Opinion
Nos. 99-40061-01-SAC, 99-40077-01-SAC, 01-3234-SAC
October 30, 2002.
MEMORANDUM AND ORDER
The case comes before the court on the defendant William Johnigan, Jr.'s ex parte request for an exemption from payment of the outstanding balance of restitution (No. 99-40061, Dk. 67) and (No. 99-40077, Dk. 42), to which the government has filed a response in opposition, (No. 99-40061, Dk. 70) and (No. 99-40077, Dk. 45). The defendant Johnigan also has filed a motion for downward departure pursuant to 28 U.S.C. § 2255, 18 U.S.C. § 3553(b) and 3582(c)(1)(A) in case No. 01-3234, (No. 99-40061, Dk. 69) and (No. 99-40077, Dk. 44), and the government has filed its response in opposition, (No. 99-40061, Dk. 72) and (No. 99-40077, Dk. 47), and the defendant has filed a reply, (No. 99-40061, Dk. 74) and (No. 99-40077, Dk. 48).
REQUEST FOR EXEMPTION FROM RESTITUTION
This case involves an order of mandatory restitution because the offense was a crime of violence. 18 U.S.C. § 3663A(c)(1)(A)(i). A mandatory order of restitution is enforced in accordance with 18 U.S.C. § 3664. 18 U.S.C. § 3663A(d). Section 3664 recognizes that the defendant, the government or a victim may notify the district court of a material change in the defendant's ability to pay restitution, and the statute also expressly permits the court to adjust the payment schedule "as the interests of justice require." 18 U.S.C. § 3664(k); see also 18 U.S.C. § 3664(n) (requiring a defendant who receives substantial resources during a period of incarceration to apply the value of those resources to any restitution owed). In addition, a district court "may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release. . . ." 18 U.S.C. § 3583(e)(2). This provision allows a district court to alter an order of restitution imposed as a condition of supervised release. See United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997). Modification of such restitution may be appropriate when there occurs "a downward turn in the defendant's ability to pay a fine or restitution imposed as conditions of release." Id.
Because the back surgery performed during his incarceration was unsuccessful and because of his problems with bone deterioration and high blood pressure, the defendant argues that he is unable to walk or work and that his impairments are permanent. The government contends the defendant has not shown his impairments are permanent or are so severe as to justify extinguishing his restitution obligation.
The court denies the defendant's request to have his restitution obligation extinguished. The defendant has not provided the court with sufficient proof of his allegations of disability as now being permanent and so severe as to preclude him from performing certain prison work detail while seated. In addition, should the defendant receive substantial money from outside sources during his incarceration, the same may be applied toward the defendant's restitution obligation. Finally, the court could only speculate at this time as to what the defendant's physical and economic circumstances will be following his release from prison. The court declines the defendant's request for exemption from restitution.
MOTION FOR DOWNWARD DEPARTURE
Citing 28 U.S.C. § 2255, 18 U.S.C. § 3553(b) and 18 U.S.C. § 3582(c)(1)(A) as his authorities, the defendant asks the court to modify and reduce his sentence upon consideration of his current physical and psychological condition. The defendant lists the following conditions as grounds for a downward departure: severe bone deterioration, post traumatic stress disorder, seizures, hypertension, high blood pressure, and unsuccessful back surgery that has left him unable to stand or walk for more than five minutes at a time. The defendant seeks a finding that his condition is an extraordinary physical impairment warranting a downward departure.
In response, the government points out that the defendant's motion is not viable under the standards governing 28 U.S.C. § 2255, that a downward departure is not an available remedy under § 2255, that the defendant does not allege his counsel was ineffective, and that the presentence report did provide information about the defendant's different physical problems. In reply, the defendant concedes his motion cannot be brought under § 2255 and requests the following:
The Assistant U.S. Attorney, Mr. L.G. Luedke, is absolutely right concerning the portion of the petitioner's motion for downward departure, 28 U.S.C. § 2255, but the petitioner does not wish to file an "Ineffective Assistance of Counsel" claim. But rather seeks permission from this Honorable Court to amend his motion by dropping the 28 U.S.C. § 2255 portion of the motion for downward departure and focus upon the second part of the motion relying upon the provisions of Title 18, U.S.C. § 3553(b) and 3582(c)(1)(A) along with the authority of the United States Sentencing Guidelines, § 5H1.1 and 5H1.4, which the government failed to address in its response to the petitioner's motion.
