Ward v. Chavez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JACK RICHARD WARD,  No. 09-17016
Petitioner-Appellant,
v.  D.C. No.
2:09-cv-00246-GMS
RICARDO E. CHAVEZ, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding

Argued and Submitted
January 10, 2012—San Francisco, California

Filed May 8, 2012

Before: J. Clifford Wallace and Milan D. Smith, Jr.,
Circuit Judges, and Jed S. Rakoff, Senior District Judge.*

Opinion by Judge Jed S. Rakoff;
Dissent by Judge Wallace

*The Honorable Jed S. Rakoff, Senior District Judge for the U.S. Dis-
trict Court for Southern New York, sitting by designation.

4877
4880 WARD v. CHAVEZ

COUNSEL

Douglas C. Erickson (argued), Maynard Cronin Erickson Cur-
ran & Reiter, P.L.C., Phoenix, Arizona, for the petition-
er-appellant.

Karla Hotis Delord (argued), Dennis K. Burke, and Randall
M. Howe, United States Attorney’s Office for the District of
Arizona, Phoenix, Arizona, for the respondent-appellee.

OPINION

RAKOFF, Senior District Judge:

The issue in this case is whether, under the Mandatory Vic-
tims Restitution Act of 1996 (“MVRA”), a district court
impermissibly delegates its obligation to set a restitution pay-
ment schedule when it orders “immediate” payment with the
expectation that the Bureau of Prisons (“BOP”) will work out
a payment schedule with the prisoner pursuant to the Inmate
Financial Responsibility Program (“IFRP”). We hold that
where the sentencing court has failed to consider whether the
defendant has the financial resources to pay restitution imme-
diately, ordering immediate payment impermissibly delegates
to the BOP the court’s obligation to set a payment schedule.

BACKGROUND

On December 9, 2002, petitioner Jack Richard Ward was
sentenced in the Eastern District of California to 300 months’
 WARD v. CHAVEZ 4881
imprisonment and 3 years’ supervised release after being con-
victed of one count of attempted Armed Bank Robbery and
nine counts of Armed Bank Robbery. In addition to his prison
term, the sentencing court ordered Ward to pay a $1,000
Crime Victim Fund Assessment and $27,885 in restitution to
the crime victims. The “Schedule of Payments” portion of the
court’s judgment stated that the Crime Victim Fund Assess-
ment and restitution were due and payable “immediately.”
Ward was then sent for incarceration to the Federal Correc-
tional Institution in Phoenix, Arizona, where he was voluntar-
ily employed by Unicor (the prison employment system). See
United States v. Ward, No. CR 02-5231 AWI, 2008 WL
5220959, at *1 (E.D. Cal. Dec. 12, 2008). In accordance with
standard practice, portions of Ward’s Unicor pay was
deducted and applied to his restitution obligation.

Ward subsequently filed motions in the California district
court that sentenced him, requesting deferral and/or reduction
in his restitution payments. The California district court con-
strued this as a motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255, and amendments to that motion. Id.
at *1-2. The court then concluded that its order for “immedi-
ate” repayment of restitution impermissibly delegated to the
BOP the court’s obligation to set a repayment schedule, and
ordered the BOP to cease collecting money from Ward for
payment of restitution until the court issued a new restitution
order. Id. at *2-4. After the Government moved for reconsid-
eration, however, the district court concluded that because
neither 28 U.S.C. § 2255 nor 18 U.S.C. § 3664(k) allows a
district court to rule on the legality of a restitution order, and
because Ward was incarcerated in Arizona, it lacked jurisdic-
tion to issue its prior Order, and accordingly vacated the
Order. See United States v. Ward, No. CR 02-5231 AWI,
2009 WL 160690, at *1-2 (E.D. Cal. Jan. 22, 2009) (noting
§ 3664(k) allows district court to change a restitution schedule
based only on changed financial circumstances and citing
United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002)).
4882 WARD v. CHAVEZ
After the termination of his California district court pro-
ceeding, Ward initiated this habeas proceeding pursuant to 28
U.S.C. § 2241 in the District of Arizona, claiming:

The BOP lacks a lawful order of restitution from the
district court in accordance with the Mandatory Vic-
tims Restitution Act of April 1996, to collect restitu-
tion from the Petitioner during his incarceration. The
BOP, without a lawful order of restitution, cannot
force the Petitioner to participate in the Inmate
Financial Responsibility Program and must place
Petitioner on “no obligation” status.

The Government argued that Ward’s habeas petition should
be denied because Ward had not exhausted his administrative
remedies and because his claim was meritless. Ward argued
that the district court should exercise its discretion to hear his
petition because any attempt to exhaust his administrative
remedies would be futile.

In a Report and Recommendation, the magistrate judge rec-
ommended the district court deny the petition, concluding that
Ward had not exhausted his administrative remedies as
required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). See Ward v. Chavez, No. 2:09-cv-00246-GMS,
Dkt. No. 11 (D. Ariz. May 26, 2009). The district court, after
considering Ward’s objections to the R&R and the Govern-
ment’s responses, adopted the R&R in part. Ward v. Chavez,
No. CV-09-00246-PHX-GMS, 2009 WL 2753024 (D. Ariz.
Aug. 27, 2009). The district court agreed with Ward that the
PLRA’s exhaustion requirement does not apply to § 2241
habeas petitions, but declined to waive the judicially-created
exhaustion requirement on the grounds of futility. Id. at *2-4
(“Petitioner has failed to show sufficient evidence that his
exhaustion of the BOP appeals process would have been
futile.”).

Notwithstanding its refusal to waive the exhaustion require-
ment, the district court then addressed the merits of Ward’s
 WARD v. CHAVEZ 4883
claim and found it meritless for two reasons. First, the court
concluded that Ward was not being forced to participate in the
IFRP, as it is a voluntary program that Ward chose to partici-
pate in and could exit at anytime. Id. at *5. Second, the court
concluded that since the sentencing court had not required the
BOP to set a schedule of payments, it had not delegated its
authority to set a restitution schedule to the BOP. Id. at *6.
Because the sentencing court neither directed the BOP to set
a schedule nor required Ward to participate in the IFRP, the
court concluded that the cases Ward relied on did not apply
to his claim. Id. Ward appeals to this Court from this decision.

DISCUSSION

[1] Before considering the merits of Ward’s petition, we
first address the issue of exhaustion. As a prudential matter,
courts require that habeas petitioners exhaust all available
judicial and administrative remedies before seeking relief
under § 2241. Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th
Cir. 2001), abrogated on other grounds, Fernandez-Vargas v.
Gonzales, 548 U.S. 30 (2006). This exhaustion requirement is
subject to waiver in § 2241 cases because it is not a “jurisdic-
tional prerequisite.” Id. Typically, exhaustion can be waived
“if pursuing those [administrative] remedies would be futile.”
Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir.
1993).

