Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

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REVISED
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-20603
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GRIOUARD V BUTLER,
Defendant - Appellant.
Appeal from the United States District Court
For the Southern District of Texas
March 27, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Griouard Butler challenges his sentence on the grounds that
the Mandatory Victim Restitution Act of 1996 ("MVRA") violates the
Fifth Amendment, the Eighth Amendment, and the separation of powers
doctrine. To the extent that Butler's Fifth and Eighth Amendment
claims depend on his speculation that he will be imprisoned because
of his indigence, they are premature and not ripe for review;
Butler does not assert that he has suffered or is about to suffer
such punishment. See United States v. Williams, 128 F.3d 1239,

1242 (8th Cir. 1997) (rejecting Eighth Amendment challenge to MVRA
as not ripe). To the extent that Butler claims his sentence))168
months incarceration, a $5,000 fine, and $8,879 in restitution))is
disproportionate and excessive in relation to the three bank
robberies for which he was convicted, his claim is without merit.
See United States v. Dean, 949 F. Supp. 782, 786 (D. Or. 1996)
("Where the amount of restitution is geared directly to the amount
of the victim's loss caused by the defendant's illegal activity,
proportionality is already built into the order."); see also United
States v. Tencer, 107 F.3d 1120, 1135-36 & n.7 (5th Cir.) ("An
order of restitution must be limited to losses caused by the
specific conduct underlying the offense of conviction."), cert.
denied, 118 S. Ct. 390 (1997).
Butler's claim that the mandatory imposition of full
restitution violates the separation of powers doctrine is similarly
without merit. See United States v. Rasco, 123 F.3d 222, 226 (5th
Cir. 1997) ("The power to fix sentences rests ultimately with the
legislative, not the judicial branch of the government and thus the
mandatory nature of the punishment . . . does not violate the
doctrine of separation of powers."), cert. denied, 118 S. Ct. 868
(1998). Accordingly, Butler's sentence is AFFIRMED.
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