In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1425
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S HABAKA K. B OYD ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08 CR 50019—Frederick J. Kapala, Judge.
A RGUED M ARCH 2, 2010—D ECIDED JUNE 11, 2010
Before W OOD , W ILLIAMS, and H AMILTON, Circuit Judges.
H AMILTON , Circuit Judge. Appellant Shabaka Boyd
pled guilty to possessing powder and crack cocaine
with intent to distribute, 21 U.S.C. § 841(a)(1); possessing
a firearm as a felon, 18 U.S.C. § 922(g)(1); and possessing
a firearm in furtherance of a drug trafficking crime,
18 U.S.C. § 924(c)(1)(A). The district court sentenced
Boyd to 274 months in prison for the drug offense,
120 months for the section 922(g) firearm offense, and
2 No. 09-1425
60 months for the section 924(c) firearm offense. The
first two terms run concurrently, but the 60-month term
under section 924(c) runs consecutively to the others for
a total sentence of 334 months in prison, followed by
five years of supervised release. The court also ordered
Boyd to pay a $500 fine and a special assessment of $300,
with the instruction: “During the term of incarceration,
the payment of the fine and special assessment shall be
paid in accordance with the Bureau of Prisons Inmate
Financial Responsibility Program.” The written judg-
ment includes the special instruction to make payments
“through the Federal Bureau of Prisons’ Inmate Financial
Responsibility Program.” Boyd voiced no objection at
sentencing to the fine or assessment, or to the court’s
payment instructions.
Boyd appeals his sentence. We affirm the sentence, but
we modify it to make clear that participation in the
Bureau of Prisons’ Inmate Financial Responsibility Pro-
gram (“IFRP”) is voluntary. The district court may not
require participation as part of its sentence.
I. The Consecutive Sentences
Boyd first argues that the ten-year mandatory mini-
mum term that he faced for his section 841(a)(1) drug
violation barred the district court from imposing the
60-month consecutive sentence for his section 924(c)
firearm offense. Subsection (1)(A) of section 924(c) pro-
vides:
Except to the extent that a greater minimum sen-
tence is otherwise provided by this subsection or by
No. 09-1425 3
any other provision of law, any person who, during
and in relation to any crime of violence or drug traf-
ficking crime (including a crime of violence or
drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person
may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in addi-
tion to the punishment provided for such crime of
violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of
not less than 5 years;
(ii) if the firearm is brandished, be sentenced to
a term of imprisonment of not less than 7 years;
and
(iii) if the firearm is discharged, be sentenced to
a term of imprisonment of not less than 10 years.
Subsection (1)(D)(ii) further provides: “Notwithstanding
any other provision of law, . . . no term of imprisonment
imposed on a person under this subsection shall run
concurrently with any other term of imprisonment.”
Boyd reads the first phrase of subsection (1)(A) to
mean that a sentence cannot be imposed for a convic-
tion under section 924(c) in any prosecution where the
defendant also faces a higher mandatory minimum sen-
tence on another count of conviction. We rejected this
argument in United States v. Easter, 553 F.3d 519 (7th Cir.
2009), cert. denied sub nom. McKay v. United States, 130
4 No. 09-1425
S. Ct. 1281 (2010). We held in Easter that the “except”
clause in section 924(c)(1)(A) applies only to minimum
sentences for a section 924(c)(1) offense—not to minimum
sentences for other counts of conviction. 553 F.3d at 526.
Eight circuits have rejected Boyd’s position; only the
Second and Sixth Circuits have endorsed it. See United
States v. Whitley, 529 F.3d 150, 152-58 (2d Cir. 2008);
United States v. Williams, 558 F.3d 166, 168-75 (2d Cir.