Here, Ward exhausted only step one of the three-step BOP
administrative remedy system: he filed a formal administra-
tive grievance with the Warden, which the Warden denied. 28
C.F.R. § 542.10 et seq.1 Ward argues, however, that any
administrative appeal would have been futile, as the denial
was based on an official policy of the BOP: the IFRP. See
1
Although Ward does not dispute that he withdrew his appeal of the
Warden’s denial of his grievance, he asserts that he did so because the sen-
tencing court originally granted him the relief he had sought, prior to
reconsidering its order.
4884 WARD v. CHAVEZ
Sours v. Chavez, No. 2:08-cv-01903-SRB, Dkt. No. 22, slip
op. at *2-3 (D. Ariz. June 17, 2009) (report and recommenda-
tion) (concluding exhaustion not required where request for
relief denied based on official BOP policy), as cited in Sours
v. Chavez, No. CV08-1903-PHX-SRB, 2009 U.S. Dist.
LEXIS 76965, at *2-3 (D. Ariz. Aug. 26, 2009). Sours, like
this case, involved a petitioner seeking to set aside a restitu-
tion order that improperly delegated scheduling authority to
the BOP. Sours, No. 2:08-cv-01903-SRB, Dkt. No. 22, slip
op. at *1-2. In waiving exhaustion, the Sours court relied on
our opinion in Fraley, which held there was futility where the
petitioner’s claim was denied based on official BOP policy.
Fraley, 1 F.3d at 925. The petitioner in Sours, unlike Ward,
had gone through three out of four levels of BOP review,
Sours, No. 2:08-cv-01903-SRB, Dkt. No. 22, slip op. at *3-4.
But it was the reliance on the “official policy” that led to a
finding of futility in Sours (and Fraley), and the Sours court
expressly noted that the level of Sours’s exhaustion simply
showed his petition was even more futile than Fraley, where
the prisoner had gone through only one level of review. Sours,
No. 2:08-cv-01903-SRB, Dkt. No. 22, at *3-4.

[2] Because of the existence of official BOP policy — the
IFRP — exhaustion would be futile here, as it was in Sours
and Fraley. The district court incorrectly dismissed the proba-
tive value of the BOP’s return to collecting restitution from
Ward after the sentencing court vacated, for lack of jurisdic-
tion, its order that granted Ward relief. Ward, 2009 WL
2753024, at *3-4. The fact that the BOP resolved to continue
collecting restitution from Ward after the sentencing court
determined its own restitution order was unlawful, before then
vacating for lack of jurisdiction after the Government moved
for reconsideration, shows a return by the BOP to the official
policy of the IFRP. It also shows that any further appeal by
Ward would unquestionably have been denied. Accordingly,
the district court erred in not waiving the exhaustion require-
ment, as Ward’s exhaustion of his administrative remedies
would have been futile.
 WARD v. CHAVEZ 4885
[3] Turning to the merits of Ward’s petition, the MVRA
directs that a sentencing court “shall . . . specify in the restitu-
tion order the manner in which, and the schedule according to
which, the restitution is to be paid.” 18 U.S.C. § 3664(f)(2).
We have previously held that the district court’s statutory
responsibility to set the restitution payment schedule is “non-
delegable.” United States v. Gunning (Gunning I), 339 F.3d
948, 949 (9th Cir. 2003); United States v. Gunning (Gunning
II), 401 F.3d 1145, 1149 (9th Cir. 2005). “[T]he district court
simply does not have the authority to delegate its own sched-
uling duties — not to the probation office, not to the BOP, not
to anyone else.” Gunning II, 401 F.3d at 1150.

Here, Ward argues the sentencing court impermissibly del-
egated its authority to the BOP in effect by ordering payment
of restitution “immediately” without specifying any payment
schedule, leaving him no option but to participate in a BOP
prison work program in order to attempt to comply with the
sentence in good faith (given his lengthy sentence), thus sub-
jecting him to the IFRP. In Gunning I, the district court
ordered restitution payable “immediately,” with any amount
unpaid after the defendant’s release “to be paid during the
period of supervision as directed by a U.S. probation officer.”
339 F.3d at 950. We held this order assigned to the probation
office “full control of subsequent payment,” and thus imper-
missibly delegated the district court’s authority to probation.
Id. On remand, the district court ordered restitution payable
“immediately,” and additionally ordered that “(1) during the
time of [the defendant’s] imprisonment, it was to be paid
through the BOP Inmate Financial Responsibility Program
(IFRP), and (2) during the period of supervised release it was
to be paid in monthly installments of not less than ten percent
of Gunning’s gross income, commencing thirty days after his
release from imprisonment.” Gunning II, 401 F.3d at 1147
(summarizing district court’s order). We again held that the
district court impermissibly delegated its authority, this time
to the BOP. Id. at 1150. In so holding, we explained that, “be-
cause restitution was due immediately, there was a period
4886 WARD v. CHAVEZ
between sentencing and supervised release — the period of
Gunning’s incarceration. That had to be provided for. At that
point, the district court overlooked the spirit of our decision
and delegated the non-delegable to the BOP for the incarcera-
tion period.” Id. (emphasis supplied).

In United States v. Lemoine, 546 F.3d 1042 (9th Cir. 2008),
we subsequently clarified the demarcation between imper-
missibly delegating authority to the BOP and the BOP’s inde-
pendent power to administer the IFRP. Lemoine’s order of
restitution required him to pay restitution during his imprison-
ment “at the rate of not less than $25 per quarter, and pursuant
to the Bureau of Prisons’ Inmate Financial Responsibility Pro-
gram.” Id. at 1044 (emphasis supplied). Lemoine voluntarily
enrolled in the IFRP, and the BOP required Lemoine to pay
restitution at a rate of $132 per month, leading to Lemoine
challenging the BOP’s authority to require payment higher
than the court’s schedule. Id. Because the district court set a
schedule of at least $25 per quarter, we upheld this restitution
order. Id. at 1047-50. Rejecting Lemoine’s arguments that he
was “forced” to participate in the IFRP because he would be
denied certain privileges if he had refused to join, we held
“that, where the district court has properly set a restitution
repayment schedule as required under the MVRA, the BOP
has the authority to encourage voluntary payments in excess
of those required under the court’s judgment by conditioning
the receipt of certain privileges during the term of imprison-
ment on the inmate’s participation in the IFRP.” Id. at 1050.

[4] Since Lemoine forecloses Ward’s argument that he is
being “forced” to participate in the voluntary IFRP, the issue
in this case thus turns on whether by ordering “immediate”
payment of restitution, the district court failed in effect to set
a restitution repayment schedule and instead delegated its stat-
utory duty to the BOP. Dicta in both Gunning II and Lemoine
suggest that “immediate” repayment does not satisfy the
MVRA’s requirement that the district court “shall . . . specify
in the restitution order the manner in which, and the schedule
 WARD v. CHAVEZ 4887
according to which, the restitution is to be paid.” 18 U.S.C.
§ 3664(f)(2). Lemoine noted that “[t]he First, Second, Third,
Sixth, Eighth, Tenth, and Eleventh Circuits have all held that
a district court must set a restitution repayment schedule, and
those that have reached the issue have concluded, as we did
in Gunning II, that a court may not simply order immediate
payment and leave to the BOP the task of setting the actual
schedule.” 546 F.3d at 1048 n.4 (citations omitted).2 Indeed,
the sentencing court in Ward’s case agreed, before it later dis-
missed Ward’s petition for lack of jurisdiction.

The court is informed that, as in the present case,
courts of this district have commonly imposed resti-
tution “due immediately” as part of sentences where
the defendant is committed to a term of imprison-
ment. The expectation has been that BOP and/or
Probation will work out the details of payment. Pur-
suant to the foregoing discussion [of Gunning I and
II and Lemoine], it is now apparent to the court that
the usual form of imposition of restitution in this dis-
trict constitutes an impermissible delegation of
authority to either BOP or Probation.

United States v. Ward, 2008 WL 5220959, at *3.

The Government argues that Gunning II can be distin-
guished because the district court in that case ordered restitu-
tion to be paid according to the IFRP, impermissibly
delegating the court’s authority, whereas here the court did
not explicitly order payment according to the IFRP. 401 F.3d
at 1147. But given Lemoine, we cannot fairly limit Gunning
II’s applicability to cases where the court explicitly orders
participation in the IFRP. The order in Lemoine directed resti-
2
In Lemoine, we also noted that, “[i]n contrast, the Fourth, Fifth, and
Seventh Circuits have held that a judgment of conviction need not contain
a schedule of restitution payments to be made during the period of incar-
ceration.” 546 F.3d at 1048 n.4 (citations omitted).
4888 WARD v. CHAVEZ
tution payment of at least $25/quarter, to be paid “pursuant
to” the IFRP, which the district court held “did not mandate”
Lemoine’s participation in the IFRP. 546 F.3d at 1044. In
upholding this order, we relied on the “proper” setting of a
restitution payment schedule by the district court (at least
$25/quarter) in holding that “the BOP has the authority to
encourage voluntary payments in excess of those required
under the court’s judgment.” Id. at 1050. Unless the district
court sets a “proper” schedule, the order is not valid, regard-
less of whether it explicitly mandates participation in the
IFRP.

