UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

WOLFF, TRISTAN


98-3152a

D.C. Cir. 1999


*	*	*


Rogers, Circuit Judge: This case is here for a second time  on claims
of sentencing error. In United States v. Wolff, 127  F.3d 84 (D.C.
Cir. 1997) ("Wolff I") the court remanded for  resentencing in view of
the government's breaches of the plea  agreement. See id. at 86-87. On
remand, the district court  sentenced Wolff to sixty-four months'
incarceration and three  years' supervised release on each robbery
count, the sen- tences to run concurrently. The district court
reimposed a  special assessment of $100.00 under 18 U.S.C. s 3013, and
 again ordered Wolff to pay restitution of $122.00 to Riggs  Bank and
$1867.00 to Washington Federal Savings Bank.


Wolff contends the district court erred by applying a two- level
enhancement under s 2B3.1(b)(2)(F) of the United  States Sentencing
Guidelines Manual (1995) ("Guidelines"),  when the evidence failed to
show an express threat of death,  and by failing to consider his
ability to pay before ordering  restitution as required under the
Victim Witness Protection  Act, 18 U.S.C. s 3664(a) (1995). As
clarified at oral argu- ment, Wolff also contends, in the event this
court agrees with  his second claim of error, that the district court
erred in  delegating part of its sentencing responsibility to the
proba- tion office. Because our decision in United States v. Robin-
son, 86 F.3d 1197, 1202 (D.C. Cir. 1996), is dispositive of his  first
claim of error, and we conclude that Wolff has failed to  show that
the district court plainly erred with regard to its  statutory
obligation to consider his ability to pay, we affirm  and do not reach


I.


Wolff received a two-level sentence enhancement for mak- ing an express
threat of death pursuant to s 2B3.1(b)(2)(F) of  the Guidelines on the
basis of a note that he handed to a  bank teller stating: "give me all
your big bills, $100s, $50s, 


and $20s, I have a gun. I will kill people." We see no merit  in
Wolff's argument that this statement did not provide  sufficient basis
for sentencing enhancement, as we fail to see  any material difference
between the note used by Wolff in the  instant case and the demand
note in Robinson that stated  "I'll shoot somebody in here now."
Robinson, 86 F.3d at  1202. Each was an express threat of death within
the  meaning of s 2B3.1(b)(2)(F) of the Guidelines.1


In Robinson, the court explained that to qualify for this  enhancement
it is sufficient that a reasonable person in the  position of the
immediate victim of the robbery would "(1)  very likely [have]
believed that the robber made a threat and  that the threat was to
kill and (2) likely thought that his or  her life was in peril thereby
experiencing 'significantly great- er fear' than the intimidation
required to commit robbery."  86 F.3d at 1202. The court left open
"the possibility that a  court may enhance a sentence even if an
ordinary person  would be placed in fear for someone else's life." Id.
at 1203.  Wolff contends that the statement at issue here could not 
reasonably have put the teller in fear for her life because it 
referred only to "people in general." Wolff maintains that 




__________

n 1 Application note 6 to the commentary to s 2B3.1 of the Guide- lines
states:


An "express threat of death," as used in subsection (b)(2)(F),  may be
in the form of an oral or written statement, act,  gesture, or
combination thereof. For example, an oral or  written demand using
words such as "Give me the money or I  will kill you", "Give me the
money or I will shoot you", "Give  me your money or else (where the
defendant draws his hand  across his throat in a slashing motion)", or
"Give me the money  or you are dead" would constitute an express
threat of death.  The court should consider that the intent of the
underlying  provision is to provide an increased offense level for
cases in  which the offender(s) engaged in conduct that would instill
in a  reasonable person, who is a victim of the offense, significantly
 greater fear than that necessary to constitute an element of the 


Guidelines s 2B3.1 comment, n.6.


Robinson is not dispositive as to such "general" statements.2  Yet,
from the statement of what are sufficient elements for  enhancement in
Robinson, it necessarily follows that the bank  teller in the instant
case could reasonably believe she was  included among the "people"
Wolff was threatening to kill.  See United States v. Murray, 65 F.3d
1161, 1166-67 (4th Cir.  1995). The absence of the word "teller" in
the note can  hardly be dispositive when the context of an ongoing
robbery  is considered. This was not an innocent encounter; the 
threat in the note enhanced the intimidation that robbery  alone would
cause; the teller was in the immediate chain of  custody of the money
that Wolff sought to take from the  bank. Moreover, the Guidelines
would not appear to require  that the threat be specifically directed
to a particular person  or specific target. In any event, under the
circumstances, a  reasonable teller could easily infer from the
context of the  note that the threat to kill "people" included her.


