United States v. Small ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Action No. 12-55 (RWR)
)
LATARSHA SMALL, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION AND ORDER
Defendant LaTarsha Small was sentenced to 42 months in
prison after she pled guilty to two counts of theft concerning
programs that receive federal funds, and was ordered to pay
restitution. Small now moves to change the balance of her
incarceration to in-home confinement, and to amend the court’s
restitution order. 1 Small is entitled to have the portion of her
restitution order mandating payment through the Bureau of
Prisons amended. However, because Small has not demonstrated
that she is entitled to have her prison term changed or her
restitution schedule recalculated, Small’s motions will
otherwise be denied.
1
She has also moved for leave to proceed in forma pauperis
because she cannot afford to pay a docketing fee. An inmate
filing to modify her sentence is not assessed a docketing fee.
The in forma pauperis motion will be denied as moot.
- 2 -
BACKGROUND
For several years, Small was the grants and accounting
manager for My Sister’s Place, a non-profit corporation that
aids female victims of domestic violence and their children.
Thereafter, Small was the accountant and payroll specialist for
the International Crisis Group, an international non-profit
organization that is involved with preventing and resolving
conflicts around the world. During her time at both My Sister’s
Place and the International Crisis Group, Small embezzled funds
from the companies for her personal use.
Small pled guilty to two counts of theft concerning
programs receiving federal funds, in violation of 18 U.S.C.
§ 666(a)(1)(A). On November 9, 2012, Small was sentenced to 42
months on Count One and a concurrent sentence of 42 months on
Count Two. Small’s final judgment assessed against her
$164,146.23 in restitution payable immediately, and directed:
“You shall make payments on the special assessment and
restitution through your participation in the Bureau of Prisons’
Inmate Financial Responsibility Program [(“IFRP”)].” Judgment
at 4. The judgment ordered Small to pay the balance of any
restitution owed at a rate of no less than $100 per month. Id.
at 5. Small did not appeal the sentence.
Small now moves to change her remaining term of
incarceration to home confinement, contending that there are
- 3 -
“mitigating circumstances of a kind and to a degree” that
justify changing her sentence. Mot. to Change Method by Which
Balance of Sentence is to be Served (“Mot. to Amend Sentence”)
at 2. The government opposes, arguing that as Small’s motion
should be construed as a motion to reduce her sentence, none of
the bases for reducing a sentence under 18 U.S.C. § 3582(c) is
applicable. Govt.’s Consolidated Oppn. to Def.’s Pro Se Mots.
to Change Method by Which Balance of Sentence is Served and for
Amended Restitution Order (“Govt.’s Oppn.”) at 1.
Small also moves to amend her restitution order, alleging
that the court impermissibly delegated to the Bureau of Prisons
the responsibility of determining a payment schedule. Motion
for Amended Restitution Order (“Mot. to Amend Rest.”). Small
requests that the court order that she pay $25 per quarter for
restitution. Id. at 3. The government argues that the
restitution order was proper and that the court cannot intervene
in the payment schedule set by the IFRP. Govt.’s Supplemental
Mem. in Oppn. to Def.’s Mot. for Amended Restitution Order at 7.
DISCUSSION
I. MOTION TO CHANGE SENTENCE TO HOME CONFINEMENT
Small asks that the court “chang[e] the method by which the
balance of her sentence is served by allowing her to serve the
remaining sentence on home confinement.” Mot. to Amend Sentence
at 1. Small, however, cites no authority to support her
- 4 -
request. The government contends that her motion must be
considered as “one seeking to reduce her sentence,” and is
therefore governed by 18 U.S.C. § 3582(c). Govt.’s Oppn. at 4.
Small does not contest this argument.
“Under 18 U.S.C. § 3582(c) a court may modify a sentence
only in three circumstances: (1) on motion of the Bureau of
Prisons, (2) ‘to the extent otherwise expressly permitted by
statute or by Rule 35 of the Federal Rules of Criminal
Procedure,’ and (3) to reflect a post-sentence reduction in the
applicable sentencing guidelines.” United States v. Morris, 116
F.3d 501, 504 (D.C. Cir. 1997) (quoting 18 U.S.C. § 3582(c)).
In turn, Rule 35 of the Federal Rules of Criminal Procedure
permits modification to correct an “arithmetical, technical, or
other clear error” within 14 days, or, upon motion from the
government, for “substantial assistance in investigating or
prosecuting another person.” Fed. R. Crim. P. 35. There are no
other grounds for modification of a sentence. See Morris, 116
F.3d at 504; see also United States v. Apple, No. 3:10-CR-322-L,
2012 WL 4835059, at *2 (N.D. Tex. Oct. 11, 2012) (finding that
the Federal Rules of Criminal Procedure “do not allow for”
modification of a sentence “based upon substantive grounds . . .
[such as the defendant’s] health conditions, which were already
in existence and known to the court at the time he was
sentenced”).
- 5 -
None of the conditions in § 3582(c) applies here. The
Bureau of Prisons has not made a motion to modify Small’s
sentence, nor has the government moved under Rule 35 to reduce
Small’s sentence for substantial assistance. Small’s motion
comes more than 14 days after the sentence, and does not allege
an arithmetical, technical, or other clear error. Small also
does not allege that there has been a change in the applicable
sentencing guidelines that would justify reducing her sentence,
nor does she point to any other statutory basis for
modification. Accordingly, there is no legal basis for
modifying Small’s sentence, and her motion will be denied. 2
II. MOTION TO AMEND RESTITUTION ORDER
According to Small, 18 U.S.C. § 3664(f)(2) requires that a
court set a payment schedule for the defendant to discharge her
restitution obligation, including a payment schedule for the
defendant’s incarceration period. Mot. to Amend Rest. at 1.
