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United States v. Armstrong

United States District Court, District of Columbia

November 13, 2018

UNITED STATES OF AMERICA,
v.
IESHA ARMSTRONG, Defendant.

          MEMORANDUM OPINION AND ORDER

          BERYL A. HOWELL CHIEF JUDGE

         The defendant, Iesha Armstrong, who is incarcerated at the Bureau of Prisons (“BOP”) medium-secure facility for women at Federal Correctional Institution Hazelton (“FCI-Hazelton”), located in the Northern District of West Virginia, submitted a handwritten letter seeking a reduction in her federal restitution payments during her lengthy incarceration. Def.'s Letter, received Oct. 4, 2018 (“Def.'s Mot.”), at 1, ECF No. 74. According to the defendant, BOP has been steadily increasing the amount due on her monthly restitution payments to such an extent that she cannot afford to purchase even necessary hygiene articles from the facility's commissary. Id. at 1. She explains that her initial restitution payments of “$25 every three months” in March 2018, were increased to “$135 monthly” in July 2018, then to “$236 per month” in October 2018, id. at 1, and, more recently, to “$271.00” each month, Def.'s Letter, received Nov. 8, 2018 (“Def.'s Supp. Letter”), at 1, ECF No. 80, even though FCI-Hazelton provides no employment opportunities that could sustain such monthly payments. Def.'s Mot. at 1.

         The defendant's first letter was initially construed as a “Motion to Require Government and Bureau of Prisons to Comply with Terms of Restitution Order.” Minute Order (dated Oct. 5, 2018). The government urged that the letter “be construed as a petition for relief under 28 U.S.C. § 2241” because the defendant is “contesting her [Inmate Financial Responsibility Program (“IFRP”)] payment plan as determined by BOP, ” and, so construed, that the letter be dismissed or transferred to the district where she is serving her sentence. Gov't's Opp'n Def.'s Mot. (“Gov't's Opp'n”) at 3-4, ECF No. 76; see also Gov't's Resp. to Order to Show Cause (“Gov't's Resp. OTSC”) at 1, ECF No. 79 (reiterating position that defendant's letter should be construed as a § 2241 petition). Upon further review, the Court directed the government to show cause why the defendant's letter should not be construed as a “Motion to Adjust the Restitution Payment Schedule Pursuant to 18 U.S.C. § 3664(k).” Minute Order (dated Oct. 29, 2018). See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed[.]'” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))). In response to the show cause order, the government reported that, should the defendant's letter be construed as a motion pursuant to § 3664(k), the victim owed restitution in this case, Premier Bank Inc. (formerly Adams National Bank) would “not oppose a $50-per-month cap [on restitution payments] while defendant is in prison.” Gov't's Resp. OTSC at 2. Notably, the government states that “because the representative of the victim of defendant's crimes does not oppose defendant's request, if defendant's letter is construed as a motion under § 3664(k), then the government also does not oppose an adjustment to the restitution order that requires defendant to pay restitution at a rate of no more than $50 per month during her term of incarceration.” Id.

         For the reasons stated below, the defendant's motion is construed as a Motion to Adjust the Restitution Payment Schedule, pursuant to 18 U.S.C. § 3664(k), and is granted.

         I. BACKGROUND

         In 2010, on her guilty plea to armed bank robbery and unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), § 924(a)(22), and § 2113(a), (d), the defendant was sentenced by Judge Richard W. Roberts to serve a total of 84 months' imprisonment, 48 months of supervised release, and to pay $8, 350.00 in restitution. See generally Judgement (“2010 Judgment”), ECF No. 46.[1] The 2010 Judgment, on Form AO 245B, addresses payment of the restitution owed in two separate sections. First, in the “Schedule of Payments” portion of the 2010 Judgment, paragraph F is checked, indicating that “special instructions regarding the payment of criminal monetary penalties” apply and, in pertinent part, that “Defendant shall…pay restitution totaling $8, 350.00 in D.C. case 1:09cr135, ” at the same time that the Court found the defendant does “not have the ability to pay a fine and, therefore, ” waived imposition of a fine. Id. at 6. Otherwise, this part of the 2010 Judgment provides no schedule for payment of the restitution during the defendant's incarceration, other than the following language on the printed Form AO 245B:

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court.

Id.

         Second, in the portion of the 2010 Judgment setting out the “Special Conditions of Supervision, ” id. at 4, which pertain “[u]pon release from imprisonment, ” id. at 3, the defendant is directed for her “Restitution Obligation, ” to “pay the balance of any restitution owed at a rate of no less than $100 each month and [to] provide verification of payment to the Probation Office.” Id. at 4.

