United States District Court, D. New Mexico
ORDER DENYING UNITED STATES' REQUEST FOR
IMPOSITION OF SPECIAL ASSESSMENT FEE PURSUANT TO THE JUSTICE
FOR VICTIMS OF TRAFFICKING ACT OF 2015
MATTER is before the Court to determine whether Defendant Joe
Medina is non-indigent under the Justice for Victims of
Trafficking Act of 2015 and thus whether the Court may impose
the special assessment fee of $5, 000 pursuant to 18 U.S.C.
§ 3014(a). At Defendant's sentencing hearing on
April 17, 2017, the Court took the matter under advisement
and ordered the parties to submit supplemental briefs on
whether the Court should impose the special assessment fee.
The government filed its brief on April 24, 2017 (Doc. 71).
The Defendant filed his brief on April 27, 2017 (Doc. 72).
government contends Defendant is non-indigent, and thus the
Court should impose the special assessment fee, because he
retained private counsel to represent him in this matter.
Moreover, Defendant held regular employment from 2005 until
the time of the charged conduct on July 9, 2015. Defendant
earned a gemology degree from the Gemological Institute of
America in 2004, and he reports special skills in management,
production assembly and sales. Defendant's most recent
employer who employed him from 2008 until the instant offense
has stated that Defendant would be eligible for rehire upon
his release from prison. The government argues that the
determinative factors here are that Defendant has a steady
work history, special employment skills, specialized
knowledge, and a prior employer who has indicated Defendant
would be eligible for rehire upon his release from prison.
Thus, according to the government, Defendant has the means
and ability to pay the $5, 000 special assessment fee,
especially in light of the fact that the Court did not impose
any other fine or restitution in connection with
argues in response that the plain reading of the statute at
issue here, 18 U.S.C. § 3014(a), requires to the Court to
assess whether a person is “non-indigent” at the
time of sentencing, not whether the individual being sentence
may become a “non-indigent person” at some future
time and place. Defendant points out he did not retain
private counsel, his mother did, and this distinction is
critical in that it shows Defendant himself does not have the
means to hire a private attorney. In fact, after his arrest,
Defendant appeared in the Southern District of Indiana
Federal Court for an extradition hearing on July 21, 2015,
where he had court-appointed counsel. Defendant did not
contest his extradition, and returned to Albuquerque for his
arraignment on August 17, 2015, where he appeared before the
Court pro se and requested a federal public
defender. It was after his arraignment that his
mother retained a private attorney to assist her
son. Defendant's mother pays the legal fees.
though Defendant has a degree in gemology and has worked in
the past, his substance abuse problems make it unlikely he
could retain regular employment. See Doc. 62,
¶¶ 75, 78. There is no information in the record
before the Court regarding the income a person could make
with a gemology degree.
importantly, Defendant also points out that he has no assets
and has a net worth of negative $2, 185. See id.,
¶ 80. These facts are disclosed in the PSR and are not
contested by the government.
Court agrees with the Defendant that there are no facts
showing he is presently non-indigent, so the Court will not
impose the special assessment fee. The Justice for Victims of
Trafficking Act of 2015, which is codified at 18 U.S.C.
§ 3014, requires the court to assess a $5, 000 fee
against any non-indigent person convicted of an offense under
certain enumerated chapters, including chapter 117. 18 U.S.C.
§ 3014. Critically, the government has not objected to
the factual basis set forth in Defendant's PSR, which
provides that Defendant has no assets and has a total net
worth of negative $2, 185. Doc. 62, ¶ 80. Thus, the
government has not pointed the Court to any facts showing the
Defendant is non-indigent. Under the plain reading of the
statute, the Court must enforce it according to its terms.
See Hartford Underwriters Ins. Co. v. Union Planters
Bank, N. A., 530 U.S. 1, 6 (2000) (internal quotation
marks omitted) (when “the statute's language is
plain, the sole function of the courts-at least where the
disposition required by the text is not absurd-is to enforce
it according to its terms.”).
Court has reviewed the cases contained in the
government's supplemental brief, but none of those cases
provide authority that the Court may impose the special
assessment fee based on a defendant's hypothetical future
earning capacity or the fact that a defendant held regular
employment in the past. In fact, even though Defendant worked
up until the time of the offense in this case, his employment
had to be interrupted three times to attend residential drug
treatment programs. Doc. 62, ¶ 69. Furthermore, the
government has not directed the Court to any authority
holding the Court has discretion to impose the fee based
merely on the fact that the Defendant's mother retained
private counsel on Defendant's behalf, and pays the
lawyer's fees. If the government had provided such
authority, the Court would have been able to impose the
special assessment fee. The Court is of the opinion that the
plain reading of the statute requires the Defendant to be
non-indigent at the time of sentencing, without considering
additional factors that are not contained in the
statute's unambiguous text. On April 17, 2017, when the
Court sentenced Defendant, his worth was a negative figure,
which the government has never disputed. Defendant has a
private attorney, but this is because his mother retained the
attorney and continues to pay those legal fees. Therefore,
the Court finds Defendant is indigent for the purposes of the
Justice for Victims of Trafficking Act, and the Court will
not impose the $5, 000 special assessment fee pursuant to 18
U.S.C. § 3014(a).
 The Mandatory Victims Restitution Act
of 1996, 18 U.S.C. § 3663A, applies to this case, but no
claim for restitution has been made by the victim.
See Doc. 70, at 2. The government did not request
any other fine.
 18 U.S.C. § 3014(a) reads in
pertinent part: “Beginning on the date of enactment of
the Justice for Victims of Trafficking Act of 2015 and ending
on September 30, 2019, in addition to the assessment imposed
under section 3013, the court shall assess an amount of $5,
000 on any non-indigent person or entity convicted of an
offense under . . . chapter 117.”
 The government relies on a number of
cases under appellate review, but Defendant appropriately
points out that each of those cases is readily
distinguishable on the facts. For example, in United
States v. Jeremy Kelley, 5:15-cr-50085-TBL (D. Ark.
2016), appeal docketed as No. 16-2696 (8th Cir. June 15,
2016), the defendant liquidated assets that could have been
used to pay the $5, 000 fine. And in United States v.
Perez, Case No. 16-41201 (5th Cir. 2016), the court
sentenced a defendant who had a monthly income of $7, 200;
had a monthly cash flow of $4, 013; had a net worth of $240,
000; owned two residential homes; and ...