Opinion
Case No. 2:05-CR-245.
January 19, 2011
MEMORANDUM OPINION ORDER
Defendant pleaded guilty to conspiracy to interfere with interstate commerce by means of robbery, and to aiding and abetting the use or carrying of a firearm during and in relation to a crime of violence. On August 8, 2006, the Court sentenced him to 148 months imprisonment followed by 3 years of supervised release. The Court also ordered Defendant to pay $13,458.93 in restitution to The Kroger Company.
This matter is currently before the Court on Defendant's "Motion to Defer Restitution Payments During Term of Supervised Release, Instead of During Term of Imprisonment." (Doc. 68). Essentially, Defendant argues that the Court has improperly delegated authority to the Bureau of Prisons and to his Probation Officer to set a payment schedule for restitution. He asks the Court to order FCI-Glenville to stop collecting money through the Inmate Financial Responsibility Program ("IFRP"), and to enjoin FCI-Glenville from placing him on "refusal status" for non-payment.
The IFRP is a work program designed to help inmates with financial obligations meet those obligations while incarcerated. Although the program is voluntary, an inmate's refusal to participate in the program does have negative consequences. See 28 C.F.R. § 545.11(d). Courts have generally rejected due process challenges to the IFRP. See Weinberger v. United States, 268 F.3d 346, 361 n. 6 (6th Cir. 2001). Courts have also rejected challenges to the adverse consequences suffered by inmates who choose not to participate in the program, noting that the privileges taken away do not implicate the prisoners' constitutional rights. See Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009) (holding that inmates have no constitutional right to a prison job).
In support of his motion, Defendant cites to several cases including United States v. Davis, 306 F.3d 398 (6th Cir. 2002). In Davis, the Sixth Circuit explained that the Mandatory Victims Restitution Act of 1996 requires the court to specify in the restitution order "the manner in which, and the schedule according to which, the restitution is to be paid," taking certain factors into consideration. Id. at 425-26 (citing 18 U.S.C. § 3664(f)(2)). The district court in Davis had ordered the defendant to pay $4,790 in restitution but had failed to set a payment schedule. The appellate court vacated and remanded the sentence with respect to the restitution order. Id. at 426.
In contrast to Davis, this Court included special instructions regarding the payment of restitution. The restitution order states:
While incarcerated, if the defendant is working in a non-UNICOR or grade 5 UNICOR job, he shall pay $25.00 per quarter toward the restitution obligation. If working in a grade 1-4 UNICOR job, Mr. Perry shall pay 50% of his monthly pay toward the restitution obligation. Any change in this schedule shall be made only by order of this Court.
Within 30 days of the commencement of the term of supervised release, the probation office shall recommend a payment schedule to the Court to satisfy any unpaid balance of the restitution. The Court will enter an Order establishing a schedule of payments.
Aug. 11, 2006 Judgment at 6. The payment schedule established by the Court for the time during which Defendant is incarcerated is consistent with the payment schedule set forth in the federal regulations governing the IFRP.See 28 C.F.R. § 545.11(b). Once Defendant is on supervised release, the Court will enter an Order establishing a schedule of payments, taking into consideration the Probation Officer's recommendation. Although Defendant alleges that the Court did not retain ultimate authority over the payment schedule, these allegations are contradicted by the express language set forth in the restitution order.
Because Defendant has failed to show that the Court improperly delegated its authority to the Bureau of Prisons or to the Probation Officer, the Court DENIES Defendant's motion.
IT IS SO ORDERED.
Date: January 19, 2011