Lawrence E. Lupien v. Harold W. Clarke

1The HONORABLE SUSAN WEBBER WRIGHT, Chief Judge of the United
States District Court for the Eastern District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1818
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Randy Lee Vanhorn, *
* TO BE PUBLISHED
Defendant - Appellant. *
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Submitted: January 13, 2005
Filed: March 1, 2005
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Before LOKEN, Chief Judge, HANSEN and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Randy Lee Vanhorn was convicted of mail fraud and money laundering. The
district court1 imposed a sentence of 71 months in prison and $44,000 in victim
restitution. Vanhorn appealed, and we remanded for determination of a restitution
payment schedule, which the district court then set at 50% of the funds available to
Vanhorn while he is in prison. Vanhorn again appealed, and we affirmed his
conviction and sentence. United States v. Vanhorn, 344 F.3d 729 (8th Cir. 2003).

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The Mandatory Victims Restitution Act provides that, upon notice “of any
material change in the defendant’s economic circumstances that might affect the
defendant’s ability to pay restitution,” the sentencing court may “adjust the payment
schedule, or require immediate payment in full, as the interests of justice require.”
18 U.S.C. § 3664(k). While serving his prison sentence, Vanhorn was diagnosed as
HIV positive, and prison physicians prescribed what he describes as a life-saving
pharmaceutical cocktail of expensive drugs to treat his condition. Vanhorn then filed
a § 3664(k) motion with the district court, under seal, asking the court to adjust or
eliminate his current schedule of restitution payments. In support of the motion,
Vanhorn argued that his medical condition has caused a material change in economic
circumstances because he needs to save money while in prison so that he may
maintain this expensive drug regimen after his release. The district court denied the
motion, and a subsequent motion for reconsideration, on the ground that “Vanhorn
has failed to show there has been a material change in his economic circumstances”
warranting a § 3664(k) adjustment.
On appeal, Vanhorn argues that the district court erred in concluding, without
an evidentiary hearing, that contracting HIV is not a material change in his economic
circumstances. He urges us to review this issue de novo, citing United States v.
Grant, 235 F.3d 95, 99 (2d Cir. 2000). But in Grant, the court reviewed de novo an
issue of law in applying § 3664(k). The Second Circuit expressly recognized that it
normally applies the abuse of discretion standard to restitution orders that are based
upon the amount of victim loss, the financial resources of the defendant, and other
relevant factors. In this circuit, we review a district court’s initial restitution order for
clear error. See, e.g., United States v. Moyer, 313 F.3d 1082, 1087 (8th Cir. 2002).
After the initial order has become final, the district court is authorized by § 3664(k)
to adjust the payment schedule “as the interests of justice require.” We conclude that,
absent an error of law or clearly erroneous fact-finding, a district court’s exercise of
this authority should be reviewed under the abuse of discretion standard. We decline
to follow our unpublished opinion in United States v. Dye, No. 02-1184 (8th Cir. Oct.

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8, 2002), which mis-cited Grant for the proposition that § 3664(k) orders are, in
general, reviewed de novo.
In this case, Vanhorn’s motion disclosed no immediate change in his economic
circumstances. The cost of his HIV treatments are being paid by the government
while he is incarcerated, leaving the funds available to him in prison unaffected. It
may well be that Vanhorn’s future economic circumstances will be materially
adversely affected. However, the district court did not abuse its discretion in
concluding that this factor does not require an adjustment to the payments Vanhorn
must currently make to the victim of his crimes.
Finally, Vanhorn has moved for leave to file a supplemental brief arguing that
the district court violated the Sixth Amendment as construed in United States v.
Booker, 125 S. Ct. 738 (2005), by enhancing his sentence and increasing his
punishment with restitution payments based upon facts not found by a jury. This
contention is without merit, and the motion is denied. Vanhorn’s conviction and
sentence have been finally affirmed on appeal. This is a post-judgment proceeding
grounded upon the district court’s statutory discretion to modify the restitution
portion of a final sentence “as the interests of justice require.” Neither Booker nor
the Sentencing Guidelines apply to this proceeding. Cf. U.S.S.G. § 5E1.1.
The orders of the district court are affirmed.
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