United States District Court, M.D. Alabama, Eastern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
BORDEN UNITED STATES MAGISTRATE JUDGE.
before the court is the defendant's motion to set her
restitution payment at $25 per quarter. Doc. 47. Pursuant to
28 U.S.C. § 636(b)(1), this motion was referred to the
United States Magistrate Judge for review and submission of a
report with recommended findings of fact and conclusions of
law. After careful consideration of the parties'
submissions and the applicable law, the undersigned
recommends that the defendant's motion (Doc. 47) be
FACTUAL AND PROCEDURAL BACKGROUND
November 22, 2016, the District Court entered a judgment
against Defendant Willie Mae Ford after she pled guilty to
one count of Fraud in Connection with Access Devices in
violation of 18 U.S.C. § 1029(a)(3). Doc. 44. The
judgment included a restitution order in the amount of $1,
673, 071, due in full immediately. See Doc. 44 at 7.
The District Court amended this judgment on January 18, 2017,
imposing the same restitution obligation but ordering payment
to begin immediately with the special instruction that
“[a]ny balance of restitution remaining at the start of
supervision shall be paid at the rate of not less than $100
per month.” See Doc. 46 at 7. The amended
judgment did not impose a schedule for restitution payments
prior to the start of supervision.
has now filed a motion to set her restitution payments at $25
per quarter, contending that this is the most she can pay in
light of her financial limitations. Doc. 47. Ford is
incarcerated at the Federal Medical Center in Fort Worth,
Texas, and asserts that she earns less than $20 per month.
Doc. 47 at 1. However, she enrolled in the Inmate Financial
Responsibility Program (“IFRP”), which is a
voluntary program that directs a portion of an inmate's
employment earnings toward her restitution obligation.
See 28 C.F.R. § 545.11(b). Under the IFRP's
current payment schedule, Ford must pay $45 per month.
Mandatory Victims Restitution Act of 1996
(“MVRA”) provides that a sentencing court shall
“specify in the restitution order the manner in which,
and the schedule according to which, the restitution is to be
paid.” 18 U.S.C. § 3664(f)(2). The Eleventh
Circuit has held that “setting a schedule for a
prisoner to pay restitution or fines is a core judicial
function under the MVRA, and that the district court may not
delegate discretion to set the schedule.” United
States v. Prouty, 303 F.3d 1249, 1254-55 (11th Cir.
2002). Because the court may not delegate this discretion, it
ought not issue a restitution order “requiring
‘immediate' payment with an informal understanding
that the probation office shall set a repayment
schedule.” Prouty, 303 F.3d at 1255.
first requests that her restitution payment be lowered
pursuant to 18 U.S.C. § 3664(k). This provision allows
the court to modify its restitution orders upon notification
of a “material change in the defendant's economic
circumstances.” 18 U.S.C. § 3664(k). But the
notification must be made both to the court and to the
Attorney General of the United States. 18 U.S.C. §
3664(k). Ford does not claim that she has he notified the
Attorney General of a change in her economic circumstances.
In fact, Ford does not allege that there even has been a
change in her economic circumstances outside of the vague
statement that her payment plan is “based on a monetary
amount that the petitioner is no longer and will no longer
receive.” Doc. 47 at 3. Accordingly, to the extent Ford
seeks relief under § 3664(k), that request should be
also challenges the propriety of her restitution order by
asserting that the District Court impermissibly delegated its
statutory duty under the MVRA to set a payment schedule.
Specifically, Ford contends that the District Court
improperly ordered that the restitution obligations be paid
immediately “with the expectation that the [Federal
Bureau of Prisons] would work out a payment schedule.”
Doc. 47 at 2. While Ford is correct that the District Court
may not delegate its authority to set a payment schedule, she
mischaracterizes the restitution order in this case. As noted
above, the restitution order contained within the District
Court's amended judgment directs payments to commence
immediately with the instruction that any balance remaining
at the beginning of Ford's supervised release be paid at
the rate of no less than $100 per month. See Doc. 46
at 7. Thus, the District Court specified both the manner in
which, and the schedule according to which, Ford's
restitution is to be paid in accordance with the MVRA's
United States v. Dezern, the defendant appealed his
sentence, arguing in part that district court delegated its
duty to set a payment schedule to the probation officer.
See United States v. Dezern, 242 F. App'x 622,
615 (11th Cir. 2007). Like the restitution order here, the
district court in that case ordered restitution payments to
begin immediately and specified that “[a]ny portion of
the restitution that is not paid in full at the time of the
defendant's release from imprisonment shall become a
condition of supervision and be paid in monthly installments
of $400.00 over a period of 36 months to commence 30 days
after the date of this judgment.” Id. at 626.
Thus, the Eleventh Circuit concluded that the district court
had “prescribed ‘in the restitution order the
manner in which [$400 payments], and the schedule according
to which [monthly during supervised release], the restitution
is to be paid.'” Id. (quoting 18 U.S.C.
§ 3663(f)(2)) (alterations in original). Like the
situation in Dezern, the District Court here
satisfied its obligation under the MVRA to specify the manner
(payments of no less than $100) and schedule (monthly during
supervised release) of Ford's restitution payments.
with a nearly identical argument, a district court in the
Northern District of Georgia reached the same conclusion this
court reaches today. In United States v. Berry, the
defendant challenged the propriety of a restitution order and
requested that payments be lowered pursuant to §
3664(k). See United States v. Berry, 2013 WL
3946629, at *1 (N.D.Ga. July 30, 2013). The defendant in that
case, like Ford, argued that his family could not afford his
IFRP payments and also challenged his restitution order with
a non-delegation argument. See Id. at 1-2. After
observing, as the court has here, that the defendant did not
allege that he notified the Attorney General of a change in
his economic circumstances to justify a payment reduction
under § 3664(k), the court noted that “[t]he IFRP
applies only while Defendant is imprisoned and requires
payments only when he has funds in his inmate account.”
Id. at *2. And it explained that, at the time the
defendant was sentenced, the court could not have taken into
account the level of financial support the defendant would
receive from family while incarcerated. See Id.
Ultimately, no payment adjustment was warranted because the
defendant had shown no change in circumstances. See
Id. Additionally, the defendant in that case, like Ford,
relied on Ward v. Chavez, a 2012 Ninth Circuit
decision, in his challenge to the propriety of the district
court's restitution order and the IFRP as a whole.
See Id. The court addressed this argument by
observing that it was not bound by Ninth Circuit precedent.
See Id. at *3.
same reasoning applies here, where Ford's IFRP payments
apply only when she has funds available in her inmate
account. And the court would be remiss not to mention that
Ford's transaction history regularly reflects balances
well in excess of $100 and transactions far exceeding the $45
that she contends she is unable to afford. See Doc.
51-1. To the extent Ward lends support to Ford's
non-delegation argument, it is not binding authority and in
on way compels the court to depart from the Eleventh
Circuit's reasoning in Dezern. Accordingly, the
court recommends that Ford's motion be denied.
foregoing reasons, the undersigned Magistrate Judge
RECOMMENDS that the ...