2009), petition for cert. filed, 78 U.S.L.W. 3254 (U.S. Oct. 20,
2009) (No. 09-466); United States v. Almany, 598 F.3d 238,
241-42 (6th Cir. 2010). The Supreme Court has granted
certiorari in two consolidated cases to settle the issue. See
Abbott v. United States, 574 F.3d 203 (3d Cir. 2009), cert.
granted, 130 S. Ct. 1284 (U.S. Jan. 25, 2010) (No. 09-479);
Gould v. United States, 329 F. App’x 569 (5th Cir. 2009)
(nonprecedential decision), cert. granted, 130 S. Ct. 1283
(U.S. Jan. 25, 2010) (No. 09-7073). Boyd asks us to
overrule Easter, but we believe its reasoning remains
sound. We have consistently declined to overrule the
decision, and we decline again here. See United States v.
Mitten, 592 F.3d 767, 779 (7th Cir. 2010); United
States v. Haynes, 582 F.3d 686, 712 (7th Cir. 2009); see also
United States v. Scott, 2010 WL 729246, at *2 (7th Cir.
Mar. 4, 2010) (nonprecedential decision). The district
court did not err in imposing the prison term in Boyd’s
sentence.
II. The Inmate Financial Responsibility Program
Boyd’s second argument on appeal is that the district
court erred when it ordered him to pay his fine and
No. 09-1425 5
special assessments through the IFRP, under which staff
members from the Bureau of Prisons assist inmates in
developing plans to meet their financial obligations. See
28 C.F.R. § 545.10. Inmates who do not participate may
lose a number of privileges identified in 28 C.F.R.
§ 545.11(d), which include participating in the UNICOR
prison job training program, furloughs, and outside
work details, and having higher commissary spending
limits, access to higher-status housing, and access to
community-based programs. Boyd objects that the IFRP
is a voluntary program, so that the sentencing court
could not command his participation. He urges us to
remand his case so that the district court can delete the
requirement from the judgment. Boyd did not raise
this issue before the district court, so we review only
for plain error.
The IFRP can be an important part of a prisoner’s
efforts toward rehabilitation, but strictly speaking, partici-
pation in the program is voluntary. We have described
participation as voluntary in several nonprecedential
decisions. See United States v. Vasquez, 333 F. App’x 125,
126 (7th Cir. 2009); United States v. Mayo, No. 08-3261,
slip op. at 3 (7th Cir. July 20, 2009); United States v. Love,
329 F. App’x 667, 668 (7th Cir. 2009). As those decisions
recognize, an inmate in the Bureau of Prisons’ custody
may lose certain privileges by not participating in the
IFRP, but the inmate’s participation cannot be com-
pelled. See also United States v. Lemoine, 546 F.3d 1042,
1047 (9th Cir. 2008) (“An inmate is free to decline
to participate in the IFRP, but the failure either to partici-
pate or to comply with a financial plan created pursuant
6 No. 09-1425
to the program carries certain consequences.”). It is not
clear to us why Boyd does not want to participate in
the program and prefers to forgo the relevant privileges
and to pay the modest sums he owes after he finishes
his lengthy prison sentence, but that is his position here.1
The government acknowledges that the IFRP is volun-
tary and that it would be error to order participation,
but the government argues that the district court never
actually ordered Boyd to participate in the program.
According to the government, the district court must
have contemplated that Boyd could opt not to participate
in the IFRP because the court also said that if he did not
pay his fine and special assessment in full before
his release from prison, he would have to pay at least
10 percent of his earnings toward them while on super-
vised release. Both the court’s oral statements and its
written judgment, the government says, support the
view that the court left participation in the IFRP up
to Boyd.
We disagree. The district court’s words—an explicit
oral directive that payments “shall” be made through
the IFRP, consistent with a written instruction that
the monetary sanctions are “to be paid through” the
1
When a defendant owes fines and restitution of more than
$2,500, the law provides that interest accrues on unpaid
amounts unless the court waives or limits the accrual. See 18
U.S.C. § 3612(f). We see no obstacle to a district court con-
sidering a defendant’s stated intentions regarding the IFRP
when deciding whether to waive or limit interest.
