United States v. Armstrong ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 09-cr-135 (BAH)
IESHA ARMSTRONG, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
The defendant, Iesha Armstrong, is incarcerated at Federal Medical Center Carswell
(“FMC Carswell”), a Bureau of Prisons (“BOP”) facility in Fort Worth, Texas. Pending is a
motion by the government for an order authorizing the BOP to turn over “to the Clerk of this
Court a reasonable portion of the funds” in the defendant’s Inmate Trust Account, which
contains over $4,000, “toward satisfaction of the remaining criminal restitution obligation in this
case,” which is about $6,000. United States’ Motion for Order Authorizing Restitution Payment
from Inmate Trust Account (“Gov’t’s Mot.”) at 1, ECF No. 84.
In 2018, the defendant’s restitution payments were limited to $50 per quarter during her
term of incarceration. See United States v. Armstrong, No. 09-cr-135 (BAH), 2018 WL
5923913, at *7 (D.D.C. Nov. 13, 2018). This adjustment was made to the defendant’s restitution
order under 18 U.S.C. § 3664(k) after the defendant submitted a handwritten letter seeking a
reduction in her restitution payments because BOP had gradually increased the amount
withdrawn from her Inmate Trust Account from $25 quarterly in March 2018 to $271 per month
by November of that year. See Def.’s Letter, received Oct. 4, 2018 (“Def.’s Letter I”), ECF No.
74.; see also Def.’s Letter, received Nov. 8, 2018 (“Def.’s Letter II”) at 1, ECF No. 80.
On August 13, 2019, ten months after her restitution payments were capped at $50 per
quarter, the defendant submitted another letter stating that “[t]he BOP . . . has frozen my
1
account” and requesting access to “my entire $4,300” along with an order “that my $50 quarterly
. . . payment schedule” should “remain the same.” Def.’s Letter, received Aug. 13, 2019 (“Def.’s
Letter III”), ECF No. 82. The government subsequently filed the pending motion.
For the reasons that follow, the defendant’s restitution payment schedule shall be
adjusted to require a payment of $4,000 to satisfy part of her outstanding restitution obligation.
BOP is authorized to turn over to the Clerk of this Court that $4,000 sum from the defendant’s
Inmate Trust Account. The defendant’s restitution payments shall otherwise continue to be
limited to $50 per quarter during her term of incarceration.
I. BACKGROUND
On a guilty plea to armed bank robbery and unlawful possession of a firearm in violation
of 18 U.S.C. § 922(g)(1), § 924(a)(22), and § 2113(a), (d), the defendant was sentenced by Judge
Richard W. Roberts in 2010 to serve 84 months’ imprisonment and 48 months’ supervised
release and to pay $8,350.00 in restitution. See Judgment (“2010 Judgment”) at 2, 6, ECF
No. 46.1 After the defendant was released from custody in 2015, she violated her supervised
release, including by committing armed robbery in Maryland. See Probation Petition, dated July
12, 2016, at 1-6, ECF No. 54 (noting violations 1–10 and that, at the start of supervision, the
defendant had “agreed to submit restitution payments of not less than $100 per month beginning
February 1, 2015.”); Probation Petition, dated Sept. 7, 2016, at 2–4, ECF No. 58 (noting
violations 11–22); Probation Petition, dated Nov. 3, 2016, at 2–3, ECF No. 60 (noting violations
23–24).
On her guilty plea in the District of Maryland to armed bank robbery, see 18 U.S.C.
§ 2113(a), (d), and to using a firearm during a crime of violence, see 18 U.S.C. § 924(c), the
1
This case was reassigned to the undersigned on July 13, 2016, after the retirement of Judge Richard W.
Roberts. Docket Entry (July 13, 2016).
2
defendant was sentenced on February 9, 2018 to a total of 168 months’, or 14 years’,
imprisonment; no restitution was ordered. See Judgment on Revocation at 3, ECF No. 72;
Probation Petition at 2, ECF No. 65; Judgment, United States v. Armstrong, No. 16-cr-00601-
TDC, at 5 (D. Md. Feb. 9, 2018), ECF No. 48. For twenty-three violations of supervision, which
the defendant conceded at a hearing on those violations, see Minute Entry (Sept. 7, 2018), she
was sentenced in this Court to 18 months’ incarceration, to be served concurrently with her
sentence on the guilty plea in the District of Maryland, see Judgment on Revocation at 4.
