The opinion of the court was delivered by: WEINSTEIN
Weinstein, Senior District Judge :
III Solving the Problem of Fixed Obligations and Unpredictable Asset and Income Fluctuation
B. Problem of Potential Asset and Income Fluctuation
C. Methods of Addressing Asset and Income Fluctuation
1. Fixed Installments of a Fixed Amount
2. Declining to Order Restitution
3. Probation Department to Ensure Good Faith Compliance
4. Pre-Sentence Recommendation From Probation Department
5. Fixed Installment Schedule and Post-Sentence Modification
a. 1996 Mandatory Victim Restitution Act Procedures
b. Application of 1996 Procedures to pre-Act Offenses
This cause for resentencing after remand from the court of appeals presents the vexing and heretofore largely unaddressed problem of balancing a defendant's obligation to pay restitution with existing and future obligations to pay child and other support, where it is not clear that the defendant will have, over the course of a restitution payment period, adequate earnings and assets to cover both obligations. The problem is how, given the likelihood of largely unpredictable changes in defendant's circumstances and fluctuation in earnings and assets, a sentencing court can reasonably protect the victims, the public, and defendant's family over the short and long term without abdicating its obligation to provide a fixed sentence and reasonable control during any supervised release or probationary period.
For the reasons stated below, defendant is ordered to pay restitution of $ 18,022.64 at the rate of $ 100 per week. Should this amount prove to be so burdensome as to limit defendant's ability to pay child support, the United States Attorney, defense counsel or the Probation Department may notify the court so that the order may be modified.
Defendant, following a jury trial in which he was found guilty of two counts of unauthorized use of credit cards, 18 U.S.C. § 1029(a)(2), was sentenced to a prison term of fourteen months and a supervised release term of three years. The court, noting that defendant was "capable of earning money sufficient to make restitution," ordered defendant to pay $ 18,809.49 restitution in $ 100 weekly installments. Upon the government's showing that defendant owed his ex-wife over $ 23,000 in overdue child support payments, the court noted that "a priority shall be given to payments due to his wife as support, and the $ 100 is only payable after that, if he has enough assets."
At a later hearing the court adjusted the restitution amount to $ 18,022.64 -- $ 11,338.01 to AT & T and $ 6,484.63 to Signet Bank, the two victims. The court's written judgment, dated April 3, 1996, states: "Restitution is payable upon defendant's release from prison as set by the Probation Department at no more than $ 100.00 per week. Priority is to be given to child support payments to the defendant's ex-wife." It was the court's view that the Probation Department would be in the best position to monitor fluctuations in defendant's ability to meet these two obligations and to ensure ...