UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 94-5925

LARRY DARNELL MOORE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-93-270)

Argued: October 29, 1997

Decided: March 2, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and BULLOCK,
Chief United States District Judge for the Middle District of
North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Stuart Bruce, Deputy Federal Public Defender,
Greensboro, North Carolina, for Appellant. Kenneth Michel Smith,
Assistant United States Attorney, UNITED STATES ATTORNEY'S
OFFICE, Charlotte, North Carolina, for Appellee. ON BRIEF: Wil-
liam E. Martin, Federal Public Defender, Greensboro, North Carolina,
for Appellant. Mark T. Calloway, United States Attorney, Gretchen
C.F. Shappert, Assistant United States Attorney, UNITED STATES
ATTORNEY'S OFFICE, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

This case presents the question of whether the district court com-
mitted plain error in ordering the defendant to reimburse the Govern-
ment for court-appointed attorney fees as a condition of supervised
release. For the reasons stated below, we conclude that the court did
not commit plain error and affirm the sentence imposed.

I.

On June 21, 1994, defendant-appellant Larry Darnell Moore
entered into a plea agreement to plead guilty to conspiracy to possess
and distribute a quantity of cocaine in violation of 21 U.S.C. § 846.
The parties agreed that the amount of cocaine known and reasonably
foreseeable to the defendant was in excess of 400 but less than 500
grams, and that the adjusted offense level was 24. J.A. at 14-20. The
Government sought an enhanced penalty on the basis of a prior felony
drug conviction. J.A. at 12-13.

The Presentence Report ("PSR") assigned career offender guideline
level 34 to Moore under U.S.S.G. § 4B1.1(B) for offenses carrying a
statutory maximum of twenty-five or more years. After a three-level
reduction for acceptance of responsibility, Moore's Total Offense
Level became thirty-one, which at Criminal History Category VI
resulted in a sentencing range of 188 to 232 months. J.A. at 93.

The district court accepted Moore's guilty plea and imposed a sen-
tence of 188 months followed by a period of supervised release of six

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years. J.A. at 68-69. The court declined to impose a fine. The court
did order, however, that Moore reimburse the Government for the
costs of court-appointed counsel "on a schedule determined by the
Bureau of Prisons and/or the probation officer as appropriate." J.A. at
68-69. From this order, Moore appeals.1

II.

Moore contends that the district court's order of reimbursement is
not supported by adequate factual findings regarding his ability to
pay. We disagree.

Pursuant to 18 U.S.C. § 3006A(f), before the court orders repay-
ment of court-appointed counsel, the court must"find[ ] that funds are
available for payment from or on behalf of a person furnished repre-
sentation." However, the district court need not make an explicit find-
ing on the record that the defendant has the ability to pay. This court
may uphold reimbursement orders even if the district court did not
make a specific finding on availability of funds as long as there is suf-
ficient evidence to support the court's decision and the defendant did
not object to that evidence. See United States v. Behnezhad, 907 F.2d
896, 900 (9th Cir. 1990); United States v. Gurtunca, 836 F.2d 283,
288 (7th Cir. 1987).

In this case, the district court had before it evidence to indicate that
Moore could reimburse the Government upon his release from incar-
ceration. Moore had completed the eleventh grade and claimed to
have earned a GED while serving in the United States Marine Corps.
Moore had a good work history and possessed vocational skills as a
mechanic. J.A. at 65, 92-93. In addition, Moore had been paying rent
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1 Moore also argued in his assignments of error that the district court
committed plain error in applying U.S.S.G. § 4B1.1 when Application
Note 2 to that section was amended in the interim between preparation
of the Presentence Report and the date of sentencing. After Moore filed
this appeal and submitted his briefs, however, the United States Supreme
Court held this amendment to Application Note 2 invalid in United
States v. LaBonte, 117 S. Ct. 1673, modification denied, 117 S. Ct. 2505
(1997). As Moore's attorney conceded at oral argument, LaBonte renders
moot this first assignment of error.

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on a time-share cabin in Mocksville, North Carolina, at the rate of
$118.00 per month. J.A. at 93. Furthermore, he had already made par-
tial payment of his attorney's fees.2 We also note that Moore signed
a plea agreement whereby he promised to reimburse the Government
for his attorney's services. J.A. at 16. These facts are sufficient to sup-
port the finding required by § 3006A(f).3

III.

