The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
This matter is presently before the Court on "Motion 3582 For The Judge To Set The Payment Plan" by defendant Tysharne Burke, filed on June 2, 2011. The Government now moves to dismiss Mr. Burke's motion for lack of jurisdiction, and, alternatively, for lack of merit. The Court has considered the submissions of the parties, and, for the reasons that follow, will dismiss the motion.
On August 2, 2005, Defendant Tysharne Burke entered a plea of guilty to a one count information charging a violation of 18 U.S.C. § 2113(a) and 2. During the plea hearing, the Defendant admitted that he committed bank robbery on or about September 1, 2004, and that he employed force, violence, and intimidation to carry out the robbery. On December 21, 2005, this Court sentenced Defendant Tysharne Burke to a term of imprisonment of 130 months to be followed by a term of supervised release of three years. The Court also ordered restitution, in the amounts of $100,000.00 payable to Roma Bank and $44,015.28 payable to Chubb Group of Insurance Companies, be due "immediately." See Judgment entered December 21, 2005.
The Restitution Order stated that "It is recommended that the defendant participate in the Bureau of Prisons Inmate Financial Responsibility program. 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 $100, to commence 30 days after release from confinement." Id. Burke never directly appealed his sentence.
Burke argues that the Court's Restitution Order runs afoul of the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A. He contends that the Court failed to specify the proper payment schedule for the imposed fine and that the Court "abdicated its judicial responsibilities" by permitting the Bureau of Prisons to determine the amount and manner of Burke's contributions to his restitution during his confinement. Burke contends that this is plain error and asks that the collection of his fines ceases. He moves under § 3582.
Defendant is currently incarcerated at the United States Federal Penitentiary in Lompoc, California. Since his incarceration, the Government states that he has made restitution payments totaling $1269.36. It is unclear from the submissions whether Burke is currently participating in the Inmate Financial Responsibility Program's ("IFRP"); Burke does not indicate that he is and the Government claims that he has not made a restitution payment since October 2010.*fn1 However, the Court will assume he is participating since he seeks to preclude the Bureau of Prisons from collecting any restitution.
The present motion is not the first time that Burke has challenged the payment of his restitution. On February 17, 2009, he filed a motion titled "EX PARTE MOTION to modify/reduce conditions and Decree and Order placing Petitioner on 'Exempt Temp IFR' pursuant to 18 U.S.C. § 3624(k) and 18 U.S.C. § 3582." See Dkt. No. 23. That motion was denied. See Dkt. No. 24. Now, it appears that Burke is again asking for similar relief and moves to compel the Court to set a payment plan for the collection of the restitution during his confinement.
Burke argues that the Court's Restitution Order runs afoul of the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A. Burke contends that the Court failed to specify the proper payment schedule for the imposed fine and that the Court "abdicated its judicial responsibilities" by permitting the Bureau of Prisons to determine the amount and manner of Burke's contributions to his restitution during his confinement. Burke contends that this is plain error and asks that the collection of his fines ceases. He moves under § 3582.
The Court recognizes that Burke is proceeding in this matter pro se and, therefore, will construe his motion liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal construction of Burke's motion compels the conclusion that he has moved under the wrong statute. Burke appears to be challenging both the manner in which the sentenced was imposed by the Court and the execution of that sentence. First, Burke argues that the Court's sentence runs afoul of the Mandatory Victims Restitution Act, (MVRA) because the Court abdicated its non-delegable duty to establish payment schedule of the fines, 18 U.S.C. § 3664(f)(2) and/or that it failed to set forth a payment scheme for the time that Burke is confined, in violation of 18 U.S.C. § 3572(d)(1). Second, Burke seems to challenge the ability of the Inmate Financial Responsibility Program's ("IFRP") to collect Restitution.
Challenges to the restitution ordermust be made on direct appeal. Duronio v. Werlinger, 2011 WL 6188707, *2 (3d Cir. Dec. 14, 2011). A Petition pursuant to §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). However, ...