This leads to the question of what a “proper” restitution
order entails. The district court in this case held that a restitu-
tion order requiring payment “due immediately” is a valid
order in compliance with the MVRA. Ward v. Chavez, No.
CV-09-00246-PHX-GMS, 2009 WL 2753024, at *6 (D. Ariz.
Aug. 27, 2009).3 Likewise, the Government argues that in
United States v. Martin, we previously held that a restitution
order requiring immediate payment is a valid order. See
United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002).
Martin, however, is inapposite to this case, as we did not there
address whether “immediate” payment of restitution delegated
scheduling authority to the BOP or probation, but rather con-
cluded that “[t]he court had before it information regarding
3
Because the district court found that Ward’s petition for a writ of
habeas corpus did not assert that the sentencing court erred in ordering
immediate repayment it spent only a page addressing this argument, rely-
ing on United States v. Young, 533 F. Supp. 2d 1086, 1088 (D. Nev.
2007). Young, however, pre-dates Lemoine and is contrary to it to the
extent it relies on Seventh Circuit authority that Lemoine disclaimed. See
Lemoine, 546 F.3d at 1048 n.4 (citing United States v. Sawyer, 521 F.3d
792, 796 (7th Cir. 2008)). The district court seems to have taken an unduly
narrow view of Ward’s habeas petition, which explicitly states he is argu-
ing that “The Bureau of Prisons (BOP) does not have a lawful order to col-
lect restitution from the Petitioner while he is incarcerated.” By contrast,
in this appeal, both parties agree that whether the sentencing court improp-
erly delegated its scheduling authority to the BOP is one of the issues
presented.
 WARD v. CHAVEZ 4889
Defendant’s financial resources that it presumably considered
and found insufficient to warrant periodic payments.” Id. at
1006. In so holding, we found that the information available
to the sentencing court was sufficient to discharge the court’s
responsibilities under the MVRA, including the requirement
that the sentencing court consider the defendant’s financial
position in determining a restitution payment schedule. See
id.; 18 U.S.C. § 3664(f)(2).

By contrast, the majority of our sister circuits to have con-
sidered the issue have concluded that where the defendant
lacks the financial resources to make immediate payment, a
sentencing court may not order immediate payment because
it implicitly delegates to the BOP or the probation office the
district court’s obligation to schedule payment. For example,
in United States v. Prouty, the Eleventh Circuit concluded
that, since setting the payment schedule is a “core judicial
function,” a restitution schedule ordering “immediate” pay-
ment “with an informal understanding that the probation
office shall set a repayment schedule” impermissibly dele-
gated the district court’s duty. United States v. Prouty, 303
F.3d 1249, 1254-55 (11th Cir. 2002), cited with approval in
Lemoine, 546 F.3d at 1048 n.4. The Third Circuit, endorsing
Prouty, has also taken the position that the district court may
not simply order immediate payment of restitution with the
expectation that the BOP or Probation will set the details of
payment. See United States v. Corley, 500 F.3d 210, 225-27
(3d Cir. 2007), vacated and remanded on other grounds by
556 U.S. 303 (2009), cited with approval in Lemoine, 546
F.3d at 1048 n.4. The Third Circuit noted that since the “Dis-
trict Court apparently understood that Corley could not make
immediate payment in full, it was required under § 3664(f)(2)
to set a different schedule of payments. . . . [O]rders directing
‘immediate’ payment under such circumstances are indistin-
guishable in principle from outright delegations of authority
to the Bureau of Prisons.” Id. at 226-27.
4890 WARD v. CHAVEZ
The Eighth Circuit also agrees. In United States v.
McGlothlin, the district court ordered restitution payable “im-
mediately,” but refused to set a payment schedule at sentenc-
ing and instead said that he would “let the Bureau of Prisons
tackle that problem.” United States v. McGlothlin, 249 F.3d
783, 785 (8th Cir. 2001), cited with approval in Lemoine, 546
F.3d at 1048 n.4. The Court of Appeals reversed, holding that
the district court could not leave to the BOP its statutory duty
to set a payment schedule, and that the district court must set
a “detailed payment schedule at sentencing.” Id. Likewise, the
Second Circuit in United States v. Kinlock rejected a restitu-
tion order that simply ordered payment “immediately,” hold-
ing that “[w]hen restitution cannot be paid immediately, the
sentencing court must set a schedule of payments for the
terms of incarceration, supervised release, or probation.”
United States v. Kinlock, 174 F.3d 297, 301 (2d Cir. 1999),
cited with approval in Lemoine, 546 F.3d at 1048 n.4.4 Addi-
tionally, the First, Sixth, and Tenth Circuits have endorsed
this approach, albeit, like Lemoine, in dicta or in factual cir-
cumstances not entirely similar to the instant case. See United
States v. Merric, 166 F.3d 406, 409 (1st Cir. 1999); United
States v. Davis, 306 F.3d 398, 426 (6th Cir. 2002); United
States v. Overholt, 307 F.3d 1231, 1256 (10th Cir. 2002), all
cited with approval in Lemoine, 546 F.3d at 1048 n.4. But see
United States v. Sawyer, 521 F.3d 792, 796 (7th Cir. 2008)
(concluding that court ordered payment schedules “need not,
and as a rule should not, begin until after the defendant’s
release from prison,” and that “[p]ayments until release
should be handled through the [IFRP] rather than the court’s
auspices”); United States v. Miller, 406 F.3d 323 (5th Cir.
2005) (holding no error to order immediate payment where
selling defendant’s assets would cover majority of restitution,
4
Kinlock addressed a restitution order issued before Congress enacted
the MVRA. But, as the Court of Appeals noted, the factors a court must
consider in issuing a restitution order under the previous version of the
statute and after the MVRA “are the same in either case.” Kinlock, 174
F.3d at 299 n.2.
 WARD v. CHAVEZ 4891
followed by monthly schedule after release from prison);
United States v. Dawkins, 202 F.3d 711, 716 (4th Cir. 2000)
(upholding district court’s decision to order restitution pay-
ment pursuant to IFRP while incarcerated).

[5] Where, as in Martin, the court determines that the
defendant’s financial resources are sufficient such that peri-
odic payments are unwarranted, there is no other entity the
court delegates its responsibility to in ordering that restitution
should be paid immediately, and that restitution order is not
unlawful. But where the defendant has insufficient financial
resources to make immediate repayment, the district court —
not BOP, not Probation — must set a repayment schedule in
the judgment of conviction in order to discharge its responsi-
bilities under the MVRA.

