United States v. Lemoine ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-50663
Central District of
v.
 California
CHRISTOPHER LEMOINE, aka Terry D.C. No.
Giagnoca, CR-03-00037-RT-01
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 07-50083
Central District of
v.
 California
CHRISTOPHER LEMOINE, aka Terry D.C. No.
Giagnoca, CR-03-00037-RT-01
Defendant-Appellant.

CHRISTOPHER LEMOINE, 
Petitioner-Appellee, No. 07-35761
v. District of Oregon
CHARLES A. DANIELS, Federal  D.C. No.
Correctional Institution Sheridan, CV-07-00100-MFM
Oregon, OPINION
Respondent-Appellant.

Appeals from the United States District Court
for the Central District of California
Robert J. Timlin, District Judge, Presiding
14363
14364 UNITED STATES v. LEMOINE
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted May 9, 2008*
Filed October 9, 2008
Before: Richard C. Tallman and Richard R. Clifton,
Circuit Judges, and Earl H. Carroll,** District Judge.
Opinion by Judge Clifton
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Earl H. Carroll, Senior United States District Judge,
District of Arizona, sitting by designation.
14366 UNITED STATES v. LEMOINE
COUNSEL
Christopher W. Lemoine, pro se, as appellant in Nos. 06-
50663 & 07-50083 and as appellee in No. 07-35761.
Kelly A. Zusman and Scott E. Asphaug, Assistant United
States Attorneys, Portland, Oregon, for appellant United
States in No. 07-35761.
Michael J. Raphael and Robert C. Stacy II, Assistant United
States Attorneys, Los Angeles, California, for appellee United
States in Nos. 06-50663 & 07-50083.
UNITED STATES v. LEMOINE 14367
OPINION
CLIFTON, Circuit Judge:
These consolidated appeals present the question of whether
the Bureau of Prisons (BOP), the federal agency responsible
for the incarceration of inmates, may require inmates who
participate in the bureau’s Inmate Financial Responsibility
Program (IFRP) to pay restitution to victims at a higher or
faster rate than was specified by the sentencing court, without
obtaining an order from the sentencing court directing or
approving the larger payments. We conclude that the BOP
may do so.
I. Background
Christopher Lemoine was, after a guilty plea, convicted of
one count of wire fraud in violation of 18 U.S.C. § 1343. That
proceeding was in the Central District of California. Lemoine
was sentenced to imprisonment for 77 months, to serve five
years thereafter on supervised release, and to pay restitution
in the total amount of $2,835,126.88, pursuant to the Manda-
tory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A.
The Judgment and Probation/Commitment Order entered by
the district court required that Lemoine pay restitution during
his imprisonment “at the rate of not less than $25 per quarter,
and pursuant to the Bureau of Prisons’ Inmate Financial
Responsibility Program.” The order required Lemoine to
make “monthly payments of at least $500” while on super-
vised release.
After he began serving his sentence at the medium security
facility operated by the BOP in Sheridan, Oregon, Lemoine
enrolled in the IFRP. As a condition of his participation in the
program, the BOP required that Lemoine pay restitution at a
rate of $132 per month, a dollar figure and a frequency higher
than the “not less than $25 per quarter” specified in the
court’s judgment. Lemoine filed a motion with the sentencing
14368 UNITED STATES v. LEMOINE
court, the Central District of California, to modify the judg-
ment. He argued that the court had improperly delegated its
authority to schedule restitution payments and raised a series
of challenges, relying on United States v. Gunning, 339 F.3d
948 (9th Cir. 2003) (Gunning I), and United States v. Gun-
ning, 401 F.3d 1145, 1150 (9th Cir. 2005) (Gunning II).
The district court denied Lemoine’s motion, reasoning that
“the only duty which the Ninth Circuit has held non-delegable
under the MVRA is that of scheduling restitution payments.
Here, the court did not delegate scheduling to the BOP. It set
the payment schedule as quarterly in its restitution order.”
