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  • United States v. Ellerbe, 4th Cir. (2008)

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    This document summarizes a United States Court of Appeals case. John Ellerbe pled guilty to theft and making false statements to a bank. He was sentenced to 28 months in prison and ordered to pay $70,798.94 in restitution in monthly payments of $1,200 upon release. Ellerbe appealed, claiming the court did not properly consider his ability to pay under federal law. However, the court found the district court did adequately consider the required factors and affirmed Ellerbe's sentence.

    Original Description:

    Filed: 2008-08-27 Precedential Status: Non-Precedential Docket: 07-4477

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    This document summarizes a United States Court of Appeals case. John Ellerbe pled guilty to theft and making false statements to a bank. He was sentenced to 28 months in prison and ordered to pay $70,798.94 in restitution in monthly payments of $1,200 upon release. Ellerbe appealed, claiming the court did not properly consider his ability to pay under federal law. However, the court found the district court did adequately consider the required factors and affirmed Ellerbe's sentence.

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    22 views3 pages

    United States v. Ellerbe, 4th Cir. (2008)

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    Scribd Government Docs
    This document summarizes a United States Court of Appeals case. John Ellerbe pled guilty to theft and making false statements to a bank. He was sentenced to 28 months in prison and ordered to pay $70,798.94 in restitution in monthly payments of $1,200 upon release. Ellerbe appealed, claiming the court did not properly consider his ability to pay under federal law. However, the court found the district court did adequately consider the required factors and affirmed Ellerbe's sentence.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-4477

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    JOHN ELLERBE, JR.,
    Defendant - Appellant.

    Appeal from the United States District Court for the District of
    South Carolina, at Florence.
    Terry L. Wooten, District Judge.
    (4:06-cr-00685-TLW)

    Submitted:

    August 8, 2008

    Decided:

    August 27, 2008

    Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South


    Carolina, for Appellant.
    Reginald I. Lloyd, United States
    Attorney, Columbia, South Carolina; William E. Day, II, Carrie A.
    Fisher, Assistant United States Attorneys, Florence, South
    Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    John Ellerbe pled guilty, pursuant to a written plea
    agreement, to theft by aiding and abetting a bank employee, in
    violation of 18 U.S.C. 2, 656 (2000), and knowingly making a
    false statement to a bank in connection with an application for an
    automobile loan, in violation of 18 U.S.C. 1014 (2000).
    district

    court

    sentenced

    Ellerbe

    to

    twenty-eight

    The

    months

    imprisonment and ordered him to pay $70,798.94 in restitution,


    payable in monthly payments of $1200, beginning upon his release
    from prison.
    Ellerbe appeals, claiming that the district court failed
    to adequately consider his ability to pay when it determined the
    restitution payment schedule, as required by 18 U.S.C. 3664(f)(2)
    (2000).

    Because he did not object at sentencing, Ellerbes claim

    is reviewed for plain error.

    See United States v. Olano, 507 U.S.

    725, 732-34 (1993); United States v. Hughes, 401 F.3d 540, 547 (4th
    Cir. 2005). Because the record establishes that the district court
    adequately considered the factors as required under 3664(f)(2),
    we conclude that Ellerbe cannot show error, let alone plain error,
    in the district courts restitution order.

    See United States v.

    Karam, 201 F.3d 320, 330 (4th Cir. 2000) (district courts adoption
    of presentence report that contained sufficient facts to support
    restitution order avoided plain error).
    We

    dispense

    with

    oral

    argument

    Accordingly, we affirm.

    because

    the

    facts

    and

    legal

    contentions are adequately addressed in the materials before the


    court and argument would not aid the decisional process.
    AFFIRMED

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