As already described, the defendant submitted a handwritten letter in October 2018
explaining that BOP had gradually increased the amount withdrawn from her Inmate Trust
Account through the Inmate Financial Responsibility Program (“IFRP”) and requesting that her
quarterly restitution payments be limited to $50. See Def.’s Letter I.2 The government and the
victim’s representative did not oppose the requested $50 cap. See United States’ Response to the
Court’s Oct. 29, 2018 Show Cause Order (“Gov’t’s Resp. I”) at 2, ECF No. 79. Construing that
letter as a motion to adjust her restitution payment schedule under 18 U.S.C. § 3664(k), the Court
concluded that the defendant’s reincarceration for the extended term of 168 months amounted to
a “material change in her economic circumstances” entitling her to an adjustment in her
restitution payment schedule under that provision. Armstrong, 2018 WL 5923913, at *6 (quoting
18 U.S.C. § 3664(k)).3 In a November 2018 Memorandum Opinion and Order, defendant’s
2
Although an IFRP payment plan encompasses not only any court-ordered restitution but also any special
assessments, see 18 U.S.C. § 3013, fines and court costs, state or local court obligations, and other federal
government obligations, see 28 C.F.R. § 545.11(a)(1)–(5), the parties did not identify in 2018 what portion of the
money withdrawn through the IFRP was attributable to her restitution. Armstrong, 2018 WL 5923913, at *8.
3
The 2010 Judgment provided no individualized schedule for payment of the restitution during the
defendant’s incarceration. 2010 Judgment at 6. Pre-printed language on the Judgment, Form AO 245B, stated:
Unless the court has expressly ordered otherwise, if this judgment imposes
imprisonment, payment of criminal monetary penalties is due during
imprisonment. All criminal monetary penalties, except those payments made
3
restitution payments were thus limited to $50 per quarter during her current term of
incarceration. Id. at *7; see also Memorandum Opinion and Order (Nov. 13, 2018), ECF No. 81.
Defendant’s August 2019 letter stated that “[t]he BOP . . . ha[d] frozen” her “account,”
prompting her to request access to the “entire $4,300” in the account as well as an order that
BOP adhere to the previous restitution order. Def.’s Letter III. In the letter, the defendant also
stated that her “independent financial situation ha[d] not changed” since the entry of the
November 2018 order. Id. “I am still dependent on my family for any substantial money that is
placed on my account,” and “[m]y mother, who is the primary person sending me money[,] is 70
years old and lives on retirement income,” the letter explained. Id.
In response to an order to show cause “how such BOP action complies with the
restitution order in effect in this case,” Minute Order (Aug. 13, 2019), the government confirmed
that BOP had frozen defendant’s account “pursuant to regulations related to the inmate trust
account and a request of the U.S. Attorney’s Office,” Response to Court’s Aug. 13, 2019 Minute
Order (“Gov’t’s Resp. II”) at 1, ECF No. 85.
Simultaneous with this response, the government filed the pending motion seeking
authorization for BOP to transfer a lump sum, up to $6,048, from the defendant’s Inmate Trust
Account to the Clerk of this Court toward satisfaction of the remaining restitution obligation on
the 2010 judgment. See Gov’t’s Mot. at 1. Defendant, represented by counsel appointed by the
Court, opposed the motion, see Def.’s Opp’n to United States’ Mot. for Order Authorizing
Restitution Payment from Inmate Trust Account (“Def.’s Opp’n”), ECF No. 90, and the
through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program,
are made to the clerk of the court.
Id. The judgment further directed the defendant, during her period of supervision, to “pay the balance of any
restitution owed at a rate of no less than $100 each month and [to] provide verification of payment to the Probation
Office.” Id. at 4.
