United States v. Jeffrey Thomas Gola , 698 F. App'x 602 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11385
Non-Argument Calendar
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D.C. Docket No. 2:13-cr-00114-WKW-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY THOMAS GOLA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(October 11, 2017)
Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Jeffrey Gola appeals the denial without prejudice of his motion to stay the
collection of restitution. We affirm.
Gola pleaded guilty to using a computer to distribute child pornography. 18
U.S.C. § 2252A(a)(2). In his written plea agreement, Gola agreed to pay restitution
for the costs that his victims incurred for mental health treatment. The district court
entered an order of restitution, but deferred ruling on the amount owed to the
victims. On August 13, 2014, the district court entered an amended judgment
stating that Gola owed $11,000 in restitution, which was due immediately, and that
he had to satisfy any balance remaining when he began supervised release by
making minimum monthly payments of $100. Gola did not appeal.
In September 2016, the government notified Gola that unless he paid the full
amount of restitution owed, the debt would be referred to the Department of the
Treasury for collection through its offset program. The notice stated that the
Department could withhold payments due to Gola from the federal treasury to
offset his debt. The notice also stated that the Department could not garnish money
in Gola’s prison account unless he was participating voluntarily in the inmate
financial responsibility program.
In January 2017, Gola moved pro se to stay the collection of restitution.
Gola argued that he was indigent and should be required to make only nominal
periodic payments, 18 U.S.C. § 3664(f)(2), (f)(3), and he acknowledged that he
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had to offset the balance he owed with any substantial resources he received
unexpectedly, id. 3664(n). Gola also argued that he intended to collaterally
challenge the order of restitution on the ground that he was not the proximate cause
of the victims’ injuries. See 28 U.S.C. § 2255.
The district court denied Gola’s motion to stay. The district court stated that
Gola’s concern about the restitution being “offset from his inmate account” was
unsubstantiated because the government could not garnish his inmate account
“unless he volunteers to do so under his prison-sponsored financial responsibility
plan.” The district court also denied Gola’s motion for reconsideration.
The district court did not err in denying Gola’s motion for a stay. Gola could
not challenge the validity of his order of restitution or of his payment plan for the
first time in a collateral proceeding. See Arnaiz v. Warden, 594 F.3d 1326, 1330
(11th Cir. 2010); Cani v. United States, 331 F.3d 1210, 1213–14 (11th Cir. 2003).
To the extent that Gola alleged that his payment schedule failed to account for his
inability to pay and constituted an improper delegation of authority to the Bureau
of Prisons, he waived those arguments by failing to raise them in a direct appeal
and has not established that exceptional circumstances excuse his waiver. See
Cani, 331 F.3d at 1213–14. Gola alleged that he was indigent and requested to
“make nominal periodic payments,” but he failed to allege he had undergone a
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“material change in [his] economic circumstances” that warranted his belated
request for an “adjust[ment] [in] the payment schedule,” see 18 U.S.C. § 3664(k).
Insofar as Gola argues that he is being coerced by prison officials to
participate in the financial responsibility program in violation of his liberty and
property interests in his inmate account, Gola would have to present that argument
in a petition for a writ of habeas corpus. 28 U.S.C. § 2241. And that petition about
the execution of Gola’s sentence would have to be filed against the prison officials
in the district of his confinement.
We AFFIRM the denial of Gola’s motion to stay the collection of
restitution.
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