United States v. Hunter ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________
)
UNITED STATES OF AMERICA, )
)
v. )
) Criminal Action No. 11-39-1 (RWR)
RICARDO HUNTER, )
)
Defendant. )
__________________________ )
MEMORANDUM ORDER
Defendant Ricardo Hunter pled guilty to two counts of
interference with interstate commerce by robbery, in violation of
18 U.S.C. § 1951, one count of attempted armored car robbery
while armed, in violation of 18 U.S.C. § 2113(a), (d), and one
count of using, carrying, and possessing a firearm during a crime
of violence, in violation of 18 U.S.C. § 924(c)(1). Hunter was
sentenced to a total of 180 months imprisonment, and ordered to
repay $35,157.27 in restitution1 and make payments on the
restitution through his participation in the Bureau of Prisons’
(“BOP”) Inmate Financial Responsibility Program (“IFRP”). Hunter
moves to vacate the restitution order or suspend his monthly
restitution obligation.2 He argues that the restitution order
1
Hunter was ordered to pay restitution in the amount of
$6,833.00 to Old Town Trolley Tours and $28,324.27 to Garda Cash
Logistics.
2
Hunter also moves to expunge his $400 “fine” obligation.
The “court [found] that [Hunter did] not have the ability to pay
a fine and, therefore, waive[d] imposition of a fine in this
case.” J. in a Criminal Case at 5. However, Hunter was ordered
- 2 -
was improper because his ability to pay was not assessed before
restitution was imposed. He further argues that his restitution
obligation should be deferred because he is indigent and unable
to pay his monthly restitution payments. The government opposes.
The applicable statutes required that Hunter be ordered to
pay restitution to the companies he robbed without consideration
of Hunter’s ability to pay the amount of restitution ordered.
The Mandatory Victims Restitution Act (“MVRA”) provides that
“when sentencing a defendant convicted of [a crime of violence],
the court shall order . . . that the defendant make restitution
to the victim of the offense[.]” 18 U.S.C. § 3663A(a)(1),
(c)(1)(A)(i) (emphasis added). A crime of violence includes any
“offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another[.]” Id. § 16(a). Interference with interstate
commerce by robbery is a crime of violence. United States v.
Kennedy, 133 F.3d 53, 58 (D.C. Cir. 1998); see also 18 U.S.C.
§ 1951 (defining “robbery” as “the unlawful taking or obtaining
of personal property from the person or in the presence of
to pay a special assessment of $400.00. Id. at 7. 18 U.S.C.
§ 3013 requires that a court assess on any person convicted of a
felony, $100 for each felony count. See 18 U.S.C. § 3013(a); see
also Rutledge v. United States, 517 U.S. 292, 301 (1996) (noting
that under 18 U.S.C. § 3013, federal district courts are required
to impose a special assessment for every conviction). Thus, to
the extent that Hunter seeks to vacate the special assessment
order, his request will be denied.
- 3 -
another, against his will, by means of actual or threatened
force, or violence, or fear of injury, immediate or future, to
his person or property, or property in his custody or
possession”). “In each order of restitution, the court shall
order restitution to each victim in the full amount of each
victim’s losses as determined by the court and without
consideration of the economic circumstances of the defendant.”
18 U.S.C. § 3664(f)(1)(A) (emphasis added).
Here, Hunter pled guilty to two counts of interference with
interstate commerce by robbery. Specifically, Hunter admitted to
robbing the Old Town Trolley Tours office while armed and
threatening to kill an office employee if the employee did not
empty the office safe. Hunter and his co-defendants fled the
office with $6,833.00. Stmt. of Offense & Mem. in Supp. of
Guilty Plea at 2-3. Hunter also admitted to robbing a Garda Cash
Logistics armored truck by stealing $28,324.27 from the truck
guard at gunpoint. Id. at 3-4. Because Hunter was convicted of
crimes of violence, the MVRA required that restitution be ordered
to each victim in the “full amount” of each victims’ losses
without consideration of Hunter’s ability to pay. Accordingly, a
restitution order in the amount of $6,833.00 to Old Town Trolley
Tours and $28,324.27 to Garda Cash Logistics was required.
This court does not have the authority to grant Hunter’s
request to defer or change his monthly restitution payments.
- 4 -
“[T]he amount an inmate must pay under IFRP is a matter entrusted
to the Executive Branch, and ‘courts are not authorized to
override the BOP’s discretion about such matters, any more than a
judge could dictate particulars about a prisoner’s meal schedule
or recreation.’” United States v. Rush, 853 F. Supp. 2d 159, 162
(D.D.C. 2012) (quoting United States v. Sawyer, 521 F.3d 792, 794
(7th Cir. 2008)); see also United States v. Baldwin, 563 F.3d
490, 492 (D.C. Cir. 2009) (stating that the IFRP operates “under
the exclusive control and authority of the Executive Branch”).
However, a defendant may seek judicial review of his IFRP
restitution payment amount after exhausting his administrative
remedies. See Rush, 853 F. Supp. 2d at 162 (citing 28 C.F.R.
§ 542.10(a)). Here, Hunter has not shown that he exhausted all
available administrative remedies before filing his motion.
“Even if [Hunter] had exhausted all administrative remedies, the
proper method for challenging how BOP is administering the IFRP
in [his] case may not be a motion to the sentencing court, but
rather a petition under 28 U.S.C. § 2241 in the district where
[Hunter] is serving [his] sentence.” United States v.
Ayers-Zander, Criminal Action No. 11-280 (RWR), 2013 WL 2468300,
at *1 (D.D.C. June 7, 2013).
Because Hunter has not shown that the restitution order was
improper or that he is entitled to relief from his monthly
restitution payments, it is hereby
- 5 -
ORDERED that Hunter’s motion [108] to vacate or suspend his
restitution obligation be, and hereby is, DENIED.
SIGNED this 13th day of August, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge