United States v. Stark ( 2023 )

Case: 22-40557 Document: 00516603274 Page: 1 Date Filed: 01/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
No. 22-40557 January 9, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
John Steven Stark,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:12-CR-11-1
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam:
John Stark appeals the denial of adjustment of a restitution order. He
contends that the $1,400 stimulus payment he received in 2021 under the
American Rescue Plan Act was exempt from levy to satisfy the restitution
judgment, that the payments violated the Takings Clause of the United
States Constitution, and that failing to pay would jeopardize his participation
in rehabilitative programs and placement in a halfway house. The govern-
ment has filed an opposed motion for summary affirmance or, in the alterna-
tive, for an extension of time to file a merits brief.
Case: 22-40557 Document: 00516603274 Page: 2 Date Filed: 01/09/2023
No. 22-40557
A district court can adjust a restitution payment schedule where there
has been “any material change in the defendant’s economic circumstances
that might affect the defendant’s ability to pay restitution.” 18 U.S.C.
§ 3664(k). If a defendant “receives substantial resources from any source”
while still imprisoned, he is required to apply the value received to any resti-
tution. § 3664(n). All non-exempt assets may be pursued for restitution,
including those in a Bureau of Prisons (“BOP”) inmate trust account.
18 U.S.C. § 3613(a).
Stark maintains that the stimulus payment was exempt from levy and
could not be used to satisfy restitution. Section 3613(a) refers to a certain
portion of the Internal Revenue Code that sets out property that is exempt
from levy. See 26 U.S.C. § 6334(a)(1)–(8), (10), (12). A stimulus payment
does not qualify for any of those exemptions.
Moreover, Stark does not identify any statutory exemption that he
claims to be applicable. Because the stimulus payment constituted “substan-
tial resources from any source . . . during a period of incarceration,”
§ 3664(n), Stark was required to apply the entire $1,400, not merely half, to
restitution, see United States v. Hughes, 914 F.3d 947, 951 (5th Cir. 2019).
Contrary to Stark’s suggestion, paying court-ordered restitution from
non-exempt funds would not constitute a taking without compensation under
the Fifth or Fourteenth Amendments. See, e.g., United States Fid. & Guar.
Co. v. McKeithen, 226 F.3d 412, 416 (5th Cir. 2000) (discussing the types of
takings claims). And although Stark is correct that failing to pay could jeopar-
dize his participation in rehabilitative programs and placement in a halfway
house, see United States v. Diehl, 848 F.3d 629, 633 (5th Cir. 2017), imposition
of those conditions “does not violate an inmate’s liberty interests under the
Due Process Clause,” Driggers v. Cruz, 740 F.3d 333, 338–39 (5th Cir. 2014).
Finally, to the extent that Stark’s briefing can be read as a challenge to
2
Case: 22-40557 Document: 00516603274 Page: 3 Date Filed: 01/09/2023
No. 22-40557
the payment plan created by the BOP under the Inmate Financial Respon-
sibility Program (“IFRP”), he cannot do so. Modification of the IFRP plan
requires the prisoner to seek relief under 28 U.S.C. § 2241, after exhausting
all administrative remedies, in the district of his incarceration. United States
v. Diggs, 578 F.3d 318, 319–20 (5th Cir. 2009). Stark did not file a § 2241
petition; he is incarcerated in the District of Arizona; and he does not state
that he exhausted administrative remedies.
The judgment is AFFIRMED. The government’s motion for sum-
mary affirmance and alternative motion for an extension of time to file a brief
are DENIED as moot.
3