[6] Further, where the court has not even considered the
defendant’s financial position and simply orders “immediate”
payment, “[t]he expectation has been that BOP and/or Proba-
tion will work out the details of payment.” United States v.
Ward, No. CR 02-5231 AWI, 2008 WL 5220959, at *3; see
also Prouty, 303 F.3d at 1254-55 (holding immediate repay-
ment implicitly delegates such authority). This is insufficient
under the MVRA, which directs that the district court “shall
. . . specify in the restitution order . . . the schedule according
to which[ ] the restitution is to be paid, in consideration of”
the defendant’s financial circumstances. 18 U.S.C.
§ 3664(f)(2). Ordering “immediate” payment when the sen-
tencing court does not know whether it is possible for the
defendant to make immediate payment and instead leaving it
to the BOP to “work out the details” does not “specify” the
schedule of payment “in consideration of” the defendant’s
financial circumstances. It is true, as the dissent notes, that
under 18 U.S.C. § 3572 the default payment option for restitu-
tion is immediate repayment, unless the court orders periodic
payment in “the interest of justice.” Dissent at 4901-02; see
Martin, 278 F.3d at 1006 (describing it as the “general rule”).
But section 3572 is modified here by section 3664, which
4892 WARD v. CHAVEZ
applies specifically to a mandatory restitution order imposed
under the MVRA, and which mandates that the district court
specify the payment schedule in the restitution order “in con-
sideration of” the defendant’s financial circumstances. 18
U.S.C. § 3664 (emphasis supplied). It is here that the sentenc-
ing court’s order failed — as the sentencing court itself subse-
quently acknowledged — by simply setting “immediate”
payment and leaving it to the BOP to “work out the details.”
United States v. Ward, 2008 WL 5220959, at *3.

[7] For a restitution order to be lawful, therefore, § 3664
requires that the district court set a schedule in consideration
of the defendant’s financial resources. If the court considers
the defendant’s financial resources and concludes that peri-
odic payments are unwarranted “in the interest of justice,” the
order is lawful, as we concluded in Martin. If, however, the
district court simply orders immediate repayment and leaves
it to another agency, like the BOP, to actually set the payment
schedule that the statute obligates the court to determine, that
order is unlawful, as the district court has abdicated in its duty
to set the schedule “in consideration of” the financial circum-
stances of the defendant. The dissent argues that the record
does not demonstrate that the sentencing court failed to con-
sider Ward’s financial circumstances in ordering that restitu-
tion of approximately $29,000 be paid immediately. Dissent
at 4902-03. We disagree. Here, the sentencing court acknowl-
edged that, in Ward’s case (and in others before that court),
it had ordered immediate payment of restitution, with the
expectation that the BOP would “work out the details of pay-
ment.” United States v. Ward, 2008 WL 5220959, at *3. The
court concluded that pursuant to the Gunning cases and Lem-
oine its “usual practice” constituted an impermissible delega-
tion to the BOP. Id. The court then ordered the BOP to cease
collecting restitution payments, id. at *4, before later vacating
that order for lack of jurisdiction. United States v. Ward, 2009
WL 160690. We think it is clear that the district court
acknowledged it had set the order of “immediate payment”
without regard to the defendant’s financial circumstances, and
 WARD v. CHAVEZ 4893
left it to the BOP to take those circumstances into account in
“work[ing] out the details.” It appears to us unreasonable to
read the sentencing court’s opinion, and yet conclude, as the
dissent does, that whether the sentencing court considered the
defendant’s financial circumstances is not in the record, and
further “assume” that the district court set the schedule of
paying $29,000 immediately “in consideration of” Ward’s
financial circumstances. Dissent at 4899-4900, 4902-03; see
also Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011)
(taking judicial notice of state court documents that were “di-
rectly related” to the habeas petition presented (quoting
United States ex rel. Robinson Rancheria Citizens Council v.
Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992))).5

The dissent also argues that this is not a “delegation” of the
sentencing court’s responsibility to set a schedule, since the
Government does not have judicial imprimatur to set a sched-
ule that the district court is required to enforce, but must
instead move for sanctions when the defendant defaults by
failing to make immediate payment of the entire restitution
amount. Dissent at 4903-04, 4910-12; see also Sawyer, 546
F.3d at 794-96. But that a schedule set by the BOP is not
legally binding under the MVRA does not address the district
court’s failure to fulfill its MVRA obligations by leaving it to
the BOP to “work out the details.” The BOP may move for
sanctions, or it may instead choose to set an informal sched-
5
The dissent also argues that the issue of what the sentencing court con-
sidered is not properly before us, and has been waived by the petitioner.
Dissent at 4895-99. We disagree. The petition argues that the BOP does
not have a lawful restitution order that gives it the authority to collect res-
titution from the petitioner. Whether the restitution order is lawful depends
on whether or not the sentencing court that issued the order complied with
the MVRA. The dissent’s approach of considering whether the restitution
order complied with only some of the MVRA’s requirements, such as
specifying the manner of payment, see Dissent at 4902, but not others,
such as whether the sentencing court set a payment schedule in consider-
ation of the defendant’s financial position, seems to us inconsistent. 18
U.S.C. § 3664(f)(2).
4894 WARD v. CHAVEZ
ule, holding the threat of sanctions over the defendant. That
power to enforce gives the BOP the power to dictate the terms
of the defendant’s payment of the restitution order. It is
expressly contrary to the MVRA’s direction that the district
court “shall,” in the judgment of conviction, set the payment
schedule “in consideration of” the defendant’s financial cir-
cumstances to simply order immediate payment. See also
Corley, 500 F.3d at 226 (comparing MVRA with its predeces-
sor, the Victim and Witness Protection Act of 1982, and not-
ing that, unlike the VWPA, the MVRA requires the district
court to specify the payment schedule in the judgment). As
our sister circuits have explained, this implicit delegation of
authority is “indistinguishable” from an explicit order direct-
ing the BOP to set the schedule. Id. at 226-27 (citing Prouty,
303 F.3d at 1255).

[8] Accordingly, because the sentencing court in Ward’s
case did not set forth a proper payment schedule in the restitu-
tion order, that order is unlawful, and the BOP therefore lacks
the authority to collect restitution payments from Ward
through the IFRP. See, e.g., Ybarra v. Smith, No. CV-09-
1447-PHX-DGC (JRI), 2010 U.S. Dist. LEXIS 135695, at *5-
6 (D. Ariz. Dec. 20, 2010) (“Without a proper order, the BOP
does not have the authority to require a schedule of restitution
payments collected while Petitioner is participating in the
IFRP.” (internal quotation marks and citation omitted)).6
6
The dissent argues that because petitioner failed to directly appeal his
sentence and challenge the legality of the restitution order on that appeal,
he has waived his right to make his argument — that the BOP lacks the
ability to collect restitution payments because the restitution order is
unlawful — through a section 2241 petition. Dissent at 4896-97. The Gov-
ernment, however, never raised this objection at either the district court or
appellate court level, and any such procedural objection has been waived.
See Trest v. Cain, 522 U.S. 87, 89 (1997) (holding procedural default is
a defense that state is obligated to raise, is waived by failure to assert, and
is not jurisdictional requirement that must be considered sua sponte);
Francis v. Rison, 894 F.2d 353, 355 (9th Cir. 1990) (holding the Govern-
ment waived procedural default defense that it failed to raise, despite the
Government’s asserting failure to exhaust argument).
 WARD v. CHAVEZ 4895
CONCLUSION

In sum, we find that a sentencing court must consider the
defendant’s financial resources in setting a restitution pay-
ment schedule, and, if the defendant is unable to pay restitu-
tion immediately, the court cannot simply order “immediate”
repayment and leave the details of the actual payment sched-
ule to the BOP or Probation. Applying that standard to this
case, we find that the restitution order against petitioner Ward
impermissibly delegates to the BOP the court’s obligation to
set a payment schedule, and therefore, that the BOP lacks the
authority to collect restitution payments from the petitioner.
Accordingly, we reverse the district court’s ruling and remand
to the district court for further proceedings consistent with
this opinion.

REVERSED and REMANDED.

WALLACE, Senior Circuit Judge, dissenting:

The majority holds that a district court impermissibly dele-
gates its authority to set a payment schedule under the Manda-
tory Victims Restitution Act (MVRA) if it orders immediate
payment without considering the defendant’s financial condi-
tion. In so holding, the majority has volunteered to address an
issue which is not before us. Ward waived that issue by fail-
ing to raise it in a direct appeal from his sentence. Further-
more, he did not argue either to the district court or to us that
the sentencing court failed to consider his financial condition.

