                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-4357


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES JESSE CLAY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00123-MR-1)


Submitted:   February 14, 2012              Decided:   February 22, 2012


Before AGEE and      WYNN,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Angela Parrott, Acting Executive Director, Matthew R. Segal,
Fredilyn Sison, Allison Wexler, Assistant Federal Defenders,
Asheville, North Carolina, for Appellant.      Anne M. Tompkins,
United States Attorney, Laura L. Ferris, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            James Jesse Clay pleaded guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2006).      Following      a    successful      appeal,       the   district        court

resentenced Clay to thirty-five months’ imprisonment and ordered

him to reimburse the Government for court-appointed attorneys’

fees.     The sole issue on appeal is whether the district court

erred in ordering reimbursement.               We affirm in part, vacate in

part, and remand for resentencing.

            We    review    a    sentencing     court’s       resolution       of    legal

questions    de   novo     and   its   factual    findings       for     clear      error.

United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).

“In reviewing the district court’s application of the factual

findings, as in the reimbursement order here, we apply an abuse

of discretion standard.”            United States v. Moore, __ F.3d __,

2012 WL 208041, at *5 (4th Cir. Jan. 25, 2012).

            Clay argues that the district court erred in ordering

reimbursement because he lacked the present ability to repay.

The   Government    responds      that   Clay     will    be    able     to    pay    upon

release     because,       it    speculates,      he     is     likely        to    obtain

employment.       The Government’s argument, however, is foreclosed

by our decision in Moore, which held that

      the district court must base the reimbursement order
      on a finding that there are specific funds, assets, or
      asset streams (or the fixed right to those funds,

                                         2
     assets, or asset streams) that are (1) identified by
     the court and (2) available to the defendant for the
     repayment of the court-appointed attorneys’ fees.

Id. at *6.

               Because the district court ordered repayment of court-

appointed attorneys’ fees without identifying funds available to

do so, * we must vacate that portion of the district court’s

judgment and remand for resentencing.            We affirm the judgment in

all other respects.           We dispense with oral argument because the

facts    and    legal   contentions    are   adequately   presented    in   the

materials      before   the    court   and   argument   would   not   aid   the

decisional process.

                                                          AFFIRMED IN PART,
                                                           VACATED IN PART,
                                                               AND REMANDED




     *
       The district court did not have the                 benefit     of   our
decision in Moore when it resentenced Clay.



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