Much like the Ninth Circuit in United States v. Strandberg,  952 F.2d
1149, 1151-52 (9th Cir. 1991), we conclude that the  statement by
Wolff was equivalent to the note in Robinson.  See also United States
v. Figueroa, 105 F.3d 874, 879-80 (3d  Cir. 1997); United States v.
Robinson, 20 F.3d 270, 276-77  (7th Cir. 1994); United States v. Bell,
12 F.3d 139, 139-40  (8th Cir. 1993).


Just as a reasonable teller receiving a note from a bank  robber would
very likely infer that "shoot" means "kill,"  a reasonable teller
would also probably infer that a  threat to kill "somebody in here"
referred to him. In- deed, in the highly-charged circumstances of a
robbery,  we think that the threat to "shoot somebody in here" is 
practically indistinguishable from the threat to "shoot  you."


Robinson, 86 F.3d at 1202. Therefore, the district court did  not err
in enhancing Wolff's sentence under s 2B3.1(b)(2)(F).




__________

n 2 Wolff suggests that Robinson left open, for example, the ques- tion
of whether statements such as "I have a gun" and "I will shoot 
somebody out here" are statements to which s 2B3.1(b)(2)(F) ap-


II.


The Victim Witness Protection Act, 18 U.S.C. ss 3663-3664  (1995),
requires that, prior to ordering restitution, the district  court
"shall consider the amount of loss sustained by any  victim as a
result of the offense, the financial resources of the  defendant, the
financial needs and earning ability of the  defendant and the
defendant's dependents, and such other  factors as the court deems
appropriate." 18 U.S.C. s 3664(a)  (1995).3 Wolff contends for the
first time on appeal that the  district court failed to consider his
ability to pay restitution.  Because our review is for plain error,
Wolff must show not  only that the district court erred but that he
suffered preju- dice as a result. See United States v. Bapack, 129
F.3d 1320,  1327 (D.C. Cir. 1997); United States v. Thompson, 113 F.3d
 13, 15 (2d Cir. 1997); United States v. Olano, 507 U.S. 725,  732-34,
736, 113 S. Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993).  Even under our
modified view of plain error in sentencing,  see United States v.
Saro, 24 F.3d 283, 287-88 (D.C. Cir.  1994), cert. denied, 591 U.S.
956 (1996), Wolff has not met his  burden.


At his original sentencing, the district court ordered Wolff  to pay
restitution of $122.00 to Riggs Bank and $1,867.00 to  Washington
Federal Savings Bank. At the sentencing hear- ing, the district court
indicated that it had considered the  information in Wolff's
presentence report. That report con- cluded that Wolff did not
currently have the ability to pay a  fine, restitution, or the cost of
supervision or incarceration.  But the report also stated that Wolff
was 30 years old at the 




__________

n 3 We apply the statute in effect at the time of the criminal 
conduct, as both parties agree, in light of the court's decisions that
 application of the later enacted Mandatory Victims Restitution Act 
of 1996, Title II, Subtitle A of the Antiterrorism and Effective 
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 
(codified at 18 U.S.C. ss 3663-3664 (1996)), which eliminated the 
requirement that the district court consider the defendant's ability 
to pay before ordering restitution in a case like this, 18 U.S.C.  s
3664(f)(1)(A) (1996), would raise ex post facto concerns. See  United
States v. Rezaq, 134 F.3d 1121, 1141 n.13 (D.C. Cir. 1998);  Bapack,
129 F.3d at 1327 n.13.


time of sentencing in 1996, had no dependents, was in good  mental and
physical health, had a Bachelor of Science degree  from Dolgealflea
Polytechnic in England, had previously been  employed at a local
business for seven years earning approxi- mately $500 weekly, and had
produced award-winning movie  videos. Wolff does not dispute the
accuracy of this informa- tion, nor does he dispute that the district
court referenced the  original judgment at his resentencing.


Clearly, under the statutory mandate, the district court  could
properly take into account the defendant's educational  level,
employable skills, and financial status, including family 
cost-of-living expenses upon release from prison and other 
obligations. Consideration of the statutory factors is demon- strated
when a district court indicates expressly at some  point prior to
ordering a defendant to pay restitution that the  court has considered
the defendant's financial situation and  has concluded, in light of
identified evidence or uncontested  proffers, that the defendant has
the ability to pay. A district  court's consideration of a defendant's
ability to pay also may  be demonstrated implicitly by its adoption of
the explained  conclusion in the presentence report, or through some
other  statement by the court indicating in more than a perfunctory 
manner that it has considered the defendant's financial situa- tion.
See Rezaq, 134 F.3d at 1141; Bapack, 129 F.3d at 1328.


