Case: 13-40173       Document: 00512407205         Page: 1     Date Filed: 10/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 15, 2013
                                     No. 13-40173
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DUSTIN LEE HENRY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-785-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Dustin Lee Henry appeals the restitution payment schedule imposed
following his conviction for theft. In addition to five years of probation, the
district court sentenced Henry to restitution in the amount of $5,000, to be paid
in monthly installments of $150 until paid in full. Henry contends that the
district court failed to properly consider his limited financial resources when
setting his restitution payment schedule, resulting in a monthly payment
amount that far exceeded his means.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 13-40173     Document: 00512407205      Page: 2   Date Filed: 10/15/2013

                                  No. 13-40173

      Because Henry did not object to the restitution schedule in the district
court, his argument is reviewed under the plain error standard. See United
States v. Arledge, 

, 900 (5th Cir. 2008). The following factors are to
be considered in setting a restitution payment schedule: (1) the defendant’s
financial resources and assets, including whether any assets are jointly
controlled; (2) the defendant’s projected earnings and any other income; and (3)
the defendant’s financial obligations, including obligations to dependents. 18
U.S.C. § 3664(f)(2); Arledge, 553 F.3d at 900. This court will not reverse a
district court’s decision concerning the scheduling of restitution payments unless
the defendant shows “that it is probable that the district court failed to consider
one of the mandatory factors and the failure to consider that factor influenced
the court.” United States v. Schinnell, 

, 1070 (5th Cir. 1996).
Henry’s challenge is unavailing, as the district court’s questions and comments
at sentencing demonstrate that it was familiar with Henry’s financial
circumstances and considered the § 3663(f)(2) factors in deciding his restitution
payment schedule.
      AFFIRMED.




                                        2