Opinion
Criminal Action No. 3:04-CR-291-L.
August 16, 2005
MEMORANDUM OPINION AND ORDER
Before the Court is a July 21, 2005 letter from Petitioner Stephane C. Burress ("Petitioner") to the court wherein Petitioner objects to a June 27, 2005 letter to him from the United States Probation Officer, entitled Response to Motion to Amend the Judgment in Criminal Case and Modification of Conditions Request (hereinafter "Response to Motion to Amend"). As set forth below, Petitioner, by his July 21, 2005 letter, is asking the court to reconsider the United States Probation Officer's recommendation, accepted by this court on June 30, 2005, that this court should deny Petitioner's Motion to Correct Clerical Error, filed May 6, 2005. See Response to Motion to Amend at 4. To the extent Petitioner's July 21, 2005 letter can be construed as a request for reconsideration of the court's June 30, 2005 agreement with the United States Probation Officer's recommendation that Petitioner's Motion to Correct Clerical Error be denied, the court denies Petitioner's latest request.
I. Factual and Procedural Background
On September 3, 2003, the Honorable Sam Sparks, United States District Judge for the Western District of Texas, sentenced Petitioner to a 16-month term of imprisonment followed by a three year term of supervised release, after Petitioner pled guilty to Count 1 of an Information charging him with violations of 18 U.S.C. § 1029(a)(3), Fraud and Related Activity in Connection with Access Devices, a Class C felony. See Judgment, United States v. Stephane C. Burress, A-03C-R-169(1)-SS (Sep. 3, 2003). In addition to the mandatory and standard conditions of supervised release, Judge Sparks imposed additional conditions which included mental health treatment, drug aftercare, and restitution in the amount of $24,870. Specifically, with regard to restitution, Judge Sparks ordered that, "defendant shall pay restitution in the amount of $24,870.70 to the payee except that the defendant is jointly and severally liable with Charles Albert Turner, Case No. A-03C-R-179(1)-SS, when convicted and no further payment shall be required after the sum of the amounts actually paid by the defendants/participants has fully covered the compensable injuries." See id. at 6.
Petitioner's period of supervised release began on July 26, 2004 in the Northern District of Texas. On September 2, 2004, this court accepted jurisdiction over this matter. On February 4, 2005, this court ordered the issuance of a violator's warrant, after receiving a Petition for Offender Under Supervision regarding Petitioner's violations of certain conditions of his supervised release. On February 24, 2005, based on Petitioner's pleading true to violations of the conditions of the terms of his supervised release, this court sentenced Petitioner to a 6-month term of imprisonment to be followed by an 18-month term of supervised release. See Judgment, United States v. Stephane C. Burress, 3:04-CR-291-L(01) (Feb 24, 2005). In addition to reimposing the mandatory and standard conditions of supervised release, the court imposed several special conditions, including payment, pursuant to the Mandatory Victim Restitution Act of 1996, of "any unpaid balance on restitution in the amount of $24,870.70" to be paid jointly and severally with Charles Albert Turner, Case No. A-03-CR-179(1)-SS, such payments (if any remain at the commencement of the term of supervised release) to begin sixty (60) days after release from custody. See id. at 5. It is this part of the court's February 24, 2005 Judgment that forms the basis for Petitioner's July 21, 2005 letter (and which also formed the basis of his May 5, 2005 Motion to Correct Clerical Error). As set forth directly below, the court determines that Petitioner's arguments regarding this court' restitution order are without merit, and any motion to correct the court's February 24, 2005 Judgment, whether in the form of a motion or a letter, should be denied.
II. Analysis
In Petitioner's July 21, 2005 letter (and also in his May 5, 2005 Motion to Correct Clerical Error), Petitioner contends that this court, in imposing sentence for his violation of the terms of supervised release, committed a "clerical error" that resulted in a "substantial alteration of the original sentence[,]" specifically that portion of the court's February 24, 2005 Judgment ordering Petitioner to pay the balance remaining on Judge Sparks's restitution order of $24,870.70, pursuant to the Mandatory Victim Restitution Act. See July 21, 2005 Letter at 1; see also Judgment, United States v. Stephane C. Burress, 3:04-CR-291-L(01) at 5 (Feb 24, 2005). In support of his argument, Petitioner asserts in conclusory fashion, and with no support, that Judge Spark's order of restitution was imposed under 18 U.S.C. § 3663, whereas this court's order of restitution was imposed under the Mandatory Victim Restitution Act. See July 21, 2005 Letter at 1 ("since the original Judgment does not specifically mention the [Mandatory Victim Restitution Act], then by default, the applicable statute is § 3663"). Petitioner also faults the United States Probation Officer for her statement to the court in recommending denial of Petitioner's Motion to Correct Clerical Error that, "[w]hile the Judgment in a Criminal Case in Mr. Burress' original sentence does not specifically note that the restitution ordered was pursuant to the Mandatory Victim Restitution Act of 1996, the order was, in fact, based on the cited law." See id. (quoting Response to Motion to Amend at 2). According to Petitioner "[t]he probation officer offers no support . . . for this wholly conclusory statement." See id.
Having reviewed the original order of restitution ( see United States v. Stephane C. Burress, A-03-CR-169(1)-SS (Sep. 3, 2003)), this court's order of restitution ( see Judgment, United States v. Stephane C. Burress, 3:04-CR-291-L(01) at 5 (Feb 24, 2005)), Petitioner's Motion to Correct Clerical Error, filed May 6, the June 27, 2005 Response to Motion to Amend accepted by this court on June 30, 2005, Petitioner's July 21, 2005 letter, and the applicable law, the court denies Petitioner's request for reconsideration as set forth in Petitioner's July 21, 2005 letter. As stated by the United States Probation Officer in the Response to Motion to Amend, Title 18 U.S.C. § 3556 (in effect in 2003 when Petitioner was originally sentenced), provides that "[t]he Court, in imposing a sentence on a defendant who has been found guilty of an offense shall order restitution in accordance with Section 3663A, and may order restitution in accordance with Section 3663." See Response to Motion to Amend at 2 (emphasis added). Not only is the Probation Officer correct that restitution under the Mandatory Victim Restitution Act is non-discretionary, but the nature of the crime herein, that is, an offense against property under Title 18, triggers application of the Mandatory Victim Restitution Act. See 18 U.S.C. § 3663A(c)(1)(A)(ii). The court will not infer from the mere absence of the words "Mandatory Victim Restitution Act" in Judge Sparks's order of restitution, that he failed to order restitution in accordance with the requirements of 18 U.S.C. § 3663A.
III. Conclusion
In light of the foregoing, the court denies Petitioner's July 21, 2005 letter insofar as it requests reconsideration of the court's June 30, 2005 acceptance of the United States Probation Officer's June 27, 2005 recommendation that the court deny Petitioner's Motion to Correct Clerical Error, filed May 6, 2005. Further, to ensure that the matter has been addressed and no confusion lingers, Petitioner's Motion to Correct Clerical Error, filed May 6, 2005, is hereby denied.
It is so ordered.