Friday, July 30th, 2021

A district court may consider the defendant’s future earning potential to conclude that the defendant is “non-indigent” and thus subject to the mandatory $5,000 “special assessment” under 18 U.S.C. § 3014(a)

Section 3014(a) of Title 18, enacted as part of the Justice for Victims of Trafficking Act of 2015 (“JVTA”), requires district courts to impose a $5,000 special assessment on “non-indigent” persons convicted of certain sex- and trafficking-related offenses.1 Carlos Rosario is an indigent person represented by this Office. After he pleaded guilty to three qualifying offenses, the district court considered his future earning capacity, concluded that he was “non-indigent” in light of that capacity, and imposed the $5,000 special assessment. Rosario argued on appeal that this was error.

The Circuit affirms Rosario’s sentence. United States v. Rosario, No. 20-2268 (2d Cir. July 29, 2021). Writing for himself and Judge Sack, Judge Park concludes that “the ordinary meaning of ‘indigent’ encompasses not only a lack of present resources, but also includes a forward-looking assessment of the defendant’s ‘means’ or ability to pay.” This reading, moreover, is consistent with “all six of our sister circuits that have addressed the issue.” And the district court did not clearly err in concluding that Rosario was not “indigent” when taking his potential earnings into account, noting that he had an “extensive prior work history” and “transferable skills” in “basic plumbing, painting, flooring and tile work.”

District Judge Rakoff, sitting by designation, concurred in the result but only because the issue appears on plain-error review. Had Rosario lodged a timely objection, he writes, “I would construe the statute to require that a district court find a defendant to be non-indigent at the time of sentencing before imposing the JVTA special assessment.”


1 Section 3014(a) states that courts “shall assess an amount of $5,000 on any non-indigent person or entity convicted of” certain specified offenses, including “offense[s] under . . . chapter 110 (relating to sexual exploitation and other abuse of children).”

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