source: Caselaw Access Project

author: BRISCOE, Circuit Judge.

license: Public Domain

text:
    State of WYOMING, Petitioner-Appellant, v. UNITED STATES DEPARTMENT OF the INTERIOR; Sally Jewell, in her official capacity as Secretary of the Interior; United States Bureau of Land Management; and Neil Kornze, in his official capacity as Director of the Bureau of Land Management, Respondents-Appellees. American Wild Horse Preservation Campaign; Return To Freedom; The Cloud Foundation; Carol Walker; Kimerlee Curyl, Intervenors-Appellees. Wyoming Stock Growers Association, Amicus Curiae.
    No. 15-8041
    United States Court of Appeals, Tenth Circuit.
    FILED October 11, 2016

      Michael J. McGrady, Senior Assistant Attorney General, Wyoming Attorney General’s Office, Cheyenne, Wyoming, for Petitioner-Appellant.
    Allen M. Brabender, Attorney, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., (Arthur R. Eleven, .Attorney, Office of. the Solicitor, United States Department of the Interior, Washington, D.C.; John C. Cruden, Assistant Attorney General, Environment & Natural Resources Division, Washington, D.C.; Alison C. Finnegan, Attorney, United States Department of Justice, Environment Natural Resources Division, Washington, D.C., with him on the brief), for Respondents-Appellees.
    William S. Eubanks, II, Meyer Glitzen-stein & Eubanks LLP, Ft. Collins, Colorado (Katherine A. Meyer, Meyer Glitzen-stein & Eubanks LLP, Washington, D.C., with him on the brief), for Intervenors-Appellees.
    Maegan L. Woita and Steven J. Lech-ner,- Mountain States Legal Foundation, Lakewood, Colorado, filed an amicus curiae brief on behalf of the Wyoming Stock Growers Association.
    Before BRISCOE, McKAY and • MATHESON, Circuit Judges.
   BRISCOE, Circuit Judge.

Petitioner State of Wyoming (the State) filed this action against the United States Department of the Interior, the Secretary of the Department, and the acting director of the Bureau of Land Management (BLM) seeking judicial review of what the State claimed was their failure to comply with non-discretionary obligations imposed upon them by the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340 (1982). More specifically, the State alleged that respondents were statutorily obligated, but had failed, to properly manage the overpopulation of wild horses on seven areas of public land in Wyoming. Respondents moved to dismiss the petition for failure to state a claim upon which relief could be granted. The district court granted respondents’ motion and dismissed the action. The State now appeals. Exercising- jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

The Wild Free-Roaming Horses and Burros Act

The Wild Free-Roaming Horses and Burros Act (the Act), 16 U.S.C, §§ 1331-1340, was enacted by Congress in 1971 pursuant to the Property Clause of the United States Constitution. Mountain States Legal Found, v. Hodel, 799 F.2d 1423, 1425 (10th Cir. 1986). As its name suggests, the Act was designed to protect from “capture, branding, harassment, or death,” the wild horses and burros that roam the rangelands of the western United States. Id. (quoting 16 U.S.C. § 1331). “[T]he Act declares wild horses and burros to be an ‘integral part of the natural system of the public lands,’ 16 U.S.C. § 1331 (1982), and mandates that the animals be managed ‘as components of the public lands.’ ” Id. (quoting 16 U.S.C. § 1333(a)).

The Act proved to be effective at remedying the decline of wild horse herds. Indeed, the Act proved almost too effective, as excess numbers of wild horses began to pose a threat to habitat conditions. In 1978, Congress cohcluded that amendments to the Act were necessary “to facilitate the humane adoption or disposal of excess wild free-roaming horses and burros ... because they [were] exceeding] the carrying capacity of the range, [and] pos[ing] a threat to their own habitat, fish, wildlife, recreation, water and soil conservation, domestic livestock grazing, and other rangeland values-....” Pub. L. No. 95-514, § 2(a)(6), 92 Stat. 1803, 1803 (1978) (codified as amended at 43 U.S.C. § 1901(a)(6)). Accordingly, Congress amended the Act to give the Secretary of the Interior greater authority to manage wild horses on public lands. Id. § 14, 92 Stat. at 1808-10.

The BLM and its management obligations

In the Act, Congress designated the BLM to oversee the management of wild horses and burros on public lands. BLM manages wild horses on public lands within what it calls designated herd management areas (HMAs). 43 C.F.R. § 4710.3-1. HMAs and their boundaries are established by BLM in Resource Management Plans- (RMPs). RMPs are prepared through a land-use planning process conducted pursuant to the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 et seq. To comply with the Act’s directive to manage wild horses “in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands,” 16 U.S.C. § 1333(a), the BLM (a) maintains a current inventory of wild horses in each HMA, (b) determines the appropriate management level (AML) of wild horses that each HMA can sustain, and (c) determines the method of achieving the designated AML. Id. § 1333(b)(1); 43 C.F.R. §§ 4710.2, 4710.3-1.

The Act does not define the phrase “appropriate management level.” The BLM itself generally defines AML “as a population range within which [wild horses and burros] can be. managed for the long term.” Bureau of Land Mgmt., U.S. Dep’t of Interior, BLM Handbook H-4700-1, Wild Horses and Burros Management Handbook 17 (2010), http://www.blm.gov/ style/medialib/blm/wo/Information_ Resources_Management/policy/blm_ handbook.Par.11148.File.dat/H-4700-l.pdf. According to the BML, “[t]he AML upper limit shall be established as the maximum number of [wild horses and burros] which results in a [thriving natural ecological balance] and avoids a deterioration of the range.” Id. “This number,” the BLM states, “should be below the number that would cause rangeland damage.” Id. (citation omitted). “The AML lower limit shall normally be established at a number that allows the population to grow (at the annual population growth rate) to the upper limit over a 4-5 year period, without any interim gathers to remove excess [wild horses and burros].” Id.

The seven HMAs at issue

Seven HMAs are at issue in this lawsuit: Antelope Hills, Crooks Mountain, Green Mountain, Lost Creek, Stewart Creek, Fif-teenmile, and Little Colorado. The State owns varying amounts of acreage in each of these seven HMAs. Aplt. App. at 20-21 (listing State acreage per HMA). It is undisputed that the BLM’s 2014 population estimates indicate that the wild horse populations on each of .these seven HMAs exceed the upper limit of their respective AMLs.

