                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                         FILED
                                                                    U.S. COURT OF APPEALS
                                       ___________                    ELEVENTH CIRCUIT
                                                                          OCT 30, 2008
                                       No. 07-15669                    THOMAS K. KAHN
                                       ___________                          CLERK


                     D.C. Docket No. 01-00061-CR-4-SPM-WCS

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                            versus

MOZELLA GAINOUS, JR.,

                                                                  Defendant-Appellant.

                                       ____________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                                    ____________

                                    (October 30, 2008)


Before BARKETT and WILSON, Circuit Judges, and GOLDBERG,* Judge.

GOLDBERG, Judge:


*
  Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by
designation.
      Mozella Gainous, Jr. appeals his sentence for violating several conditions of

his supervised release. Specifically, Gainous misrepresented his income to his

probation officer and used these funds to purchase a house, rather than to fulfill

his outstanding obligations to the Internal Revenue Service. As part of his

sentence, the district court ordered Gainous to sell his newly purchased house and

apply the proceeds toward his restitution order. On appeal, Gainous argues that

the district court lacked the authority to order this sale as a condition of supervised

release, and in the alternative, that the sale constituted an abuse of the district

court’s discretion.

      After reviewing the record, reading the parties’ briefs, and having the

benefit of oral argument, we conclude that Gainous’ arguments in support of his

appeal are meritless. First, the district court had the statutory authority to “order

the sale of property of the defendant” upon its “finding that the defendant [was] in

default on a payment of a fine or restitution.” 18 U.S.C. § 3613A(a)(1) (2000).

Second, the district court did not abuse its discretion in ordering the sale of

Gainous’ residence as it reasonably related to the factors set forth in the United

States Sentencing Guidelines, and does not involve a greater deprivation of liberty

than necessary in light of Gainous’ misrepresentations to his probation officer.




                                           2
See 18 U.S.C. §§ 3553(a)(2)(a) and 3583(d). The sentence of the district court is

therefore AFFIRMED.




                                        3
BARKETT, Circuit Judge, dissenting:

      I respectfully dissent. I believe the compelled sale of Gainous’s house was

neither statutorily authorized nor within the district court’s discretion.

      Section 3613A(a)(1) of Title 18 of the United States Code permits a court to

order the sale of a defendant’s property “upon a finding that the defendant is in

default on a payment of . . . restitution.” Although not defined in the statute, the

general meaning of the term “default” is “[t]he omission or failure to perform a

legal or contractual duty; esp., the failure to pay a debt when due.” Black’s Law

Dictionary 449 (8th ed. 2004). There is no dispute that Gainous made all of his

court-ordered restitution payments. Thus, under the plain language of the statute, I

believe the district court erred in finding a default even though the schedule was

based upon Gainous’s misrepresentations.

      Assuming argumendo that 18 U.S.C. § 3583(d) provides the district court

with authority to compel the sale of an individual’s home as a condition of

supervised release, I believe the district court abused its discretion in doing so.

The record suggests that there was, at most, $8,000 of equity in the house.

Without any further inquiry into Gainous’s ability to procure this amount by some

other means, the district court ordered him to sell his house. See United States v.

Lampien, 89 F.3d 1316, 1325 (7th Cir. 1996) (Manion, J., concurring) (“[I]f

                                           4
Lampien has other means of paying the required restitution (e.g., helpful family

members, lucky lotto number, etc.), she should be allowed to keep her home.”).

Moreover, the district court had—and employed—means other than the forced sale

of Gainous’s home to sanction him for his failure to comply with the original

terms of his supervised release. In addition to the compelled sale of his home, the

district court sentenced Gainous to ten days of imprisonment followed by a

30-month term of supervised release and increased his monthly restitution

payments to $1,300.




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