Despite Ward’s double waiver, and without an evidentiary
record, the majority finds, as a matter of fact, that the judge
who sentenced Ward in the Eastern District of California
failed to consider the factors relevant to Ward’s ability to pay
restitution. I disagree with the majority’s factual finding,
which is improper on review of a denial of a petition for
4896 WARD v. CHAVEZ
habeas corpus filed in the District of Arizona. Furthermore,
even assuming that the sentencing court did fail to consider
those factors, I disagree with the majority’s erroneous legal
conclusion that such an error somehow delegated the sentenc-
ing court’s authority to the Bureau of Prisons (BOP).

For all of these reasons, I cannot join the majority opinion.
There is nothing in the restitution order that delegates to the
BOP the sentencing court’s authority to set a payment sched-
ule. Therefore, I would affirm the Arizona district court. I dis-
sent.

I.

Ward did not argue to the court from which this appeal
comes to us (the District Court for the District of Arizona) or
to us that the judge who sentenced him in the Eastern District
of California entered the restitution order without first consid-
ering his financial condition. Even if he had, we would have
required him to demonstrate why we should consider such a
claim when it was not raised on direct appeal from the Cali-
fornia district court. In Stone v. Powell, the Supreme Court
explained:

The writ of habeas corpus and its federal counter-
part, 28 U.S.C. § 2255, will not be allowed to do ser-
vice for an appeal. For this reason, nonconstitutional
claims that could have been raised on appeal, but
were not, may not be asserted in collateral proceed-
ings. Even those nonconstitutional claims that could
not have been asserted on direct appeal can be raised
on collateral review only if the alleged error consti-
tuted a fundamental defect which inherently results
in a complete miscarriage of justice.

428 U.S. 465, 477 n.10 (1976) (internal citations and punctua-
tion omitted).
 WARD v. CHAVEZ 4897
A claim that the California sentencing court failed to con-
sider statutory factors would certainly have been available to
Ward during his direct review process. If a mistake had been
made, such misapplication of the statute could have been
made due to error that did not constitute a constitutional viola-
tion. Therefore, if Ward had claimed in his petition for habeas
corpus that the California sentencing judge failed to consider
the statutory factors, the Arizona district court would likely
have denied the claim as waived, and we likely would have
affirmed that decision.

Ward, however, did not make that claim. The Arizona court
did not have to reject it, and we do not have to affirm the
rejection. Instead, we can treat that claim the same way Ward
has treated it: as if it does not exist. The majority, however,
digs that claim up sua sponte, despite its obvious waiver.

II.

Not only does the majority decide an issue that Ward
waived by not raising it on direct appeal from the California
court, it decides that issue after Ward again waived it on this
appeal. We normally do not consider issues that were not
presented to the trial court. See, e.g., Raich v. Gonzales, 500
F.3d 850, 868 (9th Cir. 2007) (“It is a long-standing rule in
the Ninth Circuit that, generally, ‘we will not consider argu-
ments that are raised for the first time on appeal.’ ” (quoting
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999))). That
rule is compounded by our ordinary practice of refusing to
consider issues that are not raised in the opening brief. See,
e.g., United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992)
(“We will not ordinarily consider matters on appeal that are
not specifically and distinctly argued in appellant’s opening
brief.” (internal quotation marks omitted)). While those rules
are subject to certain exceptions, I am not aware of any court
that considers issues that were not even raised in the reply
brief or (at the last opportunity) at oral argument.
4898 WARD v. CHAVEZ
In fact, the first question put to Ward’s counsel at oral argu-
ment (by Judge Rakoff) was: “On the factual question, was,
and I’m not sure this relates to exhaustion, but was there any
finding or any indication that he couldn’t pay this money
immediately if he had actually been forced to do that?” Coun-
sel responded: “Well Judge, what you’re asking about is an
issue that relates to the trial court, the original trial court’s,
findings. I did not have that record available to me and I do
not know the answer to that question.” Counsel went on to
speculate,

It appears to me from the sentencing order that the
trial judge did not consider that question, because, of
course, he’s required to take into account a number
of those factors, including that one, and there’s no
reference in the sentencing order or anything else in
the record for this case that I’ve seen that would
indicate that the trial judge did that. You know,
based on some other things we know about Mr.
Ward, I think it’s unlikely that he was going to pay
a restitution award in the amount of—

Judge Rakoff interjected, “I think everyone would agree that
it’s unlikely but I just wondered if there was anything in the
record on that.” Counsel responded, “Not to my knowledge,
your honor.”

Thus, Ward did not just fail to raise an argument that the
California sentencing court did not consider the statutory fac-
tors; his attorney expressly declined to make that argument.
While counsel was willing to speculate on how those factors
might have weighed, he conceded that the record upon which
Ward’s appeal from the Arizona court was based did not
include that information.

Nevertheless, in spite of the lack of an evidentiary record,
the majority finds, as a matter of fact, that “it is clear that the
district court acknowledged it had set the order of ‘immediate
 WARD v. CHAVEZ 4899
payment’ without regard to the defendant’s financial circum-
stances.” Op. at 4892. The majority makes this finding by tak-
ing judicial notice of statements by the California sentencing
judge in an order (vacated on reconsideration for lack of juris-
diction) granting a motion to set aside the judgment. Op. at
4892-93. Ward did not request judicial notice of the Califor-
nia sentencing court’s vacated order. But even if judicial
notice were proper, I do not believe the judge’s statements in
that order conclusive. The sentencing judge stated that courts
in the Eastern District of California had commonly imposed
restitution due immediately with the expectation that BOP
and/or Probation would work out the details of payment.
United States v. Ward, No. CR 02-5231 AWI, 2008 WL
5220959, at *3 (E.D. Cal. Dec. 12, 2008). But the judge did
not declare that, in Ward’s case, he received no presentence
report with information relating to his financial condition or
that he ignored such information. As Ward’s counsel con-
ceded at oral argument, that information is not part of the
record on the appeal before us.

We are a court of review. We often review findings of fact
made by lower courts, but it is not our job to find the facts
ourselves. The majority’s decision to plow ahead with this
waived issue, in the face of a concededly insufficient record,
is as unwise as it is unprecedented. Because the question of
whether the sentencing court in California considered factors
relevant to Ward’s financial condition is not before us, I
would assume that the sentencing judge was provided with
information regarding those factors and considered it. Cf.
United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002)
(district court did not err in ordering immediate payment of
4.5 million dollars in restitution when the court “had before
it information regarding Defendant’s financial resources that
it presumably considered and found insufficient to warrant
periodic payments”). Employing that assumption, I would
4900 WARD v. CHAVEZ
decide the question that Ward actually raised, and not attempt
to circumvent our normal appellate process.1

III.

The question Ward actually raised and the one we must
consider is whether the California sentencing court improp-
erly delegated to the BOP its authority to impose a payment
schedule. I do not dispute that an attempt to delegate a district
court’s responsibilities under the MVRA is improper. The
question is whether the California district court’s order actu-
ally did so. The answer to that question is simple. It did not.

