Opinion
No. CR S-01-0026 JAM GGH P.
June 2, 2009
ORDER
Presently before the court is movant's motion to modify restitution order, filed November 17, 2008. The court has reviewed the moving papers, opposition and reply, and finds that further information is necessary before a final order can be issued.
This matter was referred to the undersigned by minute order, filed December 19, 2008, citing E.D. Local Rule 72-302.
Movant seeks to modify the amount taken out of his inmate trust account based on changed circumstances. He contends that he is currently obligated to pay $116 per quarter towards a restitution order in the amount of $266,500. Since he entered into the Inmate Financial Responsibility Program ("IFRP") under what he terms "coerced participation" by the prison around September 18, 2008, he contends that the amount of deposits into his account have been substantially reduced. Two events alleged by movant which constitute material changes are his divorce in 2004, and a prison transfer in March, 2008, which resulted in a decrease in prison pay level from Grade I to Grade IV and resulting prison pay decrease from $192 per month at Lompoc to $12 to $16 per month in South Dakota.
Under the Mandatory Victims Restitution Act, "defendant shall notify the court and the Attorney General of any material change in the defendant's circumstances that might affect the defendant's ability to pay restitution." 18 U.S.C. § 3664(k). The district court is ultimately responsible for setting a restitution schedule and may play a continuing role in the repayment schedule. United States v. Lemoine, 546 F.3d 1042, 1048, 1050 (9th Cir. 2008).
This argument and others will be addressed in a final order.
The government responded that these changed circumstances occurred six months or more prior to the time movant entered into the IFRP agreement which was calculated based on deposits into his inmate trust account for the preceding six months, March through August, 2008. The divorce occurred four years prior to this time, and the prison transfer occurred six months prior to the agreement.
In response to the government's opposition, movant filed a reply which states that since September, 2008, the deposits into his inmate trust account have been significantly reduced due to the termination of deposits into his account since that time by both his ex-wife and his mother, based on financial hardships they are both experiencing. Based on these representations, movant's more recent inmate trust account statements will have to be reviewed before the court can issue a final order.
Good cause appearing, IT IS HEREBY ORDERED that within thirty days of this order, the government shall submit movant's inmate trust account statements reflecting deposits for the period from September, 2008 to the present.