United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
A. Kimball Judge
matter is before the Court on Defendant's Request for a
Protective Order and/or Injunctive Order in Regards to
Violation of the Judgment and Commitment Order. On July 27,
2018, this Court sentenced Defendant to 108 months
imprisonment, 36 months of supervised release, $25, 436.00 in
restitution, and a $100 special assessment. In
Defendant's Judgment and Commitment Order, entered the
same day, this Court provided special instructions regarding
the payment of the criminal monetary penalties: “The
defendant shall pay the greater of $25 per quarter or 50% of
his income while incarcerated. If the defendant receives more
than $200 from any outside source in any given month during
the period of incarceration, all funds received in excess of
$200 that month shall be paid toward restitution. . . . The
Court waives the accrual of interest.” Defendant states
that the BOP has changed his payment schedule from $25 per
quarter to $200 per month and he has been notified that he
may face sanctions if he refuses to make the increased
payments. Defendant further states that he has attempted
administrative remedies without success and that he filed his
motion with the Court to require the BOP to honor the
provisions imposed in this Court's Judgment. The Court
requested that the government respond to Defendant's
motion, which it did on June 25, 2019.
government's response claims that the BOP's actions
are permissible under United States v. Scoville, No.
07-CR-155-D, 2009 WL 10704911 (D. Wyo. April 29, 2009).
Scoville involved a Judgment ordering the defendant
to pay an assessment and fine immediately without setting a
payment schedule. Id. at *1. The court in
Scoville found that it was permissible for the court
to delegate to the BOP the scheduling of payments for a fine
and assessment fee. Id. “Because such an order
for immediate payment does not impermissibly delegate
judicial authority, it is permissible for the BOP to
administer collection through the Inmate Financial
Responsibility Program (IFRP).” Id.
however, does not apply to the instant case because this case
involves Defendant's payment of restitution under a
Court-ordered payment schedule. The Scoville court
recognized that a court within the Tenth Circuit
“cannot delegate the scheduling of restitution to a
probation officer or to the BOP, as the fixing of restitution
payments is an exclusively judicial act.” Id.
18 U.S.C. § 3664 prohibits a sentencing court from
delegating to the BOP the task of establishing a payment
schedule for the payment of court-ordered restitution.
United States v. Overholt, 307 F.3d 1231, 1255-56
(10th Cir. 2002).
case, this Court complied with 18 U.S.C. § 3664 by
ordering a detailed payment schedule for Defendant's
restitution payments at the time of sentencing. The BOP
cannot deviate from this Court's payment schedule that
Defendant pay, while incarcerated, the greater of $25 per
quarter or 50% of his income and any amounts he receives in
gifts in excess of $200 per month.
appears to be requiring that Defendant pay higher amounts of
restitution as a condition for his participation in the IFRP.
However, the IFRP was designed to help inmates comply with
their court-ordered payment schedules. The IFRP requires unit
staff to assist an inmate in preparing a financial plan and
monitoring the inmate's progress in meeting payments. 28
C.F.R. § 545.11(b). The IFRP does not allow the BOP to
create a new restitution payment schedule-according to the
Tenth Circuit, that would violate 18 U.S.C. § 3664. In
this case, the BOP has discretion in determining whether
Defendant is paying half his income if that is greater than
$25 per quarter and in collecting amounts he receives in
excess of $200 per month as gifts. But the BOP cannot create
a new payment schedule as a condition of Defendant's
participation in the IFRP. The BOP can only use the IRFP to
help Defendant in meeting his Court-ordered payment schedule.
government's response did not address Defendant's
specific financial condition. If the BOP believes
Defendant's payment schedule should be revised based on a
change in circumstances from the time of sentencing, the BOP
must inform the Court of the changed circumstances and
request the Court to amend the restitution payment schedule
in Defendant's Judgment. See, e.g., U.S. v. Day,
418 F.3d 746, 761 (7th Cir. 2005); U.S. v.
McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001).
Otherwise, the BOP is tasked with complying with the payment
schedule contained in Defendant's current Judgment.
Court believes it has the authority to address this issue
because it involves the BOP's execution of this
court's Judgment. As the case law demonstrates, this
Court has jurisdiction over restitution payments, the BOP
does not. The BOP's institution of a new restitution
payment schedule exceeds its authority. Although Defendant
seeks a protective order and/or injunctive order,
Defendant's existing Judgment and Commitment Order is
already an order the BOP must execute properly and the
Court's explanation of the law applicable to that
Judgment should be sufficient.
if the BOP does not recognize this court's authority to
explain how its Judgment should be executed, Defendant should
file, in the federal district court in Colorado where he is
located, a habeas corpus petition under 28 U.S.C. § 2241
against the Warden of his facility, challenging the execution
of his sentence and arguing that the BOP has incorrectly
applied the sentencing court's order as to restitution
payments. See James v. Warden, FCI El Reno, Okla.,
2014 WL 1330015, at *4-5 (W.D. Okla. March 12, 2014)
(explaining that a petition under 28 U.S.C. § 2241
attacks the execution of a sentence rather than its validity
and may be raised after exhausting the BOP's
administrative remedy program).
reasons stated above, the Court finds that Defendant's
Motion for Protective Order and/or Injunctive Order in
Regards to Violation of Judgment and Commitment Order has
merit and the BOP should execute the terms of ...