4
government submitted a reply and supplemental memorandum in support of its motion, see
Gov’t’s Reply and Supplemental Mem. Supp. Mot. for Order Authorizing Restitution Payment
from Inmate Trust Account at 2 (“Gov’t’s Reply”), ECF No. 92.4
II. DISCUSSION
The government raises four legal theories in support of its motion. The first two theories
— that the government can secure the defendant’s total outstanding restitution obligation by
enforcing a statutory judgment lien on the defendant’s Inmate Trust Account or by using a
common law right of offset, see Gov’t’s Mot. at 7–8, 11–12 — conflict with the restitution order
in this case and misunderstand the respective powers of the courts and the executive branch in
ordering and administering restitution. The government’s third and fourth legal theories derive
from the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. § 3663A, which was
codified “in scattered sections of 18 U.S.C.,” United States v. Hunter, 786 F.3d 1006, 1008 (D.C.
Cir. 2015), and, pursuant to § 3663A(d), MVRA restitution orders “are issued and enforced in
accordance with section 3664,” of the earlier enacted Victim and Witness Protection Act
(“VWPA”). Under § 3664(n), the government claims, the deposits into the defendant’s account
qualify as “substantial resources” received “during a period of incarceration” that the defendant
“shall be required to apply the value of . . . to any restitution . . . still owed.” 18 U.S.C.
§ 3664(n); see also Gov’t’s Mot. at 8–9. Finally, the government invokes § 3664(k) to ask for an
adjustment in the payment schedule based on a “material change in the defendant’s economic
circumstances.” 18 U.S.C. § 3664(k); see Gov’t’s Mot. at 10–11. Section 3664(n)’s mandate
does not apply here and, aside from authorizing the $4,000 payment, the Court declines to adjust
4
The outstanding service of appointed counsel for the defendant in this matter is greatly appreciated by the
Court.
5
the payment schedule already set.5 The government’s “Smorgasbord of options,” Gov’t’s Reply
at 2, is addressed following a brief review of the MVRA.
A. The MVRA
The MVRA “govern[s] federal court orders requiring defendants convicted of certain
crimes to pay their victims restitution.” Lagos v. United States, 138 S. Ct. 1684, 1687 (2018);
see also 18 U.S.C. § 3663(a)(1) (providing that a “court shall order” restitution in certain cases).
Section 3664 of the MVRA lays out the “[p]rocedure for issuance and enforcement of [an] order
of restitution.” 18 U.S.C. § 3664. Under that provision, “[u]pon 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 consideration of”
multiple factors, including the defendant’s “financial resources” and “projected earnings.” Id.
§ 3664(f)(2). A court has considerable discretion to structure the restitution order’s schedule into
“payments at specified intervals” or a “single, lump sum payment.” Id. § 3664(f)(3)(A).
“A sentence that imposes an order of restitution is a final judgment notwithstanding the
fact that . . . such sentence can subsequently be . . . corrected . . . appealed and modified . . .
amended . . . [or] adjusted . . . .” Id. § 3664(o). Each of these processes contemplates court
action. See id. (referencing FED. R. CRIM. P. 35, 18 U.S.C. § 3664(d)(5), among other provisions
requiring judicial action). As is relevant here, § 3664(k) sets out a process for notification “of
any material change in the defendant’s economic circumstances that might affect the defendant’s
ability to pay restitution.” Id. § 3664(k). “Upon receipt of the notification, the court may, on its
5
Although the government’s motion requests relief contrary to the 2018 order, that motion is not construed
as a motion to reconsider, which should be granted only “as justice requires.” United States v. Hassanshahi, 145 F.
Supp. 3d 75, 80 (D.D.C. 2015) (“Courts in this District have . . . entertained motions for reconsideration in criminal
cases by importing the standards of review applicable in motions for reconsideration in civil cases.”). The
government’s first two legal theories do not ask for reconsideration of the schedule of restitution payments
previously ordered. The second two legal theories invoke statutory provisions that provide mechanisms for
adjustment of prior restitution orders outside the framework of a motion for reconsideration.
6
own motion, or the motion of any party . . . adjust the payment schedule, or require immediate
payment in full, as the interests of justice require.” Id. Section 3664(n) further mandates that
“[i]f a person obligated to provide restitution, or pay a fine, receives substantial resources from
any source, including inheritance, settlement, or other judgment, during a period of incarceration,
such person shall be required to apply the value of such resources to any restitution or fine still
owed.” Id. § 3664(n).
