                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            DEC 8 1999
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
              Plaintiff - Appellee,                      No. 98-6369
 v.                                                 (D.C. No. 98-CR-47)
 DAVID HICKS,                                           (W. D. Okla.)
              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Defendant-Appellant David Hicks pleaded guilty to one count of conspiracy

to defraud the United States by obtaining payment of false claims in violation of

18 U.S.C. § 286. He appeals the district court’s order that he pay restitution in



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the amount of $11,403.95, contending that the court erred in its finding that,

given his age and education, he would be able to find employment and pay

restitution upon his release from confinement.

      During the period from January 1993 to December 1995 while incarcerated

in state prison, Defendant participated in a scheme to prepare fictitious 1040EZ

tax returns to fraudulently obtain income tax refunds. Participants shared

information used on the returns such as names, social security numbers, and

addresses of fictitious filers, and involved others in cashing the fraudulently

obtained refunds. Defendant himself prepared or signed fourteen income tax

returns which had false claims that resulted in an actual loss to the Internal

Revenue Service of $11,403.95.

      On March 19, 1998, the Government filed a one-count information charging

Defendant with conspiracy to defraud the United States in violation of 18 U.S.C.

§ 286. The defendant pleaded guilty, and on September 11, 1998, the district

court filed its order entering judgment. The court sentenced Defendant to twenty-

seven months of imprisonment to be followed by three years of supervised

release. The court also ordered Defendant to make restitution to the IRS, payable

immediately or in monthly installments of not less than $100 beginning no more

than thirty days from his release from confinement. The Government contended

that the conspiracy involved a total intended loss of $216,000 and resulted in an


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actual loss of $22,082.19. The district court found an actual loss of $11,403.95

attributable to Defendant and ordered restitution in that amount. See R., Vol. 1,

Doc. 23 at 5, 8. The district court also waived any fine due to Defendant’s

inability pay both the fine and restitution. See id. at Doc. 22. Defendant timely

filed a notice of appeal, and we exercise jurisdiction pursuant to 28 U.S.C. §

1291.

        We review a district court’s factual findings supporting a restitution order

for clear error. See United States v. Olson, 104 F.3d 1234, 1237 (10th Cir. 1997).

We review the amount of the restitution order for abuse of discretion. See id.

        Both parties seemingly agree that the Victim and Witness Protection Act

[VWPA], 18 U.S.C. §§ 3663, 3664, in its version prior to amendment in 1996,

governs this restitution order. 1 Under the VWPA restitution is not mandatory.



        In 1996, Congress amended the VWPA by enacting the Mandatory Victims
        1

Restitution Act [MVRA] which now requires mandatory restitution to the victims
of certain crimes. See 18 U.S.C. § 3663A. The MVRA requires restitution “in
the full amount of each victim’s losses as determined by the court and without
consideration of the economic circumstances of the defendant.” Id.
§ 3664(f)(1)(A). The MVRA is applicable to crimes defined under § 3663A(c)
for cases in which the defendant is convicted on or after April 24, 1996, “to the
extent constitutionally permissible.” Id. § 2248 (Statutory Notes). This court has
determined that it is constitutionally permissible to apply the MVRA when
sentencing for a crime committed before the Act’s effective date. See United
States v. Nichols, 169 F.3d 1255, 1279-80 (10th Cir.), cert. denied, 120 S. Ct. 336
(1999). Reasoning that the “MVRA is not punitive in nature,” the Nichols court
held that its application is not prohibited by the Ex Post Facto Clause. Id. at
1279; accord United States v. Newman, 144 F.3d 531, 542 (7th Cir. 1998). But
see United States v. Edwards, 162 F.3d 87, 91-92 (3d Cir. 1998); United States v.

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Rather, when determining whether to order restitution and the appropriate amount

of restitution, the court “shall consider the amount of the loss sustained by any

victim as a result of the offense, the financial resources of the defendant, the

financial needs and earning ability of the defendant and the defendant’s

dependents, and such other factors as the court deems appropriate.” 18 U.S.C.

