United States v. Leon Love, Jr. , 329 F. App'x 667 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2009*
Decided May 18, 2009
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08-3680
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 92-CR-16
LEON LOVE,
Defendant-Appellant. Rudolph T. Randa,
Chief Judge.
ORDER
Leon Love pleaded guilty in 1992 to armed bank robbery and possession of a
firearm while committing a crime of violence. He was sentenced to a total of 270 months’
imprisonment and ordered to pay $4,727.55 in restitution. The written judgment directs
that the restitution be paid in installments “as directed by the probation department.”
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
No. 08-3680 Page 2
Love appealed, but did not challenge the restitution order, and we affirmed the judgment.
United States v. Love, 1993 WL 53182 (7th Cir. 1993). For the first sixteen years that he was
incarcerated, Love made regular restitution payments through the Inmate Financial
Responsibility Program, but when the Bureau of Prisons changed his regular payment
amount, he petitioned for a writ of mandamus to halt further collections. Love argued that
the judgment did not give the BOP power to set a payment schedule; only the court itself
could do so. The government believed Love was correct and told the court that it had
removed him from the IFRP. The government then argued that the mandamus petition
was moot, and the district court agreed. At the government’s suggestion, the court
nevertheless ordered Love to “make immediate restitution” and participate in the IFRP.
Love appeals.
The government has reversed course and now concedes that the district court lacked
subject-matter jurisdiction to order immediate payment of restitution. A restitution order
is part of a defendant’s sentence; it can be challenged on direct appeal, but not later. See
United States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007); Barnickel v. United States, 113 F.3d
704, 705-06 (7th Cir. 1997). Accordingly, the district court lacked jurisdiction to amend the
judgment by ordering immediate payment of restitution.
Love agrees that the district court lacked jurisdiction to order immediate payment,
but he does not want to resume participating in the IFRP on the BOP’s terms. As he did in
the district court, Love asserts that the prison cannot “force” him to make payments
through the IFRP without a court order. The government and the district court seem to
agree: the court required Love to participate, and the government argues that we should
leave that part of the district court’s order intact. But the district court, the government,
and Love all misunderstand the IFRP, which is a voluntary program. See 28 C.F.R.
§ 545.10-11. “An inmate is free to decline to participate in the IFRP.” United States v.
Lemoine, 546 F.3d 1042, 1047 (9th Cir. 2008). Inmates are denied privileges if they refuse to
make the necessary payments, 28 C.F.R. § 545.11(d), but that does not mean that they are
“forced” to participate. See Lemoine, 546 F.3d at 1046; McGhee v. Clark, 166 F.3d 884, 887 (7th
Cir. 1999); Dorman v. Thornburgh, 955 F.2d 57, 58-59 (D.C. Cir. 1992); Johnpoll v. Thornburgh,
898 F.2d 849, 851 (2d Cir. 1990). If Love dislikes the payment schedule set by the BOP, he
may choose not to comply and face the consequences, but the district court cannot compel
participation. Finally, we note that the district court’s effort to compel Love’s participation
was aimed at a problem that did not need solving: there is no error in judicial silence as to
restitution payments during incarceration. See United States v. Sawyer, 521 F.3d 792, 795
(7th Cir. 2008).
No. 08-3680 Page 3
Accordingly, we V ACATE the order of the district court and REMAND with
instructions to deny Love’s petition for a writ of mandamus.