“Sections 3663 and 3664 of Title 18 clearly impose on the court the duty to fix the terms
of restitution.” United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995); see also United
States v. Martinez, 812 F.3d 1200, 1202 (10th Cir. 2015) (“By statute, it is the district court —
not the government — that determines how a defendant is to pay restitution.”); United States v.
Merric, 166 F.3d 406, 409 (1st Cir. 1999) (“[I]t is the inherent responsibility of the judge to
determine matters of punishment and this includes final authority over all payment matters.”).
“The government,” on the other hand, “has statutory authority to enforce . . . the terms of a
restitution order” set by the court. Martinez, 812 F.3d at 1207; see also 18 U.S.C.
§ 3664(m)(1)(A) (“An order of restitution may be enforced by the United States . . . .”).6
6
A majority of the courts of appeals have expressly held “that the district court may not delegate discretion
to” set the terms of restitution payment to BOP or another executive agency. United States v. Prouty, 303 F.3d
1249, 1255 (11th Cir. 2002); see also, e.g., Ward v. Chavez, 678 F.3d 1042, 1050 (9th Cir. 2012) (“If . . . the district
court simply orders immediate repayment and leaves it to another agency, like the BOP, to actually set the payment
schedule that the statute obligates the court to determine, that order is unlawful, as the district court has abdicated in
its duty to set the schedule ‘in consideration of’ the financial circumstances of the defendant.”); United States v.
Corley, 500 F.3d 210, 225–27 (3d Cir. 2007), vacated and remanded on other grounds, 556 U.S. 303 (2009) (stating
that delegations to the BOP to determine the schedule of restitution payments are improper”); United States v. Davis,
306 F.3d 398, 425–26 (6th Cir. 2002) (same); United States v. McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001)
(same); Merric, 166 F.3d at 409; United States v. Kinlock, 174 F.3d 297, 301 (2d Cir. 1999) (rejecting a restitution
order that required immediate payment without any schedule); Johnson, 48 F.3d at 808 (“This statutory grant of
authority to the court must be read as exclusive because the imposition of a sentence, including any terms for
probation or supervised release, is a core judicial function.”). But see United States v. Sawyer, 521 F.3d 792, 794–
95 (7th Cir. 2008); Kaemmerling v. Berkebile, 359 Fed. App’x. 545, 546–47 (5th Cir. 2010) (per curiam). The D.C.
Circuit has declined to address the issue of the permissibility of restitution orders that leave a prisoner’s payments
up to the IFRP on two occasions. See United States v. Hunter, 786 F.3d 1006, 1012 (D.C. Cir. 2015)
(acknowledging these and similar cases and stating “[t]his circuit has not ruled on the permissibility of such orders,
and we do not do so today. In United States v. Baldwin, 563 F.3d 490 (D.C. Cir. 2009), however, we determined
that restitution arrangements like the one at issue here do not constitute plain error.”).
7
B. The Statutory Judgment Lien
The government’s motion first invokes the statutory lien created for the United States on
imposition of a sentence ordering restitution. See Gov’t’s Mot. at 7; see also 18 U.S.C.
§ 3613(c) (“[A]n order of restitution . . . is a lien in favor of the United States on all property and
rights to property of the person fined.”). The government claims that the notice lien it filed in the
defendant’s name for the enforcement of the restitution obligation in the 2010 Judgment
“impacts the Defendant’s Inmate Trust Account,” Gov’t’s Reply at 2, such that the MVRA
allows the government to garnish that property as part of its authority to “enforce this judgment
lien ‘by all available and reasonable means,’” id. at 3 (quoting 18 U.S.C. § 3664(m)(1)(A)).