[Page 4 of C.D. Cal. Order entered October 20, 2006, which
is ER 26 in the Oregon case originally assigned to us.] The
court also noted that the phrase “pursuant to the Bureau of
Prisons’ Inmate Financial Responsibility Program” was
included in the judgment because the court assumed “sub
silentio that the defendant would choose to participate in the
voluntary IFRP program” to “qualify for certain benefits and
advantages,” indicating that the order did not mandate Lem-
oine’s participation and stating that “Lemoine did so choose
[to voluntarily participate in the program], agreeing to pay
$132.00 per month.” The court declined to reach the merits of
Lemoine’s challenges to the IFRP itself because they were
raised in his reply brief and because such challenges are
“properly made in a habeas petition under 28 U.S.C. § 2241,
and the petition should be filed in the district court in which
petitioner’s place of incarceration is located.” [C.D. Cal.
Order, at 6.] Lemoine, acting pro se, filed multiple appeals
from the decision of the Central District of California, two of
which are before us, Nos. 06-50663 and 07-50083.1
1
The appeals were from the district court’s denial of his motion to mod-
ify a restitution order (No. 06-50663) and the denial of reconsideration
(No. 07-50083). This court granted the government’s motion to dismiss
another appeal, regarding an extension of time (No. 07-50084) because
Lemoine was not aggrieved by that order. Lemoine voluntarily dismissed
an appeal from the dismissal of a receiver motion (No. 07-50085).
UNITED STATES v. LEMOINE 14369
Shortly after Lemoine’s unsuccessful challenge to his sen-
tence, the BOP modified the schedule of restitution payments
required from Lemoine under the IFRP, setting it as the mini-
mum amount permitted under Lemoine’s sentencing order:
$25 per quarter. The record does not make clear the reason for
the change. Nonetheless, Lemoine followed the suggestion
contained in the order entered by the Central District of Cali-
fornia, and in January 2007 filed a pro se § 2241 habeas peti-
tion in the District of Oregon, where he was then incarcerated.
That court issued an opinion and order on July 20, 2007.
Lemoine’s District of Oregon petition presented three chal-
lenges. First, he argued that the sentencing order impermiss-
ibly delegated authority to the BOP to set his restitution
repayment schedule. The Oregon district court said it declined
to reach this claim because it was the subject of the direct
appeal from the Central District’s order and was thus not ripe
for collateral attack. Later in the order, though, the Oregon
district court seemed to reject this challenge, by stating that
“here the sentencing court set a schedule for making restitu-
tion payments during incarceration” and therefore “did not
unlawfully delegate that authority to the BOP.”
Second, Lemoine contended that the IFRP violated the
Equal Protection Clause by treating otherwise similarly situ-
ated prisoners differently based on whether they had the abil-
ity to pay their restitution. The Oregon district court rejected
this contention, stating that rational basis review applied
because prisoners were not members of a suspect class and
the IFRP did not impinge upon any fundamental rights. It held
that the IFRP was rationally related to the legitimate govern-
mental purpose of enforcing sentencing orders and ensuring
that inmates fulfill their financial obligations to make good
the harm they visited upon their victims. The court found that
the IFRP furthered this purpose by offering inmates incentives
to work and pay their debts during their imprisonment and
imposing consequences, within constitutional bounds, for fail-
ing to do so. The court’s order cited several precedents and
14370 UNITED STATES v. LEMOINE
quoted specifically from Gunning II and stated that “the Ninth
Circuit implicitly endorsed the IFRP” in that decision.
Finally, Lemoine argued that the BOP lacked the authority
to increase his restitution repayment rate above the $25 per
quarter minimum the sentencing court established in its judg-
ment. The Oregon district court agreed with that challenge.
The court held Congress’s mandate in the MVRA to be clear:
“the sentencing court ‘shall . . . specify in the restitution order
the manner in which, and the schedule according to which, the
restitution is to be paid . . . .’ ” (citing 18 U.S.C. § 3664(f)(2)).
It noted that the Ninth Circuit had interpreted the provision as
decisive when it held in Gunning II that the “district court
must determine the restitution payment schedule.” The court
concluded that, “[t]hough the Ninth Circuit has not yet con-
sidered whether the BOP may increase an inmate’s restitution
payment amount without a court order, I find that allowing
the BOP to modify the payment schedule in any way, without
court approval, amounts to an equally impermissible delega-
tion of authority as allowing the BOP to create the payment
schedule.”
With respect to the potentially voluntary nature of the new
payment schedule, the Oregon district court found that Lem-
oine “agreed” to pay the higher rate only to avoid the adverse
consequences of failing to do so. It held that the BOP’s modi-
fication of Lemoine’s restitution payment schedule pursuant
to the development of a “financial plan” under the IFRP was
in excess of its authority and therefore not in accordance with
law, and on that basis granted Lemoine’s petition and ordered
the BOP to maintain the schedule at $25 per quarter. The gov-
ernment appealed, and that appeal has been assigned No. 07-
35761 by our court.
