                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1843
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                 Christopher Luker

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                             Submitted: April 13, 2020
                               Filed: June 17, 2020
                                  [Unpublished]
                                  ____________

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
                          ____________

PER CURIAM.

       Following entry of a guilty plea to one count of accessing the Internet with
intent to view child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
(b)(2), the district court1 sentenced Christopher Luker to 46 months imprisonment
with a 10-year period of supervised release to follow. The district court also imposed
a mandatory special assessment in the amount of $100 and an additional special
assessment of $5,000 pursuant to the Justice for Victims of Trafficking Act (JVTA).
Luker appeals, asserting that the district court erroneously determined that he is not
indigent for the purposes of the JVTA and thus erred in imposing the $5,000 special
assessment. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

       Luker’s conviction arises from a Department of Homeland Security
investigation into images of child pornography that were being uploaded to the
Google cloud storage account owned by Luker. Investigators executed a search
warrant on Luker’s home, and after waiving his Miranda rights, Luker spoke with
investigators. Luker initially stated that he had inadvertently stumbled upon images
of naked children, but that any downloads of pornographic images of children to his
Google cloud storage account would have been done by someone else with his login
information. However, after investigators located approximately 600 images and 30
videos of child pornography on his phone, Luker admitted to using his cell phone to
view the images. Luker was subsequently charged with one count of accessing the
Internet with the intent to view child pornography and entered a guilty plea pursuant
to a plea agreement.

       At the sentencing hearing, in addition to imposing the terms of imprisonment
and supervised release and a $100 special assessment, the district court also imposed
a $5,000 special assessment pursuant to the JVTA. Luker objected to the latter
special assessment, arguing that he is indigent, as demonstrated by his court-
appointed counsel and evidence that his monthly expenses exceeded his income. The
district court stated that indigency for the purposes of appointment of counsel differs


      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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from indigency for purposes of the assessment, noting that the latter is not based on
cash flow. Acknowledging that Luker does not have a significant net worth, the
district court nevertheless determined Luker is not indigent and imposed the $5,000
special assessment. The district court ordered that the special assessment be due and
payable immediately, but allowed payment in installments if Luker were unable to
pay immediately. This installment payment plan required Luker to make payments
of up to 50% of his available funds during his term of imprisonment, 10% of his gross
monthly income during any period of residential reentry placement, and the greater
of $50 or 15% of his net monthly household income during supervised release. The
district court ordered that the assessment should be paid in full no later than one
month before the end of Luker’s period of supervised release.

       Luker now appeals the imposition of the $5,000 special assessment, arguing
that the district court erroneously determined that Luker is not indigent for the
purposes of the JVTA, particularly where the record reflected his limited financial
resources and that he was entitled to court-appointed counsel. Because the
determination of whether a defendant is indigent for the purposes of the JVTA is a
factual issue, we review the district court’s conclusion for clear error. United States
v. Kelley, 861 F.3d 790, 801 (8th Cir. 2017).

      Under the JVTA, “the court shall assess an amount of $5,000 on any
non-indigent person or entity convicted of an offense” involving the sexual
exploitation of children, 18 U.S.C. § 3014(a)(3), which is used to provide various
services to victims of trafficking. Id. § 3014(e). Although this provision excepts
from the mandatory fine those defendants found to be indigent, it does not provide
guidance on determining indigency. In Kelley, we concluded that the relevant
considerations for indigency determinations for the purposes of the JVTA are a
defendant’s current financial situation and his ability to pay in the future. 861 F.3d
at 801. We expressly declined to base this indigency determination on the more
lenient standards that apply when the appointment of counsel is considered. Id

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       Here, the district court considered both Luker’s current financial situation and
his ability to pay in the future. The record reflects that Luker’s assets—including two
vehicles, together worth $5,500, and $18,000 in a 401(k) account—when balanced
against his liabilities, result in an overall net worth of $9,650. The record also
reflects facts that demonstrate Luker’s future ability to pay the special assessment,
including that he is a high-school graduate with a 27-year employment history. The
district court concluded that while Luker does not have substantial means, he does not
meet the indigency standard. And, recognizing Luker’s limited means and likely
inability to pay the assessment in full immediately, the district court created an
installment plan to allow Luker to gradually satisfy the amount of the assessment. On
this record, we find no error, much less clear error, in the conclusion that Luker is not
indigent for the purposes of the JVTA and in the $5,000 special assessment. See id.
(concluding that defendant was not indigent for purposes of JVTA because, even
though defendant had a slight negative net worth, defendant had a future ability to
pay).

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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