The MVRA requires sentencing courts to order defendants
convicted of certain crimes to pay restitution to victims. 18
U.S.C. § 3663A. It provides:

Upon determination of the amount of restitution
owed to each victim, the court shall, pursuant to sec-
tion 3572, specify in the restitution order the manner
in which, and the schedule according to which, the
restitution is to be paid, in consideration of—

(A) the financial resources and other
1
The majority accuses me of considering only some of the MVRA’s
requirements but not others. Op. at 4893 n.5. But that is not my position.
I am not ignoring the requirements of the MVRA. I am simply assuming
that those requirements which Ward never challenged were satisfied. As
Ward concedes, the record on this habeas corpus petition is silent as to
whether the sentencing court failed to satisfy those requirements. The
majority also attributes to me the position that Ward waived his right to
argue in a section 2241 petition “that the BOP lacks the ability to collect
restitution payments because the restitution order is unlawful.” Op. at
4894 n.6. But again, that is not my argument. My position is that Ward
waived his right to argue that the sentencing court failed to consider his
financial condition. The majority’s assertion that it is the government that
waived any objection to arguments that are nowhere to be found in the
record is ironic, to say the least.
 WARD v. CHAVEZ 4901
assets of the defendant, including whether
any of these assets are jointly controlled;

(B) projected earnings and other income
of the defendant; and

(C) any financial obligations of the
defendant; including obligations to depen-
dents.

18 U.S.C. § 3664(f)(2). Section 3572, in turn, provides:

(1) A person sentenced to pay . . . restitution . . .
shall make such payment immediately, unless, in the
interest of justice, the court provides for payment on
a date certain or in installments. If the court provides
for payment in installments, the installments shall be
in equal monthly payments over the period provided
by the court, unless the court establishes another
schedule.

(2) If [the restitution order] permits other than
immediate payment, the length of time over which
scheduled payments will be made shall be set by the
court, but shall be the shortest time in which full
payment can reasonably be made.

18 U.S.C. § 3572(d). Finally, 18 U.S.C. § 3664(f)(3) pro-
vides:

(A) A restitution order may direct the defendant to
make a single, lump-sum payment, partial payments
at specified intervals, in-kind payments, or a combi-
nation of payments at specified intervals and in-kind
payments.

(B) A restitution order may direct the defendant to
make nominal periodic payments if the court finds
4902 WARD v. CHAVEZ
from facts on the record that the economic circum-
stances of the defendant do not allow the payment of
any amount of a restitution order, and do not allow
for the payment of the full amount of a restitution
order in the foreseeable future under any reasonable
schedule of payments.

(emphasis added). Thus, the MVRA requires the district court
to consider factors relevant to the defendant’s ability to pay
and to state in its order how and when restitution should be
paid. Section 3664(f)(2). But the decision of how (in cash or
in kind) and when (immediately, on a date certain, or at speci-
fied intervals) the restitution should be paid is committed to
the district court’s discretion. Section 3664(f)(3). The pre-
sumptive method for payment is in cash and the presumptive
schedule for payment is immediate. Section 3664(f)(2) (incor-
porating § 3572(d)). The statute does not require the court to
explain in the order its reasons for adopting a particular man-
ner of, or schedule for, payment. In addition, since the default
rule is to order immediate payment, the defendant bears the
burden of demonstrating that the interests of justice would be
served by establishing an installment schedule or by delaying
payment in full until a date certain. Id.

On its face, the restitution order satisfies the MVRA. By
ordering Ward to pay the restitution immediately, the sentenc-
ing court “specif[ied] in the restitution order the manner in
which, and the schedule according to which” Ward’s restitu-
tion was to be paid. See 18 U.S.C. § 3664(f)(2). In other
words, the court ordered Ward to pay restitution in a particu-
lar manner (i.e., in cash), and according to a particular sched-
ule (i.e., immediately). Because the statute does not require
the court to specify in the order its reasons for ordering a par-
ticular manner of payment or a particular payment schedule,
we cannot tell from the order whether the California sentenc-
ing court satisfied its responsibility to consider factors relating
to Ward’s financial condition. Since Ward does not argue that
he urged the sentencing court to impose an installment sched-
 WARD v. CHAVEZ 4903
ule in the interests of justice or that the sentencing court failed
to consider the factors relating to his financial condition, we
can properly assume that the sentencing court did consider
those factors. The result, based on the record before us, is that
the order complies with the statutory requirements. This, of
course, assumes that the Arizona district court can even reach
the California district court issue based on collateral habeas
corpus jurisdiction.

Furthermore, and regardless of whether the court consid-
ered all the factors it was bound to consider, the restitution
order does not delegate the judicial authority to impose a pay-
ment schedule to the BOP or to anyone else. Webster’s Dic-
tionary defines the verb form of the word “delegate” as “to
entrust to another: TRANSFER, ASSIGN, COMMIT .” Webster’s
Third New International Dictionary of the English Language
Unabridged (1986). Similarly, Black’s Law Dictionary states,
“[a]s a verb, [“delegate”] means to transfer authority from one
person to another; to empower one to perform a task in behalf
of another, e.g., a landlord may delegate his agent to collect
rents.” Black’s Law Dictionary 426 (6th ed. 1990). Thus, a
court delegates its authority if it gives another body authority
to perform some task that is committed to the court. Under
our precedents, a sentencing court impermissibly delegates its
authority to impose a restitution payment schedule if it
requires a defendant to submit to a payment schedule imposed
by another body. See United States v. Gunning (Gunning I),
339 F.3d 948, 950 (9th Cir. 2003) (construing order that
defendant pay restitution “as directed by a U.S. probation
officer” as assigning to the probation office full control of
subsequent payment); United States v. Gunning (Gunning II),
401 F.3d 1145, 1150 (9th Cir. 2005) (construing order that
defendant pay restitution while imprisoned through the BOP’s
Inmate Financial Responsibility Program as a delegation of
scheduling authority).
4904 WARD v. CHAVEZ
Ward’s restitution order does not require him to pay any
remaining balance “as directed by the BOP” or “pursuant to
the IFRP.” It merely orders Ward to pay the full restitution
amount immediately. The order simply does not provide for
the possibility that Ward might not pay the full restitution
amount as ordered. There is nothing in the order that purports
to require Ward to submit to a payment schedule imposed by
a body other than the court.

When Ward failed to pay the full restitution amount imme-
diately as ordered by the court, he defaulted on his obligation.
Thereafter, in exchange for certain privileges, he voluntarily
agreed to make payments toward his defaulted obligation
according to a schedule offered by the BOP, pursuant to the
BOP’s Inmate Financial Responsibility Program (IFRP). The
sentencing court may have assumed that, should Ward fail to
pay the full amount, he would choose to participate in the
IFRP. But it did not order him to do so. Nor did the California
sentencing court purport to give the BOP authority to require
Ward to participate. Nothing in the court’s order can be con-
strued as a delegation of any authority to the BOP. Nor does
the order forbid Ward from participating in the IFRP if he vol-
untarily decides to do so. That is his choice, not the district
court’s or the BOP’s.

The majority concludes that the sentencing court delegated
its authority by grossly expanding our Gunning cases. Those
cases, however, are clearly distinguishable. The majority also
cites similarly distinguishable out-of-circuit cases. Only one
case directly supports the majority’s decision: an out-of-
circuit case that failed to appreciate the real purpose of the
MVRA’s scheduling provisions.

In Gunning I, we held that the district court cannot delegate
its statutory obligation to specify the manner in which, and
the schedule according to which, a restitution order is to be
paid. 339 F.3d at 949. In that case, there was no question that
the district court had delegated its authority. The district court
 WARD v. CHAVEZ 4905
had ordered “that Gunning ‘immediately’ make restitution in
the amount of $3,924,835.37 and, simultaneously, that ‘[a]ny
unpaid amount is to be paid during the period of supervision
as directed by a U.S. probation officer.’ ” 339 F.3d at 950
(emphasis added). That order could only have been construed
as assigning “to the probation office full control of subsequent
payment.” Id.

We reaffirmed this principle in Gunning II. On remand
from Gunning I, the district court had again ordered restitu-
tion payable immediately,

but with the unpaid amount to be paid as follows: (1)
during the time of his imprisonment, it was to be
paid through the BOP Inmate Financial Responsibil-
ity Program (IFRP), and (2) during the period of
supervised release it was to be paid in monthly
installments of not less than ten percent of Gun-
ning’s gross income, commencing thirty days after
his release from imprisonment.

