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United States v. Ayers-Zander

United States District Court, District Circuit

June 7, 2013

UNITED STATES OF AMERICA,
v.
MARY AYERS-ZANDER, Defendant.

MEMORANDUM ORDER

RICHARD W. ROBERTS, District Judge.

Mary Ayers-Zander pled guilty to wire fraud, was sentenced to thirty months imprisonment, and was ordered to repay $413, 651.90 in restitution and make payments on the restitution through her participation in the Bureau of Prisons' Inmate Financial Responsibility Program ("IFRP"). The Bureau of Prisons ("BOP") originally required Ayers-Zander to pay $25 per quarter, but later increased her restitution payment to $97 per month. Ayers-Zander moves to defer her restitution payments until after her release from incarceration. She states that she is unable to pay the $97 per month restitution payment because she does not earn a sufficient salary in prison to make such a payment. She offers no factual information, though, to show that she has no other funds to support such a payment. The government, however, asserts that the BOP increased her payment after her prison trust account increased by $1500. Ayers-Zander does not rebut that assertion.

The IFRP operates "under the exclusive control and authority of the Executive Branch." United States v. Baldwin , 563 F.3d 490, 492 (D.C. Cir. 2009). Ayers-Zander has not shown that she exhausted all available BOP administrative remedies to challenge her IFRP restitution payment amount before seeking judicial relief. See United States v. Rush , 853 F.Supp.2d 159, 162 (D.D.C. 2012) (citing 28 C.F.R. § 542.10(a)). Even if Ayers-Zander had exhausted all administrative remedies, the proper method for challenging how BOP is administering the IFRP in her case may not be a motion to the sentencing court, but rather a petition under 28 U.S.C. § 2241 in the district where Ayers-Zander is serving her sentence. See, e.g., United States v. Diggs , 578 F.3d 318, 319 & n.1 (5th Cir. 2009) ("All other circuits to look at this issue agree that prisoners challenging their IFRP payment plans must do so under § 2241."); Rush , 853 F.Supp.2d at 162; United States v. Locke, Criminal No. 09-259 (JDB), 2012 WL 1154084, *3 n.5 (D.D.C. Apr. 9, 2012).

In any event, a court on motion made under 18 U.S.C. § 3664(k) may modify a restitution order after a defendant asserts a "material change" in her economic circumstances. See 18 U.S.C. § 3664(k). "The petitioner bears the burden of proving that [her] circumstances have changed enough to warrant such a modification." Hinton v. United States, Civil Action No. 01-1508 (RMU), 2003 WL 21854935, at *4 (D.D.C. Aug. 5, 2003). However, Ayers-Zander's cursory assertion of an inability to pay in the face of unrebutted contrary evidence does not constitute a sufficient change in circumstances to justify deferring restitution payments until after her release. See Locke, 2012 WL 1154084, at *1-2.

Thus, Ayers-Zander has not shown that she is entitled to relief from the increased restitution payments. Accordingly, it is hereby

ORDERED that defendant's motion [33] to modify her restitution obligation be, and hereby is, DENIED.


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