F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 31, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-6325
v. (D.Ct. No. 99-CR-00008-C)
(W .D. Okla.)
G ERALD LA M A R B OWE N ,
Defendant-Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Defendant Gerald Lamar Bowen, a federal prisoner appearing pro se,
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
appeals the district court’s denial of his motions for modification of restitution, to
file a reply brief, and for reconsideration. 1 In support of his appeal, M r. Bowen
primarily asserts the district court improperly delegated to the United States
Bureau of Prisons the responsibility for setting a schedule of restitution payments.
W e exercise jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm
the district court’s denial of M r. Bowen’s motions.
I. Procedural Background
M r. Bowen entered a guilty plea to the crimes of bank robbery and using a
firearm during the commission of a crime. At sentencing, the district court
imposed a sentence totaling 248 months imprisonment and restitution in the
amount of $4,310.00, due immediately, or, if not paid in full at the time of his
release from confinement, by monthly payments of not less than $100 beginning
no later than thirty days after his release. M r. Bowen did not appeal his
conviction and sentence.
Seven years later, M r. Bowen filed a motion for modification of the
restitution sentence or, alternatively, a stay of the order of restitution until his
1
M r. Bowen brings his motions, in part, pursuant to 18 U.S.C. § 3664(k)
and (o), which provide the district court authority to determine w hether to adjust
the final judgment of restitution based on a material change in economic
circumstances and allow him to appeal the district court’s order under 18 U.S.C.
§ 3742.
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release from prison, claiming the Bureau of Prisons improperly impounded funds
from his prison trust account for the purpose of satisfying the restitution amount.
The government filed a response opposing the request for modification or stay.
Thereafter, the district court denied M r. Bowen’s motion, explaining the court’s
order of restitution did not delegate any responsibility to the Bureau of Prisons
for its collection. Instead, the district court explained, M r. Bowen’s obligation to
make payments to the B ureau of Prisons arose solely from his voluntary
participation in the Inmate Financial Responsibility Program (IFRP), through
which the Bureau of Prisons established a payment schedule to assist M r. Bowen
in meeting his monetary obligations. The district court also explained
participation in such a voluntary program did not constitute an improper
delegation to the Bureau of Prisons by the court.
Subsequently, M r. Bowen sought permission to file a reply brief to the
government’s response, which the district court denied as moot. M r. Bowen then
filed a request for reconsideration, which the district court also denied.
II. Discussion
On appeal, M r. Bowen renews his claim the district court improperly
delegated collection of the restitution amount to the Bureau of Prisons. For the
first time on appeal, he also complains the district court: 1) abused its discretion
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when ordering him to pay the entire restitution amount immediately or, if not paid
in full at the time of his release from confinement, in $100-per-month payments
beginning no later than thirty days from his release; 2 and 2) violated his due
process rights when it denied him the opportunity to file a reply to the
government’s response to his motion for modification. The government opposes
M r. Bowen’s appeal on grounds: 1) the district court did not delegate to the
Bureau of Prisons the responsibility for setting a restitution payment schedule;
and 2) restitution was mandatory under 18 U .S.C. § 3663A (c)(1)(A)(i) because
M r. Bowen was convicted of committing a crime of violence.
Turning to M r. Bowen’s appeal, we construe his pleadings liberally as he is
proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, it
is clear his appeal lacks merit, and for the purpose of judicial economy we decline
2
To the extent M r. Bowen is attacking the execution of his sentence with
regard to the restitution payments, the appropriate vehicle is a petition under 28
U.S.C. § 2241 filed with the district court where he is confined; similarly, if he is
somehow challenging the validity of his sentence relating to his restitution, the
proper vehicle is a 28 U.S.C. § 2255 petition filed in the district court that
sentenced him. See Bradshaw v. Story, 86 F.3d 164, 166-67 (10th Cir. 1996).
Regardless of how his motions are construed, because he is bringing them seven
years after his initial sentence, it is clear the one-year statute of limitations
imposed by the AEDPA would bar his motions under either statute. See 18
U.S.C. §§ 2241, 2244, and 2255. Extending every benefit to M r. Bowen, we will
address this issue as a motion for adjustment of the initial restitution order
pursuant to 18 U.S.C. § 3664(k) and (o), over which we have jurisdiction under
18 U.S.C. § 3742. W e note, however, he has not shown any “material change” in
his “economic circumstances,” as required by statute.