Section 3664(m), the provision the government relies on, actually states that “[a]n order
of restitution may be enforced by the United States . . . by all . . . available and reasonable
means.” Id. § 3664(m)(1)(A) (emphasis added). As the fuller text makes clear, § 3664(m)
defines mechanisms for enforcement of a court’s “order of restitution,” circumscribing the
government’s authority to enforce its judgment lien to the terms of the restitution order. See
Martinez, 812 F.3d at 1207 (stating, in rejecting the argument that the government may garnish
more of the defendant’s wages than the restitution order’s payment schedule allowed, that “[t]he
government has statutory authority to enforce only the terms of a restitution order, not to take an
enforcement action that would exceed a restitution order’s payment terms.”); see also id. at 1202
(“The government can enforce a restitution order only in a manner that does not exceed the
payment obligations set out in the restitution order.”); United States v. Hughes, 914 F.3d 947,
949 (5th Cir. 2019) (“When a restitution order specifies an installment plan, unless there is
language directing that the funds are also immediately due, the government cannot attempt to
enforce the judgment beyond its plain terms absent a modification of the restitution order or
default on the payment plan.”); cf. United States v. Bikundi, No. 14-CR-00030 (BAH), 2017 WL
8
10439588, at *7 n.8 (D.D.C. June 28, 2017) (“BOP is bound by the court-ordered restitution
payment schedule and may not seek an amount greater than ordered.”). Indeed, the
government’s reply brief seems to concede that § 3664(m) merely addresses “collection
mechanisms.” Gov’t’s Reply at 3 (quoting United States v. Gallion, 504 F. App’x 373, 376 (6th
Cir. 2012)). That the government may not enforce a restitution obligation beyond the terms of
payment set in the restitution order follows not just from the text of § 3664(m) but also from the
principle that a court may not delegate its authority to set the terms of restitution to executive
branch agencies. See supra note 4.
The judgment lien and § 3664(m), then, cannot support the government’s request for a
lump sum payment beyond the $50 owed per quarter under the governing restitution order.
C. Common Law Offset
The government’s next theory — that common law offset “permit[s] BOP to seize
monies from the Defendant’s Inmate Trust Account to pay her restitution obligation,” Gov’t’s
Mot. at 12 — is similarly flawed. The common law right of offset “allows entities that owe each
other money to apply their mutual debts against each other, thereby avoiding the absurdity of
making A pay B when B owes A.” Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 18 (1995)
(internal quotation marks omitted). Here, the government says, “[t]he Defendant owes the
United States restitution, and the United States owes Defendant money from her Inmate Trust
Account. The most expedient approach would allow the United States to credit the Defendant
for her restitution payment, which the United States could remove from her inmate account.”
Gov’t’s Mot. at 12.
Setting aside the serious question whether common law right of offset would apply to
restitution debts or to funds held in an Inmate Trust Account, common law offset, like
9
enforcement of the statutory lien, is a mechanism of collection.7 Again, the government seems to
acknowledge this in its reply, stating “the MVRA would contemplate such an uncomplicated
approach to collection” as common law offset. Gov’t’s Reply at 11 (emphasis added). As
already explained, the government’s authority to collect on the restitution order is limited by the
order’s payment terms. Under those terms, payment of the full outstanding amount of restitution
is not due and the government cannot use common law offset to collect the lump sum the
government requests.
D. Section § 3664(n)
Next, the government argues that under 18 U.S.C. § 3664(n), “the Defendant’s resources
received from any source during her term of incarceration must be applied to her outstanding
restitution obligation.” Gov’t’s Mot. at 8.8 That statutory provision, however, does not mandate
adjustment of the restitution order to provide for the lump sum payment the government
requests.
The defendant and the government agree that the government’s ability to use § 3664(n) to
garnish or otherwise seize funds depends on the terms of the restitution order. See Def.’s Opp’n
at 5; Gov’t’s Reply at 7. Where a restitution order requires immediate payment of the full sum
7
As the defendant observes, “the Government’s position . . . that [an] inmate’s Inmate Trust Account is ripe
to be seized and applied to outstanding restitution obligations” given the government’s common law right of offset is
in conflict with “the special role that the MVRA assigns to the courts in determining restitution orders.” Def.’s
Opp’n at 8. Further, the government has not offered any precedent for the application of common law offset to
restitution obligations. See Gov’t’s Mot. at 11–12 (citing cases); Def.’s Opp’n at 8–9 (reviewing these cases and
observing that none involve restitution); Gov’t’s Reply at 11 (citing to a case about a garnishment procedure and
stating “[t]he garnishment procedure in [the case] is little different than the offset approach advanced by the United
States here”).
