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United States v. Shepherd

United States Court of Appeals, Sixth Circuit

May 1, 2019

United States of America, Plaintiff-Appellee,
v.
Mason Shepherd, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:17-cr-00473-1-Jack Zouhary, District Judge.

          Claire R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant.

          Tracey Ballard Tangeman, UNITED STATES ATTORNEY'S OFFICE, Toledo, Ohio, for Appellee.

          Before: MERRITT, KETHLEDGE, and NALBANDIAN, Circuit Judges.

          NALBANDIAN, J., delivered the opinion of the court in which KETHLEDGE, J., joined, and MERRITT, J., joined in part.

          OPINION

          NALBANDIAN, CIRCUIT JUDGE.

         Mason Shepherd admitted to possessing several thousand images and videos of child pornography and pleaded guilty to one count of receipt and distribution of child pornography under 18 U.S.C. § 2252(a)(2). The district court sentenced Shepherd to 96 months in prison and six years of supervised release and also ordered him to pay $25, 000 in restitution to his victims, a $100 special assessment, and a $5, 000 assessment under the Justice for Victims of Trafficking Act ("JVTA"), codified at 18 U.S.C. § 3014. Shepherd appeals the latter assessment. Under the JVTA, courts must impose the $5, 000 assessment against non-indigent persons convicted of five classes of crimes, including crimes related to the sexual exploitation of children. On appeal, Shepherd argues that he was indigent at sentencing, making him ineligible for the JVTA assessment. We disagree and AFFIRM.

         I.

         After Shepherd pleaded guilty but before sentencing, the United States Probation Office prepared a presentence report ("PSR"), which provided the court with information about Shepherd's education, employment history, and finances. According to the PSR, Shepherd obtained a high-school-equivalency degree in 2008 and earned certifications from a career school as an emergency-medical technician and in fire safety. Shepherd then enlisted in the U.S. Navy but became injured shortly after completing basic training and was honorably discharged in 2009. So Shepherd entered the private sector and held two jobs before his 2017 arrest: a part-time position as a firefighter and emergency-medical technician with the Perry Township Fire Department and a full-time position as a maintenance associate with the Allen County Fairgrounds, earning $9 and $11 per hour, respectively. As to Shepherd's finances, the PSR identified an overdue bill for $439, and Shepherd self-reported $1, 500 in unpaid medical expenses. His only asset was a 1996 Dodge Ram, worth about $200, placing his total net worth at negative $1, 739.

         At the sentencing hearing, Shepherd's counsel asked the court to find that Shepherd was indigent, which would make him ineligible for the JVTA assessment, and described Shepherd's financial obligations. The father of an 11-year-old son, Shepherd had been paying $350 in monthly child support before his arrest; his counsel estimated that Shepherd will owe $30, 000 in support upon his release from prison. That obligation, along with the $25, 000 in court-ordered restitution, places Shepherd's total financial liability at $55, 000 when he exits prison.

         And Shepherd's counsel pointed to several factors hampering Shepherd's ability to satisfy his financial obligations. First, Shepherd's expected earnings from prison jobs range from $.12 to-at most-$.40 per hour. Shepherd's counsel cast doubt on Shepherd's ability to earn enough to settle his financial obligations once he exits prison, both because of his limited education and the fact that he must register as a sex offender. Thus, Shepherd's counsel asked the court to not impose the JVTA assessment.

         The district court nonetheless ordered the JVTA assessment. Before sentencing ended, the judge remarked that "when I combine the defendant's ability to earn in the future, along with his other obligations, I think it's something that can be handled by the defendant in this case." (R. 41, Tr. at PageID #2088.) Shepherd's counsel objected to the assessment at the close of sentencing, preserving the issue for appeal.

         II.

         We first address our standard of review in this case of first impression before our court. The parties ask us to review the district court's decision to impose the assessment for abuse of discretion, and it is true that we ordinarily review decisions to impose criminal fines under that standard. See, e.g., United States v. Monus, 128 F.3d 376, 398 (6th Cir. 1997). But that standard presupposes that the district court has discretion as to whether to impose the fine. Some statutes, for example, tell the sentencing court to impose a fine "only to the extent that such fine or penalty will not impair the ability of the defendant to make restitution." 18 U.S.C. § 3572(b). By contrast, the statute here uses mandatory language, leaving no room for discretion. Section 3014 states that the court "shall assess an amount of $5, 000 on any non-indigent person or entity convicted." 18 U.S.C. ยง 3014(a) (emphasis added). In other words, the district court has no choice but to impose the $5, 000 assessment if it ...


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