Opinion
Case No. CIV-98-181-R
04-07-2017
UNITED STATES OF AMERICA, Plaintiff, v. BILLY EUGENE CREECH, Defendant.
ORDER
By letter dated February 14, 2017, Defendant Billy Creech moves this Court for a modification of his restitution order to remove his obligation to make interest payments entered in his criminal case. [Doc. 48]. The United States has responded. [Doc. 54].
The threshold issue is whether the Court has jurisdiction to waive Mr. Creech's interest payments. Though 18 U.S.C. § 3612(f)(1) mandates that a defendant pay interest on any fine or restitution of more than $2,500, § 3612(f)(3)(A) permits the a court to waive the interest requirement "if the court determines that the defendant does not have the ability to pay interest . . . ." Before the Court, however, is the issue of modifying interest payments post-judgment, rather than at the time of sentencing or on direct appeal. The majority of district courts have held that § 3612(f)(3) confers no post-judgment jurisdiction. See, e.g., United States v. Brumfield, 125 F. Supp. 3d 648, 651-652 (W.D. Mich. 2015) (collecting and discussing cases); but also see United States v. Perez, 2008 WL 4865992 (N.D. Ill. July 1, 2008) ("Some non-binding opinions and Seventh Circuit dicta notwithstanding, this Court sees no language that precludes post-sentencing reconsideration of interest under the authority of § 3612(f)(3).").
That said, this Court's reading of 18 U.S.C. § 3664(k) compels the conclusion that it has jurisdiction to waive Mr. Creech's interest payments under certain circumstances. See United States v. Roberson, 2016 WL 6395399 (N.D. Ill. Oct. 28, 2016) (" 3664(k) also confers postjudgment jurisdiction to adjust a restitution payment schedule"). That provision gives the Court the ability to adjust a payment schedule in narrow circumstances:
The court may also accept notification of a material change in the defendant's economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require.
18 U.S.C.A. § 3664.
Because "§ 3664(k) vests the court with the power to relieve a defendant of the prospective obligation to pay interest on restitution . . . th[is] [C]ourt will afford [Mr. Creech] an opportunity to offer evidence and argument on whether" there has been a material change in his economic circumstances that would justify a waiver of interest payments. Mr. Creech is thus directed to file a brief on the matter.
IT IS SO ORDERED this 7th day of April 2017.
/s/ _________
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE