                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0305n.06

                                           No. 19-3554

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                     FILED
                                                                                   May 28, 2020
                                                                               DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,
        Plaintiff-Appellee,
 v.                                                   ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
 CHRISTOPHER GOODIN,                                  NORTHERN DISTRICT OF OHIO
        Defendant-Appellant.



BEFORE:        BOGGS, CLAY, and GIBBONS, Circuit Judges.

       CLAY, Circuit Judge. Defendant Christopher Goodin appeals his sentence for sexual

exploitation of children and related child pornography offenses in violation of 18 U.S.C. §§ 2251,

2252, and 2252A. See 18 U.S.C. § 3742(a). Goodin was sentenced to twenty-five years in prison

and was also ordered to pay approximately $150,000 in restitution to his victims and a $5,000

special assessment. Goodin raised no objections on these points in the district court.

       On appeal, Goodin argues that the length of his prison sentence is substantively

unreasonable. He also claims that the amount of restitution was erroneous, that restitution must be

imposed by a jury instead of a judge, and that his indigency precludes imposition of the $5,000

special assessment. For the following reasons, we affirm Goodin’s sentence.

                                      I. BACKGROUND

       A. Goodin’s Criminal Activity

       In August 2018, the FBI’s office in Salt Lake City received a complaint regarding a twelve-

year-old female (“Victim 1”) who sent pornographic images of herself to an adult male using the



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mobile messaging application Kik. Victim 1 met someone with the username “Shorty853” on a

different application called Live.me, and Shorty853 asked Victim 1 to download Kik instead. She

did so, registering with the username “Fungirl12901.”

        As a result of their interactions, Victim 1 believed that Shorty853 was also a minor female.

Once Victim 1 was on Kik, Shorty853 sent her sexually explicit images of an underage girl, whom

Victim 1 believed to be the user behind Shorty853. Victim 1 then sent Shorty853 images of herself

in return.

        At some point, Shorty853 told Victim 1 that another Kik user—SamBam01—was

harassing Shorty853 and had threatened to tell Shorty853’s cousin that she was on Kik. Victim 1

contacted SamBam01 and told him to leave Shorty853 alone. In response, SamBam01 told Victim

1 to send him sexually explicit photographs, which would buy his silence. She complied. Later,

SamBam01 again contacted Victim 1 and threatened to expose both her and Shorty853 unless she

sent him more explicit images. Again, Victim 1 acquiesced to his demands.

        As it turns out, both Shorty853 and SamBam01 were the same person: Christopher Goodin.

Investigators were able to trace the Shorty853 username to an account on a dating website called

“Plenty of Fish.” Goodin was the owner of that account and had instructed people on Plenty of

Fish to contact him through Kik using his Shorty853 account as well.

        After identifying Goodin, the FBI executed a search warrant at his home and recovered

two mobile phones and two laptops. In addition to the two Kik accounts and images of Victim 1,

those devices also contained thousands of other photographs and videos of child pornography.

These images are described in detail in the presentence investigation report (“PSR”) and included

infants and toddlers, bestiality, bondage, urination, and defecation. Many of these images depicted

victims of child pornography known to the National Center for Missing and Exploited Children.




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The FBI’s search of Goodin’s devices also identified a second minor female victim, a fourteen-

year-old living in Ohio (“Victim 2”).

       B. District Court Proceedings

       On October 10, 2018, Goodin was arrested and taken into federal custody. Later that

month, a grand jury returned a three-count indictment for sexual exploitation of children, receipt

of child pornography, and possession of child pornography. Goodin then pleaded guilty to all three

counts without a plea agreement.

       Goodin’s PSR noted that the offense level was 43, the maximum possible allowed by the

guidelines. Thus, even though his criminal history category was I (the lowest), the guidelines

sentence was life in prison. But because the statutes under which he was convicted had lower

statutory maximums, the guidelines range was lowered to 840 months (seventy years). The

statutory minimum was fifteen years’ imprisonment.

