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United States v. Small

United States District Court, District Circuit

January 13, 2014

UNITED STATES OF AMERICA,
v.
LATARSHA SMALL, Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, Chief Judge

Defendant LaTarsha Small was sentenced to 42 months in prison after she pled guilty to two counts of theft concerning programs that receive federal funds, and was ordered to pay restitution. Small now moves to change the balance of her incarceration to in-home confinement, and to amend the court’s restitution order.[1] Small is entitled to have the portion of her restitution order mandating payment through the Bureau of Prisons amended. However, because Small has not demonstrated that she is entitled to have her prison term changed or her restitution schedule recalculated, Small’s motions will otherwise be denied.

BACKGROUND

For several years, Small was the grants and accounting manager for My Sister’s Place, a non-profit corporation that aids female victims of domestic violence and their children. Thereafter, Small was the accountant and payroll specialist for the International Crisis Group, an international non-profit organization that is involved with preventing and resolving conflicts around the world. During her time at both My Sister’s Place and the International Crisis Group, Small embezzled funds from the companies for her personal use.

Small pled guilty to two counts of theft concerning programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A). On November 9, 2012, Small was sentenced to 42 months on Count One and a concurrent sentence of 42 months on Count Two. Small’s final judgment assessed against her $164, 146.23 in restitution payable immediately, and directed: “You shall make payments on the special assessment and restitution through your participation in the Bureau of Prisons’ Inmate Financial Responsibility Program [(“IFRP”)].” Judgment at 4. The judgment ordered Small to pay the balance of any restitution owed at a rate of no less than $100 per month. Id. at 5. Small did not appeal the sentence.

Small now moves to change her remaining term of incarceration to home confinement, contending that there are “mitigating circumstances of a kind and to a degree” that justify changing her sentence. Mot. to Change Method by Which Balance of Sentence is to be Served (“Mot. to Amend Sentence”) at 2. The government opposes, arguing that as Small’s motion should be construed as a motion to reduce her sentence, none of the bases for reducing a sentence under 18 U.S.C. § 3582(c) is applicable. Govt.’s Consolidated Oppn. to Def.’s Pro Se Mots. to Change Method by Which Balance of Sentence is Served and for Amended Restitution Order (“Govt.’s Oppn.”) at 1.

Small also moves to amend her restitution order, alleging that the court impermissibly delegated to the Bureau of Prisons the responsibility of determining a payment schedule. Motion for Amended Restitution Order (“Mot. to Amend Rest.”). Small requests that the court order that she pay $25 per quarter for restitution. Id. at 3. The government argues that the restitution order was proper and that the court cannot intervene in the payment schedule set by the IFRP. Govt.’s Supplemental Mem. in Oppn. to Def.’s Mot. for Amended Restitution Order at 7.

DISCUSSION

I. MOTION TO CHANGE SENTENCE TO HOME CONFINEMENT

Small asks that the court “chang[e] the method by which the balance of her sentence is served by allowing her to serve the remaining sentence on home confinement.” Mot. to Amend Sentence at 1. Small, however, cites no authority to support her request. The government contends that her motion must be considered as “one seeking to reduce her sentence, ” and is therefore governed by 18 U.S.C. § 3582(c). Govt.’s Oppn. at 4. Small does not contest this argument.

“Under 18 U.S.C. § 3582(c) a court may modify a sentence only in three circumstances: (1) on motion of the Bureau of Prisons, (2) ‘to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure, ’ and (3) to reflect a post-sentence reduction in the applicable sentencing guidelines.” United States v. Morris, 116 F.3d 501, 504 (D.C. Cir. 1997) (quoting 18 U.S.C. § 3582(c)). In turn, Rule 35 of the Federal Rules of Criminal Procedure permits modification to correct an “arithmetical, technical, or other clear error” within 14 days, or, upon motion from the government, for “substantial assistance in investigating or prosecuting another person.” Fed. R. Crim. P. 35. There are no other grounds for modification of a sentence. See Morris, 116 F.3d at 504; see also United States v. Apple, No. 3:10-CR-322-L, 2012 WL 4835059, at *2 (N.D. Tex. Oct. 11, 2012) (finding that the Federal Rules of Criminal Procedure “do not allow for” modification of a sentence “based upon substantive grounds . . . [such as the defendant’s] health conditions, which were already in existence and known to the court at the time he was sentenced”).

None of the conditions in § 3582(c) applies here. The Bureau of Prisons has not made a motion to modify Small’s sentence, nor has the government moved under Rule 35 to reduce Small’s sentence for substantial assistance. Small’s motion comes more than 14 days after the sentence, and does not allege an arithmetical, technical, or other clear error. Small also does not allege that there has been a change in the applicable sentencing guidelines that would justify reducing her sentence, nor does she point to any other statutory basis for modification. Accordingly, there is no legal basis for modifying Small’s sentence, and her motion will be denied.[2]

II. MOTION TO AMEND RESTITUTION ORDER

According to Small, 18 U.S.C. § 3664(f)(2) requires that a court set a payment schedule for the defendant to discharge her restitution obligation, including a payment schedule for the defendant’s incarceration period. Mot. to Amend Rest. at 1. Small alleges that “[a]s a result” of “the Court[’s] fail[ure] to set a payment schedule, ” she “has been required to pay under the ...


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