United States v. Harold White, Jr.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 20, 2018 *
Decided December 21, 2018
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-1599
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:12-cr-30171-DRH-2
HAROLD WHITE, JR., David R. Herndon,
Defendant-Appellant. Chief Judge.
ORDER
Harold White, who is incarcerated in federal prison for theft crimes, contests a
district court’s order regarding restitution payment. At sentencing, the district court
ordered him to pay approximately $360,000 in restitution. While incarcerated, he says,
his family sent to his prison account more than $5,000 to pay off other debts. Granting a
motion from the government, the district court authorized the Bureau of Prisons to
apply these funds to the restitution. We reject the government’s contention that White
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-1599 Page 2
filed his notice of appeal too late, but because White had control over the funds and
they were not exempt from restitution, we affirm the judgment.
We begin by assessing the timeliness of this appeal. The district court issued its
order authorizing the Bureau of Prisons to apply the $5,000 toward restitution on
January 11, 2018. That order is civil in nature, see 18 U.S.C. § 3613(a); United States v. Lee,
659 F.3d 619, 620–21 (7th Cir. 2011), so White had until March 12 (60 days) to appeal
that decision, 28 U.S.C. § 2107(b). The deadline is jurisdictional. Bowles v. Russell,
551 U.S. 205, 212–13 (2007). The envelope that contained his notice of appeal has a date
stamp (from his prison) of March 13, one day late.
As a prisoner, White may benefit from the prison mailbox rule. See Houston v.
Lack, 487 U.S. 266, 276 (1988); Taylor v. Brown, 787 F.3d 851, 858 (7th Cir. 2015). That rule,
codified in Federal Rule of Appellate Procedure 4(c), treats an inmate’s legal filings as
submitted when properly deposited in the prison’s mail system:
If an institution has a system designed for legal mail, an inmate confined
there must use that system to receive the benefit of this [rule]. If an inmate
files a notice of appeal … the notice is timely if it is deposited in the
institution's internal mail system on or before the last day for filing and it is
accompanied by a declaration in compliance with 28 U.S.C. § 1746 setting
out the date of deposit and stating that first-class postage is being prepaid;
or evidence [of the same].
FED. R. APP. P. 4(c)(1)(A). White told us in an unsworn statement that he placed his
notice of appeal in the prison’s legal mail on March 4. White repeated that message in
his docketing statement, this time under penalty of perjury. He submitted one more
statement, again unsworn, that his institution “does indeed have a system designed for
legal mail. And [he] did indeed use said system to mail the notice of appeal ….”
(emphasis in original). The government initially responded that White did not declare
under penalty of perjury that he used the legal mail system. After he did so in his
docketing statement, the government added that White also needed to submit evidence
corroborating his sworn statement.
We conclude that White’s appeal is timely. As the appealing party, White must
show that he appealed on time. See May v. Mahone, 876 F.3d 896, 898 (7th Cir. 2017). An
inmate’s sworn statement that his prison has a system for legal mail and that the notice
of appeal was placed timely in that system ordinarily satisfies the prison mailbox rule.
See id. at 899; United States v. Smotherman, 838 F.3d 736, 738 (6th Cir. 2016); Douglas v.
No. 18-1599 Page 3
Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); Price v. Philpot, 420 F.3d 1158, 1165–66
(10th Cir. 2005). The reason is that, because a prison’s legal mail system verifies the date
of dispatch, the prison may rely on the system to contest the inmate’s sworn assertion.
See United States v. Craig, 368 F.3d 738, 740 (7th Cir. 2004). White swore that he put his
notice of appeal in legal mail on March 4, and the government does not contradict him.
Although the government contends that White needed to submit more evidence, the
rule requires only a sworn statement or other evidence, not both. See FED. R. APP.
P. 4(c)(1)(A).
Furthermore, White submitted evidence that the postage was prepaid, though he
did not do so in an affidavit. We recognize that we have said that, to benefit from the
prison mailbox rule, an inmate must swear that postage was prepaid. See Craig, 368 F.3d
at 740. But that was before 2016, when the Rule was amended to permit other
“evidence” of postage payment. See FED. R. APP. P. 4(c)(1)(A)(ii). White submitted other
evidence to show that his postage was sufficient: a photocopy of the stamped envelope
that accompanied his notice of appeal. “Mail received with postage due is not ordinarily
accepted by the Bureau of Prisons.” 28 C.F.R. § 540.21(h). We can infer, therefore, that
when the Bureau accepted White’s legal mail on March 4, as he attests, it bore adequate
postage. White thus benefits from the prison mailbox rule, and his appeal is timely.
Assured of our jurisdiction, we conclude on the merits that the district court did
not err in authorizing the Bureau of Prisons to allow the $5,000 in White’s account to be
applied toward his restitution obligation. The legal framework is straightforward. An
order of restitution is a lien in favor of the United States on all of the defendant’s
property interests. 18 U.S.C. § 3613(c). In addition, a court may require the defendant to
make a restitution payment upon a “material change in the defendant’s economic
circumstances.” 18 U.S.C. § 3664(k). The district court’s order was proper because it
found that White’s prison account (from which he can pull funds) had grown by over
$5,000. White responds that the cash infusion to his account did not “change[] his
economic circumstances,” because his family sent him money only so he could pay fines
that he owed Illinois. But an inmate who receives money from any source must apply it
to restitution still owed, see 18 U.S.C. § 3664(n); the money from his family is not
exempt, see 18 U.S.C. § 3613(a) (listing exemptions). Neither White’s desire (or that of
his family) that he use that money to pay off state fines instead of his restitution, nor his
previous monthly payments toward restitution, negate the federal statute’s mandate.
See United States v. Sayyed, 862 F.3d 615, 618–19 (7th Cir. 2017).
No. 18-1599 Page 4
Last, White argues that the court impermissibly infringed on the Bureau of
Prison’s authority to schedule his restitution payments. True, district courts ordinarily
cannot override the Bureau of Prison’s discretion about an inmate’s payment schedule.
See In re Buddhi, 658 F.3d 740, 742 (7th Cir. 2011). But the government may enforce a
restitution order “by all … available and reasonable means.” 18 U.S.C. § 3664(m)(1)(A).
And here, when the district court granted the government’s motion to allow the Bureau
to apply the $5,000 toward restitution, it merely “authorized” the Bureau of Prisons to
deliver the money in White’s account. So the court did not overstep its bounds.
AFFIRMED