Plate: jail for inability to pay restitution is improper

In U.S. v. Plate, No. 15-13928 (Oct. 5, 2016), where the district court imposed a jail sentence, in lieu of probation, because the defendant was only able to pay $40,000 toward the $142,000 she owed in restitution, the Court reversed the sentence for being substantively unreasonable,. The district court abused its discretion by giving dispositive weight to Plate’s inability to pay restitution. The government recognized that the district court would have imposed a sentence of no further incarceration if Plate had been able to pay restitution. The district court based its sentence of incarceration solely on an impermissible factor. Because the district court had reiterated its earlier position when it denied Plate bond pending appeal, and characterized her arguments on appeal as “frivolous,” the Court remanded the case for resentencing before a different district court judge.