                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                     FILED
                           ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                    July 14, 2005
                                  No. 04-15530
                                                                THOMAS K. KAHN
                              Non-Argument Calendar                 CLERK
                            ________________________

                     D. C. Docket No. 04-00007-CR-WCO-2-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

BRADFORD WILLIAM DAVIS,

                                                                Defendant-Appellant.


                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                                   (July 14, 2005)

Before BLACK, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Bradford William Davis appeals his sentence imposed after revocation of

probation for willful failure to pay court-ordered restitution for past due child
support. We affirm the district court.

       A district court may revoke a defendant’s term of probation and return the

defendant to prison when the defendant violates a condition of that probation. 18

U.S.C. § 3565(a)(2). “‘In a probation revocation proceeding, all that is required is

that the evidence reasonably satisfy the judge that the conduct of the probationer

has not been as good as required by the conditions of probation; evidence that

would establish guilt beyond a reasonable doubt is not required.’” United States v.

O'Quinn, 689 F.2d 1359, 1361 (11th Cir. 1982) (citation omitted). We review a

district court’s revocation of probation for abuse of discretion. Id.

       Where the alleged violation is the failure to pay restitution or a fine, the

court must find the probationer’s failure to pay was willful, i.e., the probationer

had the means or ability to pay a fine or restitution as ordered and purposefully did

not do so. Bearden v. Georgia, 103 S. Ct. 2064, 2070 (1983). The government

may establish willful failure to pay by producing evidence the defendant had funds

available to pay restitution and did not do so. United States v. Boswell, 605 F.2d

171, 175 (5th Cir. 1979).1 Willfulness requires the government to prove the law

imposed a duty on the defendant, the defendant knew of this duty, and he



       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.

                                                2
voluntarily and intentionally violated that duty. United States v. Williams, 121

F.3d 615, 621 (11th Cir. 1997). “[P]robationer's failure to make sufficient bona

fide efforts to seek employment or borrow money in order to pay the fine or

restitution may reflect an insufficient concern for paying the debt he owes to

society for his crime,” and in such a situation, “the State is likewise justified in

revoking probation and using imprisonment as an appropriate penalty for the

offense.” Bearden, 103 S. Ct. at 2070.

       Even though the record on this appeal does not contain the medical records

that Davis presented to his probation officer and to the district court regarding his

health condition, it contains sufficient evidence to conclude Davis’s failure to pay

the restitution was willful.2 First, the record reveals Davis had $1,000.00 in his

Prudential Securities account at the time he was sentenced to five years of

probation. The district court intended this money be paid on or before June 1,

2004, as the first payment towards restitution. However, Davis failed to make any

payments from that or any other account. Second, even though Davis had an ability

to earn significant income (his earning were $50,000 during 2001-2002), he made


       2
          It is not possible to analyze Davis’s claim that he could not work because he was sick, as
his medical records are not in the record on appeal. See Fed. R. App. P. 10(b)(2) (“If the appellant
intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary
to the evidence, the appellant must include in the record a transcript of all evidence relevant to that
finding or conclusion.”). However, it is not necessary to do so because there was other evidence in
the record supporting the district court’s ruling.

                                                  3
no effort to find a job when he was on probation during a five-month period.

Third, while Davis was on probation, he told his probation officer he was unable to

borrow money from anyone to pay towards the restitution. However, when Davis

was facing revocation of his probation, he represented to the court that he could

borrow money which he could pay towards restitution within two weeks. Thus, the

district court’s finding that Davis’s failure to pay restitution was willful is not

erroneous.

      Given the circumstances of this case, namely, Davis’s neglect to pay child

support which had grown to $42,760.00 over 15 years and his failure to pay any

money towards court-ordered restitution despite his apparent ability to work or

borrow, the district court did not abuse its discretion by revoking Davis’s

probation.

      AFFIRMED.




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