                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-4-2009

USA v. Wendy Watkins
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2183




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"USA v. Wendy Watkins" (2009). 2009 Decisions. Paper 1409.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1409


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 08-2183
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                   WENDY WATKINS,

                                        Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                               (D.C. No. 07-cr-00280-001)
                        District Judge: Honorable Alan N. Bloch
                                     ____________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     April 23, 2009

       Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges.

                                   (Filed: May 4, 2009)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Wendy Watkins appeals from the judgment of sentence imposed by the District

Court, arguing that the District Court abused its discretion by ordering a fine of $1,700.

For the reasons set forth below, we will affirm.
                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Watkins pleaded guilty to one count of misappropriation of postal funds, in

violation of 18 U.S.C. § 1711. The United States Probation Office prepared a

presentence investigation report (PSR), in which it assigned Watkins a base offense level

of 6 under § 2B1.1(a)(2) of the United States Sentencing Guidelines (U.S.S.G. or

Guidelines). After factoring in a two-level enhancement for abusing a position of trust

under U.S.S.G. § 3B1.3 and a two-level reduction for accepting responsibility under

U.S.S.G. § 3E1.1(a), the Probation Office calculated the total offense level as 6 which,

paired with Watkins’s criminal history category of I, resulted in a recommended

sentencing range under the Guidelines of zero to six months of imprisonment, making

Watkins eligible for probation.

       The Probation Office also indicated in the PSR that the Guidelines called for the

imposition of a fine between $500 and $5,000. See U.S.S.G. § 5E1.2(c)(3). But the

Probation Office reported that Watkins earned $435 per month from a part-time job and

that her husband earned a monthly salary of $1,950 and, after taking into account the

couples’ living expenses, concluded that Watkins apparently did not have the ability to

pay a fine within the recommended Guidelines range.



                                              2
       Watkins argued that the abuse-of-trust enhancement was inapplicable and the

District Court, in its tentative findings and rulings, agreed with Watkins and therefore

reduced the total offense level to 4. While the recommended Guidelines range remained

zero to six months of imprisonment, this modification to the base offense level reduced

the recommended fine range to $250 to $5,000 under U.S.S.G. § 5E1.2(c)(3), and the

District Court indicated in its tentative findings and rulings that Watkins was “subject to a

fine” within that range, “subject to her ability to pay.” The District Court also tentatively

ruled that Watkins was subject to pay restitution.

       At the sentencing hearing, the District Court adopted its tentative findings and

rulings and sentenced Watkins to two years of probation and ordered her, inter alia, to pay

a within-Guidelines fine of $1,700 in monthly installments of $100. The District Court

indicated that Watkins should begin to make the payments once restitution was satisfied,

but noted that, given Watkins’s financial situation, she was not required to pay interest on

the fine. Watkins’s counsel objected, pointing out that the Probation Office indicated in

the PSR that Watkins did not have the ability to pay a fine. The District Court disagreed,

explaining that based on Watkins’s part-time job earnings of approximately $400 per

month, she had the ability to make the $100 monthly payments.

       Watkins timely appealed from the judgment of sentence, challenging only the

District Court’s decision to impose a fine.




                                              3
                                                II.

       The District Court had jurisdiction under 18 U.S.C. § 3231 and we have

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review the reasonableness

of a district court’s sentence under an abuse-of-discretion standard. United States v.

Kennedy, 554 F.3d 415, 418 (3d Cir. 2009). Our review is plenary with respect to the

legal sufficiency of a district court’s factual findings concerning a defendant’s ability to

pay a fine and, where those findings are legally sufficient, we review the district court’s

factual determination whether the defendant has the ability to pay a fine for clear error.

United States v. Kadonsky, 242 F.3d 516, 518 (3d Cir. 2001); cf. United States v. Grier,

475 F.3d 556, 570 (3d Cir. 2007) (en banc) (stating that we will “review factual findings

relevant to the Guidelines for clear error”).

                                                III.

       Watkins contends on appeal that the $1,700 fine is unreasonable and that the

District Court abused its discretion by ordering her to pay it. Specifically, she asserts that

after she objected to the fine and referenced the PSR in support of her argument at the

sentencing hearing, the District Court was required to make findings regarding her ability

to pay the fine, but failed to do so. She also argues that the District Court “misapplied”

several of the sentencing factors under 18 U.S.C. § 3553(a), including her history and

characteristics, the nature and circumstances of her offense, and the kinds of sentences

available. Having reviewed the record, we disagree.



                                                 4
       The Guidelines advise a district court to “impose a fine in all cases, except where

the defendant establishes that he [or she] is unable to pay and is not likely to become able

to pay any fine.” U.S.S.G. § 5E1.2(a). A defendant seeking to avoid paying a fine “has

the burden of coming forward with evidence from which the [district court] could find it

more likely than not that any fine would remain unpaid.” Kadonsky, 242 F.3d at 520.

