United States v. Lowe ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 27, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-5021
v. N.D. Oklahoma
KEN NETH ALA N LO W E, (D.C. No. 93-CR-186-TCK)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
I. Background
Kenneth Alan Low e was convicted on robbery and conspiracy charges and
sentenced to 228 months imprisonment, three years of supervised release, $10,000
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
restitution and a $100 special assessment. On December 12, 2005, Lowe,
proceeding pro se, 1 filed a “M otion to Revise Restitution Payment Schedule” and
on January 05, 2006, the district court entered an “Order M odifying Payment
Schedule.” (Doc. No. 79, 80.) Lowe appeals from the district court’s order
claiming it implicitly delegates to the Bureau of Prisons the task of creating the
payment schedule in violation of 18 U.S.C. § 3664(f) and as prohibited by United
States v. Overholt, 307 F.3d 1231 (10th Cir. 2002). 2 W e AFFIRM .
II. Discussion
In Overholt, we disapproved of a district court’s restitution order which
stated:
Restitution shall be paid in full immediately. Any amount not paid
immediately shall be paid while in custody through the Bureau of
Prisons' Inmate Financial Responsibility Program. Upon release
from custody, any unpaid balance shall be paid as a condition of
supervised release . . . .
Id. at 1255. W e determined the order improperly delegated the court’s duty to
provide for an appropriate payment schedule to the Bureau of Prisons pursuant to
18 U .S.C . § 3664. 3 M indful of the split in our sister circuits on this issue, we
1
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, 318
F.3d 1183, 1187 (10th Cir. 2003).
2
Lowe’s motion to proceed in form a pauperis is granted.
3
18 U.S.C. § 3664, entitled “Procedure for issuance and enforcement of
order of restitution” requires the district court to set a payment schedule based on
the defendant's financial resources. It states:
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concluded “[t]he governing statute, . . . particularly as amended by the
Anti-terrorism and Effective Death Penalty Act (AEDPA) in 1996, clearly
contemplates judicial control of restitution payment schedules.” Id. Although
“[t]he court is granted considerable discretion in structuring a payment
schedule,” 4 it must be the judicial authority which sets a reasonable payment
Upon determination of the amount of restitution owed to each victim,
the court shall, pursuant to section 3572, specify in the restitution
order the manner in which, and the schedule according to which, the
restitution is to be paid, in consideration of-
(A) the financial resources and other assets of the
defendant, including whether any of these assets are
jointly controlled;
(B) projected earnings and other income of the
defendant; and
(C) any financial obligations of the defendant; including
obligations to dependents.
18 U.S.C. § 3664(f)(2).
4
Section 3664(f)(3) provides:
(A) A restitution order may direct the defendant to make
a single, lump-sum payment, partial payments at
specified intervals, in-kind payments, or a combination
of payments at specified intervals and in-kind payments.
(B) A restitution order may direct the defendant to make
nominal periodic payments if the court finds from facts
on the record that the economic circumstances of the
defendant do not allow the payment of any amount of a
restitution order, and do not allow for the payment of the
full amount of a restitution order in the foreseeable
future under any reasonable schedule of payments.
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schedule. Id. at 1256.
Lowe’s motion to revise his restitution payment schedule claimed “[o]n
several occasions the [B]ureau of Prisons has taken personal funds from my
account that my family has sent and raised my payment schedule based on those
unscheduled gifts.” (Doc. 79 at 2.) He argued the ability of the Bureau of Prisons
to change his payment schedule based upon the receipt of gifts from his family
violated our ruling in Overholt.
The district court granted his request for modification and ordered in
relevant part:
Special M onetary Assessments totaling $100, and restitution in the
amount of $9,963.85 as to Count One and $36.15 as to Count Three
are due in full immediately, but payable on a schedule of the greater
of $25 quarterly or 50% in income pursuant to the Federal Bureau of
Prisons’ Inmate Financial Responsibility Program while in prison. If
restitution and fine balances remain, payment is to commence no
later than 60 days following release from imprisonment to a term of
supervised release in equal monthly payments of at least $25 or 10%
of net income (take home pay), whichever is greater, over the
duration of the term of supervised release and thereafter as
prescribed by law for as long as some debt remains. Notwithstanding
establishment of a payment schedule, nothing shall prohibit the
United States from executing or levying upon property of the
defendant discovered before or after the date of this Judgment. The
Court orders that interest shall be waived.
(D oc. 80, Attach. 1.) Lowe contends this modification “can be interpreted in
several different ways in which the Bureau is still able to raise the payment at
will.” (Appellant’s Reply Br. at 2.) Lowe does not provide an example of such
interpretation. Rather, his only complaint is that the court’s order allows the
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Bureau of Prisons to continue to apply 50% of any gift Lowe receives toward his
restitution payments.
The Financial Responsibility Program requires unit staff to assist an inmate
in preparing a financial plan and monitoring the inmates’ progress in meeting
payment. Id. at §545.11(a). Payments are to be made from “institution resources
or non-institution (community) resources.” 28 CFR § 545.11(b). Unlike Overholt,
the district court’s order does not delegate to the Bureau discretion to change the
payment schedule by changing its regulations. Lowe fails to cite any case or law
that excludes gifts from income or limits the court’s discretion to include
unexpected monetary contributions.
Conclusion
Overholt requires a payment schedule w hich must be adhered to by both
Lowe and the Bureau of Prisons. The order in this case requires the Bureau of
Prisons to collect “the greater of $25 quarterly or 50% in income,” in compliance
with Overholt’s requirement. A FFIRMED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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