                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                        December 5, 2016
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                        No. 16-1345
                                                (D.C. No. 1:10-CR-00215-PAB-1)
LEONID SHIFRIN,                                             (D. Colo.)

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Leonid Shifrin appeals from a district court order denying his motion to

modify a condition of supervised release. We have jurisdiction under 28 U.S.C.

§ 1291, see United States v. Lonjose, 663 F.3d 1292, 1299-1300 (10th Cir. 2011),

and affirm.

                                          I

      Shifrin pled guilty to one count of filing a false income tax return. He was

sentenced to eighteen months’ imprisonment, to be followed by one year of

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
supervised release. He was also ordered to pay restitution of $873,340. The

restitution order provided that “[a]ny unpaid restitution balance upon release from

incarceration shall be paid in monthly installment payments during the term of

supervised release,” with monthly installment payments to “be calculated as at least

10 percent of the defendant’s gross monthly wages.”

       In December 2015, after Shifrin served his prison term, the district court

revoked his supervised release and sentenced him to six months’ imprisonment to be

followed by six additional months of supervised release. The revocation order states

that if restitution is required, “it is a condition of supervised release that the

defendant pay in accordance with the Schedule of Payments sheet of this judgment.”

The attached schedule of payments simply states: “The defendant shall pay the

outstanding balance of the restitution in the amount of $868,520.00.”

       Shifrin filed a motion to reconsider this condition in August 2016, arguing that

he will be unable to pay the full restitution award in six months. The district court

denied the motion in a minute order, stating that “[f]ailure to pay the entire balance

does not mean that supervised release will be revoked.” Shifrin timely appealed.

                                             II

       We generally review a district court order imposing a condition of supervised

release for abuse of discretion. See Lonjose, 663 F.3d at 1302. However, if a

defendant fails to object to a condition at the time it is announced, we review only for

plain error. United States v. Mike, 632 F.3d 686, 691 (10th Cir. 2011). “To establish

plain error, the defendant must show: (1) error, (2) that is plain, which (3) affects

                                             2
substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 691-92 (quotation omitted).

       In imposing restitution against a defendant, a district court is required to

“order restitution to each victim in the full amount of each victim’s losses as

determined by the court and without consideration of the economic circumstances of

the defendant.” 18 U.S.C. § 3664(f)(1)(A). However, the court must also “specify in

the restitution order the manner in which, and the schedule according to which, the

restitution is to be paid, in consideration of . . . the financial resources and other

assets of the defendant.” § 3664(f)(2). If a defendant is ordered to pay restitution, he

must “make such payment immediately, unless, in the interest of justice, the court

provides for payment on a date certain or in installments.” § 3572(d)(1).

       Based on the foregoing, the district court should have included an explicit

payment schedule in its order revoking supervised release, which took into

consideration Shifrin’s financial resources and ability to immediately pay the amount

due. The government points to a separate condition of supervised release, which

requires that Shifrin “apply any monies received from income tax refunds, lottery

winnings, inheritances, judgments, and any anticipated or unexpected financial gains

to the outstanding court ordered financial obligation in this case.” It contends that

Shifrin’s payment obligation while on supervised release applies only to these

financial gains. But the order does not suggest that Shifrin’s payment obligation is so

limited; instead, this condition is separate and distinct from the schedule of

payments.

                                             3
      Nevertheless, even assuming the district court committed plain error, we

decline to exercise our discretion to correct it under the fourth prong of the plain-

error test. See United States v. Turrietta, 696 F.3d 972, 984 (10th Cir. 2012). To

satisfy the fourth prong, a defendant must show that an error was “particularly

egregious,” akin to a “miscarriage of justice,” such that it will “seriously affect[] the

fairness, integrity, or public reputation of the judicial proceedings.” Id. (quotations

omitted). Although the district court should have provided a schedule of payments

properly reflecting Shifrin’s financial resources, it explained to Shifrin, in response

to the present motion, that “[f]ailure to pay the entire balance does not mean that

supervised release will be revoked.” Accordingly, it is highly unlikely that Shifrin

will suffer any adverse consequence in the absence of an explicit schedule. Shifrin

could appeal separately should such consequences eventually occur. See United

States v. Morgan, 44 F. App’x 881, 887 (10th Cir. 2002) (unpublished).

                                           III

      AFFIRMED. Shifrin’s motion to proceed in forma pauperis is GRANTED.




                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




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