8
18 U.S.C. § 3664(n) states, in full:
If a person obligated to provide restitution, or pay a fine, receives substantial
resources from any source, including inheritance, settlement, or other judgment,
during a period of incarceration, such person shall be required to apply the value
of such resources to any restitution or fine still owed.
10
owed or sets out a flexible payment plan, § 3664(n) may apply to allow the government to
garnish the defendant’s “substantial resources.” See United States v. Williams, 898 F.3d 1052,
1055 (10th Cir. 2018) (stating this in a discussion of garnishment generally and not § 3664(n) in
particular); United States v. Poff, 781 F. App’x 593, 594 (9th Cir. 2019) (upholding a district
court’s order allowing the government to seize funds under § 3664(n) to the extent those funds
were disability benefits where the restitution order provided for immediate payment, see United
States v. Poff, No. CR09-0160JLR, 2016 WL 3079001, at *1 (W.D. Wash. June 1, 2016));
United States v. Lemberger, 673 F. App’x 579, 580 (7th Cir. 2017) (relying on § 3664(n) to
compel payments where payment of restitution was ordered immediately); United States v.
Cunningham, 866 F. Supp. 2d 1050 (S.D. Iowa 2012) (allowing full amount of defendant’s
disability payments to be garnished where lump sum payment of restitution was required);
United States v. Brewer, No. 96-CR-294-K (02), 2016 WL 6652996, at *4, 1 (N.D. Tex. Oct. 21,
2016), report and recommendation adopted, No. 3:96-CR-294-K (02), 2016 WL 6650948 (N.D.
Tex. Nov. 10, 2016) (granting a motion under § 3664(n) to allow seizure of inheritance placed in
Inmate Trust Account where restitution order required payments of “at least $150” monthly);
United States v. Smalls, No. 196CR00075MRDLH1, 2016 WL 6582473, at *1 (W.D.N.C. Nov.
4, 2016) (authorizing garnishment of inmate trust account under § 3664(n) of “current balance
owed for criminal restitution”). Garnishment is “improper,” however, “where the government is
seeking payment of an amount that is not currently due” under the restitution order. Williams,
898 F.3d at 1055 (discussing Martinez, 812 F.3d at 1201). Applying that distinction here,
§ 3664(n) does not require authorization of a lump payment, as the restitution order limits
payments to $50 per quarter during the defendant’s term of incarceration.
11
The government’s contrary arguments misconstrue the restitution order and the record in
this case. First, the government argues in its reply brief that the relevant restitution order is the
2010 Judgment, interpreting that judgment to make “the full amount of restitution . . . due” now.
Gov’t’s Reply at 7. The restitution ordered in that 2010 Judgment was “adjusted under section
3664(k)” by the November 2018 order, 18 U.S.C. § 3664(o) (allowing a “final judgment”
ordering restitution to be “adjusted under section 3664(k)”), so the latter order governs.9 The
November 2018 order does not make the full amount of restitution due now; rather, that order
clearly limits the defendant’s payments to $50 quarterly. The language the government cites
from Williams — that garnishment is allowed where “the judgment specifies that the amount
owed is due in full on the date of judgment, regardless of whether the judgment includes a back-
up schedule of payments,” Gov’t’s Reply at 7 (quoting Williams, 898 F.3d at 1055) — is
inapposite because the governing restitution order does not establish a mere “back-up schedule;”
it imposes a limitation on payments, see Williams, 898 F.3d at 1053 (stating that the relevant
restitution order required “[l]ump sum payment . . . immediately” but provided that “[i]f
restitution is not paid immediately, the defendant shall make payments” on a prescribed
schedule).
Second, the government argues that “Defendant Armstrong’s history of default . . .
should nullify even the schedule of payments ordered by this Court.” Gov’t’s Reply at 7. By
statute, “[a] . . . payment of restitution is in default if a payment is delinquent for more than 90
days. Notwithstanding any installment schedule, when a fine or payment of restitution is in
9
The government argues that “the Court’s fashioning a payment schedule during the Defendant’s
imprisonment does not alter the enforceability of the restitution order created under § 3664(f)(1)(A)[ in 2010,] . . .
the mutability of which is controlled by § 3664(o). Thus, . . . the payment schedule did not fully control the
Defendant’s duty to pay restitution . . .” Gov’t’s Reply at 8. Section 3664(o), however, provides that a “a final
judgment” ordering restitution can be altered under § 3664(k), and the 2010 Judgment was altered by the payment
schedule ordered under § 3664(k) in November 2018.