The State’s demand to the BLM

On August 21, 2014, the State, through Governor Mead, wrote to the Secretary of the Interior and the Acting Director of the BLM claiming that these seven HMAs “contain[ed] wild horses in excess of AML.” Id. at 17. The letter further stated that AMLs “determine when an overpopulation exists, triggering the [BLM’s] non-discretionary duty to remove excess animals from an HMA.” Id. The letter stated that the State would “proceed in court against [the Secretary and the Acting Director] in [their] official capacities] ... for failure to comply with non-discretionary duties in the ... Act unless the violations identified in th[e] letter [we]re remedied within 60 days.” Id. at 18. On October 28, 2014, the State sent a follow-up letter stating, in pertinent part, that because the BLM “ha[d] not taken action or responded to [the first] letter,” the State “considered] [this] silence to be a final decision not to act.” Id at 176. The letter in turn stated that Governor Mead “intended] to instruct the Wyoming Attorney General to file suit.” Id.

The BLM’s response

The BLM finally responded by letter on November 5, 2014. The letter stated, in pertinent part:

The BLM acknowledges your concerns about expanding wild horse populations and understands the need to manage populations within Appropriate Management Levels (AMLs), along with other responsibilities under the Act.
As you know, on October 8th the BLM Wyoming State Office removed 1,263 wild horses from the checkerboard area in southwestern Wyoming. This large removal was in compliance with the Act and the Rock Springs Grazing Association Consent Decree. It reduced the wild horse populations in the affected Herd Management Areas to below AML.
Gather plans for fiscal year 2015 are currently being developed. As the BLM plans management activities for 2015, we will carefully consider the actions needed in Wyoming along with all wild horse management requirements in 10 western states. The BLM will utilize our resources and capabilities to the maximum extent possible under the circumstances, including the limited capacity at holding facilities.
We request your continued assistance in collaborating with the BLM and stakeholders to identify a strategy for Wyoming that recognizes the many challenges we face to achieve a fiscally and ecologically sustainable program. We look forward to working with you and your staff to resolve these concerns.

Id. at 178.

II

On December 8, 2014, the State initiated this action by filing what it styled as a “PETITION FOR REVIEW OF FINAL AGENCY INACTION.” Id, at 12. The State’s petition sought judicial review under the Administrative Procedure Act (APA), specifically 5 U.S.C. § 706(1) of what the State described as the respondents’ “final decision not to manage wild horses in Wyoming according to their mandatory, non-discretionary obligations under the Act.” Aplt. App. at 13. In support, the petition alleged that “[respondents [we]re in violation of the Act for failing to adequately management [sic] ov-erpopulations of wild horses on public lands in Wyoming_” Id. at 14. The petition asked the district court to “[o]rder that the [Respondents take immediate action to remove excess wild horses from Wyoming public lands and prevent wild horse overpopulations in Wyoming....” Id.

Respondents moved to dismiss the complaint for failure “to state a claim for which relief c[ould] be granted under the ... Act or the [APA] because ... [Respondents do not have a mandatory duty to remove wild horses from the [HMAs] at issue in the [petition.” Id. at 180.

On April 21, 2015, the district court issued an order granting respondents’ motion to dismiss. In doing so, the district court concluded that “the State’s petition fail[ed] to set forth a discrete agency action that BLM [wa]s required to take” under the Act. Id. at 335.

Judgment in the case was entered that same day. The State filed a notice of appeal on June 19, 2015.

H—I (—l 1—i

In its appeal, the State challenges the district court’s order dismissing its petition for failure to state a claim upon which relief can be granted under the Act or the APA. “We ‘review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim....’” Wasatch Equal. v. Alta Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016) (quoting Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010)). “In reviewing the complaint, we ‘accept all facts pleaded by the nonmoving party as true and grant all reasonable inferences from the pleadings in favor of the same,’ but we [do not] accept the nonmoving party’s legal conclusions as true.” Jd. (quoting Colony Ins. Co. v. Rurke, 698 F.3d 1222, 1228 (10th Cir. 2012); and citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

The question before us is whether the State’s petition states a valid claim under the APA that the BLM “unlawfully withheld or unreasonably delayed” action that it was required to take under Section 3 of the Act. 5 U.S.C. § 706(1); see Norton v. SUWA, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take”) (emphasis in original). More specifically, the question is whether, as the State alleged in its petition, Section 3 obligated the BLM to gather or otherwise remove excess wild horses from each of the seven HMAs once it learned that the wild horse population in each of those HMAs exceeded the upper limit of their respective AMLs.

Section 3 of the Act declares that “[all] wild free-roaming horses ... are ... under the jurisdiction of the Secretary [of the Interior] for the purpose of management and protection.... ” 16 U.S.C. § 1333(a). It in turn directs the Secretary “to protect and manage wild free-roaming horses .,. as components of the public lands” and “in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” Id. “All management activities,” Section 3 provides, “shall be at the minimal feasible level..,” Id.

Of particular relevance here, subsection (b) of Section 3 outlines the Secretary’s duties with respect to inventorying wild horses and dealing with overpopulation issues:

(1) The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands. The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels of wild free-roaming horses and burros on these areas of the public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels). In making such determinations the Secretary shall consult with the United States Fish and Wildlife Service, wildlife agencies of the State or States wherein wild free-roaming horses and burros are located, such individuals independent of Federal and State government as have been recommended by the National Academy of Sciences, and such other individuals whom he determines have scientific expertise and special knowledge of wild horse and burro protection, wildlife management and animal husbandry as related to rangeland management.
(2) Where the Secretary determines on the basis of (i) the current inventory of lands within his jurisdiction’, (ii) information contained in any land use planning completed pursuant to section 1712 of Title 43; (iii) information contained in court ordered environmental impact statements as defined in section 1902 of Title 43; and (iv) such additional information as becomes available to him from time to time, including that information developed in the research study mandated by this section, or in the absence of the information contained in (i-iv) above on the basis of all information currently available to him, that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels. Such action shall be taken, in the following order and priority, until all excess animals have been removed so as to restore a thriving natural ecological balance to the range, and protect the range from the deterioration associated with overpopulation:
(A) The Secretary shall order old, sick, or lame animals to be destroyed in the most humane manner possible;
(B) The Secretary shall cause such number of additional excess wild free-roaming horses and burros to be humanely captured and removed for private maintenance and care for which he determines an adoption demand exists by qualified individuals, and for which he determines he can assure humane treatment and care (including proper transportation, feeding, and handling): Provided, That, not more than four animals may be adopted per year by any individual unless the Secretary determines in writing that such individual is capable of humanely caring for more than four animals, including the transportation of such animals by the adopting party; and
(C) The Secretary shall cause additional excess wild free-roaming horses and burros for which an adoption demand by qualified individuals does not exist to be destroyed in the most humane and cost efficient manner possible.

