Opinion
CRIMINAL ACTION Case No. 05-20073-01-CM.
July 21, 2009
MEMORANDUM AND ORDER
This case is before the court on defendant Norman Shaw Jr.'s Motion for Deferral of Restitution While Incarcerated (Doc. 77). Defendant Shaw asks the court to order the Bureau of Prisons to cease forcing defendant to make restitution payments while incarcerated. He claims that contrary to United States v. Gunning, 401 F.3d 1145 (9th Cir. 2005), Soroka v. Daniels, 467 F. Supp. 2d 1097 (D. Or. 2006), and 18 U.S.C. § 3664, this court delegated its responsibility to schedule restitution to the Bureau of Prisons or the probation office.
On one point, defendant is correct: Gunning and United States v. Overhold, 307 F. 3d 1231, 1255-56 (10th Cir. 2002) held that the district court cannot delegate the preparation of a payment schedule to the Bureau of Prisons or the probation office. But such delegation has not happened here. Rather, the court detailed the payment schedule in its amended judgment.
Defendant is incorrect that Soroka dictates that the court grant his motion. Soroka, a District of Oregon decision, is not binding on this court. And Soroka considered a situation in which the sentencing court had not established a schedule of restitution payments. As mentioned above, the court set a schedule of restitution payments in this case.
Defendant has not presented a valid basis for relief, and the court denies his motion. IT IS THEREFORE ORDERED that defendant's Motion for Deferral of Restitution While Incarcerated (Doc. 77) is denied.