U.S. v. Benally

Full title: United States of America, Plaintiff/Respondent, v. Donald Benally…

Court: United States District Court, D. Arizona

Date published: May 6, 2009

No. CR 91-273-PCT-RCB (D. Ariz. May. 6, 2009)

Opinion

No. CR 91-273-PCT-RCB.

May 6, 2009

ORDER

ROBERT BROOMFIELD, Senior District Judge

Currently pending before the court is a motion by pro se defendant/petitioner, Donald Benally, to "Modify or Remit" the remaining balance of the fine which this court imposed upon him at sentencing (doc. 1544). Defendant is seeking that relief pursuant to 18 U.S.C. § 3573. The United States does not join in this motion.

Background

After receiving a "Notice of Intent to Offset" from the United States Department of Justice, defendant filed the present motion.See Mot. (doc. 1544) at 10. In that Notice, the United States is seeking to have defendant pay the remaining $2,700.00 which he owes on his court-imposed fine. Id. Defendant claims that he cannot afford to pay that fine because he is employed only part-time "at a rate of $950.00 per month[;]" and has a daughter enrolled at the University of New Mexico, whom he supports. Id. at 1:31-2:2. Therefore, defendant is requesting that the court remit or modify his fine, although he does not indicate what form that relief should take.

This is not the first time which the court has been confronted with such a request from defendant. In 2006, defendant filed a "Motion to Waive or Forgive the Fine and Restitution." Doc. 1536. After denying the restitution aspect of that motion, the court explained that it could not grant "Defendant's motion for waiver or forgiveness of the imposed fine," because it could only grant such relief "`[u]pon petition of the Government.'" Doc. 1543 at 2:16-17 (quoting 18 U.S.C. § 3573) (other citation omitted). In a footnote, the court observed that despite the fact that the United States Attorney for this District was urging the Bureau of Prisons "to join in a reduction of defendant's sentence[,] . . . his assistant" was not taking any position as to "defendant's request to remit the fine portion of his sentence." Id. at 2 n. 1. Noting the "iron[y]" of that position, the court stated, "Of course, he is free at any time to initiate such a request under § 3573." Id. (emphasis added).

Discussion

Defendant misapprehended the court's intent. As defendant interpreted the just quoted sentence, the court was "direct[ing] . . . defendant . . . [to] first properly file a motion under 18 USC [§] 3573, . . . to Remit or Modify [his] Fine[.]" Mot. (doc. 1544) at 1, ¶ 1. As the body of the court's prior order indicates, however, and quoting from that statute verbatim, " only the Government may petition to remit or reduce a fine imposed as part of a criminal sentence." Manjarres v. United States, 2008 WL 842415 (D.R.I. March 28, 2008) (emphasis added) (citing, inter alia, United States v. Linker, 920 F.2d 1, 2 (7^th Cir. 1990);United States v. Gonzalez, 248 F.3d 1128 (1^st Cir. 2000) (Table) (district court lacked jurisdiction to act on defendant's post-conviction request to remit fine) (other citations omitted)).

It is true that under the former section 3573, a defendant could "petition the court to remit or modify a fine upon demonstrating that he or she had made a good faith effort to comply and that changed circumstances had rendered the fine unwarranted." United States v. Seale, 20 F.3d 1279, 1286 n. 8 (3^rd Cir. 1994). Congress enacted that former section "as part of the Sentencing Reform Act of 1984," which "became effective on November 1, 1986." Id. United States v. Heimbach, 808 F.Supp. 413, 415 (E.D.Pa. 1992) (citation omitted). The former section 3573 "lasted only six weeks, however, because the Criminal Fine Improvements Act of 1987 repealed former section 3573 and replaced it with a new section 3573, effective December 11, 1987." Id. (citations omitted). Thus, there was only a small window of time during which a defendant, as opposed to the government, could file a petition with the court to remit or modify a fine. Petitioner Benally's motion does not fall within the short life of the former section 3573.

Thus, in accordance with the "plain and unambiguous" language of the current section 3573, which "[b]y its own terms, . . . applies strictly to the Government, and not to defendants[,]" the court must deny petitioner's motion to modify or remit his fine. See Linker, 920 F.2d at 2.

Based upon the foregoing, IT IS ORDERED that defendant/petitioner Donald Benally's "Motion to Modify or Remit a Fine" (doc. 1544) is DENIED.