Id. § 1333(b)(1)—(2) (emphasis added).

The State argues that Section 3 “clearly requires the [BLM] to remove excess wild horses when the population of [an HMA] exceeds what the agency has determined through thorough analysis to be the [AML] for the area.” Aplt. Br. at 23. In other words, the State argues, “surpassing the [AML] triggers the ... Act’s requirement to remove éxcess horses.” Id. at 21. The State also alleges that in this case, the BLM “identified the” AML for each of the seven HMAs at issue and subsequently “collected inventory data showing an overpopulation” in each of them, Id, “The Act,” the State argues, thus “leaves nothing for the [BLM] to do but remove the excess wild horses in the seven areas.” Id.

. The State’s arguments, however, are contrary to the plain language of Section 3. After directing the BLM to “maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands,” subsection (b)(1) states that “[t]he purpose of such inventory shall be,” in pertinent part, “to .,. make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals[,] ... and [to] determine whether [AMLs] should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).” 16 U.S.C. § 1333(b)(1). Subsection (b)(l)’s use of the phrase “whether action should be taken to remove excess animals” quite clearly affords the BLM with discretion to decide whether or not to remove excess animals.

Any doubts on this score are negated by the language of subsection (b)(2). It provides, in pertinent part, that the BLM “shall immediately remove excess animals from the range so as to achieve [AMLs]” only after the BLM “determines ,,, that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals.,” Id. § 1333(b)(2) (emphasis added). In other words, contrary to the State’s argument, a determination that an overpopulation exists in a given HMA is not sufficient, standing alone, to trigger any duty on the part of the BLM. Instead, the BLM must also determine that action is necessary to remove excess animals.

Turning to the facts alleged in the State’s petition, it is indisputable that only the first of these statutory requirements has been met, i.e., the determination of an overpopulation in each of the seven HMAs. Importantly, the second requirement has not been satisfied because the BLM has not determined that action is necessary to remove the excess animals. Consequently, the State cannot establish that the BLM has “unlawfully withheld or unreasonably delayed” action that it was required to take under Section 3 of the Act, and thus has failed to state a claim upon which relief can be granted under, the APA. 5 U.S.C. § 706(1).

The State also argues that “[t]he district court ... erred ■ in concluding that the [BLM] has discretion to wait for more proof that removal is necessary.” Aplt. Br. at 21. In support, the State- argues that “[w]hile Congress afforded the agency discretion to determine [an] area’s [AML], in 1978 Congress removed any discretion the [BLM] might have had to ignore its own monitoring data showing that an overpopulation exists and that removal is necessary to restore an area back to the [AML].” Id. In other words, the gist of the State’s argument on this point appears to be that AMLs “represent the agency’s scientific determination about how many horses a particular [HMA] can sustain without threatening the area’s thriving natural ecological balance or causing range deterioration.” Id. at 24. Thus, the State asserts, once it is determined that the wild horse population in an HMA exceeds its AML, it is established that removal is necessary and the BLM “no longer has discretion” to fail or refuse to act. Id. “Therefore,” the State argues, “this Court should reverse the district court’s dismissal and hold the [BLM] to its own analysis and to Congress’s mandate in the .... Act to perform the discrete, non-discretionary action being unlawfully withheld—the removal of excess wild horses from the overpopulated [HMAs] in Wyoming." Id. at 21-22..

We reject the State’s arguments and conclude that they are nothing more than a reformulation of its main argument. As noted, the Act does not define the phrase “appropriate management level” and thus does not equate it with any requirement to remove excess animals from a particular HMA. Nor does the BLM itself define the phrase as equivalent to a determination that removal is necessary. Further, and most importantly, the language of Section 3, as discussed above, clearly requires both a determination by the BLM “that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals_” 16 U.S.C. § 1333(b)(2) (emphasis added). Because only the first of these determinations has been made, the BLM is under no statutory duty to remove animals from the seven HMAs at issue. Moreover, there is nothing in the statute that obligates the BLM to make an immediate determination regarding the second requirement.

IV

The judgment of the district court is AFFIRMED.

      . Section 706(1) states that a “reviewing court shall ... compel agency action .unlawfully withheld or unreasonably delayed....” 5 U.S.C. § 706(1).


text:
    TULSA AIRPORTS IMPROVEMENT TRUST, for and on Behalf of Cinnabar Service Company, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.
    No. 15-5009
    United States Court of Appeals, Tenth Circuit.
    October 14, 2016

      Roger M. Gassett, of Hall, Estill, Hard-wick, Gable, Golden & Nelson, P.C., Tulsa, Oklahoma, (John M. Hickey, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., and Steven K. Metcalf of McDonald, McCann, Metcalf & Carwile, L.L.P., Tulsa, Oklahoma, with him on the briefs), for Petitioner-Appellant.
    Edward Himmelfarb, Attorney, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., (Benjamin C. Mizer, Principal Deputy Assistant Attorney General; and Michael S. Raab, Attorney, Appellant Staff, Civil Division, Department of Justice, Washington, D.C., with him on the brief), for Respondent-Appellee.
    Before BRISCOE, MURPHY and PHILLIPS, Circuit Judges.
   BRISCOE, Circuit Judge.

Tulsa Airports Improvement Trust (TAIT) seeks reimbursement for amounts it paid to a third-party contractor in furtherance of a noise abatement program funded primarily by grants from the Federal Aviation Administration (FAA). Because its petition for review of agency action was not timely filed, we dismiss the action.

