FILED
                             NOT FOR PUBLICATION                            DEC 05 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30217

                Plaintiff - Appellee,            D.C. No. 3:11-cr-00068-TMB-2

  v.
                                                 MEMORANDUM *
SHAWN RICHARD CHRISTY,

                Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Alaska
                    Timothy M. Burgess, District Judge, Presiding

                       Argued and Submitted November 5, 2012
                                Seattle, Washington


Before:         W. FLETCHER and FISHER, Circuit Judges, and DEARIE, Senior
                District Judge.**

       Appellant Shawn Christy pled guilty to one count of harassing telephone

calls in interstate commerce, in violation of 47 U.S.C. § 223(a)(1)(D). The district


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
court sentenced Christy to five years probation and ordered restitution to law firm

employees totaling over $15,000 to be paid jointly and severally by Christy and his

father. As a condition of probation, the court ordered Christy to reside in a

community confinement center for up to 180 days. Christy appeals the restitution

award, arguing that the district court’s award to individual attorneys is not

supported by the evidence and that the court abused its discretion by failing to

consider his financial position. Christy also appeals the probation condition,

arguing that the district court gave the probation officer final authority to

determine the length of time he must spend in community confinement, an

impermissible delegation of Article III power. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

      We review a restitution order for abuse of discretion, factual findings

supporting an order of restitution for clear error, and the legality of an order of

restitution de novo. United States v. Waknine, 

, 555 (9th Cir. 2008).

The district court erred in awarding restitution to law firm employees rather than to

the law firm. Lost employee work time entitles an employer to restitution. United

States v. Sablan, 

, 869-70 (9th Cir. 1996) (upholding restitution award

for “standard hourly rate for its employees’ time”); United States v. De La Fuente,

, 768 (9th Cir. 2003) (affirming restitution for lost employee hours).


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The district court should have awarded restitution to the law firm rather than the

law firm employees because the award was based on the amount of lost income the

employees would have earned for the firm had they been billing clients and not

dealing with Christy. Therefore, we reverse and remand to the district court so that

the restitution award may be granted properly to the law firm.

      The district court did not abuse its discretion in awarding restitution despite

Christy’s financial situation. While at the time a court orders restitution the record

must “reflect some evidence” that the defendant will be able to pay the restitution

award in the future, “[a] defendant’s present indigence is not sufficient to preclude

a restitution order.” Sablan, 92 F.3d at 871. However, if a court orders a presently

indigent defendant to pay restitution, “it must consider defendant’s future ability to

pay.” United States v. Stoddard, 

, 1147 (9th Cir. 1998). The record

includes evidence that Christy would be able to pay in the future, and the payment

schedule suggests the court took Christy’s finances into account.

      We review the decision to impose a condition of supervised release for

abuse of discretion, United States v. Stephens, 

, 882 (9th Cir. 2005),

and the authority to impose specific probation conditions de novo. United States v.

Parrott, 

, 920 (9th Cir. 1993). We have held that “a probation officer

may not decide the nature or extent of the punishment imposed upon a


                                           3
probationer” because to do so would be an unconstitutional delegation of the

court’s Article III power to impose punishment. United States v. Stephens, 

, 881 (9th Cir. 2005). The district court stated to Christy, “[I]f the

probation officer thinks you’re making sufficient [progress], he – he or she can

approve your release sooner than the one hundred eighty days.” In light of its

earlier statement that the probation officer could recommend Christy’s early

release from his five-year probation sentence, however, we construe the district

court to have likewise merely granted authority to the probation officer to

recommend, rather than approve, early release from community confinement.

      AFFIRMED in part and REVERSED and REMANDED in part.




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