United States District Court, District of Columbia
A. HOWELL, CHIEF JUDGE
defendant, Iesha Armstrong, is incarcerated at Federal
Medical Center Carswell (“FMC Carswell”), a
Bureau of Prisons (“BOP”) facility in Fort Worth,
Texas. Pending is a motion by the government for an order
authorizing the BOP to turn over “to the Clerk of this
Court a reasonable portion of the funds” in the
defendant's Inmate Trust Account, which contains over $4,
000, “toward satisfaction of the remaining criminal
restitution obligation in this case, ” which is about
$6, 000. United States' Motion for Order Authorizing
Restitution Payment from Inmate Trust Account
(“Gov't's Mot.”) at 1, ECF No. 84.
2018, the defendant's restitution payments were limited
to $50 per quarter during her term of incarceration. See
United States v. Armstrong, No. 09-cr-135 (BAH), 2018 WL
5923913, at *7 (D.D.C. Nov. 13, 2018). This adjustment was
made to the defendant's restitution order under 18 U.S.C.
§ 3664(k) after the defendant submitted a handwritten
letter seeking a reduction in her restitution payments
because BOP had gradually increased the amount withdrawn from
her Inmate Trust Account from $25 quarterly in March 2018 to
$271 per month by November of that year. See
Def.'s Letter, received Oct. 4, 2018 (“Def.'s
Letter I”), ECF No. 74.; see also
Def.'s Letter, received Nov. 8, 2018 (“Def.'s
Letter II”) at 1, ECF No. 80.
August 13, 2019, ten months after her restitution payments
were capped at $50 per quarter, the defendant submitted
another letter stating that “[t]he BOP . . . has frozen
my account” and requesting access to “my entire
$4, 300” along with an order “that my $50
quarterly . . . payment schedule” should “remain
the same.” Def.'s Letter, received Aug. 13, 2019
(“Def.'s Letter III”), ECF No. 82. The
government subsequently filed the pending motion.
reasons that follow, the defendant's restitution payment
schedule shall be adjusted to require a payment of $4, 000 to
satisfy part of her outstanding restitution obligation. BOP
is authorized to turn over to the Clerk of this Court that
$4, 000 sum from the defendant's Inmate Trust Account.
The defendant's restitution payments shall otherwise
continue to be limited to $50 per quarter during her term of
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 in 2010 to serve 84
months' imprisonment and 48 months' supervised
release and to pay $8, 350.00 in restitution. See
Judgment (“2010 Judgment”) at 2, 6, ECF No.
After the defendant was released from custody in 2015, she
violated her supervised release, including by committing
armed robbery in Maryland. See 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).
guilty plea in the District of Maryland to armed bank
robbery, see 18 U.S.C. § 2113(a), (d), and to
using a firearm during a crime of violence, see 18
U.S.C. § 924(c), the defendant was sentenced on February
9, 2018 to a total of 168 months', or 14 years',
imprisonment; no restitution was ordered. See
Judgment on Revocation at 3, ECF No. 72; Probation Petition
at 2, ECF No. 65; Judgment, United States v.
Armstrong, No. 16-cr-00601-TDC, at 5 (D. Md. Feb. 9,
2018), ECF No. 48. For twenty-three 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 sentence on
the guilty plea in the District of Maryland, see
Judgment on Revocation at 4.
already described, the defendant submitted a handwritten
letter in October 2018 explaining that BOP had gradually
increased the amount withdrawn from her Inmate Trust Account
through the Inmate Financial Responsibility Program
(“IFRP”) and requesting that her quarterly
restitution payments be limited to $50. See
Def.'s Letter I. The government and the victim's
representative did not oppose the requested $50 cap.
See United States' Response to the Court's
Oct. 29, 2018 Show Cause Order (“Gov't's Resp.
I”) at 2, ECF No. 79. Construing that letter as a
motion to adjust her restitution payment schedule under 18
U.S.C. § 3664(k), the Court concluded that the
defendant's reincarceration for the extended term of 168
months amounted to a “material change in her economic
circumstances” entitling her to an adjustment in her
restitution payment schedule under that provision.
Armstrong, 2018 WL 5923913, at *6 (quoting 18 U.S.C.
§ 3664(k)). In a November 2018 Memorandum Opinion and
Order, defendant's restitution payments were thus limited
to $50 per quarter during her current term of incarceration.
Id. at *7; see also Memorandum Opinion and
Order (Nov. 13, 2018), ECF No. 81.
August 2019 letter stated that “[t]he BOP . . . ha[d]
frozen” her “account, ” prompting her to
request access to the “entire $4, 300” in the
account as well as an order that BOP adhere to the previous
restitution order. Def.'s Letter III. In the letter, the
defendant also stated that her “independent financial
situation ha[d] not changed” since the entry of the
November 2018 order. Id. “I am still dependent
on my family for any substantial money that is placed on my
account, ” and “[m]y mother, who is the primary
person sending me money[, ] ¶ 70 years old and lives on
retirement income, ” the letter explained. Id.
response to an order to show cause “how such BOP action
complies with the restitution order in effect in this case,
” Minute Order (Aug. 13, 2019), the government
confirmed that BOP had frozen defendant's account
“pursuant to regulations related to the inmate trust
account and a request of the U.S. Attorney's Office,
” Response to Court's Aug. 13, 2019 Minute Order
(“Gov't's Resp. II”) at 1, ECF No. 85.
