United States v. Courtney Cascante

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2024
• Docket: 22-10349
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10349

Plaintiff-Appellee, D.C. No. 1:22-cr-00030-JAO-1 v.

COURTNEY CASCANTE, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Jill Otake, District Judge, Presiding

Submitted February 15, 2024** Honolulu, Hawaii

Before: PAEZ, M. SMITH, and KOH, Circuit Judges.

Defendant-Appellant Courtney Cascante (“Cascante”) appeals her restitution

order under the Mandatory Victims Restitution Act (“MVRA”). We review

“challenges to restitution orders—made for the first time on appeal—for plain

error.” United States v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016) (first

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). citing United States v. Rizk, 660 F.3d 1125, 1136 (9th Cir. 2011); then citing

United States v. Fu Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir. 2010)). We have

jurisdiction under 8 U.S.C. § 1291. We affirm.

1. Cascante is barred, under the invited error doctrine, from challenging the

district court’s inclusion of the forensic accounting fee in the restitution order.

This doctrine “prevents a defendant from complaining of an error that was [her]

own fault.” United States v. Magdaleno, 43 F.4th 1215, 1219 (9th Cir. 2022)

(quoting United States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015)).

The record makes clear that the district court would not have added the fee

had Cascante not affirmatively agreed to its inclusion. The district court had

proposed reserving the issue for future consideration, but Cascante indicated that

“if the Court wants to include that in a restitution amount she would not object

today.” By telling the court it could include the fee and avoid future consideration

of the issue, Cascante “directly set in motion[] the error of which [she]

complain[s].” Magdaleno, 43 F.4th at 1220. She was aware of her right to

challenge the inclusion of the fee and relinquished this right. See id. Cascante thus

invited the error she complains of and is barred from raising this claim. See id. at

1219–20.

2. The district court did not clearly err in setting a restitution payment

schedule. After considering the information and recommendation in the

2 Presentence Investigation Report (“PSR”), the district court adopted the probation

officer’s recommended repayment schedule, under which Cascante must pay ten

percent of her gross monthly income during supervised release. The district court

also declined to impose a fine and waived interest. As required by the MVRA, the

district court considered Cascante’s financial resources, which were detailed in the

PSR, in creating a payment schedule. See 18 U.S.C. § 3664(f)(2).

The parties exhibit some confusion as to the payment schedule; both assume

that restitution is due immediately upon incarceration, with any outstanding

balance to be paid during supervised release. That is not how we read the payment

schedule. We read the schedule to provide that payment is due in installments

upon Cascante’s release from prison. Considering the restitution provisions in the

Judgment, we do not read the payment schedule as ordering immediate payment

and delegating the details to the Bureau of Prisons or the Probation Office, which

would be impermissible under the MVRA and Ward v. Chavez, 678 F.3d 1042,

1050–52 (9th Cir. 2012).

Unlike in Ward, the district court here considered Cascante’s financial

circumstances in adopting a restitution payment plan. Cascante is required to

inform the court of any changes in her financial circumstances, and, upon release,

if she is unable to obtain employment or her resources change significantly, she

may then seek modification of the payment schedule.

3 AFFIRMED.