Looking at the record, see, e.g., Rezaq, 134 F.3d at 1141, it  is
sufficiently clear, albeit just barely, by cobbling together 
statements at various points in Wolff's sentencing hearings,  that
there was no plain error.4




__________

n 4 Although the district court did not make express findings as to 
Wolff's ability to pay restitution, the statute does not require as 
much. See Bapack, 129 F.3d at 1328. Accord United States v.  Davis,
117 F.3d 459, 463 (11th Cir. 1997); United States v. Sanders,  95 F.3d
449, 456 (6th Cir. 1996); United States v. Lavin, 27 F.3d 40,  42 (2d
Cir. 1994); United States v. Rogat, 924 F.2d 983, 986 (10th  Cir.
1991); United States v. Ryan, 874 F.2d 1052, 1053 (5th Cir.  1989).
Additionally, we note that while express findings are not  required, a
clear indication on the record of the district court's  consideration
of the statutory factors would facilitate appellate  review; in this
regard, counsel on both sides could assist the district 


First, and foremost, the district court's remarks at sentenc- ing
indicate that it had reviewed the presentence report prior  to
imposing sentence. This alone can suffice to show that the  district
court considered the defendant's ability to pay. See  Bapak, 129 F.3d
at 1327; Davis, 117 F.3d at 464; United  States v. Castner, 50 F.3d
1267, 1278 (4th Cir. 1995); United  States v. Mizrachi, 48 F.3d 651,
657 (2d Cir. 1995); United  States v. Osborn, 58 F.3d 387, 389 (8th
Cir. 1995); United  States v. Nelson, 5 F.3d 254, 258-59 (7th Cir.
1993), cert.  denied, 510 U.S. 1098, 114 S. Ct. 937, 127 L.Ed.2d 228
(1994).  At the end of Wolff's first sentencing hearing, the district 
court referenced the findings in the report with regard to the  amount
of restitution due each victim bank, and at his resen- tencing
hearing, the district court read from and paraphrased  its discussion
of restitution at the first sentencing hearing.  Thus, in amending the
restitution amount suggested in the  presentence report to reflect
money already recovered by one  of the victim banks, the district
court remarked "I can only  deal with the information that I have from
the presentence  report...." Furthermore, in the judgment imposing the
 restitution on Wolff, the district court indicated that it had 
adopted the factual findings of the presentence report.


It might also be said that the district court did not accept  such
evidence at face value, for it specifically stated that, as of  the
time of sentencing, the amount of Wolff's prison pay  "probably is
meager." Although a defendant could have  other financial resources,
the district court's remark is some  indication that the court was
considering Wolff's financial  status. In addition, at the conclusion
of Wolff's first sentenc- ing hearing, the district court stated that
it had not "been  able to find that there has been any ability to
pay." Although  this statement is unclear, it does suggest that the
district  court recognized that it was obligated to consider Wolff's 
ability to pay if it was going to impose financial conditions as  part
of the sentence, or as the government suggests, the 




__________

n court. Cf. United States v. Dudley, 104 F.3d 442, 447 (D.C. Cir. 
1997).


statement may have referred to Wolff's inability to pay a fine,  cost
of imprisonment, or supervision.


Considering the burden on Wolff to show error by the  district court in
ordering restitution, see 18 U.S.C. s 3664(d),  we conclude that Wolff
cannot show error that seriously  affected the fairness, integrity, or
public reputation of the  judicial proceedings. See Olano, 507 U.S. at
736, 113 S. Ct. at  1779. Although at oral argument he emphasized that
he was  represented by court-appointed counsel, and the presentence 
report noted a large debt, namely a loan of $8,000 from a  friend, and
concluded, based in part on Wolff's statement that  he had no assets,
that he was financially unable to pay  restitution, the district court
was not required to reach the  same conclusion. The presentence report
also included infor- mation about Wolff's somewhat remarkable
educational and  working history that could reasonably cause the
district court  to conclude that Wolff had the ability to earn a
decent living  and then some. The court could reasonably view a
personal  loan in a different light than a commercial loan with due
dates  and clear legal consequences upon default. Wolff's conten- tion
at oral argument that the district court's reference at  sentencing to
avoiding double recovery by a victim bank  indicates that it was
applying the wrong statute, and there- fore was unaware of the need to
consider his ability to pay,  fails to demonstrate plain error; not
only did the district  court refer to the need to find an ability of
pay, neither the  government nor the 1995 Act or its successor, see
supra n.3,  suggest the propriety of such recovery.


Accordingly, because Wolff's challenge to the enhancement  of this
sentence under s 2B3.1(b)(2)(F) of the Guidelines is  meritless and he
has failed to demonstrate that the district  court plainly erred by
not considering his ability to pay  restitution, we affirm the
judgment of conviction.