Gunning II, 401 F.3d at 1147. We held that the new order
again delegated the district court’s authority because it
improperly directed the BOP to determine the payment sched-
ule for the time of Gunning’s imprisonment. Id. at 1150.
Thus, in both Gunning I and Gunning II, we held that the dis-
trict court delegated its scheduling authority when it affirma-
tively directed another entity to set the schedule for the
payment of restitution.

The facts of this case are clearly distinguishable from the
Gunning cases. Here, the California district court did not
order Ward to participate in the IFRP. It did not direct the
BOP to establish a payment schedule. The order did not
assign “full control of subsequent payment” to anyone. The
Gunning cases simply are not authority for the issue before
us.
4906 WARD v. CHAVEZ
We further developed the non-delegation principle in
United States v. Lemoine, 546 F.3d 1042 (9th Cir. 2008). In
that case, the district court had ordered Lemoine to pay resti-
tution “during his imprisonment ‘at the rate of not less than
$25 per quarter, and pursuant to the Bureau of Prisons’
Inmate Financial Responsibility Program.’ ” Id. at 1044. As a
condition of his participation in the IFRP, however, the BOP
required Lemoine to pay restitution at a rate of $132 per
month. Id. In denying Lemoine’s motion to modify the judg-
ment, the district court said that it had assumed that Lemoine
would choose to participate in the IFRP when it entered the
restitution order. Id. Notwithstanding the higher rate imposed
by the BOP, and notwithstanding the district court’s assump-
tion that Lemoine would participate in the IFRP, we held that
the restitution order did not delegate the district court’s sched-
uling authority because “nothing in the text of the statute or
our prior decisions places any limits on the BOP’s operation
of an independent program, such as the IFRP, that encourages
inmates voluntarily to make more generous restitution pay-
ments than mandated in their respective judgments.” Id. at
1048. If Lemoine had chosen not to participate in the IFRP,
he could have made payments according to the court-ordered
schedule. Thus, Lemoine did not hold that an order of imme-
diate payment implicitly delegates scheduling authority to the
BOP. Rather, it held that a district court’s assumption that a
defendant would choose to participate in the IFRP does not
mean that its restitution order impermissibly delegated sched-
uling authority. Id. at 1044.

Clearly, Lemoine does not support reversal in Ward’s case.
On the contrary, its analysis is consistent with affirming the
district court. Lemoine makes clear that the BOP can operate
the IFRP regardless of the schedule imposed by the court.
Even if the California sentencing court had ordered Ward to
pay according to an installment schedule, the BOP could still
have demanded different terms for the voluntary privilege of
participation in the IFRP. We should look no further in decid-
ing this appeal than this circuit. Lemoine controls through its
 WARD v. CHAVEZ 4907
analysis of the facts presented, not through its footnoted dic-
tum relied on by the majority.

But in the absence of binding precedent to support its rea-
soning, the majority bases its decision almost entirely on
cases from our sister circuits. Most of these cases simply
apply the same rule that we adopted in the Gunning cases to
similar facts. Others conclude (on direct review, not collateral
review) that sentencing courts abused their discretion at sen-
tencing, without any application of the non-delegation doc-
trine.

For instance, the facts of United States v. Corley, 500 F.3d
210 (3d Cir. 2007), vacated on different grounds, 556 U.S.
303 (2009), are indistinguishable from the facts of Gunning
II. In Corley, the sentencing court ordered:

The defendant shall make restitution and fine pay-
ments from any wages he may earn in prison in
accordance with the Bureau of Prisons Inmate
Financial Responsibility Program. The restitution
and fine shall be due immediately. Any balance
remaining upon release from custody shall be paid at
a rate of no less than $100.00 per month.

500 F.3d at 224 (emphasis added). As in Gunning II, the
Third Circuit ordered the defendant to submit to the schedul-
ing authority of the BOP during the period of incarceration by
requiring him to participate in the IFRP. Here, on the other
hand, the court did not order Ward to submit to the authority
of the BOP. He may voluntarily choose to participate in the
IFRP or he may choose not to.

The Second Circuit’s decision in United States v. Kinlock,
174 F.3d 297 (2d Cir. 1999), vacated a restitution order on the
ground that the sentencing court abused its discretion in
ordering immediate payment. In that case, the sentencing
court considered the statutory factors, but ordered immediate
4908 WARD v. CHAVEZ
payment in the face of clear evidence that the defendant was
incapable of making payment immediately. Id. at 301. Con-
trary to the majority’s characterization of Kinlock, the Second
Circuit did not hold that the restitution order contained an
impermissible delegation of authority. It merely held that the
sentencing court’s abuse of discretion required the restitution
order to be vacated and remanded.

Kinlock would be persuasive if the case before us were a
direct appeal and Ward’s argument was that the district court
ordered immediate payment when the interests of justice
required a different schedule. But that is not the question
before us. By citing Kinlock, the majority conflates the idea
that failure to consider statutory factors constitutes reversible
error with the idea that delegation of authority renders an
order invalid ab initio. The majority also fails to differentiate
between a direct appeal from a sentence, where review for
error of the former kind would be proper, and a collateral
attack, where it is not. Kinlock is inapposite.

As the majority acknowledges, the First, Sixth, and Tenth
Circuits have not addressed the precise issue with which we
are now faced. In United States v. Merric, the First Circuit
recognized, as I recognize, “that the district judge could not
empower the probation officer to make a final decision as to
the installment schedule for payments.” 166 F.3d 406, 409
(1st Cir. 1999). But, whereas Ward’s restitution order has no
language regarding submission to a payment schedule set by
the BOP or participation in the IFRP, the order in Merric
directed that, “[a]ny amount that the defendant is unable to
pay now shall be paid in monthly installments, to be deter-
mined in amount by the supervising officer, during the period
of his supervised release.” Id. at 408 (emphasis added). Simi-
larly, neither United States v. Davis, 306 F.3d 398 (6th Cir.
2002), nor United States v. Overholt, 307 F.3d 1231 (10th Cir.
2002), held that a failure to consider the statutory factors
automatically constitutes a delegation of scheduling authority.
 WARD v. CHAVEZ 4909
The primary case that gives comfort to the majority’s con-
clusion is the Eleventh Circuit’s decision in United States v.
Prouty, 303 F.3d 1249 (11th Cir. 2002). In Prouty, the defen-
dant objected to an order that he pay restitution immediately
on the ground that he did not have the means to pay. Id. at
1251. Prouty asked the court to set a reasonable payment
schedule, but the court denied the request, “stating: ‘I will
leave that to the discretion of the Probation Office or whoever
does that.’ ” Id. The district court’s order did not require
Prouty to submit to a schedule imposed by the Probation
Office, but a Probation Officer told the court that “they do
work out payment plans with the defendants.” Id. at 1254. On
appeal, Prouty argued “that the district court erred in failing
to consider his financial condition.” Id. at 1253. In the alterna-
tive, Prouty argued “that the district court improperly dele-
gated the setting of the payment schedule to the Probation
Office.” Id. The Eleventh Circuit adopted Prouty’s alternative
argument: “[I]f the statute does not permit delegation to the
probation office, we cannot endorse a restitution order requir-
ing ‘immediate’ payment with an informal understanding that
the probation office shall set a repayment schedule.” Id. at
1255. It reasoned that “the availability of such an option
would in practice defeat the statutory requirement that the
court establish any installment schedule.” Id. The Eighth Cir-
cuit reached a similar result in United States v. McGlothlin,
249 F.3d 783 (8th Cir. 2001), but only after it also determined
that the sentencing court abused its discretion when it ordered
immediate payment without any consideration of the section
3664(f)(2) factors, an argument Ward declined to make.

