09-2333-cr
USA v. Akinrosotu
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2010
(Argued: Thursday, February 17, 2011 Decided: February 28, 2011)
Docket No. 09-2333-cr
UNITED STATES OF AMERICA,
Appellee,
v.
TOLULOPE AKINROSOTU,
Defendant-Appellant.
Before: CABRANES, CHIN, Circuit Judges, and CROTTY, District Judge.*
Appeal from a May 18, 2009 order of the United States District Court for the Eastern
District of New York (Joanna Seybert, Judge). The question presented is the scope of the District
Court’s authority, pursuant to 18 U.S.C. § 3583(e)(2), to modify defendant’s $50,000 fine. We hold,
assuming arguendo that the District Court has any authority at all to modify defendant’s fine, that it
may modify only the amount that remains unpaid at the commencement of defendant’s supervised
release.
Affirmed in part on other grounds insofar as defendant raises claims pursuant to § 3583(e)(2)
requesting modification of the portion of his fine that is payable prior to the commencement of his
*
The Honorable Paul A. Crotty, of the United States District Court for the Southern District of New York,
sitting by designation.
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supervised release; dismissed in part insofar as defendant raises claims pursuant to § 3583(e)(2)
requesting modification to the portion of the fine payable as a condition of his supervised release.
EILEEN F. SHAPIRO, Brooklyn, NY, for defendant-appellant.
BONNI J. PERLIN, Assistant United States Attorney (Loretta
E. Lynch, United States Attorney, on the brief; Beth P.
Schwartz and Varuni Nelson, Assistant United States
Attorneys, of counsel), United States Attorney’s Office for the
Eastern District of New York, Brooklyn, NY, for appellee.
PER CURIAM:
Defendant-appellant Tolulope Akinrosotu (“defendant”) appeals from a May 18, 2009 order
of the United States District Court for the Eastern District of New York. The question presented is
the scope of the District Court’s authority, pursuant to 18 U.S.C. § 3583(e)(2), to modify defendant’s
$50,000 fine. We hold, assuming arguendo that the District Court has any authority at all to modify
the fine, that it may modify only the amount that remains unpaid at the commencement of
defendant’s supervised release.
BACKGROUND
On June 23, 1994, following a trial by jury, defendant was convicted of the following crimes:
(1) conspiracy to import heroin, in violation of 21 U.S.C. §§ 960(b)(1)(A), 963; (2) conspiracy to
distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846; and (3) importation of heroin into
the United States, in violation of 21 U.S.C. § 952(a). On February 1, 1996, the District Court
sentenced Akinrosotu principally to 365 months’ imprisonment, followed by a five-year term of
supervised release, and to a $50,000 fine. The $50,000 fine was due immediately upon sentencing,
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pursuant to 18 U.S.C. § 3572(d)(1).1 The District Court further ordered, as a special condition of
supervised release, that defendant “shall pay any fines that remain unpaid at the commencement of
the term of supervised release.”
On July 25, 1996, we affirmed the judgment of the District Court. See United States v.
Akinrosotu, No. 96-1097, 101 F.3d 1393, 1996 WL 414458 (2d Cir. July 25, 1996) (unpublished). In
that appeal, defendant did not raise any claims regarding the fine.
On May 3, 2006, appearing pro se, defendant filed a letter motion with the District Court
entitled “Petition for Remission of Fine.” The primary relief sought was a reduction in the amount
of income defendant was required to pay toward his fine each month under the terms of his contract
with the Bureau of Prisons’ Inmate Financial Responsibility Payment program. By letter dated June
29, 2006, the United States opposed the motion. On May 18, 2009, the District Court denied
defendant’s motion, holding that defendant did not qualify for relief under two statutory provisions
not relevant to the instant appeal. In so doing, the Court stated without explanation that it “[could
not] consider other statutes for affording Defendant the relief he seeks.” This appeal, in which
defendant is represented by counsel, followed.
A.
The sole issue defendant raises on appeal is whether the District Court has authority,
pursuant to 18 U.S.C. § 3583(e)(2), to modify the $50,000 fine. This is a question of first impression
in our Circuit. Section 3583(e)(2) provides, in relevant part:
1
Section 3572(d)(1) provides, in relevant part:
A person sentenced to pay a fine or other monetary penalty, including restitution, shall make such
payment immediately, unless, in the interest of justice, the court provides for payment on a date
certain or in installments.
18 U.S.C. § 3572(d)(1).
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[The District Court] may modify, reduce, or enlarge the conditions of
supervised release, at any time prior to the expiration or termination of
the term of supervised release . . . .
18 U.S.C. § 3583(e)(2). Although defendant did not cite this statute in his pro se letter brief, the
government concedes that “pro se submissions must be construed liberally and interpreted to raise
the strongest arguments that they suggest.” See, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994). Accordingly, the District Court should have construed defendant’s letter brief as raising a
claim under § 3583(e)(2), and we may consider that claim now, on appeal.
B.
