In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4381

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAHMOOD FARIDUDDIN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05-CR-109—William C. Griesbach, Judge.

____________

ARGUED NOVEMBER 3, 2006—DECIDED DECEMBER 5, 2006

____________

Before EASTERBROOK, Chief Judge, and FLAUM and

WILLIAMS, Circuit Judges.

EASTERBROOK, Chief Judge. United States v. Day, 418

F.3d 746, 758-61 (7th Cir. 2005), holds that, even when

an award of full restitution is mandatory, 18 U.S.C.

§3664(f)(2) requires a district court to set a schedule for

payment if the defendant cannot pay the whole sum

immediately. Like almost all rights in the criminal process,

see United States v. Mezzanatto, 513 U.S. 196 (1995), the

entitlement to a schedule of payments may be waived.

Mahmood Fariduddin waived this entitlement when he

pleaded guilty to mail fraud and tax evasion and agreed

to make $384,000 in restitution.
2 No. 05-4381

Paragraph 28 of Fariduddin’s plea agreement reads: “The

defendant acknowledges and understands that any and all

financial obligations imposed by the sentencing court are

due and payable upon entry of the judgment of conviction.

The defendant agrees not to request any delay or stay in

payment of any and all financial obligations.” Notwithstanding this promise, the only argument that Fariduddin

makes on appeal is that under Day he is entitled to a

schedule of payments that will postpone the time of full

payment. By making a request that he agreed not to make,

Fariduddin has broken his promise and should count

himself lucky that the United States has not proposed to

take back its own concessions and ask the judge to increase

his sentence. See United States v. Whitlow, 287 F.3d 638

(7th Cir. 2002).

Fariduddin insists that a schedule of payments differs

from “any delay or stay in payment,” but a schedule is a

“delay” compared with full immediate payment. A purchaser who negotiates to buy an automobile on time

payments, so much a month, is requesting a delay compared

with full payment on the car’s delivery. What Fariduddin

wants is not only a delay but also a cancellation of the debt.

He tells us that he would be satisfied with a schedule of

$150 per month. Yet interest alone on an unsecured debt of

$384,000 exceeds $3,000 per month at current rates. When

the interest rate is 10% per annum, the present value of

$150 paid monthly until the end of time is $18,000.

Fariduddin thus asks to be relieved of $366,000 worth of the

$384,000 obligation. Paying less than 5% of the total debt

is not what he promised in his plea agreement—and it was

in part by promising to make full and immediate restitution

that Fariduddin obtained a reduction in his prison term.

According to Fariduddin, the district court entered a

contradictory sentence by setting a schedule of payments to

begin after his release from prison while making the

full debt payable before release. That’s not how we under-
No. 05-4381 3

stand the sentence, however. The debt is payable in full

now, as Fariduddin agreed. Recognizing that Fariduddin

might not pay, the district judge set a minimum installment

as a condition of supervised release. Item 1 under “Additional Supervised Release Terms” reads: “The defendant is

to pay restitution at a rate of not less than $150.00 per

month. The defendant will also apply 100 percent of his or

her [sic] yearly federal and state tax refunds toward

payment of restitution.” (Emphasis added.) If while on

supervised release Fariduddin does not pay at least the

$150 monthly and devote all tax refunds to restitution, then

he is headed back to prison. A floor under payments differs

from a schedule; there is no contradiction in this sentence.

A checkbox later in the sentencing form could be read

to suggest that payment has been capped at $150 per month

for life. Yet the same preprinted line says that Fariduddin

must make complete restitution, and $150 a month will not

even keep up with interest. The form must be read harmoniously with the statute and the special condition of

supervised release, so that $150 per month is a floor rather

than a ceiling. Fariduddin must pay in full, as 18 U.S.C.

§3663A requires.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-5-06