I

Since the mid-1990s, TAIT has been working to reduce noise caused by the Tulsa International Airport. Tulsa Airports Improvements Trust v. United States, 120 Fed.Cl. 254, 256-57 (2015). TAIT’s efforts have largely been funded by grants from the FAA. Id. at 257. In 2002, while awaiting the approval of additional grant funding, TAIT instructed its contractors to place some projects on hold until additional funds were approved. Id at 257-58. As a result of the delay, some contractors “demanded contract increases or terminated their contracts.” Id. at 258. Consequently, TAIT paid $705,913.40 to its contractors and then sought reimbursement from the FAA. Id. The FAA initially reimbursed TAIT for the costs, but subsequently demanded repayments totalling $656,574.37 after determining that the payments were “contract delay/escalation costs,” which were “not allowable” costs under the grants. Id. TAIT reimbursed the FAA for these amounts. Id. In 2010, TAIT sought reconsideration and the FAA provided reimbursements for supplemental allowable costs in the amount of $569,566.00. See Agency Record (AR) at 2187.

On January 23, 2012, TAIT informed the FAA that it had reviewed the remaining unpaid expenses and had “identified numerous cost categories which • [were] eligible for reimbursement.” AR at 487. TAIT requested that the FAA review the attached documentation and approve the reimbursements. Id. On October 24, 2012, the FAA’s Southwest Region responded that it had “carefully examined the information” provided and “[could not] make a favorable determination of additional allowable costs.” AR at 1140. This letter stated that “additional reviews on the [grants] would not be considered an efficient use of resources.” Id. TAIT responded by appealing to the FAA’s Associate Administrator for Airports on December 6, 2012. AR at 1141. On December 31, 2012, the Associate Administrator for Airports issued a letter to TAIT stating that, because TAIT’s most recent request for reimbursement did not delineate costs that had been reimbursed as well as allowable costs that were outstanding, the FAA was “unable to find that there [were] potentially eligible costs that ha[d] not been reimbursed.” AR at 2190. The letter further stated that TAIT should resubmit any information that it believed had not been considered. Id. TAIT submitted no further documentation to the FAA.

Instead, on November 14, 2013, TAIT filed a breach of contract action in the Court of. Federal Claims, invoking jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1). Tulsa Airports Improvements Trust, 120 Fed.Cl. at 256. TAIT alleged that the FAA had wrongfully determined that the payments in question were “not allowable grant costs.” Id. at 256. The Court of Federal Claims determined that it did not have subject matter jurisdiction because either 49 U.S.C. § 46110 or 49 U.S.C. § 47111 vested exclusive jurisdiction in the United States Court of Appeals. Id. at 263. Accordingly, it transferred the case to this court. Id. at 265-66. For procedural purposes, we now consider it as a petition for review of agency action.

II

TAIT asks us to compel the FAA “to conduct a hearing to formally consider TAIT’s request for reimbursement under the Grants”—the procedure required by section 47111. Aplt. Br. at 9. TAIT argues that section 47111 applies; that under either section 46110 or section 47111, the FAA did not issue a final order appropriate for judicial review; and that even if the FAA did issue a final order, its wording created confusion that caused TAIT’s delay in filing this petition. We disagree.

First, we conclude that 49 U.S.C. § 46110 governs this action because 49 U.S.C § 47111 does not apply. Section 46110 is a general review provision that allows a person to petition for review of an order in which the person has a substantial interest. 49' U.S.C. § 46110(a). Section 47111 specifically allows a person to petition for review of an agency’s decision to withhold a payment that is due under a grant agreement. 49 U.S.C. § 47111(d). This section also sets forth procedures that must be followed before a payment may be withheld. See 49 U.S.C. § 47111(d)(1).

Contrary to TAIT’s contention, section 47111 does not apply to a finding that certain costs are not allowable under a grant agreement. Before the United States may be obligated to make a payment under a grant agreement, the statutory scheme requires that the Secretary first decide that the cost is allowable. 49 U.S.C. § 47110. Until such a determination has been made, no payment can be due. Section 47111 only applies to the withholding of payments that are “due" under a grant agreement. 49 U.S.C. § 47111(d)(1) (emphasis added). A determination that a particular cost is not allowable is not a withholding of a payment that is due, but merely a determination that no payment was ever owed. Furthermore, section 47111 applies to situations in which the payment is withheld due to a violation of the , grant agreement. See 49 U.S.C. § 47111(d)(1)(B). In order to withhold a payment under this section, the Secretary must notify the sponsor, provide an opportunity for a hearing, and make a finding that the sponsor has violated the- grant agreement. 49 U.S.C. § 47111(d)(1). The FAA made no such finding because there is no allegation that TAIT violated the grant agreement. The payments were denied because the costs were not allowable, and not because of an independent violation of the grant agreement. Because section 47111 does not apply, TAIT must challenge the FAA’s action under the general judicial review provision, 49 U.S.C. § 46110.

Second, we conclude that the December 31, 2012 letter is a final order issued by the FAA. We have not previously had the opportunity to address what constitutes an “order” under section 46110, but those circuits that have considered the meaning of “order” under this section or its predecessor, 49 U.S.C. § 1486, have concluded that an agency decision is an “order” only if it possesses “the quintessential feature of agency decisionmaking suitable for judicial review: finality.” Vill. of Bensenville v. FAA, 457 F.3d 52, 68 (D.C. Cir. 2006) (citing Aerosource, Inc. v. Slater, 142 F.3d 572, 577 (3d Cir. 1998) (collecting cases)). Accordingly, the agency action must “mark the consummation of the agency’s decisionmaking process,” and “be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotations omitted); see also Vill. of Bensenville, 457 F.3d at 68 (applying Bennett in the context of 49 U.S.C. § 46110). In addition, most circuits require that the alleged order “be predicated on an administrative record sufficient to allow a court to engage in a meaningful review,” but this requirement is “not a demanding one.” Burdue v. FAA, 774 F.3d 1076, 1080 (6th Cir. 2014) (collecting eases).

