Gary Don Body Graves pleaded guilty to possessing child pornography in violation of 18 U.S.C. 2252A(a)(5)(B). The district court sentenced him to 108 months’ imprisonment, and ordered him to pay the $100 special assessment that applies in all cases as well as a $5,000 additional special assessment pursuant to the Justice for Victims Trafficking Act of 2015. This additional special assessment must be imposed on any nonindigent person who commits certain offenses, including those related to sexually exploiting children.

Graves appealed, challenging the $5,000 assessment based on his indigence. The PSR in his case had determined that he had no substantial assets, was $874 in debt, and had a monthly cash flow of $50 after accounting for expenses. It concluded, however, that he was employable and that the district court should impose the $5,000 special assessment based on his future earning capacity. Graves objected. He argued that the district court could only consider his financial status at the time of his sentencing, not his potential future earnings. The district court overruled his objection, holding that he was not indigent based upon his potential future earning capacity.

The Fifth Circuit affirmed the district court’s ruling for three reasons. First, it decided that the ordinary meaning of “indigent” includes a forward-looking assessment of the defendant’s means. Second, the statutory context shows that a district court’s decision to impose the assessment is forward-looking to the defendant’s future ability to pay. This is seen in the stipulation that the obligation to pay the assessment would continue for twenty years after the release from imprisonment or the entry of judgment, whatever is later. Finally, Congress mandated that the special assessment be collected like a fine, and a defendant’s future earning capacity is relevant for determining fines.

United States v. Graves