§ 3664(a). Defendant argues that given his demonstrated indigence, his lack of

work experience, and his criminal history, the court erred in determining that he

would be able to find employment to pay restitution once released from custody.

      A restitution order “must be consistent with a defendant’s ability to pay,”

but a defendant’s inability to pay at the time of sentencing “is not itself a bar.”

Olson, 104 F.3d at 1237 (citing United States v. Gabriele, 24 F.3d 68, 73 (10th

Cir. 1994)). While a restitution order “cannot be based solely on chance,” such

as the possibility that a defendant might win the lottery, it “will be upheld if the



Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998); United States v. Bapack, 129 F.3d
1320, 1327 n.13 (D.C. Cir. 1997); United States v. Williams, 128 F.3d 1239, 1241
(8th Cir. 1997); United States v. Baggett, 125 F.3d 1319, 1322 (9th Cir. 1997);
United States v. Thompson, 113 F.3d 13, 15 n.1 (2d Cir. 1997).

       The conviction in this case appears to fall under § 3663A and § 3664 of the
MVRA. However, both parties to this appeal apply the VWPA in its version prior
to the effective date of the MVRA, and neither party has raised the issue of
whether the MVRA governs the restitution order in this case. We therefore do not
address this issue, and our citations in this opinion refer to the VWPA provisions
in effect before April 24, 1996. We observe, however, that the district court’s
order in this case imposes restitution for the full amount of loss found, see R.,
Vol. 1, Doc. 23 at 8, a result compatible with the application of the MVRA.

                                          -4-
evidence indicates a defendant has some assets or earning potential and thus

possibly may be able to pay the amount ordered.” United States v. Rogat, 924

F.2d 983, 985 (10th Cir. 1991) (citing United States v. Mitchell, 893 F.2d 935,

936 n.1 (8th Cir. 1990)).

      The record in this case supports the district court’s restitution order. The

court found that Defendant was young and sufficiently educated to acquire

employment after release that would allow him to pay restitution. It noted that

Defendant had completed numerous college classes while incarcerated. In

addition, the court adopted the factual findings of the Presentence Investigation

Report which indicated that Defendant had received his General Equivalency

Diploma in 1990 and had taken college classes through a “‘talk back television’”

program offered by Rose State College. R., Vol 3 at 11. The report also

indicated that at the time of sentencing Defendant was still enrolled, working on

an associate’s degree in business administration, and had completed over forty

credit hours during his incarceration. 2 He also had completed 135 hours in

carpentry and 135 hours in drafting through a vocational training program while

incarcerated. Because the record shows that Defendant has some earning

potential, it is possible that he may be able to pay the amount ordered. See Olson,


      2
       While not verifiable, Defendant states in his brief that it is probable that
he “will have completed a college degree prior to his release.” Appellant’s Br. at
6.

                                         -5-
104 F.3d at 1237.

      Defendant argues that his criminal record makes it unlikely that, despite his

training, he will be able to find employment. While a criminal record may make

it more difficult to secure employment, it does not make it impossible and does

not show that the district court clearly erred in its factual determination that

Defendant could pay restitution. To hold that a criminal record alone is sufficient

to demonstrate that a defendant cannot secure employment would preclude any

restitution order under the VWPA. Defendant’s arguments fail to show that he

will be unable to pay the $11,403.95 restitution order. 3 We conclude that the

district court’s factual findings supporting the restitution order are not clearly

erroneous.

      We further hold that the district court did not abuse its discretion in

determining the amount of restitution. While the government presented evidence

that the actual loss attributable to Defendant was $22,082.19, which included the

loss attributable to Defendant’s joint conduct with others in the conspiracy, the

court limited restitution to the amount of loss attributable to fraudulent filings



      3
        This case is distinguishable from cases where the amount of restitution
ordered has been entirely beyond the means of the defendant to pay. See, e.g.,
United States v. Patty, 992 F.2d 1045, 1052 (10th Cir. 1993) (holding, in a case
where defendant’s liabilities exceeded $3.2 million, that the district court abused
its discretion when it ordered restitution for an amount more than 100 times the
defendant’s pre-conviction annual earnings).