         The defendant was released from custody on January 12, 2015, and thereafter committed multiple violations of her supervised release, including inter alia, attempting to open new lines of credit, failing to report for random urinalysis testing, failing to make restitution payments, failing to attend mental health sessions, and finally, for committing armed robbery in Maryland. Probation Petition, dated July 12, 2016, at 1-6, ECF No. 54 (noting violations 1-10 and that, at the start of supervision, the defendant had “agreed to submit restitution payments of not less than $100 per month beginning February 1, 2015.”); Probation Petition, dated Sept. 7, 2016, at 2-4, ECF No. 58 (noting violations 11-22); Probation Petition, dated Nov. 3, 2016, at 2-3, ECF No. 60 (noting violations 23-24). Regarding the violations stemming from the Maryland offense conduct, the defendant was ultimately sentenced on her guilty plea in the District of Maryland, on February 9, 2018, to Armed Bank Robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and to Using, Carrying and Brandishing a Firearm During and In Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c), to consecutive terms of 84 months' incarceration on each count for a total of 168 months' imprisonment, with no restitution ordered. See Judgment on Revocation at 3, ECF No. 72; Probation Petition at 2, ECF No. 65; Judgment, U.S. v. Armstrong, No. 16-cr-00601-TDC, at 5 (D. Md. Feb. 9, 2018), ECF No. 48. For 23 violations of supervision, which the defendant conceded at a hearing on those violations, see Minute Entry (Sept. 7, 2018), she was sentenced in this Court to 18 months' incarceration, to be served concurrently with her current sentence, see Judgment on Revocation at 4.

         When she arrived “at [the] Secure Female Facility-Hazelton on March 6, 2018, ” Def.'s Mot. at 1, the defendant apparently agreed to participate in the Inmate Financial Responsibility Program (“IFRP”), which has been described by the government as a “voluntary” program. Gov't's Opp'n at 2. The ramifications of non-participation in the IFRP are both severe and coercive, in order to “encourage[] each sentenced inmate to meet his or her legitimate financial obligations.” 28 C.F.R. § 545.10. BOP regulations detail ten consequences that “shall result” should an inmate decline to participate in the IFRP, including, inter alia, being “quartered in the lowest housing status, ” 28 C.F.R. § 545.11(d)(7); being ineligible for any community-based programs, id. § 545.11(d)(8); being ineligible for UNICOR, id. § 545.11(d)(5); being “subject to a monthly commissary spending limitation more stringent than the monthly commissary spending limitation set for all inmates, ” id. § 545.11(d)(6); being ineligible for any furlough, id. § 545.11(d)(2); and not being assigned any work outside the secure perimeter of the facility, id. § 545.11(d)(4). The same consequences are visited upon inmates who participate in the IFRP but then fail “to comply with the provisions of [their] financial plan, ” id. § 545.11(d), that is, to pay the amounts set by BOP.

         According to the defendant, she was advised that her restitution payments for her conviction arising from her original case in this Court “would be $25 every three months beginning in June 2018, ” but “[a]fter the first payment in June, the counselor informed [her] that beginning in July, ” her restitution payments would increase to $135 monthly due to deposits made to her account by her family to help her pay “for commissary purchases.” Def.'s Mot. at 1. She “made three payments [from] July through September, ” but, in September, the defendant was informed that the restitution payments would again be increased “beginning in October, ” to “$236 per month because [her] family has increased the amount that they send to [her] account.” Id. The defendant explains that her family increased the amount sent to her to cover the restitution payments and ensure she would “still be able to purchase hygiene, food and other necessary items from [the] commissary.” Id. The defendant avers that “there are no jobs that pay over $30 per month” at FCI-Hazelton, and that she is “dependent on the income that [she] receive[s] from [her] family and [she] cannot continue to afford increases” in restitution payments due each month. Id. As the defendant points out, when she was on supervision “and was employed, [she] was only obligated to pay $100 per month, ” but asks: “Now that I am incarcerated, unemployed, and dependent on outside sources for money, how am I expected to pay over $200 per month?” Id. at 1-2.

         The defendant initially requested that her restitution payments be capped at $50 per month until she is “released and [] able to earn [her] own income and make payments accordingly.” Id. at 2. Subsequently, however, in a supplemental handwritten letter, the defendant reported that she was advised by personnel at FCI-Hazeleton that this court “has no authority over the BOP to determine the amount of [her] FRP and that [this Court] can only authorize that [her] FRP are stopped until [she is] released.” Def.'s Supp. Letter at 1. Thus, she modified her request such that “if [the Court] cannot rule that [her] FRP is reduced to $50 quarterly, ” she asked that her “FRP is stopped until [she is] released and can find employment so that [she] can be responsible for [her] own payments, ” id., despite the adverse ramifications to her of not participating in the IFRP.

         II. ...


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