Small alleges that “[a]s a result” of “the Court[’s] fail[ure]
2
In addition to her request to change her sentence to one
of home confinement, Small briefly discusses her “opinion that
the Bureau of Prisons is failing to provide me with adequate
care.” Mot. to Amend Sentence at 2. To the extent Small is
challenging the conditions of her confinement, the Prison
Litigation Reform Act requires that she first exhaust her
administrative remedies. 42 U.S.C. § 1997e(a). Small has not
alleged that she has exhausted any administrative remedies.
Small also “contends that she was not sentenced to a medical
facility[,]” Mot. to Amend Sentence at 2, but makes no request
with respect to this statement. Accordingly, no request for
relief will be inferred.
- 6 -
to set a payment schedule,” she “has been required to pay under
the Inmate Financial Responsibility Program, instead of paying
restitution after release from prison.” Id. at 1.
Inasmuch as Small is challenging the requirement in her
judgment that she participate in the IFRP, her motion to amend
her restitution order will be granted to reflect the fact that
participation in the IFRP is voluntary. See United States v.
Godoy, 706 F.3d 493, 499 (D.C. Cir. 2013); see also 28 C.F.R. §
545.10. While her non-participation may result in losing
privileges, see 28 C.F.R. § 545.11(d), the court cannot order
her to participate in the IFRP.
However, the court here did determine a payment schedule as
a condition of Small’s supervision after incarceration. See
Judgment at 5 (requiring the Small to “pay the balance of any
restitution owed at a rate of no less that $100 each month” as
an additional standard condition of supervision). Further,
Small’s argument seems to focus on the “undue financial stress”
that the current payment schedule imposes on her family, and her
requested relief is for the court to reduce her payment
obligation to $25 per quarter. Mot. to Amend Rest. at 1-2. As
such, Small appears to be requesting that the court determine
the restitution payment amounts that Small is required to pay
during her incarceration under the IFRP, rather than challenging
the court’s failure to determine a schedule of payment.
- 7 -
In any event, while some circuits have held that a court
must determine the schedule of payment during incarceration,
see, e.g., Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012), the
D.C. Circuit has not. The D.C. Circuit has held that it is not
plain error for a district court to have failed to determine the
payment schedule for a defendant who participates in the IFRP.
United States v. Baldwin, 563 F.3d 490, 492 (D.C. Cir. 2009)
(citing United States v. Sawyer, 521 F.3d 792, 794-86 (7th Cir.
2008)). In fact, a district court may be barred from imposing
such a payment plan for defendants that participate in the IFRP.
See id. at 492 (explaining that the Seventh Circuit’s holding in
Sawyer indicates that a district court cannot impose terms of
restitution payments made through the IFRP).
The IFRP “operates ‘under the exclusive control and
authority of the Executive Branch.’” United States v. Ayers-
Zander, Criminal Action No. 11-280 (RWR), 2013 WL 2468300, at *1
(D.D.C. June 7, 2013) (quoting Baldwin, 563 F.3d at 492). Small
has not shown that she has exhausted BOP administrative remedies
to challenge her IFRP restitution payment amount before seeking
judicial relief. See United States v. Rush, 853 F. Supp. 2d
159, 162 (D.D.C. 2012) (citing 28 C.F.R. § 542.10(a)). Further,
even if she had exhausted all administrative remedies, “the
proper method for challenging how BOP is administering the IFRP
in her case may not be a motion to the sentencing court, but
- 8 -
rather a petition under 28 U.S.C. § 2241 in the district where
[the defendant] is serving her sentence.” Ayers-Zander, 2013 WL
2468300, at *1 (citing United States v. Diggs, 578 F.3d 318,
319, 319 n.1 (5th Cir. 2009); Rush, 853 F. Supp. 2d at 162;
United States v. Locke, Criminal Action No. 09-259 (JDB), 2012
WL 1154084, at *3 n.5 (D.D.C. Apr. 9, 2012)); see also Diggs,
578 F.3d at 319, 319 n.1 (“All other circuits to look at this
issue agree that prisoners challenging their IFRP payment plans
must do so under § 2241.”).
Lastly, Small has not alleged a “material change” in her
economic circumstances that justifies modifying a restitution
order under 18 U.S.C. § 3664(k). Accordingly, Small has not
shown that she is entitled to the court reducing her restitution
payment obligation under the IFRP, and her motion to amend the
restitution order in that way will be denied.
CONCLUSION
Small is entitled to have her restitution order modified by
deleting the sentence requiring her to make restitution payments
through the IFRP. However, Small has failed to demonstrate that
she is entitled to have her prison term changed or her
restitution payments recalculated. Accordingly, it is hereby
ORDERED that Small’s motion [22] to change the method by
which the balance of her sentence is served be, and hereby is,
DENIED. It is further
- 9 -
ORDERED that Small’s motion [22] for leave to proceed in
forma pauperis be, and hereby is, DENIED as moot. It is further
ORDERED that Small’s motion [23] to amend her restitution
order be, and hereby is, GRANTED IN PART and DENIED IN PART.
The sentence in the judgment requiring Small to make restitution
payments through her participation in the Bureau of Prisons’
Inmate Financial Responsibility Program is hereby stricken. The
motion is otherwise denied. It is further
ORDERED that the government’s motion [28] for leave to late
file a consolidated response to Small’s motions be, and hereby
is, GRANTED nunc pro tunc.
SIGNED this 13th day of January, 2014.
__________/s/________________
RICHARD W. ROBERTS
Chief Judge