       Several statutory provisions added financial components to Goodin’s sentence. For

example, under the Justice for Victims of Trafficking Act (“JVTA”), 18 U.S.C. § 3014, the PSR

recommended a special assessment of $5,000 per count. The PSR also noted that Goodin was

required to pay mandatory restitution. Several individuals depicted in Goodin’s child-pornography

collection submitted restitution requests that included estimates of losses and requested specific

amounts from Goodin.1 One of the requests only included general statements about the victim’s

medical expenses and out-of-pocket costs based on her insurance coverage, and no specific dollar-

amount request; the PSR recommended $5,000 in restitution for this victim. The PSR listed these

amounts and recommended total restitution of $150,136.40.2


       1
           Neither Victim 1 nor Victim 2 submitted a restitution request.
       2
          The PSR listed the total amount as $150,156.40, but this appears to have been an addition
error, as the total of all the individual restitution amounts was $150,136.40.


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         At sentencing, Goodin said that he reviewed the PSR paragraph by paragraph with his

attorney and had no objections. The government asked for a sentence of thirty years, despite the

guidelines recommendation of seventy years. In support of this recommendation, the government

noted that Goodin’s method of extorting pornographic images from his victims was especially

cruel, that his child-pornography collection was extensive and particularly depraved, and that he

lied to investigators when they first executed the search warrant. Goodin’s counsel in turn argued

that the statutory minimum of fifteen years was an appropriate sentence, basing this argument on

Goodin’s acceptance of responsibility, his desire for counseling, and Goodin’s own abuse as a

child.

         After hearing the parties’ arguments, the district court walked through the sentencing

factors listed in 18 U.S.C. § 3553(a) and how they applied to Goodin’s case. After considering

these factors, the court sentenced Goodin to twenty-five years in prison. Goodin was also placed

on supervised release for the rest of his life.

         As part of its sentence, the court ordered restitution in the full amounts recommended by

the PSR. And finally, the court imposed a single $5,000 special assessment under the JVTA.

         Goodin then appealed his sentence, and now raises four grounds for vacating his sentence.

First, Goodin says that his twenty-five-year sentence was unreasonably long given his history and

characteristics. Second, he says the district court erred in its restitution order by not making

specific findings as to which portion of his victims’ losses he was responsible for. Third, Goodin

argues that the Constitution requires that only a jury award restitution, despite this Court’s contrary

precedent. And fourth, Goodin argues that the district court should not have imposed the JVTA

special assessment because he is indigent and unable to pay.




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No. 19-3554, United States v. Goodin


                                         II. DISCUSSION

       A. Substantive Reasonableness

       Goodin first argues that his twenty-five-year prison sentence was substantively

unreasonable. He thus asks this Court to vacate his sentence and remand with instructions to

impose a shorter prison term. But Goodin’s sentence was below the guidelines range for his crimes,

which creates a strong presumption of reasonableness. Because Goodin has failed to rebut this

presumption, the district court’s sentence must be affirmed.

       When a defendant raises a substantive-reasonableness challenge, she is essentially saying

that the district court ordered too lengthy a sentence in light of the sentencing factors outlined in

18 U.S.C. § 3553(a). See, e.g., United States v. Rayyan, 885 F.3d 436, 442 (6th Cir.), cert.

denied, 139 S. Ct. 264 (2018); United States v. Robinson, 778 F.3d 515, 518–19 (6th Cir. 2015).

That statute requires courts, after considering “the nature and circumstances of the offense and the

history and characteristics of the defendant,” to “impose a sentence sufficient, but not greater than

necessary” to achieve the goals of sentencing. 18 U.S.C. § 3553(a). Those goals include just

punishment for the offense, deterrence of other criminal conduct, protection of the public from the

defendant, and the potential for rehabilitation. Id. § 3553(a)(2).

        The district court’s balancing of these factors and its ultimate sentencing decision are

reviewed for an abuse of discretion. Robinson, 778 F.3d at 518; United States v. Lanning, 633 F.3d

469, 473 (6th Cir. 2011). Under this standard, we look to whether the sentencing court “placed too

much weight on some of the § 3553(a) factors and too little on others,” granting the trial court

significant deference in its decision. Rayyan, 885 F.3d at 442; accord, e.g., United States v.

Boucher, 937 F.3d 702, 707–08 (6th Cir. 2019); United States v. Parrish, 915 F.3d 1043, 1047

(6th Cir.), cert. denied, 140 S. Ct. 44 (2019).




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No. 19-3554, United States v. Goodin


       “The substantive reasonableness inquiry ‘take[s] into account the totality of the

circumstances, including the extent of any variance from the Guidelines range.’” United States v.