The three pending appeals, Nos. 06-50663 and 07-50083
from the Central District of California, and No. 07-35761
from the District of Oregon, have all been assigned to this
panel as related cases. By separate order we have consolidated
UNITED STATES v. LEMOINE 14371
the three appeals, and we resolve all three in this opinion.
Specifically, we affirm the orders and judgment of the district
court for the Central District of California in Nos. 06-50663
and 07-50083, and we reverse the order and judgment of the
District of Oregon in No. 07-35761.
II. Discussion
“We review de novo a district court’s decision to grant or
deny a petition for writ of habeas corpus filed pursuant to 28
U.S.C. § 2241.” Khotesouvan v. Morones, 386 F.3d 1298,
1299 (9th Cir. 2004).
We hold that the BOP’s operation of the IFRP does not
constitute an unlawful delegation of authority to schedule res-
titution repayments in violation of the MVRA. The MVRA
requires the sentencing court to set a restitution repayment
schedule. The sentencing court did that here. The MVRA
does not prohibit an inmate from voluntarily making larger or
more frequent payments than what was set by the sentencing
court. Nor does it limit the authority of the BOP, through the
IFRP, to offer incentives to inmates to pay their restitution
obligations in larger amounts or at a faster rate than the court
has required.2
We also reject Lemoine’s argument that his participation in
2
After these appeals were filed and were assigned to this panel, Lem-
oine was transferred to a Residential Reentry Center (RRC), or halfway
house. Although RRCs are independently operated, Lemoine remains in
federal custody and subject to the BOP’s authority. By contract, the BOP
requires its RRCs to “provide for the continuity of the Bureau’s institution
policy concerning the Inmate Financial Responsibility Program” and man-
dates that they “establish a program” whereby they monitor an inmate’s
progress on his or her “financial plan.” BOP, Residential Reentry Center
Statement of Work, at 48 (Aug. 2007), at http://www.bop.gov/locations/
cc/res_rentry_ctr_sow_2007.pdf. Thus, Lemoine continues to have stand-
ing to challenge the BOP’s authority to condition participation in the IFRP
on higher restitution payments than required by the sentencing court.
14372 UNITED STATES v. LEMOINE
the IFRP was involuntary because he would have been denied
certain privileges if he had refused to join the program. Lem-
oine did not have a preexisting right to receive any of the ben-
efits conditioned on his participation during his incarceration,
and the consequences the BOP imposes on inmates who
refuse to participate in the IFRP are reasonably related to the
legitimate penological interest of rehabilitation. In addition,
the consequences are not so severe as to impose an “atypical
and significant hardship” and therefore do not infringe on any
constitutionally-protected liberty interest. See Sandin v. Con-
ner, 515 U.S. 472, 484-85 (1995). The BOP therefore had the
authority to create a financial plan for Lemoine through the
IFRP and to impose penalties if he failed to accept its terms.
[1] The BOP’s IFRP applies to nearly all post-trial inmates
in federal facilities. 28 C.F.R. § 545.10. It is intended to “en-
courage[ ] each sentenced inmate to meet his or her legitimate
financial obligations.” Id. Under the IFRP, “unit staff”
develop a financial plan for each inmate and monitor his or
her progress in adhering to that plan. 28 C.F.R. § 545.11. In
doing so, they conduct an independent assessment of inmates’
abilities to pay by reviewing their financial obligations and
“all available documentation.” 28 C.F.R. § 545.11(a). The
IFRP typically requires a minimum payment of $25 per quar-
ter for non-UNICOR and UNICOR grade 5 inmates.3 28
C.F.R. § 545.11(b)(1). For inmates in UNICOR grades 1
through 4, the IFRP requires payments of at least 50 percent
of the inmate’s monthly pay. The BOP may obtain payments
from funds earned through prison employment as well as
from funds received from outside sources, such as money sent
by relatives. 28 C.F.R. § 545.11(b).
[2] An inmate is free to decline to participate in the IFRP,
but the failure either to participate or to comply with a finan-
3
UNICOR is the trade name of Federal Prison Industries, Inc., a self-
sustaining government corporation that provides employment and job
training to BOP inmates while producing marketable goods and services.
