Roger Duronio v. Robert Werlinger

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1719
___________
ROGER F. DURONIO,
Appellant
v.
ROBERT WERLINGER, Warden, F.C.I. Loretto
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 3-09-cv-00289)
District Judge: Honorable Kim R. Gibson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 17, 2011
Before: JORDAN, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: December 14, 2011)
_________
OPINION
_________
PER CURIAM
Roger F. Duronio, a prisoner in the custody of the Federal Bureau of Prisons
(BOP), appeals an order of the District Court denying his 28 U.S.C. § 2241 habeas corpus
petition. Having carefully reviewed the record, we are in full accord with the District
Court and will affirm its order.
Following a 2006 jury trial, Duronio was found guilty of securities fraud and
computer fraud, and was sentenced to 97 months of confinement followed by three years
of supervised release.1 Other penalties included a $200.00 special assessment, ―which
shall be due immediately,‖ and a restitution order. Duronio owed a total of $3,162,376 to
UBS Financial Services, and the restitution order instructed:
The restitution is due immediately. It is recommended that the defendant
participate in the Bureau of Prisons Inmate Financial Responsibility
Program [(IFRP, 28 C.F.R. §§ 545.10–.11)]. In the event the entire
restitution is not paid prior to the commencement of supervision, the
defendant shall satisfy the amount due in monthly installments of no less
than $200.00, to commence 30 days after release from confinement. The
Court waived the interest requirement on the restitution payment.
The order made no mention of Duronio’s payment schedule during the period of
incarceration.
Before briefs were filed in Duronio’s direct appeal, he commenced a pro se civil-
rights action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971).2 In that suit, Duronio maintained that the BOP had
―deprived him of his constitutional right to due process of law under the Fifth
Amendment . . . by setting [his] restitution schedule of payments and then coercing him
to meet that schedule of payments under the [IFRP].‖ He claimed that this violated the
1
See Judgment, United States v. Duronio, D.N.J. Crim. No. 2:02-cr-00933, ECF No. 135
(entered Dec. 20, 2006).
2
See Compl., Duronio v. Gonzalez, W.D. Pa. Civ. No. 3:07-cv-00169, ECF No. 1
(entered July 6, 2007).
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strictures of the Mandatory Victims Restitution Act (MVRA, 18 U.S.C. § 3664(f)).
Duronio relied on our opinion in United States v. Coates, 178 F.3d 681 (3d Cir. 1999), in
which we emphasized that ―the fixing of restitution payments is a judicial act that may
not be delegated to a probation officer.‖ Id. at 685.
The District Court denied relief in April 2008, and we affirmed. First, we stressed
that a direct appeal was the proper path for a challenge of the actual District Court
restitution plan, as a Bivens remedy would violate the favorable-termination rule of Heck
v. Humphrey, 512 U.S. 477, 486–87 (1994). Duronio v. Gonzales, 293 F. App’x 155,
157 (3d Cir. 2008). Second, ―[t]o the extent that Duronio challenge[d] the execution of
his sentence, he should ordinarily proceed under 28 U.S.C. § 2241.‖ Id. We also
explained to Duronio that, under the facts adduced, his claim of ―coercion‖ lacked a
proper legal foundation under Bivens: the privileges lost by failing to participate in the
IFRP program would not ―trigger a constitutionally protected interest.‖ Id. Five months
later, we affirmed Duronio’s conviction and sentence. See generally United States v.
Duronio, No. 06-5116, 2009 WL 294377 (3d Cir. Feb. 9, 2009).
Since that time, Duronio has commenced two further actions in the District Court:
1) the present case, a 28 U.S.C. § 2241 petition attacking the BOP’s ―unlawful
modification‖ of Duronio’s restitution schedule, see generally Duronio v. Yost, W.D. Pa.
Civ. No. 3:09-cv-00289; and 2) a 28 U.S.C. § 2255 motion, see generally Mot. to Vacate,
Duronio v. United States, D.N.J. Civ. No. 2:10-cv-01574, ECF No. 1 (entered Apr. 6,
3
2010), which is still pending at this time. After the District Court denied his § 2241
petition, Duronio took a timely appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291, and to the extent that
Duronio challenges the execution of his sentence with regard to the BOP’s modification
of a payment schedule, the claim falls within the purview of a § 2241 petition.3 See
McGee v. Martinez, 627 F.3d 933, 937 (3d Cir. 2010); Coady v. Vaughn, 251 F.3d 480,
485 (3d Cir. 2001). We ―exercise plenary review over the District Court’s legal
conclusions and apply a clearly erroneous standard to its findings of fact.‖ O’Donald v.
Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam); see also United States v.
Friedland, 83 F.3d 1531, 1542 (3d Cir. 1996) (―Our review of the district court’s order
denying . . . relief under 28 U.S.C. § 2241 is plenary.‖).
We agree with the Appellee that by ―voluntarily4 entering into the IFRP,‖ Duronio
―personally provided the BOP the authority to collect‖ restitution funds. We are aware of
3
To the extent that Duronio wished to contest the validity of the restitution order itself,
such a challenge should have been made on direct appeal. Section 2241 ―cannot be used
to challenge just the restitution part of a sentence when the custody supporting . . .
jurisdiction is actual imprisonment.‖ Arnaiz v. Warden, 594 F.3d 1326, 1330 (11th Cir.
2010); see also United States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007) (―Restitution
orders that sweep too much conduct into their calculations are issues that must be raised
on direct appeal . . . .‖).
4
Throughout, Duronio has maintained that he was functionally ―coerced‖ into entering
the IFRP program. As we have explained, however, the penalties associated with ―IFRP
refuse‖ status are ―reasonably related to legitimate penological interests.‖ See James v.
Quinlan, 866 F.2d 627, 630 (3d Cir. 1989); see also Duronio, 293 F. App’x at 157.
Further, Duronio ―ha[s] no entitlement, constitutional or otherwise, to any of the benefits
agreeing to participate in the IFRP would provide, such as a work detail outside the
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no holding that would suggest that an inmate is prohibited from contributing additional
monies to restitution he owes, especially when doing so—and being placed on IFRP
status—confers benefits that would otherwise be lost. If we were to adopt instead
Duronio’s arguments about the IFRP’s unconstitutionality, we would embrace the absurd
result of an inmate being unable to gain program benefits because of an allegedly faulty
(and potentially immutable) District Court order. We are not confronted with a situation
in which a restitution program is being imposed upon Duronio against his will. ―The
IFRP can be an important part of a prisoner’s efforts toward rehabilitation, but strictly
speaking, participation in the program is voluntary[;] . . . an inmate in the Bureau of
Prisons’ custody may lose certain privileges by not participating in the IFRP, but the
inmate’s participation cannot be compelled.‖ United States v. Boyd, 608 F.3d 331, 334
(7th Cir. 2010) (emphasis added). As we hold that Duronio’s voluntary participation is
determinative and necessarily defeats his claim, we do not need to reach the Appellee’s
alternative argument that the BOP may act to obtain restitution payments even under the
improper delegation of authority we identified in United States v. Corley, 500 F.3d 210(3d Cir. 2007), rev’d on other grounds, 556 U.S. 303 (2009).
Thus, for the foregoing reasons, we will affirm the judgment of the District Court.
prison perimeter, a higher commissary spending limit, a release gratuity, or pay beyond
the maintenance pay level.‖ United States v. Lemoine, 546 F.3d 1042, 1049 (9th Cir.
2008). To that end, we cannot find that he was coerced into IFRP compliance.
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