Cochrane, 702 F.3d 334, 345 (6th Cir. 2012) (alteration in original) (quoting United States v.

Bolds, 511 F.3d 568, 581 (6th Cir. 2007)). Because the sentencing guidelines are intended to

already reflect an appropriate balancing of these factors, this Court will presume that a district

court’s within-guidelines sentence is substantively reasonable. United States v. Vonner, 516 F.3d

382, 389–90 (6th Cir. 2008) (en banc); see also Gall v. United States, 552 U.S. 38, 51 (2007) (“If

the sentence is within the Guidelines range, the appellate court may, but is not required to, apply

a presumption of reasonableness.”). And when a defendant receives a below-guidelines sentence,

her “task of persuading us that the more lenient sentence . . . is unreasonably long is even more

demanding.” United States v. Curry, 536 F.3d 571, 753 (6th Cir. 2008) (order).

       At sentencing, the district court, after first considering the guidelines, walked through the

§ 3553(a) factors and how they applied to the facts of Goodin’s case. The court described Goodin’s

offenses, noting that his deception of his victims and the content of his child-pornography

collection were especially heinous. The court also considered Goodin’s personal characteristics,

noting his lack of criminal record, troubled background, alcohol abuse, mental illness, and

Goodin’s own victimization. The court also briefly noted the importance of deterrence, both of

Goodin’s future conduct and of other possible offenders.

       Goodin argues that the district court’s invocation of deterrence was misplaced because

recidivism rates are low for child-pornography offenders on supervised release, and further

contends that the district court gave insufficient weight to Goodin’s own history of sexual abuse

as a minor. But Goodin cannot show that the district court gave an unreasonable amount of weight




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to any of these factors, e.g., Boucher, 937 F.3d at 707–08; Parrish, 915 F.3d at 1047, and so the

district court’s presumptively reasonable sentence must stand.

       Goodin attempts to downplay the importance of deterrence by arguing that “recidivism

rates are low for child pornography offenders on supervision or in treatment.” (Appellant Br. at 11

(citing Troy Stabenow, A Method for Careful Study: A Proposal for Reforming the Child

Pornography Guidelines, 24 Fed. Sent’g Rep. 108, 121 (2011)).) This argument errs in several

respects. First, even if recidivism for child-pornography offenses were comparatively low (a

question we take no position on), Goodin has failed to show that the punishments associated with

those convictions had no bearing on this outcome. Cf. United States v. Demma, 948 F.3d 722, 732

(6th Cir. 2020) (discussing the importance of specific deterrence in child-pornography sentencing).

Second, Goodin’s focus on recidivism ignores the deterrent effect that punishment may have on

other potential offenders, a goal that could be considered even more important than deterring future

criminality by Goodin alone. See, e.g., United States v. Musgrave, 761 F.3d 602, 609 (6th Cir.

2014) (discussing the importance of general deterrence); United States v. Camiscione, 591 F.3d

823, 834 (6th Cir. 2010) (“General deterrence is crucial in the child pornography context . . . .”).

Third, even on its own terms, the portion of the article cited by Goodin refers only to consumers

of child pornography, not offenders like Goodin who actively solicit its creation. See Stabenow,

supra, at 121. In short, a law review article suggesting that recidivism rates for child-pornography

consumers are low cannot turn the district court’s aim for deterrence—a required sentencing factor

under § 3553(a)—into an abuse of discretion.

       Goodin also argues that the district court failed to give enough weight to his personal

characteristics, such as his own history of sexual abuse. But the record shows that the district court

considered and fairly balanced these factors when fashioning its sentence. And while Goodin’s




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No. 19-3554, United States v. Goodin


personal history might point toward a lower sentence rather than a higher one, the district court

had to balance this against the particularly heinous nature of Goodin’s conduct, which included

blackmailing a child victim into creating and sending him sexual images.

        As the government points out, this Court has previously upheld equal or even longer

sentences for sexual exploitation or child-pornography production, even where the defendant

raised his own past abuse as a mitigating factor. See, e.g., United States v. Mudd, 681 F. App’x

425, 430–31 (6th Cir. 2017); United States v. Dean, 626 F. App’x 586, 587–88 (6th Cir. 2015)

(per curiam). And in the sole, out-of-circuit case Goodin relies on for this point, the court of appeals

ultimately upheld—despite the defendant’s own history of abuse—a twenty-five-year prison

sentence, the exact same sentence faced by Goodin here. United States v. Sawyer, 907 F.3d 121,

124–26 (2d Cir. 2018), cert. denied, 139 S. Ct. 1300 (2019). Given this landscape, the district

court’s sentence—albeit considerable—was not substantively unreasonable.