A communication need not be formal to constitute a- final agency action. Numerous circuits have held that letters from the FAA, including those not issued by the Administrator, constitute “orders” for purposes of 49 U.S.C. § 46110. Aerosource, Inc., 142 F.3d at 577-78 (collecting cases). Further, under a similar statute, we have concluded that an informal agency communication may constitute an order suitable for judicial review. TransAm Trucking, Inc. v. Fed. Motor Carrier Safety Admin., 808 F.3d 1205, 1212 n.4 (10th Cir. 2015) (“[T]he informal nature of the email communication doesn’t necessarily determine whether it was a ‘final order’ within the meaning of [28 U.S.C.] § 2342(3)(A).”). In addition, “[t]he mere possibility that an agency might reconsider in light of ‘informal discussion’ and invited contentions of inaccuracy does not suffice to make an otherwise final agency: action nonfinal.” Sackett v. E.P.A., — U.S. -, 132. S.Ct. 1367, 1372, 182 L.Ed.2d 367 (2012).

The FAA’s December 31,2012 letter is a final order. The letter marks the consummation of the FAA’s decisionmaking process. It details TAIT’s prior requests and the FAA’s responses thereto, including thé various requests, reviews, grants, and denials over the preceding ten years. There is no indication in the letter or in the record that any additional process on the FAA’s part was to follow. Although the letter does provide TAIT an opportunity to resubmit any information the FAA had not yet considered, this invitation does not make an otherwise final decision nonfinal. Absent additional action from TAIT, the FAA made clear that it would not reconsider the request. Following the receipt of the December 31, 2012 letter, TAIT took no further action. In addition, the- letter determined rights and obligations by concluding that TAIT had no right to reimbursement for the requested funds and that the FAA had no obligation to pay them. These are legal consequences sufficient to indicate finality. Further, the administrative record, which includes nearly 3000 pages of letters, agreements, and payment records from 2002 through 2012, is sufficient for review. The parties have provided us with relevant communications between themselves, as well as documentation supporting TAIT’s claim to reimbursement. Thus, the December 31, 2012 letter from the FAA is a final order suitable for judicial review under section 46110.

Third, we conclude that the action was not timely filed. Section 46110 provides that a petition for review of an agency order generally must be filed not later than sixty days after the agency order is issued. 49 U.S.C. § 46110(a). A court does have discretion to allow a petition filed after the sixtieth day if there are reasonable grounds for the delay. Id. Because the FAA’s letter on December 31, 2012 was a final order, the sixty-day period expired on March 1, 2013. TAIT did not file its action in the Court of Claims until November 14, 2013—more than eight months after the statutory period expired. Further, TAIT has not established any reasonable grounds to justify its delay.

Agency-created confusion has been recognized in some circuits as a basis for finding delay to be reasonable. See, e.g., Safe Extensions, Inc. v. FAA, 509 F.3d 593, 603-04 (D.C. Cir. 2007) (excusing delay when the FÁA had stated that a revision was forthcoming but never issued one); Greater Orlando Aviation Auth. v. FAA, 939 F.2d 954, 960 (11th Cir. 1991) (excusing delay when the FAA’s inconsistent communications caused confusion), abrogated on other grounds by Henderson v. Shinseki, 562 U.S. 428, 438, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011), as recognized in Corbett v. TSA, 767 F.3d 1171, 1174 (11th Cir. 2014). But we do not have such factual circumstances here. The D.C. Circuit has twice held this year that ambiguity in a letter issued by an agency does not excuse delay. See Nat’l Fed’n of the Blind v. DOT, 827 F.3d 51, 57 (D.C. Cir. 2016); Elec. Privacy Info. Ctr. v. FAA 821 F.3d 39, 43 (D.C. Cir. 2016). We agree with the D.C. Circuit that parties should assume finality in the face of ambiguity and file protectively for judicial review. See id. Thus, if there was any ambiguity in the December 31, 2012 letter, it does not excuse TAIT’s delay in filing a petition for review. Moreover, a plain reading of the December 31, 2012 letter makes clear that the FAA’s determination was final and no reimbursements would be issued unless TAIT took further action, either by resubmitting documentation in the format recommended by the FAA, or by appealing to this court within sixty days. TAIT did neither.

Ill

The petition for review of agency action is DISMISSED as not timely filed.

      . Although the parties do not specify the amount contested, we estimate from the record that TAIT is seeking reimbursement for a portion of approximately $87,000.00 in outstanding expenses.

      . Section 46110(a) provides:
      (a) Filing and Venue.—Except for an order related to a foreign air carrier subject to disapproval by the President under section 41307 or 41509(f) of this title, a person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part, part B, or subsection (Z) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.

      . Section 47111 (d) provides:
      (d) Withholding Payments.—(1) The Secretary may withhold a payment under a grant agreement under this subchapter for more than 180 days after the payment is due only if the Secretary—(A) notifies the sponsor and provides an opportunity for a hearing; and (B) finds that the sponsor has violated the agreement. (2) The 180-day period may be extended by—(A) agreement of the Secretary and the sponsor; or (B) the hearing officer if the officer decides an extension is necessary because the sponsor did not follow the schedule the officer established. (3) A person adversely affected by an order of. the Secretary withholding a payment may apply for review of the order by filing a petition in the. United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the project is located. The petition must be filed not later than 60 days after the order is served on the petitioner.

      . We consider this petition for review as if it had been filed in this court' on the date on which it was actually filed in the Court of Federal Claims. See 28 U.S.C. § 1631.


author: VINSON, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ane PLATE, Defendant-Appellant.
    No. 15-13928
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 10/05/2016

      Germaine Seider, Arthur Lee Bentley, III, U.S. Attorney’s Office, Tampa, FL, Kara Marie Wick, Nicole M. Andrejko, U.S. Attorney’s Office, Orlando, FL, for Plaintiff-Appellee.
    Aliza Bloom, Federal Public Defender’s Office, Tampa, FL, Donna Lee Elm, Rosemary Cakmis, Maria Guzman, Federal Public Defender’s Office, Orlando, FL, for Defendant-Appellant.
    Before: MARTIN and JORDAN, Circuit Judges, and VINSON, District Judge.

       Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation.

