Opinion
91 Cr. 685 (SWK)
June 19, 2002
OPINION AND ORDER
Miguel Kercado ("Kercado") moves this Court, pursuant to 18 U.S.C. § 3572 (d)(3), for modification of his fine based upon a material change in his economic circumstances. For the reasons set forth below, Kercado's motion is denied.
I. BACKGROUND
On September 11, 1992, Kercado pled guilty to one count of conspiracy to distribute narcotics, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A) and 846, and one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a). Kercado was sentenced to 240 months imprisonment, a 5 year term of supervised release, a fine of $41,400.00 and a $50.00 mandatory special assessment. Kercado's judgment was amended on October 27, 1999, to reflect that his fine was not a committed fine, as had been previously stated in error in the original judgment.
To date, Kercado has made three payments toward the fine: $65.00 on October 1, 2001, $65.00 on November 1, 2001, and $75.00 on December 3, 2001. Kercado states that he is paid approximately $21.00 per month for work in the prison pipe shop. See Affidavit of Miguel Kercado, dated April 19, 2002, at 1 ("Kercado Aff."). From his monthly pay, Kercado is required to buy necessities for his own use such as basic grooming products. See Kercado Aff. at 1. Kercado also states that his family has been providing money to help him purchase things from the prison commissary; however, as a result of the recent September 11th tragedy, his father lost his job and will no longer be able to help him as before. See id. Therefore, Kercado requests that the Court modify his fine to be paid 90 days after he is released from prison.
The Court notes that Kercado has provided the Court with documentation regarding these three payments only. See Kercado Aff., Ex. B. Judging by the similar dates of each of the payments, it is possible that Kercado has been making regular monthly payments from the beginning of his incarceration in January, 1994. The total amount of payments made by Kercado toward his fine is impossible to determine from the documentation at hand, however, that information is not essential to the determination of this motion.
II. DISCUSSION
Title 18, United States Code, Section 3572(d)(3) provides that
A judgment for a fine which permits payments in installments shall include a requirement that the defendant will notify the court of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay the fine. Upon the receipt of such notice the court may, on its own motion or the motion of any party, adjust the payment schedule, or require payment in full, as the interests of justice require.
However, although a statutory provision governing restitution orders permits "adjustment" of "payment schedules" based on a "material change in the defendant's economic circumstances," 18 U.S.C. § 3664 (k), the parallel provision concerning fines, see 18 U.S.C. § 3572 (d)(3) above, allows adjustments only where the original judgment "permits payments in installments." 18 U.S.C. § 3572 (d)(3).
In the current situation, Kercado's fine of $41,400.00 was ordered payable immediately. See Kercado Aff., Ex. A, Amended Judgment in a Criminal Case, dated October 27, 1999, at 5. In criminal cases, it is often the case that defendants pay their fines incrementally, "even though the court has not said one word about installments." United States v. Ahmad, 2 F.3d 245, 249 (7th Cir. 1999) (criminal restitution orders often paid incrementally even in the absence of an installment payment plan devised by the court). Kercado's decision to pay his fine in installments rather than in one lump sum did not transform his judgment into one that permits installment payments. See McGee v. Clark, 166 F.3d 884, 886 (7th Cir. 1999) (defendant's payment of fine in installments under the Inmate Financial Responsibility Program ("IFRP") did not require court to establish payment schedule because fine had been ordered due in full immediately); see also Solis v. Menifee, 2000 WL 1401633 *1 (S.D.N.Y. Sept. 25, 2000) (fines ordered payable immediately may be collected by the Bureau of Prisons through the IFRP).
Current federal law simply provides defendants in Kercado's situation no opportunity to seek reduction or modification of a fine. The only opportunity for modification of Kercado's fine would be through a petition filed by the government under 18 U.S.C. § 3573, whereby the Court may remit the fine or defer payments in the interests of justice "upon petition of the government." 18 U.S.C. § 3573. However, the government has not filed such a petition in this case. Therefore, Kercado's motion for modification of his fine pursuant to 18 U.S.C. § 3572 (d)(3) is denied.
III. CONCLUSION
Therefore, for the reasons set forth above, Kercado is not entitled to modification of his fine pursuant to 18 U.S.C. § 3572 (d)(3), and his motion is therefore denied.