Opinion
Criminal Action No. 04-cr-00103-REB-06
04-08-2013
UNITED STATES OF AMERICA, Plaintiff, v. 6. MICHAEL SMITH, Defendant.
Judge Robert E. Blackburn
ORDER RE: DEFENDANT'S MOTION TO RECONSIDER
The matter before me is defendant's Motion To Reconsider Denial of Defendant's Previous Motion, Dkt. 1885, To: Reduce The Amount of The Fine and To Reduce The Amount of Monthly Payments [#1895] filed February 8, 2013. The government filed a response ([#1897], on March 14, 2013. Defendant did not file a reply. I grant the motion in part and deny it in part.
"[#1895]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). I use this convention throughout this order.
No hearing is requested, and none is required in the circumstances of this case where the modification is favorable to defendant, does not extend the term of supervised release, and the government does not object. See FED. R. CRIM. P. 32.2(c)(2).
--------
As I previously advised defendant, the court no longer has jurisdiction to modify that portion of his original sentence imposing a fine. (See Order [#1892], filed October 22, 2012.) That portion of defendant's motion therefore will be denied.
With respect to defendant's motion to modify the conditions of his supervised release regarding the monthly payments due in satisfaction of the fine, the government responds that it has no objection to a modification requiring the defendant to pay a percentage of his monthly gross income. See 18 U.S.C. § 3583(e) (allowing court to modify conditions of supervised release if appropriate based on sentencing factors described in 18 U.S.C. § 3553(a)). I have considered the relevant factors and find that such a modification is warranted in this instance. Therefore, defendant's motion will be granted to that extent.
THEREFORE, IT IS ORDERED as follows:
1. That defendant's Motion To Reconsider Denial of Defendant's Previous Motion, Dkt. 1885, To: Reduce The Amount of The Fine and To Reduce The Amount of Monthly Payments [#1895] filed February 8, 2013, is GRANTED IN PART and DENIED IN PART as follows:
a. That the motion is GRANTED to the extent it seeks a modification in the conditions of supervised release to reduce the amount of the monthly payment on the fine;
b. That the motion is DENIED to the extent it seeks a reduction in the fine originally imposed as an integral part of the original sentence;
2. That the Judgment [#1643], filed July 7, 2008, is MODIFIED at page 7 under the section entitled "Schedule of Payments" to reflect that payment of the total criminal monetary penalties payable by defendant are due as follows:
a. The monetary penalties shall be payable in monthly installments of not less that ten per cent (10 %) of the defendant's monthly gross income as determined periodically by his probation officer; and
b. As directed by the probation officer, the defendant shall apply any monies received from income tax refunds, lottery winnings, inheritances, devises, judgments, and any anticipated or unexpected financial gains to the outstanding court ordered financial obligations in this case; and
3. That payments under this modified schedule SHALL COMMENCE on May 1, 2013, and shall continue on or before the first day of each month thereafter until the fine is paid in full.
Dated April 8, 2013, at Denver, Colorado.
BY THE COURT:
_______________
Robert E. Blackburn
United States District Judge