        At bottom, Goodin received a below-guidelines sentence for his convictions, meaning he

faces a substantial burden to rebut its presumptive reasonableness. His attempt to do so amounts

to an argument that the district court should have balanced the sentencing factors differently than

it did, which “is simply beyond the scope of our appellate review.” United States v. Ely, 468 F.3d

399, 404 (6th Cir. 2006). Because the district court’s decision did not place undue weight on any

one sentencing factor as opposed to another, we must affirm Goodin’s sentence of incarceration.

        B. Restitution and JVTA Special Assessment

        Aside from the substantive reasonableness of his prison sentence, Goodin also challenges

parts of the financial component of his sentence. Specifically, Goodin says that the district court

incorrectly calculated the amounts of each victim’s loss attributable to him for restitution, and that

his dire financial straits should have precluded the $5,000 special assessment under the JVTA. He




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also says that court-ordered restitution is unconstitutional when a judge and not a jury determines

the amount of the victim’s loss.

       Because Goodin did not raise these objections in the district court, his claims are reviewed

for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731–32 (1993). This

review applies to cases where the defendant does not object to the amount of restitution or to the

imposition of a JVTA special assessment, and even applies to claimed constitutional errors at

sentencing where the defendant fails to object. See, e.g., United States v. Wheeler, 797 F. App’x

964, 965 (6th Cir. 2020) (applying plain-error review to JVTA indigency challenge); United States

v. Kent, 765 F. App’x 126 (6th Cir. 2019) (same); United States v. Ford, 761 F.3d 641, 656 (6th

Cir. 2014) (alleged constitutional error); United States v. Yancy, 725 F.3d 596, 600 (6th Cir. 2013)

(same); United States v. Reaume, 338 F.3d 577, 585 (6th Cir. 2003) (challenge to restitution order);

United States v. Schulte, 264 F.3d 656, 660 (6th Cir. 2001) (same).

       Before this Court can reverse for plain error, we must find that (1) the trial court erred,

(2) the error was plainly obvious or clear, (3) it affected the defendant’s substantial rights, and

(4) allowing the error to stand would undermine “the fairness, integrity, or public reputation of the

judicial proceedings.” Vonner, 516 F.3d at 386 (quoting United States v. Gardiner, 463 F.3d 445,

459 (6th Cir. 2006)). Under the second of these prongs, for an error to be plain, it must be “clear

under current law.” Olano, 507 U.S. at 734. “A lack of binding case law that answers the question

presented will also preclude our finding of plain error.” United States v. Al-Maliki, 787 F.3d 784,

794 (6th Cir. 2015).

       Applying this forgiving standard of review, each of Goodin’s claims fails: Goodin cannot

show that either the restitution amount or the JVTA assessment was plainly erroneous, and his




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constitutional challenge is foreclosed by binding circuit precedent. Accordingly, we affirm the

financial component of Goodin’s sentence as well.

            1. Amount of Restitution

        Goodin’s first challenge concerns the amount of restitution ordered by the district court.

According to Goodin, the district court plainly erred because it never explained the basis for its

restitution award, and instead relied solely on the PSR’s recommendations and the victims’

submissions to the court.

        Specifically, Goodin points to Paroline v. United States, 572 U.S. 434 (2014), which

addressed the amount of restitution owed by each defendant who possessed images of a child

pornography victim. Paroline held that courts cannot order each defendant who possessed a

victim’s images to pay the entire amount of her losses, since that approach “would amount to

holding each possessor of her images liable for the conduct of thousands of other independently

acting possessors and distributors,” an outcome that is “so severe it might raise questions under

the Excessive Fines Clause of the Eighth Amendment.” Id. at 455–56. Instead, the amount of

restitution must account for “the defendant’s relative role in the causal process that underlies the

victim’s general losses.” Id. at 458. The Paroline Court outlined several “rough guideposts” that

courts could consider when making this assessment in possession cases, including an estimate of

the number of other offenders and the quantity of images possessed by the defendant. Id. at 458–

60. According to Goodin, because the PSR and the attached submissions by the victims failed to

include this information, the district court plainly erred when it adopted the recommended amounts

of restitution.