UNITED STATES v. LEMOINE 14373
cial plan created pursuant to the program carries certain con-
sequences. They are set forth in 28 C.F.R. § 545.11(d):
(d) Effects of non-participation. Refusal by an
inmate to participate in the financial responsibility
program or to comply with the provisions of his
financial plan ordinarily shall result in the following:
(1) Where applicable, the Parole Commis-
sion will be notified of the inmate’s failure
to participate;
(2) The inmate will not receive any fur-
lough (other than possibly an emergency or
medical furlough);
(3) The inmate will not receive perfor-
mance pay above the maintenance pay
level, or bonus pay, or vacation pay;
(4) The inmate will not be assigned to any
work detail outside the secure perimeter of
the facility;
(5) The inmate will not be placed in UNI-
COR. Any inmate assigned to UNICOR
who fails to make adequate progress on his/
her financial plan will be removed from
UNICOR, and once removed, may not be
placed on a UNICOR waiting list for six
months. Any exceptions to this require
approval of the Warden;
(6) The inmate shall be subject to a monthly
commissary spending limitation more strin-
gent than the monthly commissary spend-
ing limitation set for all inmates. This more
stringent commissary spending limitation
14374 UNITED STATES v. LEMOINE
for IFRP refusees shall be at least $25 per
month, excluding purchases of stamps, tele-
phone credits, and, if the inmate is a com-
mon fare participant, Kosher/Halal certified
shelf-stable entrees to the extent that such
purchases are allowable under pertinent
Bureau regulations;
(7) The inmate will be quartered in the low-
est housing status (dormitory, double bunk-
ing, etc.);
(8) The inmate will not be placed in a
community-based program;
(9) The inmate will not receive a release
gratuity unless approved by the Warden;
(10) [Reserved]
(11) The inmate will not receive an incen-
tive for participation in residential drug
treatment programs.
In Gunning I and Gunning II, we held that, where a sen-
tencing court had ordered restitution pursuant to the MVRA,
the MVRA forbids delegation of the scheduling of restitution
payments. This is because the “language of the MVRA is cat-
egorical,” and provides that “the district court is ultimately
responsible for setting a schedule for making restitution.”
Gunning I, 339 F.3d at 949; see also 18 U.S.C.
§ 3664(f)(1)(B)(2) (“Upon determination of the amount of
restitution owed to each victim, the court shall . . . specify in
the restitution order the manner in which, and the schedule
according to which, the restitution is to be paid . . . .”).
In Gunning I, we rejected a judgment that required the
defendant to make restitution “immediately” with any remain-
UNITED STATES v. LEMOINE 14375
ing amount “to be paid during the period of supervision as
directed by a U.S. probation officer.” 339 F.3d at 950. We
held that the district court had erred in delegating to the pro-
bation office the duty of scheduling payments. Id. On remand,
the district court again ordered immediate payment, but pro-
vided that any unpaid amount should be paid through the
BOP’s IFRP during the time of the defendant’s imprisonment
and in monthly payments of at least 10 percent of his salary
during his period of supervised release. Gunning II, 401 F.3d
at 1147. We recognized that the BOP, like the probation
office, had “expertise in the payment area,” but held that such
expertise did not absolve the district court of fulfilling its
responsibility of creating a restitution repayment schedule,
including for the period of the defendant’s imprisonment. Id.
at 1150. Although the district court could seek guidance from
the BOP when setting its schedule, it did not have “the author-
ity to delegate its own scheduling duties—not to the probation
office, not to the BOP, not to anyone else.” Id.4
4
The circuits have split over how to interpret the MVRA and to what
extent it permits delegation of restitution scheduling duties. The First, Sec-
ond, Third, Sixth, Eighth, Tenth, and Eleventh Circuits have all held that
a district court must set a restitution repayment schedule, and those that
have reached the issue have concluded, as we did in Gunning II, that a
court may not simply order immediate payment and leave to the BOP the
task of setting the actual schedule. United States v. Merric, 166 F.3d 406,
409 (1st Cir. 1999); United States v. Kinlock, 174 F.3d 297, 301 (2d Cir.