   VINSON, District Judge:

This case raises a common dilemma in sentencing defendants for financial crimes: balancing the payment of restitution for the victims against.the length of incarceration for the defendant. Ane Plate pled guilty to embezzlement by a bank officer or employee, in violation of 18 U.S.C. § 656. When she was unable to pay full restitution, she was sentenced to 27 months in prison. Plate argues on appeal that the sentence violated her constitutional rights and that it was both procedurally and substantively unreasonable. After careful review, and with the benefit of oral argument, we hold that the sentence was substantively unreasonable and that a new sentencing is required.

I.

Born in American Samoa, Polynesian Islands, Plate moved to Hawaii with her family when she was five or six years old. While attending the University of Hawaii, she met her future husband Raymond. She was 20 years old at that time, and he was 43. Raymond worked -for the District Courts of Hawaii and eventually became a supervisor. He retired in 1989, after which the couple moved to Florida where Plate was employed as a financial assistant or advisor for the next 25 years.

During the time relevant to this case, Plate worked at Wells Fargo Advisors Financial Network (“Wells Fargo”) at their branch office in Orlando, Florida. She was the long time financial advisor for an elderly couple, Mr. and Mrs. D.M., and she managed their securities and bonds portfolio. Over the course of her 20-year relationship with the couple, they became close friends. As their mental capacities diminished with age—and after they moved into an assisted living facility—Plate began to perform duties for the couple outside and beyond the traditional financial advisor role, including driving Mr. D.M. to his bank, helping Mrs. D.M. obtain her medical prescriptions, and performing other care-giver activities.

In 2013, Plate told Mr, and Mrs. D.M. that her husband Raymond had been suffering from a terminal illness to which he eventually succumbed in September of that year. After his death, Plate asked the couple for money to help with funeral expenses, and they gave her a personal check for $9,000.00. Shortly thereafter, on or about October 22, 2013, Plate induced Mr. D.M. to execute a Wells Fargo ACH Authorization Agreement that allowed for the transfer of funds from the couple’s Wells Fargo trust account into a separate account at SunTrust Bank. From October 2013 through May 2014, she manipulated Mr. D.M. into writing personal checks to her (12 total) from the SunTrust account, and she liquidated securities in the trust account by making a number of unauthorized sales (15 total). She used the funds that she obtained from these transactions to, inter alia, pay her mortgage and make major upgrades to her home, including new fencing and air conditioning units. In total, she defrauded the couple of $176,079.70, and she left little to nothing in their account.

In July . 2014, a Secret Service agent interviewed the couple at their assisted living facility, Mr. D.M.—who suffered from dementia^—was incoherent during the course of the interview, and the couple’s adult son confirmed that his parents had diminished mental capacity. The next month, on August 26, 2014, the agent contacted and interviewed Plate at a public coffee shop, during which she gave a written confession, detailed the extent of her fraud, and expressed remorse for her actions. By indictment dated April 15, 2015, she was charged with a single count of embezzlement by a bank officer or employee in violation of 18 U.S.C. § 656. She self-surrendered on April 20,2015, and she was released with pretrial service supervision that same day. She subsequently pled guilty to the offense as charged in the indictment.

The presentence investigation report (“PSI”) calculated a base offense level of 7 under U.S.S.G. § 2Bl.l(a)(l). Plate received a 10-level enhancement under § 2Bl.l(b)(l)(F) based on the amount of the loss, along with a 4-level enhancement under § 2Bl.l(b)(19)(A)(iii) because the crime involved a violation of securities law and because she was a financial advisor. After receiving a 8-level reduction for acceptance of responsibility under U.S.S.G. § 3El.l(a)-(b), her total offense level was 18. Plate had no prior convictions, which resulted in a criminal history category of I. Based on an offense level of 18 and a criminal history category of I, her guideline range was 27 to 33 months.

The.PSI reported that Plate, who was 59 years old at the time of sentencing, had a traumatic childhood during which she witnessed her mother being physically abused by four or five different husbands. The PSI also reported that her husband of more than 30 years (who was described as “her rock and best friend”) had died in September 2013, and she had reportedly “not been able to overcome his death.” In or about June 2015, after the events giving rise to this case, Plate was diagnosed with depressive disorder, sold her house, and moved in with her brother. She was unemployed at that time, with no significant assets or liabilities, and her net worth was $47,500.00. The PSI did not identify any factors that would warrant departure from the guideline range of 27 to 33 months, but it did identify several factors that might warrant a sentence outside the advisory range, namely, her age, upbringing, mental condition, and the fact that she had no prior criminal history. Neither party objected to the PSI.

Prior to sentencing, Plate filed a memorandum with the district court, asking for a sentence of probation (which she realized would be a “tremendous variance”). She maintained that she was extremely remorseful, had sold her house to help pay restitution, and was determined “to pay back ever [sic] penny that is owed.” She argued that probation was appropriate in her case—and that recidivism and safety of the community were not a concern— because' her crime was an anomaly brought on by depression and reduced mental capacity following the death of her husband.

In support of her position and argument, Plate attached a forensic evaluation by a licensed psychologist, Jacquelyn Olander, Ph.D. According to Dr. Olahder’s report, Raymond made most of couple’s “important life decisions” and “took care of everything” during their marriage. After he died, Plate “experienced confusion and significant uncertainty about herself.” Having to assume the responsibilities of life without her husband, Dr. Olander opined, “created much fear and apprehension such that she developed a maladaptive coping style of avoidance characterized by apathy and indifference.” Because of this “maladaptive coping to stress” (coupled with her “impaired emotional understanding” and “reduced mental capacity”), Dr/Olander determined that Plate “may have engaged in illegal behaviors based upon her attempt to replace or substitute the loss of her husband without any conscious awareness of the occurring underlying psychological processes.”

In addition to Dr. dander’s report, the sentencing memorandum attached numerous letters from Plate’s siblings, coworkers, her supervisor at Wells Fargo, and former clients, all expressing their belief that her actions were completely out of character and detailing the profound impact that her husband’s death had on her. Perhaps most notably, the victims’ adult children also wrote on her behalf, saying what a good and trusted friend she was and representing that their “whole family” believed that sending her to jail would not be appropriate on the facts of the case.

