2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-6-2011 

# U S A v . F r ede r ick B a nk s

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-1414

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w . v i l l a no v a . e du/thir dc ir c uit_2011/11441 

### NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 1414

___________ UNITED STATES OF AMERICA

v. F REDERICK H. BANKS,

Appellant

____________________________________ On Appeal from the Unite d States District Court for the Western District of Pennsylvania (D.C. Criminal Action No. 03

- cr - 245 ) District Judge: Honorable Nora Barry Fischer

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

June 3, 2011
Be fore: SCIRICA, SMITH and VANASKIE , Circuit Judges

(Opinion filed : June 6, 2011 )

___________ OPINION

___________ PER CURIAM
Frederick H. Banks appeals from an order of the United States District Court for the Western District of Pennsylvania, w hich denied his “ Motion to Modify Special Assessment and Restitution for Changed Circumsta nces” for lack of jurisdiction. For the2



### reasons that follow, we will affirm.
I.
I n October 2004, a federal jury found Banks guilty of mail fraud, criminal copyright infringement, u ttering and possessing counterfeit or forged sec urities, and witness tampering. These charges stemmed from Bank s‟ sales of illegally copied (“pirated” ) versions of copyrighted Microsoft software products through an Internet marketplace website, Amazon.com

. The District Court subsequently sentenced Banks to sixty months of imprisonment, to be followed by thr ee years of supervised release. The
C ourt also imposed restitution in the sum of $70,708.59, and a special assessment of $700.00, see 18 U.S.C. § 3013

. This Court affirmed the judgment and sentence, United States v. Vampire Nation , 451 F.3d 189 (3d Cir. 2006), and the United States Supreme Court denied Banks‟ petition for certiorari, Banks v. United States , 127 S. Ct. 424 (2006). On December 15, 20 09, Banks filed a motio n asking the District Court to modify
his financial obl igations pursuant to 18 U.S.C. § 3572(d). Banks claimed that he was no longer able to pay the special assessment or restitution because he does not earn sufficient
income in pri son, and asked the Court to “ set a payme nt schedule of $0.00 per month.” (Supplemental Appendix “SA” at 1.) The government opposed the motion on the grounds that: (1) the Distric t Court lacked authority under section 3572(d) to modify the special assessme nt or restitution; and (2) even if it did have authority to do so,
modificati on was not warranted under the “economic hardship” p rovision of § 3572(d).
The District Court denied the motion, agreeing with the government that it lacked authority to modify t he special assessment or restitution order imposed as a part of the3



### judgment in his case. The Court further noted that even if it had jurisdiction to modify the assessment, it would deny the motion because Banks‟ alleged change in economic
circumstances w as self

- induced. Banks filed a timely appeal.
II. We have jurisdiction to review the District Court‟s order pursuant to 28 U.S.C. §
1291. 1 

### We may affirm the District Court on grounds other than those relied on by the
District Co urt. Kabakjian v. United States , 267 F.3d 208, 213 (3d Cir. 2001). Banks argues that the District Court erred in determining that it lacked jurisdiction to modify the order of restitution or special assessment imposed in his case. Indeed, a
court has jurisdiction to modify a payment schedule if there has been “any material change in the defendant‟s economic circumstances that might affect the defendant ‟s ability to pay restitution.” 18 U.S.C. § 3664(k) ; United States v. Jaffe , 417 F.3d 259, 267 (2d Cir. 2005) (district court retains jurisdiction to amend or adjust restitution order if there is any material change in defen dant‟s economic circumstances). 2

1 We do not have jurisdiction, however, to review the District Court‟s Order denying Banks‟ motion for reconsideration , which he filed in the District Court contemporaneously with his notice of appeal , because Banks did not file a notice of appeal from that Order.

2 Banks cited 18 U.S.C. § 3572(d)(3) as authority for allowing the court to adjust the p ayment schedule. While, as Appellee point s out, that provision refers to a “fine,” and Banks was seeking modification of an order of restitution, “the [Mandatory Victims Restitution Act] prov ides that „all provisions of [§ 3664(m)(1)(A)] are available to the United States for the enforcement of an order of restitution,‟ 18 U.S.C. § 3613(f), and § 3664(m)(1)(A) provides that an order of restitution may be enforced in the same manner as a fine.” United States v. Hyde , 497 F.3 d 103, 108 n.9 (1st Cir. 2007). However, as section 3664(k) refers specifically to modification of a restitution order, the District Court could have construed Banks‟ motion as seeking relief pursuant to that section.4



### Here, a lthough the District Court may have erred by failing to recognize that it potentially had jurisdiction to enterta in Banks‟ motion , any error is without consequence,

as Banks failed to show that there had been a “material change” in his “economic circumstances.” As the District Court noted, at the time that Banks filed his motion in December 2009, he held a prison j ob. (SA at 41.) At that time, Banks had not received income since September 2009, however, because he had not been reporting to work. ( Id. )
Because Banks has not provided any records contradicting the information provided by
the B ureau of Prisons, we a gree with the District Court that any change in Banks‟
economic circumstances was self

- induced and hardly constitutes a material change in
economic circumstances.
To the extent that Banks also attempted to challenge in the District Court the
overall val idity of the District Court‟s restitution order, the limited jurisdiction conferred by section 3664(k) does not encompass an attack on the overall validity of a restitution
order. Cf. Matheny v. Morrison , 307 F.3d 709, 711 (8th Cir. 2002) (a motion to sus pend the payment of a fine is not the “ proper vehicle ” for bringing such a claim). For the foregoing reasons, we will affirm the District Court‟s judgment.