(No. 99-40061, Dk. 74, p. 4) (No. 99-40077, Dk. 48, p. 4) (emphasis in original). The court grants the defendant's request and decides the motion under the remaining statutory and guideline authorities he has cited.
"A district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so." United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996) (citation omitted). The defendant's reliance on 18 U.S.C. § 3553(b) is misplaced, for it does not give the court any authority to modify a sentence already imposed. Section 3553 addresses only "the initial imposition of a sentence." United States v. Smartt, 129 F.3d 539, 542 (10th Cir. 1997). Section 3582(c) of Title 18, however, "provides three avenues through which the court may `modify a term of imprisonment once it has been imposed.'" United States v. Blackwell, 81 F.3d at 947 (quoting 18 U.S.C. § 3582(c). Those three narrow avenues are:
First, upon motion of the Director of the Bureau of Prisons, a court may reduce the term of imprisonment if it finds special circumstances exist. 18 U.S.C. § 3582(c)(1)(A)(i), (ii). Second, a court may modify a sentence if such modification is "otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." Id. § 3582(c)(1)(B). Finally, a court may modify a sentence if "a sentencing range . . . has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)." 18 U.S.C. § 3582(c)(2).
United States v. Smartt, 129 F.3d at 541. If the defendant's argued basis does not fall within one of these three limited avenues under § 3582(c), the court is without jurisdiction to consider the defendant's request. Id.
The first avenue, the special circumstances reduction based on medical condition, 18 U.S.C. § 3582(c)(1)(A)(i), (ii), "requires that a motion be brought by the Director of the Bureau of Prisons." United States v. Smartt, 129 F.3d at 541. The Director has not made any such motion in this case. Unable to meet this requirement, the defendant is ineligible for this first avenue.
The second avenue, modification expressly permitted by statute or Rule 35, 18 U.S.C. § 3582(c)(1)(B), requires the defendant to assert that the conditions for Rule 35 relief are present or to cite some statute authorizing a modification. United States v. Smartt, 129 F.3d at 541. None of the three subsections to Rule 35 applies here. United States v. Blackwell, 81 F.3d at 948 ((a) correct an illegal sentence, (b) reduce sentence for substantial assistance, or (c) correct a sentence within 7 days after imposition). The Tenth Circuit reads § 3582(c)(1)(B) "to permit modification of an imposed term of imprisonment only where a statute expressly provides for reduction of a previously imposed sentence." United States v. Smartt, 129 F.3d at 541-42. The defendant's citation of § 3553(b) here is to no avail, as the Tenth Circuit has held "that neither section 3553(b) nor (f) provides for modification of an imposed sentence within the meaning of § 3582(c)(1)(B)." Id. at 542. For that matter, the sentencing guideline provisions cited by the defendant, § 5H1.1 and § 5H1.4, do not authorize the modification of an imposed sentence. The court does not have jurisdiction under this second avenue.
The defendant makes no attempt to argue that the third avenue, the subsequent lowering of a guideline sentencing range, is even applicable here. Nor is the court aware of any facts to support such an argument. Finally, the court lacks the inherent authority to modify or resentence a defendant at any time or for any reason other than those provided by statute. United States v. Blackwell, 81 F.3d at 949.
IT IS THEREFORE ORDERED that the defendant's request for an exemption from payment of the outstanding balance of restitution (No. 99-40061, Dk. 67) and (No. 99-40077, Dk. 42) is denied;
IT IS FURTHER ORDERED that the defendant's request to amend his motion for downward departure pursuant to 28 U.S.C. § 2255, 18 U.S.C. § 3553(b) and 3582(c)(1)(A) in case No. 01-3234, (No. 99-40061, Dk. 69) and (No. 99-40077, Dk. 44) to delete all references to 28 U.S.C. § 2255 is granted;
IT IS FURTHER ORDERED that the defendant's motion for a downward departure pursuant to 18 U.S.C. § 3553(b) and 3582(c)(1)(A) (No. 99-40061, Dk. 69) and (No. 99-40077, Dk. 44) is dismissed for lack of jurisdiction.