12
default, the entire amount of the fine or restitution is due within 30 days after notification of the
default . . . .” 18 U.S.C. § 3572(i). The government claims that the defendant defaulted when
she “fail[ed] to pay any part of the original restitution between September 2016 and August
2018” and because she has made “no payment since June 6, 2019.” Gov’t’s Mot. at 9. The
defendant represents that, for almost the entire period between September 2016 and August
2018, she was in county jail and was unable to make restitution payments. Further, once the
defendant arrived at a BOP facility in March 2018, she began making restitution payments
through the IFRP — those payments were the subject of her 2018 letters and of the November
2018 order. In any event, any failure to make restitution payments in the period prior to entry of
the November 2018 restitution order is now irrelevant. Finally, the government’s claim that the
defendant has made no payment since June 6, 2019 is disingenuous: the government
acknowledged on August 19, 2019 that “BOP encumbered or froze the funds in the Defendant’s
trust account” in anticipation of this litigation. Gov’t’s Resp. II at 1. “Because of the
encumbrance on the trust account, the Defendant’s IFRP payments are being stayed pending
resolution of the litigation by the Court,” the government continued. Id.10 The government
cannot use its control over inmate funds to force default and make the entire amount of
restitution due.
In sum, § 3664(n)’s mandate does not apply here because of the terms of the restitution
order.11
10
The defendant states that a $50 restitution payment was withdrawn from her account in September 2019
despite this representation by the government. See Def.’s Opp’n at 7.
11
Consequently, the question whether the payments the defendant’s elderly mother and other relatives have
been making into her inmate account constitute “substantial resources,” as that term is used in § 3664(n), need not
be resolved. See, e.g., Hughes, 914 F.3d at 951 (holding that the provision “refers to windfalls or sudden financial
injections” and “unanticipated resources that become ‘suddenly available’” (quoting United States v. Scales, 639 F.
App’x 233, 239 (5th Cir. 2016)).
13
E. Section § 3664(k)
Finally, the government invokes § 3664(k), which provides a process for notification “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).12 “Upon receipt of the notification, the court
may, on its own motion, or the motion of any party . . . adjust the payment schedule, or require
immediate payment in full, as the interests of justice require.” Id. The government’s motion
asserts the following material change in the defendant’s circumstances: “The United States
Attorney’s Office for this district recently received information from BOP that the Defendant
currently maintains substantial funds in her Inmate Trust Account at FMC Carswell.
Specifically, deposits made to Defendant’s Inmate Trust Account between June 2018 and
December 2018 averaged $771.67 monthly, for a total in deposits of $4,630.00.” Gov’t’s Mot. at
5.
Although the defendant acknowledged in her October 2018 letter that she was receiving
money from her family, she stated her “family ha[d] increased the amount that they send to my
account . . . to cover my [restitution] and still be able to purchase hygiene, food and other
necessary items from [the] commissary.” Id. at 1. The defendant’s representations were not
contested by the government, see Gov’t’s Reply at 10; Gov’t’s Resp. I at 2, and the November
2018 order relied on these representations that the defendant’s Inmate Trust Account contained
subsistence-level funds.13 Given her incarceration “in a facility with ‘no jobs that pay over $30
per month,’” the Court found that “[a]bsent a restitution payment schedule that would delimit
12
More fully, the statute requires the Attorney General to “certify to the court that the victim or victims owed
restitution by the defendant have been notified of the change in circumstances.” 18 U.S.C. § 3664(k). The
government complied with that requirement in this case by serving a copy of its motion on the victim and stating
that service of the motion constituted the required notice. See Gov’t’s Mot. at 14 & n.5.
13
The government explains that BOP only recently alerted the United States Attorney’s Office “that the
Defendant currently maintains substantial funds in her Inmate Trust Account at FMC Carswell.” Gov’t’s Mot. at 4;
Gov’t’s Reply at 10.