1999) (“When restitution cannot be paid immediately, the sentencing court
must set a schedule of payments for the terms of incarceration, supervised
release, or probation.”); United States v. Corley, 500 F.3d 210, 228 (3d
Cir. 2007); United States v. Davis, 306 F.3d 398, 426 (6th Cir. 2002);
United States v. McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001); United
States v. Overholt, 307 F.3d 1231, 1256 (10th Cir. 2002); United States
v. Prouty, 303 F.3d 1249, 1254-55 (11th Cir. 2002) (holding that “setting
a schedule for a prisoner to pay restitution or fines is a core judicial func-
tion under the MVRA” and that a sentencing court may not order immedi-
ate repayment where funds are unavailable because it implicitly delegates
the authority to schedule repayment to the probation office).
In contrast, the Fourth, Fifth, and Seventh Circuits have held that a
judgment of conviction need not contain a schedule of restitution pay-
14376 UNITED STATES v. LEMOINE
[3] While the MVRA forbids the wholesale delegation of
scheduling responsibility to the BOP, nothing in the text of
the statute or our prior decisions places any limits on the
BOP’s operation of an independent program, such as the
IFRP, that encourages inmates voluntarily to make more gen-
erous restitution payments than mandated in their respective
judgments. See 18 U.S.C. §§ 3663A, 3664. In Gunning II,
even as we held that the IFRP could not act as a substitute for
a court-created restitution schedule, we implicitly endorsed
the program’s continued viability, praising the BOP for
“wisely” creating “the IFRP procedure whereby the BOP will
‘help the inmate develop a financial plan’ and will then ‘mon-
itor the inmate’s progress’ in meeting the terms of that plan.”
401 F.3d at 1150 (quoting 28 C.F.R. § 545.11).
[4] Lemoine argues that the program is involuntary and that
he only assented to the terms of his financial plan “to avoid
the adverse consequences of not agreeing.” The use of incen-
tives to encourage compliance in a rehabilitative program
does not render it unconstitutional or unlawful, however.
McKune v. Lile, 536 U.S. 24, 39 (2002) (plurality) (“An
essential tool of prison administration . . . is the authority to
offer inmates various incentives to behave. The Constitution
accords prison officials wide latitude to bestow or revoke
these perquisites as they see fit.”). In McKune, the Supreme
Court approved of a prison’s imposition of adverse conse-
quences for failing to participate in a program aimed at
encouraging acceptance of responsibility, notwithstanding the
program’s direct impact on inmates’ constitutional rights. It
ments to be made during the period of incarceration. United States v.
Dawkins, 202 F.3d 711, 716 (4th Cir. 2000); United States v. Miller, 406
F.3d 323 (5th Cir. 2005); United States v. Sawyer, 521 F.3d 792, 796 (7th
Cir. 2008) (concluding that court ordered payment schedules “need not,
and as a rule should not, begin until after the defendant’s release from
prison,” rather “[p]ayments until release should be handled through the
Inmate Financial Responsibility Program rather than the court’s aus-
pices”).
UNITED STATES v. LEMOINE 14377
upheld the constitutionality of an incentive system whereby
inmates who refused to waive their Fifth Amendment privi-
lege against self-incrimination and admit to past offenses in
writing were transferred to another prison where television
sets were not present in each cell, exercise facilities were not
readily available, work and wage opportunities were more
limited, canteen privileges were reduced, and visitation rights
were curtailed. Id. at 36-39 (plurality), 50-51 (O’Connor, J.,
concurring in the judgment).
[5] In the present case, our analysis is simplified because
the challenged rehabilitative program does not implicate Lem-
oine’s constitutional rights. Lemoine had no entitlement, con-
stitutional or otherwise, to any of the benefits agreeing to
participate in the IFRP would provide, such as a work detail
outside the prison perimeter, a higher commissary spending
limit, a release gratuity, or pay beyond the maintenance pay
level.5 See 28 C.F.R. § 545.11(d).
[6] Moreover, the consequences of declining to participate
in the IFRP are reasonably related to the legitimate penologi-
cal interest of rehabilitation because the program promotes
acceptance of responsibility and fulfillment of the obligation
to make restitution to victims. See Mauro v. Arpaio, 188 F.3d
1054, 1059 (9th Cir. 1999) (upholding a prison policy of
excluding sexually-explicit materials because it was aimed at
rehabilitating inmates, which the court noted was unquestion-
5
We refer to the conditions imposed through the IFRP as granting or
denying either benefits or privileges interchangeably because we agree
with the plurality in McKune that it would be a mistake “to concentrate on
the so-called reward/penalty distinction and the illusory baseline against
which a change in prison conditions must be measured. The answer to the
question whether the government is extending a benefit or taking away a
privilege rests entirely in the eye of the beholder.” McKune, 536 U.S. at
45-46. If the BOP were permitted to encourage behavior by providing ben-
efits and privileges, but not by denying or revoking them, it would create
“perverse incentives” to initially house all prisoners under the harshest
constitutionally permissible conditions possible. Id. at 46.
14378 UNITED STATES v. LEMOINE
ably a legitimate penological interest); see also Pell v. Procu-
nier, 417 U.S. 817, 823 (1974) (concluding that a “paramount
objective of the corrections system is the rehabilitation of
those committed to its custody”); Johnpoll v. Thornburgh,
898 F.2d 849, 851 (2d Cir. 1990) (holding that, even if the
BOP did compel participation in the IFRP, it would still not
be unconstitutional because the program was not punitive and
was reasonably related to the legitimate governmental objec-
tive of rehabilitation).
The consequences for declining to participate in the IFRP
also do not constitute such an “atypical and significant hard-
ship on the inmate in relation to the ordinary incidents of
prison life” that they invoke Lemoine’s liberty interest. See
Sandin, 515 U.S. at 484-85 (holding that even a “concededly
punitive” transfer to less desirable housing conditions did not
exceed prison officials’ authority because it did “not present
a dramatic departure from the basic conditions of [the
inmate’s] indeterminate sentence”). The imposition of those
consequences therefore would not have violated Lemoine’s
due process rights, and it was within the BOP’s discretion to
condition the receipt of privileges under the IFRP on his
acceptance of the terms of its financial plan. Ky. Dep’t of Cor-
rections v. Thompson, 490 U.S. 454, 460-61 (1989) (“[A]s
long as the conditions or degree of confinement to which the
prisoner is subjected is within the sentence imposed upon him
and is not otherwise violative of the Constitution, the Due
Process Clause does not in itself subject an inmate’s treatment
by prison authorities to judicial oversight.”) (internal quota-
tions omitted); Montano-Figueroa v. Crabtree, 162 F.3d 548,
549 (9th Cir. 1998) (noting that the IFRP has been “upheld
generally . . . and against constitutional due process chal-
lenges” and collecting cases) (internal citations omitted).
[7] Permitting the BOP independently to develop voluntary
financial plans through the IFRP not only assists the BOP to
meet its rehabilitative goals for prisoners, it also ameliorates
the practical difficulties engendered by requiring sentencing
UNITED STATES v. LEMOINE 14379
courts to set a restitution repayment schedule without knowl-
edge of whether a defendant will be employed in prison or the
amount he will receive in wages or outside assistance. The
IFRP allows the BOP to respond immediately to an inmate’s
changing financial circumstances and saves scarce judicial
resources from being consumed by frequent motions to alter
judgments.
This is not to say that district courts may not play a contin-
uing role in setting the terms of the mandatory portion of an
inmate’s restitution repayment schedule. Under the MVRA,
defendants have an ongoing duty to inform the court of 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). After receiving such notification, the court
“may . . . adjust the payment schedule, or require immediate
payment in full, as the interests of justice require.” Id. This
process permits courts to raise the binding payment floor in
response to particular changes if they desire, while leaving
room for the BOP to take full advantage of its institutional
expertise and resources to create voluntary, flexible financial
plans as evolving conditions dictate.
III. Conclusion
[8] We hold that, where the district court has properly set
a restitution repayment schedule as required under the
MVRA, the BOP has the authority to encourage voluntary
payments in excess of those required under the court’s judg-
ment by conditioning the receipt of certain privileges during
the term of imprisonment on the inmate’s participation in the
IFRP.
The orders of the U.S. District Court for the Central District
of California denying Lemoine’s motion to modify the restitu-
tion order (No. 06-50663) and motion for reconsideration
(No. 07-50083) are AFFIRMED.
14380 UNITED STATES v. LEMOINE
The order of the U.S. District Court for the District of Ore-
gon granting Lemoine’s petition for habeas corpus and direct-
ing the BOP to maintain his restitution repayment schedule at
$25 per quarter (No. 07-35761) is REVERSED.