At the sentencing hearing on August 19, 2015, Plate told the district judge that she was “truly sorry.” She also told the judge (through her attorney) that she brought $45,000.00 in cashier’s checks from the proceeds of the sale of her house to put toward restitution. Because the PSI calculated her net worth as $47,500.00, that was “pretty much everything she ha[d].” Her attorney further argued that her behavior was “aberrant” and that a non-incarceration (probationary) sentence was sufficient punishment as she “will live with this the rest of her life and her remorse and her shame.”

■The government did not dispute or challenge anything that Plate said during the sentencing hearing, except to say that a probationary sentence was not possible. The government argued that because a violation of Section 656 is a Class B felony, the district judge was required to impose a term of prison (although it did request a low-end guideline sentence). Plate pointed out in response, however, that because she self-surrendered on April 20, 2015, the district judge could sentence her to “time-served” (for that one day) followed by supervised release, which “would be a legal sentence if the Court decided that, balancing out all the factors under [Title 18, United States Code, Section 3553(a)(1)-(7) ], a sentence of non-imprisonment was appropriate.”

After noting that Plate had used her position of trust to take advantage of “demented” and “helpless” victims, the district judge stated (emphasis added):

Now, the Court takes into account that you have paid back $40,000 toward restitution; but that’s just a drop in the bucket when you’re talking about $142,000 that is what you stole.
The Court would be glad under this case to give you probation if you had paid back the restitution; but with all this restitution still outstanding, the Court just can’t do it.
I’ll tell you what I will do, though. You have a total offense level of 18, criminal history category I. The Court sees no reason in the Presentence Report to depart from the guidelines. I will sentence you to the low end of the guidelines of 27 months in the Bureau of Prisons, a two-year supervised release term, restitution of $142,768.28 payable at $200 a month or more, depending on your ability to make restitution after you come out of prison, plus a $100 special assessment.
What the Court will do is if you, your friends and supporters step up and pay your restitution, I will immediately convert your prison term to probation. You have two weeks in which- to appeal this sentence if you think it is illegal.... Also, I’ll give you voluntary surrender on or before October 19th.

Neither side objected at the time— even though the district judge gave them an opportunity to do so—but the parties now agree on appeal that the court erred in promising to “immediately convert” Plate’s prison sentence to probation if she paid restitution. Indeed, the law clearly provides that a district court may not modify a prison sentence after it has been imposed unless permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure. Freeman v. United States, 564 U.S. 522, 526, 131 S.Ct. 2685, 2690, 180 L.Ed.2d 519 (2011) (“Federal courts are forbidden, as a general matter, to ‘modify a term of imprisonment once it has been imposed[.]’”) (quoting 18 U.S.C. § 3582(c)).

Plate filed an appeal. She also filed a motion in the district court to remain on bond pending the resolution of her appeal, which the court denied by endorsed order without explanation. Thereafter, Plate moved this Court for release pending her appeal, and she argued that the district court’s denial of her motion was legally insufficient under Rule 9(a) of the Federal Rules of Appellate Procedure. A prior panel of this Court agreed, stayed her surrender date, and sent the case back to the district court for the limited purpose of entering an order stating the reasons for its earlier ruling. On remand, the district court explained that it denied Plate’s motion to remain on bond (i) because she pled guilty, (ii) because she received a guideline sentence, and (iii) because of the substantial amount of money that she embezzled, “combined with the substantial outstanding restitution Plate had yet to repay.” The district court further stated that her appeal was “frivolous” and that it did not raise any substantial questions of law or fact. This Court then denied Plate’s motion •for release pending appeal, lifted the stay of her surrender date, and the appeal went to oral argument, where Plate argued that her sentence violated the constitution and that it was both procedurally and substantively unreasonable. Two days after oral argument, we sua sponte ordered Plate released on bond pending this decision.

II.

Plate first argues that the district court violated her constitutional rights by conditioning her liberty on her ability to pay restitution in full.

Supreme Court precedent supports her claim. In Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the Supreme Court held that it violates equal protection principles to incarcerate a person “solely because he lacked the resources to pay” a fíne or restitution. Bearden, 461 U.S. at 668, 103 S.Ct. at 2070. It is apparent that Plate was treated more harshly in her sentence than she would have been if she (or her family and friends) had access to more money, and that is unconstitutional, as multiple courts have held. See, e.g., United States v. Burgum, 633 F.3d 810 (9th Cir. 2011) (citing Williams, Tate, and Bearden for the “well established” principle that “the Constitution forbids imposing a longer term of imprisonment based on a defendant’s inability to pay restitution”); Noel v. State, 191 So.3d 370 (Fla. 2016) (relying on the same federal cases and reaching the same conclusion).

Nevertheless, despite the strength of her constitutional argument—indeed, the government did not even oppose this argument in its brief—we do not base our decision on that ground as we agree with Plate’s additional argument that the sentence imposed was substantively unreasonable and an abuse of discretion. This Court “need not reach the important constitutional questions raised” in cases that can be decided on other grounds. See United States v. Madera, 528 F.3d 852, 859 (11th Cir. 2008) (per curiam); see also Slack v. McDaniel, 529 U.S. 473, 485, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000) (“Court[s] will not pass upon, a constitutional question [] properly presented by the record, if there is also present some other ground upon which the case may be disposed of[.]”).(quotation omitted).

We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010) (per curiam). In conducting this analysis, “[w]e acknowledge the institutional superiority that district courts possess with regards to sentencing, and are mindful that appellate review for reasonableness is not a license to substitute our views for those of the district court.” United States v. Hayes, 762 F.3d 1300, 1307 (11th Cir. 2014). We also acknowledge that we can “ordinarily” expect a district court’s sentence to be reasonable if, as here, it falls within the guideline range. United States v. Joseph, 709 F.3d 1082, 1105 (11th Cir. 2013) (quotation omitted). Nonetheless,.our review is not toothless. See United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (“[T]he district court’s choice of sentence is not unfettered.”).

District courts are required to impose sentences sufficient, but not greater than necessary, to comply with the factors and purposes set forth in § 3553(a)(2), which include the need to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct, and protect the public. United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). In addition, the district court must consider the nature and circumstances of .the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guidelines range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to the victim. Id, (citing 18 U.S.C. § 3553(a)(1), (3)-(7)).