As stated above, § 3583(e)(2) applies only to “conditions of supervised release,” not to other
portions of a defendant’s sentence. 18 U.S.C. § 3583(e)(2). A fine is an independent part of a
defendant’s sentence, and the fine owed by the defendant while incarcerated may not be modified
simply because the fine may later be implicated as a condition of supervised release. See United States
v. Ionia Mgmt., S.A., 537 F. Supp. 2d 321, 322 (D. Conn. 2008) (“Special assessments, fines, and
restitution orders imposed at sentencing, though referenced among the many conditions of
probation, are nevertheless fully independent criminal penalties.”). Indeed, as Akinrosotu’s counsel
conceded at oral argument, by the time Akinrosotu made his request, the District Court lacked the
authority to reduce the total amount of the fine. See United States v. Spallone, 399 F.3d 415, 421 (2d
Cir. 2005) (“[A] court may not resentence a defendant unless expressly mandated by this court . . . or
pursuant to the strict conditions established by Fed. R. Crim. P. 35 or 36.”) (citing 28 U.S.C. § 2106).
At argument, defendant’s counsel also claimed that if we were to remand, the District Court
could decide to redistribute the fine so that defendant could resume repayment once his period of
supervised release begins. But the District Court’s authority to provide the relief sought here existed
at sentencing, and then only if “in the interest of justice” it “provide[d] for payment on a date certain
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or in installments.” 18 U.S.C. § 3572(d)(1). The District Court declined to do so, and the time
limitations of the Federal Rules of Criminal Procedure foreclose further amendment. See Fed. R.
Crim. P. 35, 36.
Thus, assuming arguendo that the District Court has any authority at all to modify defendant’s
fine pursuant to § 3583(e)(2), the District Court can only modify the amount that remains unpaid at
the commencement of defendant’s supervised release. Indeed, by the explicit terms of the District
Court’s judgment, the amount that remains unpaid is the only portion of the fine that constitutes a
condition of defendant’s supervised release. See United States v. Akinrosotu, No. 93-511-cr (E.D.N.Y.
Feb. 1, 1996) (judgment imposing sentence) (“Special conditions of supervised release: . . . The
defendant shall pay any fines that remain unpaid at the commencement of the term of supervised
release.”). Accordingly, to the extent that defendant requests modification of the amount of the fine
due prior to the commencement of supervised release, his claim must be denied.
C.
We dismiss the remainder of defendant’s appeal without prejudice until such time as it is ripe
for our review. We have no occasion to decide whether the District Court enjoys the statutory
authority to modify the portion of defendant’s fine due at the commencement of his supervised
release because it is unlikely that any amount of the fine will remain at that time. According to
www.bop.gov, the official website for the Bureau of Prisons (“BOP”), of which we take judicial
notice for the limited purpose of obtaining the BOP’s projected date for the defendant’s release
from prison, see Fed. R. Evid. 201(b)(2), defendant’s release is scheduled for November 2, 2019.2 If
2
The BOP’s “projected release date” takes into account any credit for good behavior and for job performance
accrued thus far, among other things. See generally Waletzki v. Keohane, 13 F.3d 1079, 1080-81 (7th Cir. 1994) (discussing
these “good-time credits”).
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defendant serves the entire 365-month prison term to which he was sentenced, he will not be
released until even later, in 2026. Pursuant to 18 U.S.C. § 3613(b)(1) (1994),3 defendant’s liability for
the $50,000 fine expires on February 7, 2016, more than three years before defendant’s projected
release from prison and the projected commencement of his supervised release. See 18 U.S.C.
§ 3613(b)(1) (providing that liability to pay a fine to the United States expires “twenty years after the
entry of the judgment”). Unless and until defendant is released—or, at the very least, projected to be
released—prior to February 7, 2016, the existence of any fine eligible for modification under
§ 3583(e)(2) is purely hypothetical. Therefore, the doctrine of ripeness militates against considering
defendant’s claim at this time, as courts should “avoid becoming embroiled in adjudications that may
later turn out to be unnecessary.” Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003).
CONCLUSION
For the reasons stated above, we AFFIRM the order of the District Court on other grounds
insofar as defendant raises claims pursuant to § 3583(e)(2) requesting modification of the portion of
his fine that is payable prior to the commencement of his supervised release. We DISMISS
defendant’s appeal without prejudice insofar as it raises claims pursuant to § 3583(e)(2) requesting
modification to the portion of the fine payable as a condition of his supervised release.
3
Defendant was sentenced prior to the enactment of the Mandatory Victims Restitution Act of 1996, which
amended § 3613. See Pub. L. No. 104-132, § 207(c), 110 Stat. 1227, 1238. Under the version of § 3613 in effect at the
time of defendant’s sentencing, a lien arising from a final judgment “becomes unenforceable and liability to pay a fine
expires – (1) twenty years after the entry of the judgment; or (2) upon the death of the individual fined.” 18 U.S.C.
§ 3613(b)(1) (1994).
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