Is there any case law that supports a defendant's claim that his ability to pay restitution is limited to his limited financial resources?

Messina's contention that the district court failed to consider his ability to pay restitution is not supported by the record. Although in fashioning a restitution order the sentencing court is required to consider, inter alia, the "financial resources of the defendant[ and] the financial needs and earning ability of the defendant and the defendant's dependents," 18 U.S.C. 3664(a), it is sufficient if the record contains an "affirmative act or statement allowing an inference" that the court in fact considered those factors, United States v. Soto, 47 F.3d 546, 551 (2d Cir.1995); see United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.), cert. denied, 116 S.Ct. 208 (1995). In this case, the district court considered testimony as to the likely effects of its sentence on Messina's family; and the term of supervised release was set at three years in order to "assist in the period of time necessary [for Messina] to make ... restitution" payments. The record thus sufficiently indicates that the court considered the required factors. Further, given the reasonable amount of restitution ordered by the district court and the total four-year period in which Messina is to be permitted to make payments, we reject his argument that his limited financial resources precluded the restitution order. See generally id. ("Even an indigent defendant may be subject to the duty to pay restitution when and if funds are eventually acquired.").

We have considered all of Messina's arguments on this appeal and have found them to be without merit.

The judgment of conviction is affirmed.