United States v. Jeffrey Thomas Gola

Case: 17-11385 Date Filed: 10/11/2017 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-11385
Non-Argument Calendar
________________________

D.C. Docket No. 2:13-cr-00114-WKW-WC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEFFREY THOMAS GOLA,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Alabama
________________________

(October 11, 2017)

Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:
 Case: 17-11385 Date Filed: 10/11/2017 Page: 2 of 4

Jeffrey Gola appeals the denial without prejudice of his motion to stay the

collection of restitution. We affirm.

Gola pleaded guilty to using a computer to distribute child pornography. 18

U.S.C. § 2252A(a)(2). In his written plea agreement, Gola agreed to pay restitution

for the costs that his victims incurred for mental health treatment. The district court

entered an order of restitution, but deferred ruling on the amount owed to the

victims. On August 13, 2014, the district court entered an amended judgment

stating that Gola owed $11,000 in restitution, which was due immediately, and that

he had to satisfy any balance remaining when he began supervised release by

making minimum monthly payments of $100. Gola did not appeal.

In September 2016, the government notified Gola that unless he paid the full

amount of restitution owed, the debt would be referred to the Department of the

Treasury for collection through its offset program. The notice stated that the

Department could withhold payments due to Gola from the federal treasury to

offset his debt. The notice also stated that the Department could not garnish money

in Gola’s prison account unless he was participating voluntarily in the inmate

financial responsibility program.

In January 2017, Gola moved pro se to stay the collection of restitution.

Gola argued that he was indigent and should be required to make only nominal

periodic payments, 18 U.S.C. § 3664(f)(2), (f)(3), and he acknowledged that he

2
 Case: 17-11385 Date Filed: 10/11/2017 Page: 3 of 4

had to offset the balance he owed with any substantial resources he received

unexpectedly, id. 3664(n). Gola also argued that he intended to collaterally

challenge the order of restitution on the ground that he was not the proximate cause

of the victims’ injuries. See 28 U.S.C. § 2255.

The district court denied Gola’s motion to stay. The district court stated that

Gola’s concern about the restitution being “offset from his inmate account” was

unsubstantiated because the government could not garnish his inmate account

“unless he volunteers to do so under his prison-sponsored financial responsibility

plan.” The district court also denied Gola’s motion for reconsideration.

The district court did not err in denying Gola’s motion for a stay. Gola could

not challenge the validity of his order of restitution or of his payment plan for the

first time in a collateral proceeding. See Arnaiz v. Warden, 594 F.3d 1326, 1330

(11th Cir. 2010); Cani v. United States, 331 F.3d 1210, 1213–14 (11th Cir. 2003).

To the extent that Gola alleged that his payment schedule failed to account for his

inability to pay and constituted an improper delegation of authority to the Bureau

of Prisons, he waived those arguments by failing to raise them in a direct appeal

and has not established that exceptional circumstances excuse his waiver. See

Cani, 331 F.3d at 1213–14. Gola alleged that he was indigent and requested to

“make nominal periodic payments,” but he failed to allege he had undergone a

3
 Case: 17-11385 Date Filed: 10/11/2017 Page: 4 of 4

“material change in [his] economic circumstances” that warranted his belated

request for an “adjust[ment] [in] the payment schedule,” see 18 U.S.C. § 3664(k).

Insofar as Gola argues that he is being coerced by prison officials to

participate in the financial responsibility program in violation of his liberty and

property interests in his inmate account, Gola would have to present that argument

in a petition for a writ of habeas corpus. 28 U.S.C. § 2241. And that petition about

the execution of Gola’s sentence would have to be filed against the prison officials

in the district of his confinement.

We AFFIRM the denial of Gola’s motion to stay the collection of

restitution.

4