United States of America, Plaintiff-appellee, v. Christine L. Christiansen, Defendant-appellant, 952 F.2d 408 (9th Cir. 1991)

Before EUGENE A. WRIGHT, DAVID R. THOMPSON and T.G. NELSON,

Circuit Judges.

ORDER OF LIMITED REMAND

After Christiansen pleaded guilty to embezzlement, the district court sentenced her to 17 months confinement followed by three years supervised release. As conditions of supervised release, the court ordered her to pay full restitution and complete 600 hours of community service.

The court imposed the community service requirement because it "recognize [d] that it is likely that a substantial part of th [e] restitution will never be paid, and that the 600 hours of community service might serve as an inadequate, but partial, recompense to Ms. Christiansen's community...." Imposition of Sentence, April 9, 1991 at 56. Under this reasoning, the community service requirement should be waived if Christiansen is somehow able to make restitution. Yet the sentence imposes both conditions irrespective of whether she pays restitution. Moreover, the 600 hours of community service may have been imposed because the court determined Ms. Christiansen would not be able to pay the restitution ordered. If this were the basis for the district court's community service order, it would appear the restitution order would be improper. See United States v. Clark, 901 F.2d 855, 857 (10th Cir. 1990); United States v. Mitchell, 893 F.2d 935, 936 (8th Cir. 1990).

This cause is remanded to the district court for the limited purpose of correcting the judgment. Unless the district court determines that reasons other than the defendant's apparent inability to pay restitution justify imposing 600 hours of community service, the court shall either:

(1) eliminate the community service or restitution requirement from the judgment; or

(2) modify the judgment to impose community service and restitution as alternate requirements.

This court retains jurisdiction. The district court is requested to make its determination within sixty days of this order and provide this court with a corrected form of judgment.

Submission of this cause is deferred until further order of this court.