No. 09-1425 7
IFRP—plainly ordered Boyd to participate in the IFRP.
The government’s reading is strained at best. If the gov-
ernment really believes that the court intended for
Boyd to participate in the program only if he chooses to
do so, then the government should have no objection to
Boyd’s request that the judgment be corrected to
remove doubt about the nature of his participation.
Instead, the government opposes relief.
Was this a plain error? The government says that cor-
recting the judgment is unnecessary because any error
in ordering Boyd to participate in the IFRP did not seri-
ously affect the fairness, integrity, or public reputation
of the proceedings in the district court. See United States
v. Lewis, 597 F.3d 1345, 1347 (7th Cir. 2010). Boyd takes
the opposite view and points to Mayo, in which the defen-
dant did not object to the district court’s IFRP order.
We concluded that an appellate challenge to compelled
participation in the program would not be frivolous
and denied his lawyer’s motion to withdraw under
Anders v. California, 386 U.S. 738 (1967). The parties in
Mayo accepted our invitation to file a joint motion for
remand. We granted the motion, vacated the sentence,
and directed the district court to impose a sentence with-
out ordering participation in the IFRP. United States v.
Mayo, No. 08-3261 (7th Cir. Sept. 2, 2009) (nonprecedential
decision).
As the government concedes, the Bureau of Prisons
lacks the power to compel participation in the IFRP.
Administrators may establish a payment schedule, but a
prisoner may choose instead to bear the consequences
8 No. 09-1425
of not participating. See 28 C.F.R. § 545.11(d); Lemoine,
546 F.3d at 1046-47. After conceding that the IFRP is
voluntary, the government fails to explain how the
district court’s order to participate can be correct. In the
government’s view, the court did nothing more than
order Boyd to pay what he owes, see United States v.
Sawyer, 521 F.3d 792, 797 (7th Cir. 2008), and correcting
the error now would promote “expensive, technical, but
essentially meaningless do-overs,” United States v. Tejeda,
476 F.3d 471, 475 (7th Cir. 2007). But Sawyer and Tejeda
addressed situations in which district courts did not do
at sentencing what they were required to do by statute.
The district court in Tejeda erred when it delegated to
the probation office its own obligation to determine
the frequency of drug testing for a defendant on super-
vised release. Tejeda, 476 F.3d at 473-74. And the
district courts in Sawyer erred when they failed to set
post-imprisonment restitution payment schedules for
defendants who could not pay immediately. Sawyer,
521 F.3d at 796.
In this case, however, the district court’s error was
not one of delegation or omission. The court over-
stepped its bounds when it ordered him to participate
in the IFRP. We conclude that this error was plain.
That term of the judgment cannot be enforced as
written, and the Bureau of Prisons cannot look to it as
authority for compelling Boyd to participate in the IFRP.
Boyd’s participation, like that of all imprisoned defen-
dants, must remain voluntary, though subject to the loss
of privileges identified in 28 C.F.R. § 545.11(d).
No. 09-1425 9
We have considered the possibility that the sentence
should be vacated in its entirety, so that the district
court could consider all portions of the sentence, in-
cluding the custody term, as part of a full resentencing.
If the sums in question were substantially greater, or if
there were indications in the record that the district
judge linked expected participation in the IFRP to other
aspects of the sentence, we would be inclined to do
so, leaving the district court to fashion an entirely new
sentence with the recognition that participation in the
IFRP may not be required. In this case, however, be-
cause these sums are so modest, because there is no
indication of such linkage in the record, and because
the government has not argued for a full resentencing as
an appropriate remedy, we see no reason to take that
step. Instead, we conclude that in this case, a simple
modification in the district court’s sentence will suffice
to correct the error. With the modification of clari-
fying that Boyd’s participation in the Inmate Financial
Responsibility Program is voluntary, the district court’s
judgment is A FFIRMED AS M ODIFIED .
6-11-10