Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-2-2008
Wayne Costigan v. John Yost
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2180
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"Wayne Costigan v. John Yost" (2008). 2008 Decisions. Paper 167.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2180
___________
WAYNE COSTIGAN,
Appellant
v.
JOHN YOST, Warden
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 07-cv-00165)
District Judge: Honorable Kim R. Gibson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 1, 2008
Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges.
(Filed: December 2, 2008 )
___________
OPINION
___________
PER CURIAM
Wayne Costigan, pro se, appeals an order of the United States District Court for
the Western District of Pennsylvania denying his habeas petition filed pursuant to 28
U.S.C. § 2241. We will affirm.
Costigan pleaded guilty to bank robbery and to possession of a firearm during the
commission of a crime of violence. In 2004, the United States District Court for the
Eastern District of New York sentenced him to 123 months of imprisonment, ordered him
to pay $103,118 in restitution upon release from prison, and imposed “a special
assessment of $200 which shall be due immediately.” In January 2005, Costigan signed a
contract under the Bureau of Prison’s (“BOP”) Inmate Financial Responsibility Program
(“IFRP”), whereby he agreed to pay $50 each quarter to satisfy his financial obligations.
Costigan signed another IFRP contract in March 2007, agreeing to pay $25 per quarter.
Nevertheless, Costigan failed to make any payments.
In July 2007, Costigan filed a petition under 28 U.S.C. § 2241, claiming that the
District Court impermissibly delegated to the BOP the task of establishing the schedule
by which he would pay the special assessment imposed as part of his sentence. He argued
that, because the BOP was not authorized to set the payment schedule, it improperly
imposed “sanctions” based on his failure to participate in the IFRP. The case was
referred to a Magistrate Judge, who concluded that, by setting the special assessment as
due immediately, the District Court did not impermissibly delegate authority. Over
Costigan’s objections, the District Court adopted the Magistrate Judge’s Report and
Recommendation and dismissed the § 2241 petition. Costigan timely appealed.
Because Costigan’s challenge goes directly to execution of the sentence (i.e.,
whether the BOP has authority to set the terms of the payment of the special assessment),
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the claim falls squarely within those properly raised in a petition for habeas corpus under
§ 2241. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). In support of his claim,
Costigan relies on United States v. Coates, 178 F.3d 681, 685 (3d Cir. 1999), where we
held that, under the Mandatory Victims Restitution Act (“MVRA”), the sentencing court
cannot delegate the scheduling of restitution payments to a probation officer or to the
BOP because the fixing of restitution payments is an exclusively judicial act. More
recently, we held that a sentencing court impermissibly delegates its authority when it
orders immediate payment of restitution with knowledge that the defendant could not
make immediate payment in full. See United States v. Corley, 500 F.3d 210, 226-27 (3d
Cir. 2007). These holdings are based on 18 U.S.C. § 3664(f)(2), which provides that, “in
consideration of” the defendant’s financial resources, the sentencing court “shall . . .
specify in the restitution order the manner in which, and the schedule according to which,
the restitution is to be paid.” See Coates, 178 F.3d at 684 (“[s]ince the MVRA mandates
that district courts schedule restitution payments after taking into account the defendant’s
financial resources, the District Court’s failure to do so here constitutes plain error.”);
Corley, 500 F.3d at 227.
Importantly, however, Costigan is not challenging that portion of the judgment
pertaining to restitution. Instead, his claim is based exclusively on the sentencing court’s
failure to set a schedule for paying the $200 special assessment. The special assessment
was mandatory under 18 U.S.C. § 3013(a)(2)(A), and was to be “collected in the manner
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that fines are collected in criminal cases.” 18 U.S.C. § 3013(b). The Attorney General is
responsible for the collection of criminal fines. See 18 U.S.C. § 3612(c). The time and
method of payment is governed by 18 U.S.C. § 3572(d), which provides that “[a] person
sentenced to pay a fine or other monetary penalty, including restitution, shall make such
payment immediately, unless . . . the court provides for payment on a date certain or in
installments.” But, unlike with restitution, there is no provision mandating that the order
for a fine or special assessment include a payment schedule in consideration of the
defendant’s economic circumstances. Therefore, because the sentencing court was not
required to set a payment schedule for the special assessment, we will affirm the District
Court’s order denying Costigan’s § 2241 petition.
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