        Normally, when a defendant challenges the amount of restitution ordered by the district

court, the court of appeals will review that order for an abuse of discretion. E.g., United States v.

Dunigan, 163 F.3d 979, 981 (6th Cir. 1999). But since Goodin did not object to the restitution


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No. 19-3554, United States v. Goodin


order in the district court, we will only review the order for plain error. E.g., Reaume, 338 F.3d at

585; Schulte, 264 F.3d at 660.

       This standard of review dictates the outcome of Goodin’s appeal. While the PSR did not

walk through the Paroline factors and did not specifically calculate the number of other

perpetrators or the quantity of each victim’s images possessed by Goodin, the amount of restitution

requested for each victim was a small fraction of the total losses claimed in their submissions.

Goodin did not object to these amounts, suggesting that he agreed the estimates were appropriate

reflections of his “relative role.” Paroline, 572 U.S. at 458. While this might be a different case

had the district court completely disregarded the core holding of Paroline, say, by ordering

restitution equal to the entire amount of all the victims’ claimed losses, our precedents show that

no further fact-finding was required when the requested amount appears facially reasonable and

the defendant failed to object.

       For example, in United States v. Sexton, 894 F.3d 787, 799–801 (6th Cir.), cert. denied, 139

S. Ct. 415 (2018), the defendant in a fraud case challenged the loss amounts recommended in the

PSR and adopted by the district court. Specifically, with respect to legal fees claimed by one of

the victims, the record did not contain enough information to assess whether the fees were incurred

due to the victim’s participation in the government’s investigation, which is required for restitution

under the applicable statute. Id. at 800–01 (citing Lagos v. United States, 138 S. Ct. 1684, 1688,

1690 (2018)). But Sexton never objected. And while “a district court is required to make adequate

factual findings in calculating the loss amount when there is a ‘disputed portion of the presentence

report or other controverted matter,’” this requirement does not apply to undisputed portions of

the PSR. Id. at 801 (quoting United States v. McGlown, 380 F. App’x 487, 491 (6th Cir. 2010)).

Thus, “because Sexton did not dispute the restitution amount, the district court was not required to




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make more specific factual findings,” and so Sexton’s challenge could not succeed on plain-error

review. Id.; see also United States v. Leal, 933 F.3d 426, 432–33 (5th Cir.) (upholding a restitution

order on plain-error review in part because, even though the victims failed to submit evidence as

to several Paroline factors, the award was a small percentage of the victim’s total losses), cert.

denied, 140 S. Ct. 628 (2019).

       Similarly, in United States v. Koeberlein, 161 F.3d 946, 951–52 (6th Cir. 1998), this Court

rejected a plain-error challenge where the defendant was provided with the PSR’s recommended

amounts of restitution in advance of sentencing, even where those amounts conflicted with his

earlier plea agreement. The Koeberlein court upheld the award under plain-error review because,

where the “defendant was provided in advance of sentencing with a recommended restitution

order” and nevertheless failed to object, the district court’s imposition of the recommended amount

of restitution did not undermine “the fairness or integrity of the judicial proceeding.” Id. at 952.

This reasoning applies with equal force here.

       Goodin’s reliance on United States v. Mobasseri, 764 F. App’x 549 (6th Cir. 2019), to

avoid this conclusion is misplaced. In Mobasseri, the defendant did object to the amount of

restitution, arguing that the victims had not established his relative role in causing their losses (as

required by Paroline). Id. at 549–50. The district court acknowledged this objection, but never

explained its reasons for rejecting it and for ordering restitution at the amounts listed in the PSR.

Id. On appeal, then, Mobasseri argued that the district court failed to adequately explain its reasons

for ordering restitution, which this Court found was plain error. Id. at 550. But since Goodin said

he had no objection to the PSR’s findings, which included the restitution amounts, Mobasseri does

not suggest plain error in this case.




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       The other case upon which Goodin relies, United States v. Jones, 747 F. App’x 348 (6th

Cir. 2018), cert. denied, 139 S. Ct. 1591 (2019), was not a plain-error case. Unlike Goodin, Jones

objected to the government’s restitution proposal, but the district court ruled against him without

explanation. Id. at 359–61. As explained above, the requirement for fact-finding by the district

court is greatly diminished when a defendant does not contest a recommendation in the PSR, and

given the amount of restitution and the facts that were available in the record, Goodin has failed

to meet his heavy burden in showing plain error on appeal.