with this response, the government filed the pending motion
seeking authorization for BOP to transfer a lump sum, up to
$6, 048, from the defendant's Inmate Trust Account to the
Clerk of this Court toward satisfaction of the remaining
restitution obligation on the 2010 judgment. See
Gov't's Mot. at 1. Defendant, represented by counsel
appointed by the Court, opposed the motion, see
Def.'s Opp'n to United States' Mot. for Order
Authorizing Restitution Payment from Inmate Trust Account
(“Def.'s Opp'n”), ECF No. 90, and the
government submitted a reply and supplemental memorandum in
support of its motion, see Gov't's Reply and
Supplemental Mem. Supp. Mot. for Order Authorizing
Restitution Payment from Inmate Trust Account at 2
(“Gov't's Reply”), ECF No.
government raises four legal theories in support of its
motion. The first two theories - that the government can
secure the defendant's total outstanding restitution
obligation by enforcing a statutory judgment lien on the
defendant's Inmate Trust Account or by using a common law
right of offset, see Gov't's Mot. at 7-8,
11-12 - conflict with the restitution order in this case and
misunderstand the respective powers of the courts and the
executive branch in ordering and administering restitution.
The government's third and fourth legal theories derive
from the Mandatory Victims Restitution Act of 1996
(“MVRA”), 18 U.S.C. § 3663A, which was
codified “in scattered sections of 18 U.S.C., ”
United States v. Hunter, 786 F.3d 1006, 1008 (D.C.
Cir. 2015), and, pursuant to § 3663A(d), MVRA
restitution orders “are issued and enforced in
accordance with section 3664, ” of the earlier enacted
Victim and Witness Protection Act (“VWPA”). Under
§ 3664(n), the government claims, the deposits into the
defendant's account qualify as “substantial
resources” received “during a period of
incarceration” that the defendant “shall be
required to apply the value of . . . to any restitution . . .
still owed.” 18 U.S.C. § 3664(n); see
also Gov't's Mot. at 8-9. Finally, the
government invokes § 3664(k) to ask for an adjustment in
the payment schedule based on a “material change in the
defendant's economic circumstances.” 18 U.S.C.
§ 3664(k); see Gov't's Mot. at 10-11.
Section 3664(n)'s mandate does not apply here and, aside
from authorizing the $4, 000 payment, the Court declines to
adjust the payment schedule already set. The
government's “Smorgasbord of options, ”
Gov't's Reply at 2, is addressed following a brief
review of the MVRA.
MVRA “govern[s] federal court orders requiring
defendants convicted of certain crimes to pay their victims
restitution.” Lagos v. United States, 138
S.Ct. 1684, 1687 (2018); see also 18 U.S.C. §
3663(a)(1) (providing that a “court shall order”
restitution in certain cases). Section 3664 of the MVRA lays
out the “[p]rocedure for issuance and enforcement of
[an] order of restitution.” 18 U.S.C. § 3664.
Under that provision, “[u]pon determination of the
amount of restitution owed to each victim, the court shall .
. . specify in the restitution order the manner in which, and
the schedule according to which, the restitution is to be
paid, in consideration of” multiple factors, including
the defendant's “financial resources” and
“projected earnings.” Id. §
3664(f)(2). A court has considerable discretion to structure
the restitution order's schedule into “payments at
specified intervals” or a “single, lump sum
payment.” Id. § 3664(f)(3)(A).
sentence that imposes an order of restitution is a final
judgment notwithstanding the fact that . . . such sentence
can subsequently be . . . corrected . . . appealed and
modified . . . amended . . . [or] adjusted . . . .”
Id. § 3664(o). Each of these processes
contemplates court action. See id. (referencing Fed.
R. Crim. P. 35, 18 U.S.C. § 3664(d)(5), among other
provisions requiring judicial action). As is relevant here,
§ 3664(k) sets out a process for notification “of
any material change in the defendant's economic
circumstances that might affect the defendant's ability
to pay restitution.” Id. § 3664(k).
“Upon receipt of the notification, the court may, on
its own motion, or the motion of any party . . . adjust the
payment schedule, or require immediate payment in full, as
the interests of justice require.” Id. Section
3664(n) further mandates that “[i]f a person obligated
to provide restitution, or pay a fine, receives substantial
resources from any source, including inheritance, settlement,
or other judgment, during a period of incarceration, such
person shall be required to apply the value of such resources
to any restitution or fine still owed.” Id.
3663 and 3664 of Title 18 clearly impose on the
court the duty to fix the terms of restitution.”
United States v. Johnson, 48 F.3d 806, 808 (4th Cir.
1995); see also United States v. Martinez, 812 F.3d
1200, 1202 (10th Cir. 2015) (“By statute, it is the
district court - not the government - that determines how a
defendant is to pay restitution.”); United States
v. Merric, 166 F.3d 406, 409 (1st Cir. 1999)
(“[I]t is the inherent responsibility of the judge to
determine matters of punishment and this includes final
authority over all payment matters.”). “The
government, ” on the other hand, “has statutory
authority to enforce . . . the terms of a ...