Prouty and McGlothlin can, at best, only be persuasive
authority and not controlling as they are not from our court.
However, they are not persuasive. The problem with Prouty
and McGlothlin is that they assume the probation office or
BOP has inherent authority to set a repayment schedule uni-
laterally when a defendant fails to meet the payment schedule
imposed by the court. That assumption is not correct. Once
the court specifies the method and schedule for payment, if
4910 WARD v. CHAVEZ
and when payments are actually made is simply a collections
matter. It would not be a great surprise to learn that even a
defendant who has the ability to pay his obligations may, on
occasion, fail to do so. In any collections scenario, the party
seeking to collect a debt from a person who has failed to pay
has the option to attempt to work out an arrangement for vol-
untary payment or to seek assistance from a court. But the
collection agent does not have inherent authority to impose
unilaterally and enforce a mandatory payment schedule.
Indeed, the probation officer’s statement in Prouty that the
probation office would “work out [a] payment plan[ ]” indi-
cates that he recognized such a plan would require Prouty’s
voluntary agreement. See id. at 1254.

The responsibility for collecting restitution obligations is
committed to the Attorney General. 18 U.S.C. § 3612(c). But
the statutes do not give the Attorney General judicial author-
ity. Rather, if a defendant refuses to pay voluntarily—either
because he lacks the ability to pay or because of mere con-
tempt of the court—the statutes direct the Attorney General to
seek assistance from the court.

A restitution payment goes into default if it is delinquent
for more than 90 days. 18 U.S.C. § 3572(i). “Notwithstanding
any installment schedule, when a . . . payment of restitution
is in default, the entire amount of the . . . restitution is due
within 30 days after notification of the default, subject to the
provisions of section 3613A.” Id. If the Attorney General or
his designee moves the court for sanctions against a defendant
in default pursuant to sections 3572(i) and 3613A, the court
may take any number of measures, including entering or
adjusting a payment schedule. 18 U.S.C. § 3613A(a)(1). But
I am aware of no statute that requires the Attorney General to
file such a motion. Rather, as a collections agent, the Attorney
General has the discretion to decide whether to attempt to
work out a voluntary arrangement for collecting the obligation
or to seek help from the court.
 WARD v. CHAVEZ 4911
Interestingly, even if the court had imposed an installment
plan rather than ordering immediate payment, Ward’s obliga-
tion would have become due immediately if he had defaulted
on his payments. Thus, even if the district court had done
what the majority says it should have, Ward could well have
ended up in the precise situation he is in now. Under section
3572(i), a defendant may be obligated to pay the full amount
of a restitution order immediately, regardless of whether he
is able to pay.

In some circumstances, a defaulting defendant might him-
self request a hearing under sections 3572(i) and 3613A. For
example, if Ward does not want to remain in default but lacks
the ability to pay, he might seek the court’s protection by
requesting entry or adjustment of a payment schedule under
section 3613A. Ward did attempt to obtain relief from the dis-
trict judge that sentenced him by filing a motion under 28
U.S.C. § 2255. See United States v. Ward, No. CR 02-5231
AWI, 2008 WL 5220959, at *1 (E.D. Cal. Dec. 12, 2008),
vacated on reconsideration, 2009 WL 160690 (E.D. Cal. Jan.
22, 2009). The sentencing court ultimately decided that it
lacked jurisdiction to consider a motion under 28 U.S.C.
§ 2255. Ward, 2009 WL 190690, at *1-2. But that court
would clearly have had jurisdiction to consider a motion to
modify the restitution order under 18 U.S.C. §§ 3572(i) and
3613A.

A defendant like Ward might find the option to make such
a motion attractive because it could help him avoid statutory
penalties for his delinquency in payment. See 18 U.S.C.
§ 3612(g). But, again, because the onus of collection is on the
Attorney General, nothing requires Ward to go before the
court. He may choose to work out an informal voluntary
arrangement with the BOP, or he may choose to live with the
restitution order and remain in default.

Because Ward failed to pay the entire restitution award
immediately, he went into default. Either Ward or the BOP
4912 WARD v. CHAVEZ
could have filed a motion in the district court pursuant to sec-
tions 3572(i) and 3613A, but neither party chose to do so.
Instead, the BOP offered to allow Ward to participate in the
IFRP and Ward voluntarily accepted the offer. It was his
choice, not the order of the sentencing court. Ward does not
have to participate in this program. He may opt out of it at any
time. If he withdraws from the IFRP, the BOP cannot impose
a payment schedule on him. As a defendant in default, Ward
would be free to make payments on whatever schedule he
chooses (or to make no payments at all) unless the govern-
ment obtains sanctions from the California district court by
filing a motion under sections 3572(i) and 3613A. Con-
versely, if Ward actually wanted to get out of default, he
could file a motion pursuant to sections 3572(i) and 3613A
requesting that the California district court enter a payment
schedule. But even if the district court adopted a payment
schedule, that would not prevent the BOP from setting its own
conditions for Ward’s voluntary participation in the IFRP. See
Lemoine, 546 F.3d at 1050 (“[T]he BOP has the authority to
encourage voluntary payments in excess of those required
under the court’s judgment by conditioning the receipt of cer-
tain privileges during the term of imprisonment on the
inmate’s participation in the IFRP”).

The majority argues that, because the BOP has the author-
ity to move for sanctions, it has the power “to dictate the
terms of the payment of the defendant’s restitution order.”
Op. at 4894. Of course, this is not so. As I have explained,
defendants are not bound by the will of the BOP. To be sure,
the BOP has significant leverage in bargaining the terms of a
defendant’s participation in the IFRP. But the BOP cannot
force a defendant to adopt the BOP’s payment schedule. Fur-
thermore, defendants in default such as Ward have access to
the courts. If Ward were to file a motion under sections
3572(i) and 3613A, the government could recommend a
schedule. But even if the court were to reject the govern-
ment’s recommendation, the BOP would remain free to set
conditions for voluntary participation in the IFRP indepen-
 WARD v. CHAVEZ 4913
dently of the court’s order. But none of this confers upon the
BOP the judicial authority to set Ward’s payment schedule.
On the facts of this case, the California sentencing court
retained that authority.

IV.

Where does this leave the appeal? The majority has chosen
to address an issue which is clearly not before us. Having
caught the scent of a possible abuse of discretion at sentenc-
ing, the majority adopts an argument that Ward failed to make
on a direct appeal from the California district court, which he
would likely have been precluded from making in his collat-
eral attack in the Arizona district court, and which, in any
event, he expressly declined to make either in his petition for
habeas corpus or in his appeal from the Arizona district
court’s denial of the petition. That practice is surprising and
well beyond the usual rules of issues taken in this court.

Even after ignoring Ward’s repeated waivers, and even
assuming the California district court issue can be reached in
an Arizona district court habeas corpus petition, the majority
is wrong on the law. Even assuming that the California sen-
tencing court committed reversible non-constitutional error—
either by failing to consider factors relating to Ward’s finan-
cial condition or by ordering immediate payment in the face
of clear evidence that Ward lacked the ability to pay—there
is nothing in the order that delegates any of the court’s author-
ity to the BOP. I would hold that, as long as a district court
does not order a defendant to submit to a schedule established
by another body, an order that the defendant pay the restitu-
tion immediately does not run afoul of the non-delegation
principle established in our Gunning cases.

Unless and until the government obtains a court order mod-
ifying the schedule for his payments, Ward is free to make
payments on whatever schedule he prefers as an obligor in
default. However, if he chooses to stop making payments
4914 WARD v. CHAVEZ
under his voluntary agreement with the BOP, then the BOP
may withhold the privilege of participation in the IFRP. I
would affirm the district court’s denial of Ward’s habeas cor-
pus petition.