from the United States District Court for the Northern
District of Ohio at Toledo. No. 3:17-cr-00473-1-Jack Zouhary,
R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for
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.
NALBANDIAN, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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. § 3014(a) (emphasis added). In other words, the
district court has no choice but to impose the $5, 000
assessment if it ...