USA v. Michael E. Sawyer, Patrick Duncan, and Terrell Rogers, Nos. 06-1275, 06-1614 & 06-4030.  In each of these appeals, the sole argument is that the district court committed plain error by not specifying an installment plan for the payment of restitution.

In one of the three cases the district judge set a plan (which we call a "schedule" following the statutory usage) to begin after release from custody; this defendant maintains that doing so delegated schedule-setting during imprisonment to the Bureau of Prisons.

In the other cases the district judge ordered all restitution to be paid immediately.

None of the three defendants protested in the district court. We conclude that the first decision is correct and that the oversight in the others need not be corrected on appeal under the plain-error doctrine. See Fed. R. Crim. P. 52(b).

All three defendants pleaded guilty, and for current purposes their crimes don’t matter. Michael Sawyer was sentenced to 51 months’ imprisonment and ordered to pay $1,386,082 as restitution. The judgment provides that the full sum is due immediately.

Patrick Duncan was sentenced to 96 months’ imprisonment plus $177,727 as restitution. The judgment provides that "[p]ayments are due immediately" but does not deal with time in prison other than to say that money "may be paid from prison earnings in compliance with the Inmate Financial Responsibility Program." After release, Duncan must pay $100 per month or 10% of his net earnings, whichever is greater.

Terrell Rogers was sentenced to 51 months’ imprisonment plus $1,837 as restitution. The judgment provides that the full sum is due immediately. All three defendants assert that they are unable to pay the whole award now, and that 18 U.S.C. §3664(f)(2) therefore required the district judges to set a schedule of payments. See United States v. Day, 418 F.3d 746, 751–57 (7th Cir. 2005).

The prosecutors concede the point for all three defendants; we accept that concession.

Because a prisoner’s earnings while in custody depend on the Bureau of Prisons, as well as the prisoner’s cooperation with its programs, it is not clear what payment schedule a court could set if it wanted.

Prison earnings and other transactions concerning prison trust accounts are so completely within the Bureau of Prisons’ control that it would be pointless for a judge to tell the convict how much to pay a month. We therefore agree with United States v. Dawkins, 202 F.3d 711 (4th Cir. 2000), and United States v. Miller, 406 F.3d 323 (5th Cir. 2005), that a judgment of conviction need not contain a schedule of restitution payments to be made during incarceration.

Thus we hold that leaving payment during imprisonment to the Inmate Financial Responsibility Program is not an error at all, let alone a plain error. The statute requires the judge to set a schedule if the defendant cannot pay in full at once, see 18 U.S.C. §3664(f)(2), but it does not say when the schedule must begin.

We hold today that it need not, and as a rule should not, begin until after the defendant’s release from prison. Payments until release should be handled through the Inmate Financial Responsibility Program rather than the court’s auspices.

With respect to Sawyer and Rogers, however, the district judges erred. Neither has the ability to pay immediately, and §3664(f)(2) therefore required the judges to set schedules for repayment from future earnings and other income once they leave prison.

Several decisions in this circuit hold that omissions of any schedule at all meets the requirements of "plain error" under Fed. R. Crim. P. 52(b).  Plain-error review has three requirements and one discretionary component. The requirements are (1) error that (2) is plain and (3) affects substantial rights. See United States v. Olano, 507 U.S. 725 (1993).

Quite apart from the question whether a statement that restitution is due immediately affects defendants’ substantial rights, it is difficult to understand how a judicial order that does no more than require a defendant to pay what he owes could undermine the fairness, integrity, or public reputation of judicial proceedings.

A judgment requiring defendants to pay restitution immediately after release, while erroneous (if the defendant lacks the wealth to pay at once), does not jeopardize substantial rights, and the uncorrected error does not imperil the fairness, integrity, or public reputation of judicial proceedings.

We therefore overrule any and all other decisions in this circuit treating an immediate-payment requirement as plain error that the court of appeals must correct.   

AFFIRMED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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