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to fully address M r. Bowen’s assertions in support of his appeal, other than as
follow s.
First, we note that only his claim of improper delegation was brought
before the district court. 3 As to the other claims, we generally do not consider
claims raised for the first time on appeal, except, for instance, when the issue is a
question of law, the proper resolution of which is beyond reasonable doubt, and
the failure to address the issue would result in a miscarriage of justice. See
Shoels v. Klebold, 375 F.3d 1054, 1062 (10th Cir. 2004) (relying on Petrini v.
Howard, 918 F.2d 1482, 1483 n.4 (10th Cir. 1990)). None of those criteria are
presented here.
Even if we considered M r. Bowen’s claims, they must fail. First, the
M andatory Victims Restitution Act of 1996 (M VRA) requires the court to order
full restitution in any case involving a conviction, like here, for a crime of
violence. 4 See 18 U.S.C. §§ 3663A(c)(1)(A )(i) and 3664(f)(1)(A); United States
3
“An appeal of a district court’s denial of a motion to reconsider raises for
review only the district court’s order of denial and not the underlying judgment
itself,” so that “we review a denial of a motion to reconsider only for an abuse of
discretion.” United States v. Castillo-Garcia, 117 F.3d 1179, 1197 (10th Cir.
1997) (quotation marks and citations omitted).
4
“[T]he court shall order restitution ... in the full amount of each victim’s
losses as determined by the court and without consideration of the economic
(continued...)
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v. Zunie, 444 F.3d 1230, 1238 (10th Cir. 2006). Generally, “[d]istrict courts have
substantial discretion in determining how restitution is to be paid.” Wilson, 416
F.3d at 1170 (quotation marks and citation omitted). Pursuant to statute, the
district court sets the manner and schedule for restitution repayment, see 18
U.S.C. § 3664(f)(2), and may “‘direct the defendant to make a single, lump-sum
payment, partial payments at specified intervals, in-kind payments, or a
combination of payments at specified intervals and in-kind payments.’” Wilson,
416 F.3d at 1170 (quoting 18 U.S.C. § 3664(f)(3)(A)). However, as M r. Bowen
suggests, the sentencing court is prohibited from delegating to the Bureau of
Prisons the responsibility for setting the payment schedule for court-ordered
restitution. See United States v. Overholt, 307 F.3d 1231, 1255-56 (10th Cir.
2002) (generally relying on 18 U.S.C. § 3664). Nevertheless, inmates
participating in the IFRP under 28 C.F.R. §§ 545.10 and 545.11 may commit a
percentage of their prison employment earnings toward the payment of court-
ordered restitution. See U nited States v. W illiams, 996 F.2d 231, 234 (10th Cir.
1993) (supporting purpose of IFRP).
4
(...continued)
circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). However, the
defendant’s economic circumstances are relevant in fixing a payment schedule.
See United States v. Wilson, 416 F.3d 1164, 1170 (10th Cir. 2005) (relying on 18
U.S.C. § 3664(f)(2)). Nothing in the record indicates the district court in any way
abused its discretion in fixing the payment schedule or otherwise failed to
properly take into account M r. Bowen’s economic circumstances.
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Applying these legal principles, the district court did not abuse its
discretion when it ordered M r. Bowen to pay the restitution amount in full
immediately or, if not paid in full at the time of release from confinement, by
monthly payments. M oreover, a reading of the order establishes the district court
did not improperly delegate to the Bureau of Prisons the responsibility for the
manner of payment, payment schedule, or collection of restitution. Thus, M r.
Bowen’s arguments to the contrary are wholly without merit and he has not
otherwise shown a “material change” in his “economic circumstances,” as
required by 18 U.S.C. § 3664(k) for an adjustment in his restitution judgment.
Finally, regarding M r. Bowen’s request to file a reply brief to the government’s
response to his motion for modification of restitution, we note such a reply would
have been pointless, given the order on restitution patently did not delegate any
responsibility to the Bureau of Prisons. Therefore, the district court did not err in
denying him the opportunity to file a reply brief.
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III. Conclusion
For the foregoing reasons, we grant M r. Bowen’s motion to proceed on
appeal in form a pauperis and A FFIRM the district court’s denial of M r. Bowen’s
motions on the issue of restitution.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
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