Notwithstanding the “considerable discretion” that district courts have in applying these factors and imposing sentence, United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation omitted), “[a] district court abuses its discretion when it (1) fails to afford consideration to the relevant factors that were due significant weight, (2) gives significant weight to an improper or Irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (emphasis added) (quotation -omitted). As this Court has said: “A sentence that is. based entirely upon an impermissible factor is unreasonable because such a sentence does not achieve the purposes of § 3553(a).” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008) (per curiam) (quotation omitted). - ■ •;

Here, the district judge abused his discretion by giving significant (indeed, dispositive) weight to Plate’s inability to pay restitution. In sentencing Plate to prison, the district judge stated that he would be “glad under this case to give [her] probation if [she] had paid back the restitution.” This statement was an obvious indication of what the judge would have done if she had paid full restitution at (or before) the sentencing hearing. Indeed, as earlier noted, the government conceded during oral argument that the record is “very clear” that is exactly what the district judge meant. See supra note 4. Moreover, the district judge offered to “immediately convert” Plate’s prison term if she paid the restitution at a later date, which further showed that the judge gave significant weight and consideration to her inability to pay restitution at the time of sentencing. And further still, in. his response to this Court’s question on remand, the district judge stressed that the “substantial outstanding restitution Plate had yet to repay” was a motivating factor in his original sentencing decision. Her inability to pay restitution in full was an impermissible factor insofar as it is not among the factors listed in § 3553(a). .

It is true that the district judge emphasized the seriousness of Plate’s offense at sentencing (e.g., by noting that she took advantage of “demented” and “helpless” victims); and it is also true that the judge said that he saw no reason to depart from the guidelines. Nevertheless, the record unambiguously shows (and, once again, the government has expressly admitted) that the district judge would have imposed a sentence of no further incarceration if Plate had been able to pay the restitution at or before the sentencing hearing. However this sentence is characterized— whether it is viewed as a failure to “reward” for paying restitution (as the government says) or as “punishment” for not paying (as Plate says)—is irrelevant because, in either case, the district judge clearly gave significant weight to Plate’s inability to pay as a factor in the sentence that he imposed, and he ended up imposing a prison term based solely on that factor, which is not a permissible consideration under Section 3553(a).

III.

As indicated above, we must vacate Plate’s sentence and remand the case for resentencing. Because the district judge confirmed and reiterated his consideration of Plate’s inability to pay restitution as a factor in his order on remand—coupled with his stated belief that Plate’s arguments on appeal were “frivolous,” even after having the benefit of reviewing those arguments—it appears the district court may be unable to disregard its improper consideration of that factor or, at least, that it may appear so. See United States v. Torkington, 874 F.2d 1441, 1446-47 (11th Cir. 1989) (per curiam). Thus, we will exercise our supervisory powers and remand the case for resentencing before a different district court judge.

VACATED AND REMANDED FOR RESENTENCING.

      . According to the sentencing memorandum:
      [Plate and Raymond] had no children and by all accounts were a very united couple. Mr. [sic] Plate has stated that she has been unable to overcome his death. The actions that constitute the charges in this case occurred shortly after her husband’s death. Ms. Plate has acknowledged that her husband’s death left her in total and absolute despair.
      * * s¡:
      It is significant that Dr. Olander believes that Ms. Plate may have engaged in illegal behaviors based upon her attempt to replace or substitute the loss of her husband. While to the common observer this may seem unusual, Ms. Plate's life completely imploded upon the loss of her husband and protector.

      . Mr. and Mrs. D.M. had both died by the time of sentencing.

      . In her brief, Plate argued that what the district judge did violated equal protection. At oral argument, she said that it violated both equal protection and due process, which has support in the law. For example, as the Supreme Court stated in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), although "[pjroviding equal justice for poor and rich, weak and powerful alike is an age-old problem,” our constitutional guaranties of due process and equal protection "both call for procedures in criminal [cases] which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system— all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court.”' Id. at 16-17, 76 S.Ct. at 589-90 (emphasis added). Ultimately, whether Plate’s claim in this case should be analyzed as a question of due process, equal protection, or a combination of the two has no bearing on the outcome of this appeal.

      . The facts of this case fully support the application of this constitutional principle here. As previously noted, the district judge told Plate that he “would be glad under this case to give you probation if you had paid back the restitution; but with all this restitution still outstanding, the Court just can’t do it.” The judge then continued: "What the Court will do is if you, your friends and supporters step up and pay your restitution, I will immediately convert your prison term to probation.” Together, these statements unambiguously reflect that the district judge would not have sentenced Plate to prison had she been able to pay the restitution in full. Notably, the government conceded the point during oral argument as it agreed that, "based on the court's statements,” it was "very clear” that' if Plate—or someone acting on her behalf—had paid full restitution by the time of sentencing, "she would have walked out of that courtroom” without a prison sentence at all.

      , We first considered Plate’s argument that the sentence was procedurally unreasonable, as we are normally required to do. See, e.g., United States v. Hayes, 762 F.3d 1300, 1310 (11th Cir. 2014). However, we review assertions of procedural error where there was no objection in the district court only for plain error. United States v. Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010). Under this standard of review, we found Plate’s argument to be lacking, and it is rejected without discussion.

      . That is not to say that restitution is irrelevant under Section 3553. To the contrary, as previously noted, one of the factors the district court has to consider in fashioning a sentence is "the need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a)(7). To say that the district court must consider the need to provide victims with restitution, however, is not the same thing as saying the court may sentence the defendant to prison solely because she was unable to pay the restitution in full. If anything, imposing such a sentence arguably cuts against that factor. See Daniel Faichney, Comment, Autocorrect? A Proposal to Encourage Voluntary Restitution Through the White-Collar Sentencing Calculus, 104 J. Crim. L. & Criminology 389, 405 n.76 (2014) ("Section 3553(a)(7) ... has a utilitarian dimension in that a harsh sentence may undercut the offender’s ability to work in order to repay her victims.”) (citing United States v. Rangel, 697 F.3d 795, 803-04 (9th Cir. 2012) (”[T]he district court’s goal of obtaining restitution for the victims of Defendant's offense, 18 U.S.C. § 3553(a)(7), is better served by a non-incarcerated and employed defendant.”) (quotation omitted)).