United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION AND ORDER
Scott Coogler United States District Judge
defendant, Philip Henry Cooper (“Cooper”), has
filed a response and objection to Writs of Execution filed by
the Government, a motion to amend his judgment to provide
that restitution is to be paid in installments, and a request
for a hearing. (Doc. 112.) The Government has responded in
opposition. (Doc. 117.) Cooper has replied in support. (Doc.
118.) For the following reasons, Cooper's requests are
due to be denied.
grand jury indicted Cooper and others in June 2016 for bank
bribery, wire fraud, money laundering, and conspiracy to
defraud Regions Bank (“Regions”) of over $5.1
million. (Doc. 1.) It returned a Superseding Indictment
containing the same kinds of charges in September 2016. (Doc.
2017, Cooper pleaded guilty to conspiracy. In his Plea
Agreement, Cooper admitted to perpetrating the scheme and
personally receiving over $1 million from it, and agreed to
pay $5.1 million in restitution back to Regions, jointly and
severally with his co-conspirators. (Doc. 69.) He agreed to
forfeit $551, 649 formerly stored in his attorney's trust
account and a safe in his house. He also agreed not to
contest, by appeal or post-conviction motion, any restitution
order entered against him. (Id. at 12-13.) The
Government agreed to recommend a 60-month prison sentence. It
also agreed not to take Cooper's residence for
restitution or forfeiture, and to recommend to the Attorney
General that the $551, 649 be applied towards his restitution
obligation-in other words, that the forfeited funds be
“restored” to Regions. At his May 2017 plea
hearing, Cooper agreed that he had read his Plea Agreement
and discussed it with his lawyer, initialed all its pages,
and signed it in various places. (Doc. 116.) He also agreed
that he had knowingly and voluntarily signed the portion
waiving his right to appeal or file a post-conviction
petition except in limited circumstances. (Id. at
later revealed, in an objection to the original Presentence
Investigation Report (“PSR”), that he had
approximately $59, 000 worth of equity in the residence that
the Government had agreed not to forfeit or liquidate for
restitution. Cooper's Revised PSR contains additional
facts concerning his and his wife's finances: Cooper is
married to P.S., who is employed with a company that, prior
to sentencing, was planning to transfer her to Florida;
Cooper and P.S. sold the residence that the Government agreed
not to forfeit, and P.S. purchased a house in Florida in
August 2017 for $302, 000, with $70, 000 of that coming out
of the couple's checking account; as of September 2017,
Cooper received $1, 643.67 per month from the Regions
Financial Corporation Retirement Plan; as of September 2017,
Cooper had $531, 660.90 in a Regions 401(k) account and $206,
784.27 in a Fidelity account; as of September 2017,
P.S.'s monthly income was $5, 659.80, making her and
Cooper's combined income $7, 303.47-more than $2, 600
over their total monthly expenses.
sentencing, the Government recommended that Cooper receive 48
months in prison-a year lower than the 60 months it agreed to
in the Plea Agreement, and over three years lower than the
low end of his Guidelines range. The Court agreed, and also
noted that it would not impose a fine against Cooper
“because the restitution . . . is going to take care of
the majority of the assets that a fine could be recovered
from.” (Doc. 111 at 7.) The Court also orally ordered
Cooper to pay $5.1 million in restitution jointly and
severally with two co-defendants. The following exchange then
The Court: As to your restitution, he has paid a significant
portion of that; is that correct?
Defense Counsel: Yes, sir. He's paid slightly over half.
We would ask, if the court is so inclined, to order that it
be payable henceforth by installment plan given the amount.
The Court: Right. Well, this is what I normally say in this
and that is that the restitution will be with interest. And
it's all due immediately. But until he gets out of
prison, there is not going to be an effective way of really
breaking up and figuring out how much he can pay per month
kind of thing.
Defense Counsel: Yes, sir.
The Court: So when he gets out, I'm going to direct the
probation office to get with him and calculate what would be
an effective amount based on what's left to be paid at
(Doc. 111 at 8-9.) Cooper did not object to the restitution
order or anything else the ...