           2. Constitutionality of the Restitution Regime

       Goodin also challenges the constitutionality of court-ordered restitution, arguing that

because the judge alone determines the amount of the victim’s loss, the federal restitution regime

violates his Sixth Amendment right to a trial by jury. But this Court has repeatedly rejected this

argument. E.g., United States v. Sawyer, 825 F.3d 287, 297 (6th Cir. 2016); United States v. Churn,

800 F.3d 768, 780–83 (6th Cir. 2015). Goodin admits this fact and says that he only raises this

argument to preserve it for review by the Sixth Circuit sitting en banc or by the Supreme Court.

Accordingly, at the panel stage of this case, we must reject Goodin’s constitutional challenge to

the district court’s restitution order. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685,

689 (6th Cir. 1985) (“A panel of this Court cannot overrule the decision of another panel. The prior

decision remains controlling authority unless an inconsistent decision of the United States

Supreme Court requires modification of the decision or this Court sitting en banc overrules the

prior decision.”).

           3. JVTA Assessment

       Finally, Goodin says that the district court plainly erred in ordering him to pay the $5,000

special assessment pursuant to the JVTA. Under the JVTA, the district court cannot order the

otherwise mandatory special assessment if the defendant is indigent. 18 U.S.C. § 3014(a); United


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States v. Shepherd, 922 F.3d 753, 757 (6th Cir. 2019). On appeal, Goodin says that he was clearly

indigent because he was over $25,000 in debt at the time of his conviction, will owe over $150,000

in restitution, and has a limited future earning potential.

       Normally, when assessing indigency for purposes of the JVTA, this Court will review the

factual question of whether a defendant is indigent for clear error, but will assess the legal

definition of indigency de novo. Shepherd, 922 F.3d at 757. But because Goodin failed to object

in the district court, we only review his claim for plain error. E.g., Wheeler, 797 F. App’x at 965;

Kent, 765 F. App’x at 126.

       In this circuit, district courts determine indigency under the JVTA by assessing both a

defendant’s current and future ability to pay the assessment. Shepherd, 922 F.3d at 759. This future

ability includes both potential in-prison and post-release earnings. See United States v.

Wandahsega, 924 F.3d 868, 889 (6th Cir. 2019). The defendant carries the burden of proving

indigency. Id. at 889–90.

       Because Goodin has almost no cash and approximately $25,000 in debt, even before the

$150,000-plus restitution order discussed above, it seems clear that Goodin lacks any current

ability to pay the assessment. That said, prior to his arrest, Goodin held several jobs ranging from

a minimum-wage job as a driver for a car dealership to various better-paying mechanical jobs.

Goodin will be in his fifties when released from prison, and the JVTA gives defendants twenty

years after release from prison to satisfy the debt before it is dissolved. 18 U.S.C. §§ 3014(g),

3613(b).

       Goodin argues that even with his work experience, his personal circumstances and the

duration of his sentence mean it is unlikely that he will ever be able to pay the assessment.

Specifically, Goodin notes that he lacks a high-school diploma or GED, that he is unlikely to land




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No. 19-3554, United States v. Goodin


even a low-paying prison job, and that his sex-crimes conviction will severely hamper his ability

to find employment after he is released.

       None of these arguments demonstrate plain error. Shepherd—a case that was not limited

to plain-error review—found that the defendant was not indigent despite his significant other

financial obligations, limited education, and correspondingly low potential for earnings after

release. 922 F.3d at 759–60. And while Shepherd will be released from prison at a younger age

than Goodin, id., this difference alone cannot support a finding that the district court plainly erred

in its application of Shepherd. Though Goodin will be in his fifties when released from prison, he

has not shown that he will be unable to pay the assessment using post-incarceration earnings, never

mind whether the district court plainly erred in finding otherwise.

       Wandahsega also stands in the way of Goodin’s claim. Like Goodin, the defendant there

faced significant debt and nonexistent assets, and even worse than Goodin, had never held a job

earning more than $10 per hour. 924 F.3d at 889. Furthermore, Wandahsega was older than Goodin

and faced a similar prison term, meaning he will be in his sixties when released. See id. at 878. But

on plain error review, the Court held that Wandahsega’s prison and post-release earnings could

support a future ability to pay. Id. at 889; see also id. (“Even if Wandahsega should be classified

as impoverished now, and even if he earns only a minimum hourly wage when released from

prison, he has not demonstrated that he will be unable to pay the assessment in increments over a

twenty-year period.”).