Once the defendant puts forth such evidence, the district court “may not impose a fine

without making findings concerning the defendant’s ability to pay it.” Id. “The burden of

persuasion is on the defendant to show that an inability to pay will be more likely than

not.” Id.; accord United States v. Torres, 209 F.3d 308, 312 (3d Cir. 2000) (“The

defendant has the burden of proving his or her inability to pay.”). In determining whether

to impose a fine, as well as the amount and payment method of any fine, a district court is

to consider various factors in addition to those listed in § 3553(a), including the

defendant’s financial situation and earning capacity, the burden of the fine on the

defendant and other dependents relative to alternative punishments, any pecuniary loss

caused by the offense, any restitution due, and the expected governmental costs of the

sentence. 18 U.S.C. § 3572(a); U.S.S.G. § 5E1.2(d); see Torres, 209 F.3d at 313 (stating

that the “sentencing court must consider an array of factors” under U.S.S.G. § 5E1.2(d)

and 18 U.S.C. §§ 3572(a) and 3553(a)).

       The Government acknowledges that because Watkins referenced the PSR in

support of her argument, the District Court was obligated to make factual findings as to



                                              5
her ability to pay. See Kadonsky, 242 F.3d at 520 (“The defendant may meet that burden

[of coming forward with evidence] by an independent showing or by reference to the

PSR.” (internal quotation marks omitted)). The Government argues, however, that the

District Court did in fact make adequate factual findings and, accordingly, did not clearly

err in determining that Watkins failed to satisfy her burden of showing an inability to

make monthly installment payments of $100.

       We agree with the Government. It is well-established that a district court need not

make findings regarding every factor involved in its sentencing decision so long as the

record is sufficient to show the district court took the relevant factors into account. See

United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Indeed, where a district court

creates “enough of a factual record that it is clear that it considered a defendant’s ability

to pay [a fine], its findings may be deemed adequate.” United States v. Seale, 20 F.3d

1279, 1284 (3d Cir. 1994); see also United States v. Orlando, 553 F.3d 1235, 1240 (9th

Cir. 2009) (stating that a district court, in deciding whether to impose a fine, is not

required to state every factor under §§ 3553(a) and 3572(a)); Torres, 209 F.3d at 313

(stating that the district court must create a factual record “such that it can be said that the

[district court] considered the issue” of a defendant’s ability to pay a fine).

       Contrary to Watkins’s assertion, the record here demonstrates that the District

Court, after considering her financial situation, made adequate factual findings and

decided in its discretion that she was capable of paying the within-Guidelines fine by



                                               6
means of the fashioned installment plan. Specifically, the District Court stated that it

considered the § 3553(a) factors and, in response to Watkins’s objection to the fine, found

that she had the ability to pay the fine by monthly installments of $100, waiving any

interest on that fine. See 18 U.S.C. § 3572(d)(1) (stating that where a court orders a fine,

payment must be made immediately “unless, in the interest of justice, the court provides

for payment on a date certain or in installments”). It confirmed that she earned

approximately $400 per month at her part-time job and found that she was capable of

contributing a portion of that income toward satisfying the within-Guidelines fine. See

Seale, 20 F.3d at 1284 (concluding that a district court may rely on a defendant’s future

earning capacity in considering whether a fine is appropriate); see also § 3572(a)(1)

(stating that a court is to consider the “defendant’s income, earning capacity, and

financial resources” in determining whether to impose a fine); U.S.S.G. § 5E1.2(d)(2)

(directing the court to consider a “defendant’s ability to pay the fine (including the ability

to pay over a period of time) in light of his [or her] earning capacity and financial

resources”).

       The District Court also determined that Watkins would be able to pay exclusively

from her own earnings and ultimately determined that a fine was justified here given her

offense and the governmental costs. See § 3572(a)(2), (a)(6) (stating that a court is to

consider the factors under § 3553(a), including the nature of the offense, and “the

expected costs to the government” as well as the burden on “any person who is financially



                                              7
dependent on the defendant”); U.S.S.G. § 5E1.2(d)(1), (d)(3), (d)(7) (same). Moreover,

in imposing the sentence, it made findings regarding the restitution owed and waived any

interest on the restitution after taking into account Watkins’s financial condition. See

§ 3572(a)(4) (stating that a court is to consider “whether restitution is ordered or made

and the amount of such restitution”); U.S.S.G. § 5E1.2(d)(4) (same). And while we

acknowledge Watkins’s financial difficulties, we cannot say that the District Court’s

factual findings as to her ability to pay a no-interest fine on this installment plan were

clearly erroneous under the circumstances of this case.

       We also reject Watkins’s argument that the District Court “misapplied” several of

the § 3553(a) factors. Watkins’s within-Guidelines sentence, which involved a term of

probation along with the fine, readily “falls within the broad range of possible sentences

that can be considered reasonable in light of the § 3553(a) factors.” United States v.

Wise, 515 F.3d 207, 218 (3d Cir. 2008).

                                             IV.

       For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.




                                              8
