Court Must Set Restitution Payment Schedule

U.S. v. Zunie, --- F.3d ----, 2006 WL 1017640 (10th Cir. April 19, 2006).

Jury found Defendant guilty of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6). 10th says “recklessness” is a culpable mens rea for the assault, which is a general intent crime (following the Model Penal Code definition) and evidence was sufficient (child injured in accident where D was intoxicated, ran a couple of other vehicles off the road before running head-on into vehicle in which child a passenger). Court’s upward departure by 15 levels was reasonable given the injuries to the child and other family members not taken into account by the USSGG, and no Booker error because court stated it would have sentenced him to twice the sentence but for the ten year statutory maximum. Court did not err in imposing $1.8 million in restitution even though Defendant is indigent, but it did err in not imposing a payment schedule that took his indigence into account (court had ordered immediate payment). Remanded on payment schedule issue.