       In an attempt to distinguish Wandahsega, Goodin focuses on Wandahsega’s belief that “he

will obtain employment with [the] Hannahville Indian Community upon his release.” Id. Goodin

says this “special attribute”—namely that Wandahsega “was a Native American living on the

Hannahville Reservation in Michigan”—gave him a unique chance at post-release employment.




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(Reply Br. at 4–5.) But Shepherd rejected the argument that a sex-crimes conviction alone will

forestall the chance of post-release employment, and that case involved no “special attribute” that

could uniquely have landed the defendant a job. 922 F.3d at 759–60. Even without Shepherd,

Goodin cannot thread the needle of plain-error review by distinguishing away parts of the very

same cases he relies on; an on-point case is necessary (though not always sufficient) to show that

the district court plainly erred. Olano, 507 U.S. at 734; Al-Maliki, 787 F.3d at 794.

       Finally, while Goodin argues that the district court erred by not expressly finding on the

record that his future earnings could cover the assessment, this argument is directly at odds with

Shepherd, which noted that the JVTA does not require “an explicit finding of [the defendant’s]

non-indigency.” 922 F.3d at 760; see also id. (“[D]istrict courts ‘retain considerable latitude in

deciding which arguments to discuss and how much explanation is necessary.’” (quoting United

States v. Mitchell, 295 F. App’x 799, 804 (6th Cir. 2008))). And Shepherd was not a plain-error

case; as discussed above, where a defendant fails to object, the district court’s obligation to place

its reasoning on the record is substantially reduced. See Fed. R. Crim. P. 32(i)(3)(B) (requiring

courts to rule on an issue at sentencing so long as the matter could affect the sentence and is

“controverted” by the parties); United States v. Hurst, 228 F.3d 751, 760–61 (6th Cir. 2000)

(holding that fact-finding on the record is not required when the defendant failed to object and “did

not expressly call [the issue] to the court’s attention during the sentencing hearing”); see also

Wandahsega, 924 F.3d at 888 (“[D]etailed findings are not necessary where it can be inferred that

the district court considered the defendant’s ability to pay and other factors required by law.”

(quoting United States v. Powell, 423 F. App’x 602, 610–11 (6th Cir. 2011))).3



       3
        In a post-argument letter, Goodin says that this Court’s recent decision in United States
v. Fowler, 956 F.3d 431 (6th Cir. 2020), requires a finding of plain error where the district court
imposes the JVTA assessment “without hearing argument, considering evidence or saying


                                               - 16 -
No. 19-3554, United States v. Goodin


       In sum, Goodin faced the burden of proving indigency and failed to object or make any

showing on this point before the district court. On appeal, his arguments suggesting that it may be

difficult for him to pay in the future cannot demonstrate plain error, especially given this Court’s

previous cases to the contrary.

                                       III. CONCLUSION

       For the reasons stated above, we affirm the district court’s sentence.




anything to show that it took the defendant’s circumstances into account before imposing the
sentence,” and that these facts also describe Goodin’s case. (Appellant’s Rule 28(j) Letter.) Fowler
cannot dictate the outcome of this appeal for two reasons. First, while Fowler says that a district
court plainly errs when it imposes the assessment while completely failing to address indigency,
956 F.3d at 440, in this case, the government noted on the record the JVTA’s non-indigency
requirement, after which the court agreed with the government’s request for the assessment. This
allows the inference that the district court considered and ruled on the issue of Goodin’s indigency.
See Wandahsega, 924 F.3d at 888; Shepherd, 922 F.3d at 760. Second, to the extent Fowler
requires the district court to make specific findings on the record as to the facts surrounding a
defendant’s indigency, it is at odds with our decisions in Shepherd and Wandahsega, in which case
those earlier opinions are binding. See Darrah v. City of Oak Park, 255 F.3d 301, 309–10 (6th Cir.
2001) (“[W]hen a later decision of this court conflicts with one of our prior published decisions,
we are still bound by the holding of the earlier case.”).


                                               - 17 -