                                          -6-
where Defendant himself filled out or signed forms. The court also waived a fine

based on its determination that Defendant was unable to pay both a fine and

restitution. Finally, as explained above, the record supplies some evidence that

Defendant will be able to satisfy the restitution order. We conclude that the

district court considered and balanced the evidence relating to the appropriate

amount of restitution and did not abuse its discretion.

      After submission of this appeal to the panel, we received Defendant’s

“Motion” entitled “Objection to Assigned Attorneys Representation.” This

motion requests an order dismissing Defendant’s attorney or, in the alternative, an

inquiry into the contentions Defendant raises in this motion, which include the

following:

      1.     The plea agreement as entered in the record is not the plea agreement

             Defendant entered into at sentencing.

      2.     Assigned counsel said the sentence would run concurrently with his

             custodial state sentence.

      3.     The Assistant U.S. Attorney assured Defendant’s attorney that his

             office would submit a “downward departure” (Defendant alleges that

             the U.S. Attorney’s office submitted a downward departure for his

             codefendant).

      4.     Defendant was duped by his attorney who said he would straighten


                                         -7-
             out the matter and originally took Defendant’s phone calls, but now

             avoids all contact with Defendant and Defendant’s wife   .

      We deny Defendant’s motion to dismiss his attorney and follow his

alternative suggestion by treating his motion as a supplemental brief. Upon

review of the plea agreement, which is part of the record on appeal, we conclude

that it does not support Defendant’s arguments. The plea agreement indicates that

in exchange for the plea of guilty the Government agreed to make no

recommendation as to the actual sentence to be imposed and to forego prosecution

for any other violations involved in this scheme to obtain payments by filing false

income tax returns. See R., Vol. 1, Doc. 19 at 2-3. The plea agreement further

states that “[n]o agreement exists concerning a sentencing departure . . . or

concerning a reduction of sentence.” Id., Doc. 19 at 6. Additionally, the plea

agreement includes this stipulation:

             The parties further agree that the United States has advised
      this defendant and his attorney that the matter of sentencing is
      entirely within the discretion of the sentencing court, subject to the
      Sentencing Reform Act of 1984 (Sentencing Guidelines), and that the
      United States has made no promises or representations to this
      defendant or his attorney regarding what sentence might be imposed.

Id., Doc. 19 at 7. Both Defendant and his attorney signed the agreement, and

Defendant testified at the plea hearing that he voluntarily made the plea,

understood its consequences, and understood that his sentence was subject to the

court’s discretion. See id., Vol. 2 at 8, 14.

                                          -8-
      While nothing in the record indicates whether Defendant’s assigned counsel

assured him that the sentence would run concurrently with the state sentence for

which he was already incarcerated or whether the Assistant U.S. Attorney

promised to seek a downward departure, Defendant did sign the plea agreement

which indicated that it was “the only agreement between the United States and

defendant, David Hicks, concerning his plea of guilty in the above-styled action,

and that there are no other deals, bargains, agreements, or understandings which

modify this agreement.” Id., Vol. 1, Doc. 19 at 7-8.

      After review, we conclude that there is no merit to Defendant’s challenge

to his sentencing based on the plea agreement. To the extent that Defendant

raises an ineffective assistance of counsel claim either for misrepresentations or

other error, we dismiss that claim without prejudice. Generally, a claim of

ineffective assistance of counsel should be brought in a collateral proceeding

pursuant to 28 U.S.C. § 2255 so that a proper record can be made. See United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc).

      AFFIRMED.

                                               Entered for the Court

                                               Monroe G. McKay
                                               Circuit Judge




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