UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7566
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOADIAN ELAM BRATTON-BEY, a/k/a Boaz Bratton-Bey, a/k/a
Modian Elam, a/k/a Jason Smith, a/k/a Joshua Builder, a/k/a
Yarachmiel Messing, a/k/a Malik Jones,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:10-cr-00580-GLR-1)
Submitted: March 26, 2014 Decided: April 1, 2014
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Moadian Elam Bratton-Bey, Appellant Pro Se. Allen F. Loucks,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Moadian Elam Bratton-Bey pled guilty, without benefit
of a plea agreement, to conspiracy to commit bank fraud and
related offenses. In addition to terms of imprisonment and
supervised release, the district court imposed $1,213,347 in
restitution, deferred during the period of Bratton-Bey’s
incarceration and payable in monthly installments of $25 during
his term of supervised release.
Following his sentencing, Bratton-Bey moved the
district court for return of property, including cash, seized
from him during arrests related to his federal prosecution.
After the parties subsequently learned that the cash was being
held by Maryland state officials, the Government filed two
motions in the district court seeking an order directing the
state to disburse these funds directly to the district court
clerk so that they could be applied toward Bratton-Bey’s
restitution obligation. The Government argued that the
existence of the cash created a material change to Bratton-Bey’s
financial circumstances warranting a modification of the
restitution payment schedule, pursuant to 18 U.S.C. § 3664(k).
Over Bratton-Bey’s objection, the district court
granted these motions. But the court did not agree with the
Government that there had been a material change in Bratton-
Bey’s financial circumstances under 18 U.S.C. § 3664(k).
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Rather, the court concluded that the Government could seek
immediate satisfaction of the restitution obligation because the
newly discovered funds constituted a windfall received by
Bratton-Bay during his period of incarceration. The court
concluded that it possessed authority under 18 U.S.C. § 3664(n)
to order immediate payment of these funds even though the
payment schedule did not begin until Bratton-Bay’s release from
prison. For the reasons that follow, we vacate the court’s
order and remand.
I.
A sentencing court is required to impose restitution
“in the full amount of each victim’s losses” and “without
consideration of the economic circumstances of the defendant.”
18 U.S.C. § 3664(f)(1)(A) (2012). The court must determine the
manner and schedule of payment by considering the defendant’s
assets and other financial resources, his income, and his
obligations. Id. § 3664(f)(2). A restitution obligation is due
immediately unless the court specifies otherwise. Id.
§ 3572(d)(1).
A sentence imposing a restitution order is a final
judgment that may not be modified absent one of several
enumerated statutory exceptions. Id. § 3664(o); United States
3
v. Grant, 715 F.3d 552, 557 (4th Cir. 2013) (Grant 4). 1 As
relevant here, a court may “adjust the payment schedule, or
require immediate payment in full” if it finds a “material
change in the defendant’s economic circumstances that might
affect the defendant’s ability to pay restitution.” 18 U.S.C.
§ 3664(k). Additionally, a defendant’s receipt of a windfall
during imprisonment triggers an automatic payment requirement.
See id. § 3664(n) (“If a person obligated to provide
restitution, or pay a fine, receives substantial resources from
any source . . . during a period of incarceration, such person
shall be required to apply the value of such resources to any
restitution or fine still owed.”). To trigger this automatic
payment requirement, the defendant must be under a current
obligation to satisfy the judgment. See United States v. Roush,
452 F. Supp. 2d 676, 682 (N.D. Tex. 2006) (barring the
Government from garnishing the defendant’s bank account before
any restitution was due on the ground that “there is presently
nothing for the government to enforce”).
We review for abuse of discretion a district court’s
decision to modify a defendant’s restitution order, but we
1
Two relevant but unrelated cases concerning modification
of a restitution order happen to be captioned United States v.
