page: 1    Date Filed: 06/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 7, 2010
                                     No. 09-40491
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ERIK ALFREDO CONSTANTE,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:08-CR-501-1


Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Erik Alfredo Constante appeals his jury trial conviction for bank fraud and
embezzlement and for theft, embezzlement, or misapplication by a bank officer
or employee. He also appeals the district court’s order that, as a condition of his
supervised release, he is required to pay restitution in the amount of $100,000
within 90 days of his release from incarceration. Constante was sentenced to
terms of imprisonment of 36 months on each count, the terms to run
concurrently, and to concurrent five-year terms of supervised release.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40491

      Constante argues that the district court abused its discretion in refusing
to give the jury an instruction on the affirmative defense of duress. He contends
that his testimony permitted a rational jury to conclude that he illegally
withdrew funds from the account of a bank customer because of an imminent
threat to his family members and because he had no legal alternative.
      A defendant is entitled to a jury instruction on the affirmative defense of
duress if he carries his burden of showing that he was subject to an imminent
and impending threat that induces fear of death or serious bodily injury, that he
had not recklessly placed himself in such circumstances, and that he had no
reasonable alternative but to violate the law to avoid the threatened harm.
United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). The threat
must be a “real emergency leaving no time to pursue any legal alternative.” Id.
at 874.
      Constante testified that all the threats made against him were verbal and
that he was never threatened with a gun or any other weapon. Although the
first threat was made in late February, he did not hear from another perpetrator
until mid-March, and he took no steps during that time to alert the bank to the
scheme or to obtain legal assistance. He also had the opportunity after receiving
a text message to alert authorities that an extortionist would be coming to the
bank to take the funds, but he failed to do so. After illegally withdrawing the
funds, Constante voluntarily returned evidence of the extortion to his
extortionists.
      The record, including Constante’s own testimony, supports the district
court’s determination that Constante failed to carry his burden of showing that
he was subject to an imminent and impending threat that induced a valid
apprehension of death or serious bodily injury. Nor did he present evidence
showing that he had no viable legal alternative to engaging in the criminal
activity. The district court did not abuse its discretion in denying Constante’s
request for a jury instruction on duress. Posada-Rios, 158 F.3d at 873-75.

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                                No. 09-40491

      Constante argues that, in light of the information in the presentence
report (PSR) showing his financial inability to pay immediate restitution, the
district court committed plain error by ordering him to make a single lump sum
restitution payment of $100,000 within 90 days of his release. He contends that
the district court did not indicate that it had considered his financial resources
and obligations in accord with 18 U.S.C. § 3664(f)(2) and, thus, abused its
discretion and plainly erred in scheduling the lump sum payment.
      Because Constante did not raise his § 3664(f)(2) argument in the district
court, this claim is reviewed for plain error only. See United States v. Howard,
220 F.3d 645, 647 (5th Cir. 2003). Section 3664(f)(2) requires the district court
in setting a restitution payment to consider the defendant’s financial resources
and assets, his projected earnings and income, and his financial obligations.
This court will reverse a district court’s decision concerning the scheduling of
restitution payments only if the defendant can show “that it is probable that the
district court failed to consider one of the mandatory factors and the failure to
consider that factor influenced the court.” United States v. Schinnell, 80 F.3d
1064, 1070 (5th Cir. 1996).
      The PSR reflected that Constante had cash assets of only $1300, a monthly
car note of $395 on a vehicle worth $18,000, and credit card debt of $600. Other
than its determination that Constante could not afford to pay a fine, the district
court made no reference to Constante’s limited financial resources and merely
surmised that he had hidden the stolen funds.
      The record does not reflect that the district court considered Constante’s
limited financial resources in ordering his immediate restitution payment of
$100,000 as a condition of his supervised release. Therefore, the district court
plainly erred in requiring the immediate payment of the restitution. See United
States v. Myers, 198 F.3d 160, 169 (5th Cir. 1999).
      Constante’s conviction and sentence are affirmed, except for the
requirement that he pay the full amount of restitution immediately; that part

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                                No. 09-40491

of the sentence is vacated and remanded for reconsideration of the scheduling
of the restitution payment. See id.
      AFFIRMED      IN   PART, SENTENCE        VACATED      IN   PART    AND
REMANDED.




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