                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 27 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30178

                Plaintiff-Appellee,             D.C. No.
                                                6:15-cr-00007-DWM-1
 v.

JOSEPH DAVID ROBERTSON,                         MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding

                      Argued and Submitted August 29, 2017
                               Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and ROTHSTEIN,** District
Judge.

      After a previous trial ended in a mistrial, Joseph David Robertson was

convicted at a second trial for violations of the Clean Water Act, 33 U.S.C.

§ 1251–1388, and committing depredation of property of the United States in



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
violation of 18 U.S.C. § 1361. We here address his challenge to the district court’s

ruling compelling him to bear a part of the costs of his defense at the first trial. We

also review the challenge to the order requiring Robertson to bear some costs of his

defense for abuse of discretion. United States v. Danielson, 325 F.3d 1054, 1076

(9th Cir. 2003). We affirm.1

      Robertson gives three reasons in support of his argument that the district

court erred by ordering him to reimburse $12,000 for the costs of his appointed

counsel, and to partially pay ($300 per month) for defense costs. First, he argues

that he should not have to partially pay for the cost of his defense because the order

was entered after his first trial, but before his conviction. This is a policy argument

as to why Congress’s current legislative scheme is—in Robertson’s opinion—

unfair. The statute itself does not by its terms require that a defendant be convicted

before the court may order reimbursement of the cost of appointed representation.

See 18 U.S.C. § 3006A(f). In Fuller v. Oregon, the case upon which Robertson

relies, the Supreme Court concluded that “Oregon could surely decide with

objective rationality that when a defendant has been forced to submit to a criminal

prosecution that does not end in conviction, he will be freed of any potential

liability to reimburse the State for the costs of his defense.” 417 U.S. 40, 50



1
  We also affirm, and reject Robertson’s other arguments, for the reasons stated in
the concurrently filed published opinion.

                                          2
(1974). The Supreme Court in that case, however, did not state or suggest that

Oregon had to make that “legislative decision” in other contexts. Id.

      Even were we to agree with Robertson that it is “unfair” to make a defendant

whose trial did not end in conviction reimburse the court for the cost of an

appointed attorney, it is not our role to “inquire whether this statute is wise or

desirable.” Fuller, 417 U.S. at 48 (quoting James v. Strange, 407 U.S. 128, 133

(1972)). That is a responsibility properly left to Congress. See Nw. Airlines, Inc.

v. Transport Workers Union of Am., AFL-CIO, 451 U.S. 77, 97 (1981).

      Second, Robertson argues that the Criminal Justice Act (CJA) Guidelines for

CJA Representation provide that the defendant’s ability to pay should be assessed

after the defendant is convicted, not after a mistrial. The section of the CJA

Guidelines that he cites for this proposition—section 210.420.20—does not

support his argument that the Court should assess a defendant’s ability to

reimburse defense costs only if and after the defendant is convicted. Those

Guidelines provisions discuss the process of determining eligibility, and encourage

courts to make the eligibility decision “prior to the person’s first appearance in

court.” Criminal Justice Act Guidelines § 210.40.20(b).

      While another section of the CJA Guidelines permits the court to order

reimbursement at sentencing, that provision does not limit the time to reassess

eligibility to only sentencing after a conviction. See id. § 210.40.30(d). More



                                           3
importantly, the statute allows the court to order reimbursement “[w]henever the

United States magistrate judge or the court finds that funds are available for

payment from or on behalf of a person furnished representation.” 18 U.S.C.

§ 3006A(f). The plain language of this statute makes it clear that the district court

acted within its discretion when it reassessed Robertson’s eligibility and ordered

reimbursement and payment for future defense costs before sentencing.

      Third, Robertson asserts that the Presentence Investigation Report shows

that he did not have the ability to pay a fine, and that he should not have to pay for

the cost of his defense. However, the Presentence Investigation Report was not

before the court at the time the court ordered reimbursement before Robertson had

been convicted in the second trial. But, for the reasons stated above, we have

rejected Robertson’s challenge to the reimbursement order based on his lack of

conviction at that time, in view of the plain language of the pertinent statute. See

18 U.S.C. § 3006A(f). Robertson does not contest the district court’s factual

findings or the conclusions that it made when it ordered reimbursement and

payment of future defense costs. The district court did not abuse its discretion by

not relying on a document that did not exist at the time it issued its order.

      AFFIRMED.




                                           4