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BOP’s confiscation of funds contributed by the defendant’s family for application to her
restitution obligation, the defendant is unable to purchase” necessities, “entitl[ing] her to
modification of the terms of her restitution payment obligation during her incarceration.”
Armstrong, 2018 WL 5923913, at *7.
Now, in her August 2019 letter, the defendant states that there is “a little over $4,100.00
in my pre-release savings account and about $175 in my commissary account,” for a total of
about “$4,300.” Def.’s Letter III. This substantial accumulation of deposits constitutes a
“material change in the defendant’s economic circumstances” since November 2018. 18 U.S.C.
§ 3664(k); see also Armstrong, 2018 WL 5923913, at *6 (reviewing circuit courts’ definitions of
this phrase as “an objective comparison of a defendant’s financial condition before and after a
sentence is imposed,” United States v. Grant, 235 F.3d 95, 100 (2d Cir. 2000), and “a bona fide
change in the defendant’s financial condition, either positive or negative,” Cani v. United States,
331 F.3d 1210, 1215 (11th Cir. 2003)); United States v. Roush, 452 F. Supp. 2d 676, 681 (N.D.
Tex. 2006) (“Discovery of previously unknown or hidden assets would also constitute a change
in the defendant's economic circumstances that could justify modification under section 3664(k),
as it would be a change in the economic circumstances presented to the court.”)). Given this
“material change,” § 3664(k) allows the Court to “adjust the payment schedule, or require
immediate payment in full, as the interests of justice require.” 18 U.S.C. § 3664(k).
The defendant says that she is saving the money in her account “to give [her]self the best
possible advantage upon [her] release,” Def.’s Letter III, and “to afford restitution payments and
necessities in the later part of her sentence,” Def.’s Opp’n at 3, “in the event that anything occurs
where my family is not able to send me money,” Def.’s Letter III. The defendant’s mother, the
“primary person sending [her] money,” is “70 years old and lives on retirement income.” Id. By
15
this logic, the defendant would be excused from satisfying her restitution obligation more
promptly than required by a court-ordered schedule, no matter how substantial her accumulated
funds grew, due to the risk that her family contributions might end and she might not achieve her
goal of saving sufficient funds to ease her reentry to the community following incarceration. The
problem with this logic is that it would subvert the purpose of mandatory restitution “to ‘make
victims of crime whole’ by ‘fully compensat[ing]’ them for their losses.” In re Sealed Case, 702
F.3d 59, 67 (D.C. Cir. 2012) (alteration in original) (quoting United States v. Frazier, 651 F.3d
899, 904 (8th Cir. 2011)). Meanwhile, the defendant’s letter does not acknowledge the
importance of her obligation to pay restitution, mentioning that obligation only in passing.
Def.’s Letter III.
A sum of a few hundred dollars, plus any income the defendant may receive from
employment while incarcerated and any deposits the defendant may receive from her family, is
sufficient for daily maintenance and to satisfy the defendant’s quarterly restitution obligations
while incarcerated. The defendant’s desire to save money for her release does not outweigh the
interests of the victim, and the public, in prompt satisfaction of the defendant’s outstanding
restitution obligation. Cf. United States v. Surber, 94 Fed. App’x. 355, 356 (10th Cir. 2004)
(holding that defendant’s wish to save for his release was not a material change in economic
circumstances justifying adjustment of his restitution order under 18 U.S.C. § 3664(k)).
The defendant is thus ordered to make a payment of $4,000 from her IFRP account
toward her outstanding approximately $6,000 restitution obligation. Otherwise, the defendant’s
restitution payments shall continue to be capped at $50 per quarter during the term of her
incarceration.
16
III. CONCLUSION
For the reasons stated, the United States’ Motion for Order Authorizing Restitution
Payment from Inmate Trust Account is granted. BOP is authorized to turn over $4,000 from the
defendant’s Inmate Trust Account to the Clerk of this Court toward satisfaction of the
defendant’s outstanding restitution obligation in this case. The defendant’s restitution payments
shall otherwise continue to be capped at $50 per quarter during her term of incarceration.
An Order accompanies this Memorandum Opinion.
SO ORDERED.
Date: January 13, 2020
_________________________
BERYL A. HOWELL
Chief Judge
17