Grant. In an effort to minimize confusion, we will refer to the
Fourth Circuit’s Grant decision as Grant 4, and the Second
Circuit’s decision, 235 F.3d 95 (2d Cir. 2000), as Grant 2.
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review de novo questions of statutory interpretation. Grant 4,
715 F.3d at 556-57. Where the district court’s decision is
based on the legal question of what constitutes a “material
change in the defendant’s economic circumstances” under
§ 3664(k), our review is de novo. Grant 2, 235 F.3d at 99.
II.
The district court granted the Government’s motions on
the ground that Bratton-Bay “receive[d] substantial resources”
while incarcerated, triggering the automatic payment provision
of Section 3664(n). But a court may accelerate a restitution
order under Section 3664(n) only if the defendant is under a
current obligation to satisfy the order. In this case, Bratton-
Bey was under no obligation to pay restitution until his release
from imprisonment. 2 Both Bratton-Bey and the Government
therefore agree that the district court erred by granting the
Government’s motions on the basis of Section 3664(n). Bratton-
Bey’s restitution obligation was not presently due and,
therefore, there was “nothing for the government to enforce.”
2
As the Government recognizes, the written criminal
judgment omits this information, defaulting to an immediate
obligation. Where, as here, there is a conflict between a
district court’s written judgment and its oral pronouncement of
the sentence, the oral sentence controls. United States v.
Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003).
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Roush, 452 F. Supp. 2d at 682. Given the arguments presented by
the parties and the Government’s concession, we decline to
affirm on the rationale of the district court.
In order to alter the payment schedule to make the
deferred restitution obligation due immediately, the court was
required to find Bratton-Bey’s economic circumstances materially
changed under § 3664(k). The Government argues that the record
clearly establishes such changed circumstances and urges us to
adopt the Second Circuit’s rationale in Grant 2. The Government
did not rely on this authority in the district court. Rather,
it argued that the fact that the district court learned of the
funds only after imposing the initial restitution award
constituted a material change in Bratton-Bey’s financial
circumstances -- an argument specifically rejected by the Second
Circuit in Grant 2. See Grant 2, 235 F.3d at 99-100.
Normally, we will not entertain arguments raised for
the first time on appeal. See Muth v. United States, 1 F.3d
246, 250 (4th Cir. 1993). But, even assuming the Government’s
argument is properly before us, we find that Grant 2 refutes,
rather than supports, the Government’s position. In Grant 2,
the Second Circuit concluded that a finding of a material change
in economic circumstances under § 3664(k) requires “an objective
comparison of a defendant’s financial condition before and after
a sentence is imposed.” 235 F.3d at 100. The Second Circuit
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upheld a modification of the defendant’s restitution schedule
after concluding that the recent “unfreezing” of the defendant’s
inmate account rendered the account funds newly available to him
and, thus, a material improvement in his finances for the
purposes of § 3664(k). Id.
Here, Bratton-Bey’s cash is in the custody of Maryland
authorities and is therefore not an asset newly available to
him. Bratton-Bey has precisely the same interest in those funds
that he had at the time of his sentencing. We therefore
conclude the funds do not presently represent a material change
in Bratton-Bey’s finances warranting a modification of the
payment schedule. Cf. Grant 4, 715 F.3d at 557-60 (concluding
that defendant experienced no material economic change adequate
to justify acceleration of restitution obligation under
§ 3664(k) where she received tax refund in amount comparable to
refunds received prior to her sentencing, and therefore
experienced no objective improvement in her finances).
We have reviewed Bratton-Bey’s remaining arguments on
appeal and find them to be without merit. Accordingly, we
vacate the district court’s order and remand to the district
court for entry of an order denying the Government’s motions.
Because Bratton-Bey may ultimately succeed in recovering his
funds from state authorities, however, we express no opinion as
to the propriety of a modification of the restitution schedule
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should Bratton-Bey actually obtain the funds, and we direct that
the Government’s motions be denied without prejudice. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED AND REMANDED
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