                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             FEB 29 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 14-10510

              Plaintiff - Appellee,              D.C. No. 1:09-cr-00115-SOM-1

 v.
                                                 MEMORANDUM*
VANCE YUKIO INOUYE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                Susan Oki Mollway, Chief District Judge, Presiding

                     Argued and Submitted February 12, 2016
                                Honolulu, Hawaii

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

      Defendant Vance Yukio Inouye appeals from an order setting a restitution

schedule in connection with revocation of his supervised release. We affirm.

      As a threshold matter, we can review Inouye’s appeal. The district court

judgment is a final judgment even though the district court is free to adjust the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
restitution payment schedule. See 18 U.S.C. § 3664(o)(1)(D). Nothing in “the

language of [Inouye’s original 2009] waiver encompasses [Inouye’s] right to

appeal” the consequences of a subsequent revocation proceeding. United States v.

Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (internal quotation marks omitted).

Thus, he did not “knowingly and voluntarily” waive his right to appeal the present

decision. Id.; see also United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009)

(holding that a defendant did not, pursuant to his plea agreement, waive his right to

appeal the district court’s decision that it lacked jurisdiction to modify his sentence

because the plea agreement encompasses only the right to appeal “the sentence . . .

imposed”). Additionally, the case is ripe for review.

      On the merits, the district court did not abuse its discretion in setting

Inouye’s restitution schedule at 8% of his gross monthly income. See United

States v. Booth, 309 F.3d 566, 576 (9th Cir. 2002) (stating standard of review).

The district court did not “ignore[] the cash flow report that was in the PSR,” nor

did it “ignore[] that [Inouye] was not paying medical insurance.” The court

recognized both of those facts explicitly. And the court’s determination that

Inouye’s expenses in the immediate future were likely to be lower than they had

been had ample support in the record. The court did not abuse its discretion by




                                           2
concluding that Inouye’s expenses would be less when he was no longer living

with his children, paying rent, or paying for utilities.

       As to projected income, the district court committed no error. By law the

district court “shall . . . specify . . . the schedule according to which[] the restitution

is to be paid, in consideration of . . . projected earnings and other income of the

defendant.” 18 U.S.C. § 3664(f)(2)(B) (emphasis added). Inouye is wrong that the

district court should have disregarded this factor on account of Inouye’s then-

current financial circumstances. Cf. Ward v. Chavez, 678 F.3d 1042, 1052 (9th

Cir. 2012) (“[A] sentencing court must consider the defendant’s financial resources

in setting a restitution payment schedule . . . .” (emphasis added)).

       Finally, if Inouye has no job, then 8% of $0.00 is $0.00, and he suffers no

prejudice. As the district court noted, Inouye is free to seek further modification of

his restitution schedule as his circumstances continue to evolve.

       AFFIRMED.




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