Moore also contends that the district court erred by delegating to
the United States Probation Office the responsibility to determine the
amount and timing of his repayment of court-appointed attorney fees.
See United States v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995) (hold-
ing that sentencing courts may not delegate decisions about the
amount and timing of restitution payments). Because Moore failed to
object to this alleged error, we review only for plain error. See United
States v. Olano, 507 U.S. 725, 730 (1993); see also Fed. R. Crim. P.
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2 On September 26, 1994, Moore's attorney had moved for a change of
status from retained to appointed, indicating that he had originally been
retained upon payment of $700.00. Moore's custodial status apparently
prevented him from earning more money to pay his attorney. The court
granted the attorney's request on the understanding that any fee applica-
tion submitted would reflect the $700.00 credit already paid. J.A. at 46-
49.
3 Moore also contends that even if he had the funds to reimburse the
Government for his court-appointed counsel the district court did not
have the power to make reimbursement a condition of supervised release.
We disagree. A district court's authority to set conditions of supervised
release is governed by 18 U.S.C. § 3583(d). This provision states that a
district court may impose conditions on supervised release if they are
reasonably related to the factors set forth in 18 U.S.C. §§ 3553(a)(1),
(a)(2)(B), (a)(2)(C), and (a)(2)(D). We believe that requiring a defendant
to reimburse the Government for the cost of his court-appointed attorney
may deter him from committing another crime. See Black's Law
Dictionary at 405 (5th ed. 1979) (defining "deterrent" as "[a]nything
which impedes or has a tendency to prevent") (emphasis added). Because
reimbursement is reasonably related to the goal of deterrence, the district
court had the authority to impose it as a condition of Moore's supervised
release. See 18 U.S.C. § 3553(a)(2)(B) (listing "deterrence to criminal
conduct" as an appropriate factor for consideration).

                     4
52(b) ("Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.").

Under the Supreme Court's interpretation of Federal Rule of Crim-
inal Procedure 52(b) in Olano, we have authority to correct forfeited
error only if it is "plain" or obvious, and if the defendant has carried
his burden of showing that the error affected his"substantial rights."
Olano, 507 U.S. at 732-36. Even then, we have discretion to decline
to correct the error unless we conclude that it"seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings." Id. at
736 (quoting United States v. Atkinson , 297 U.S. 157, 160 (1936))
(internal quotation marks omitted).

In applying this analysis here, we conclude that the district court's
delegation to the United States Probation Office of the responsibility
to determine the timing and amount of Moore's reimbursement of
court-appointed attorney's fees does not constitute plain error. Even
if we assume arguendo that the district court erred in delegating this
responsibility to the United States Probation Office and that this error
was sufficiently clear to satisfy plain-error analysis, we conclude that
Moore has not shown that the error affected his"substantial rights."

In most cases, affecting a defendant's substantial rights is synony-
mous with prejudice to the defendant.4 The defendant has the burden
of demonstrating prejudice on appeal. See id. at 734; Fed. R. Crim.
P. 52(b). Moore has not shown that he was prejudiced by the district
court's delegation to the United States Probation Office of the respon-
sibility to determine the amount and timing of his reimbursement of
court-appointed attorney fees. These issues are relatively minor deter-
minations in Moore's conviction and sentence. Furthermore, if Moore
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4 The Supreme Court in Olano expressly declined to consider whether
the phrase "affecting substantial rights" is always "synonymous with
`prejudicial.'" Olano, 507 U.S. at 735. Rather, the Court speculated that
"[t]here may be a special category of forfeited errors that can be cor-
rected regardless of their effect on the outcome," such as structural
errors. Id. Structural errors, or defects affecting the framework within
which the trial proceeds, exist only in a limited class of cases. See
Johnson v. United States, 117 S. Ct. 1544, 1549-50 (1997) (collecting
cases).

                     5
has difficulty meeting the amount and schedule of payments set by
the United States Probation Office, he can petition the district court
for modification. See 18 U.S.C. § 3583(e)(2) and Fed. R. Crim. P.
32.1(b). Finally, should the Government attempt to revoke his super-
vised release for non-payment, he may assert lack of funds as a
defense. See Gurtunca, 836 F.2d at 289. Because the court's alleged
error does not affect Moore's substantial rights, it cannot constitute
plain error under Federal Rule of Criminal Procedure 52(b).

For the foregoing reasons, the district court's judgment is affirmed.

AFFIRMED

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