This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

May 31, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GERALD LAMAR BOWEN,

Defendant-Appellant.

No. 06-6325

(D.Ct. No. 99-CR-00008-C)

(W.D. Okla.)

____________________________

ORDER AND JUDGMENT

*

Before TACHA, Chief Circuit Judge, and BARRETT and BRORBY, Senior

Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

Defendant Gerald Lamar Bowen, a federal prisoner appearing pro se,
 Mr. Bowen brings his motions, in part, pursuant to 18 U.S.C. § 3664(k) 1

and (o), which provide the district court authority to determine whether to adjust

the final judgment of restitution based on a material change in economic

circumstances and allow him to appeal the district court’s order under 18 U.S.C.

§ 3742. 

-2-

appeals the district court’s denial of his motions for modification of restitution, to

file a reply brief, and for reconsideration. In support of his appeal, Mr. Bowen 1

primarily asserts the district court improperly delegated to the United States

Bureau of Prisons the responsibility for setting a schedule of restitution payments. 

We exercise jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm

the district court’s denial of Mr. Bowen’s motions. 

I. Procedural Background

Mr. Bowen entered a guilty plea to the crimes of bank robbery and using a

firearm during the commission of a crime. At sentencing, the district court

imposed a sentence totaling 248 months imprisonment and restitution in the

amount of $4,310.00, due immediately, or, if not paid in full at the time of his

release from confinement, by monthly payments of not less than $100 beginning

no later than thirty days after his release. Mr. Bowen did not appeal his

conviction and sentence. 

Seven years later, Mr. Bowen filed a motion for modification of the

restitution sentence or, alternatively, a stay of the order of restitution until his
-3-

release from prison, claiming the Bureau of Prisons improperly impounded funds

from his prison trust account for the purpose of satisfying the restitution amount. 

The government filed a response opposing the request for modification or stay. 

Thereafter, the district court denied Mr. Bowen’s motion, explaining the court’s

order of restitution did not delegate any responsibility to the Bureau of Prisons

for its collection. Instead, the district court explained, Mr. Bowen’s obligation to

make payments to the Bureau of Prisons arose solely from his voluntary

participation in the Inmate Financial Responsibility Program (IFRP), through

which the Bureau of Prisons established a payment schedule to assist Mr. Bowen

in meeting his monetary obligations. The district court also explained

participation in such a voluntary program did not constitute an improper

delegation to the Bureau of Prisons by the court. 

Subsequently, Mr. Bowen sought permission to file a reply brief to the

government’s response, which the district court denied as moot. Mr. Bowen then

filed a request for reconsideration, which the district court also denied. 

II. Discussion

On appeal, Mr. Bowen renews his claim the district court improperly

delegated collection of the restitution amount to the Bureau of Prisons. For the

first time on appeal, he also complains the district court: 1) abused its discretion
 To the extent Mr. Bowen is attacking the execution of his sentence with 2

regard to the restitution payments, the appropriate vehicle is a petition under 28

U.S.C. § 2241 filed with the district court where he is confined; similarly, if he is

somehow challenging the validity of his sentence relating to his restitution, the

proper vehicle is a 28 U.S.C. § 2255 petition filed in the district court that

sentenced him. See Bradshaw v. Story, 86 F.3d 164, 166-67 (10th Cir. 1996). 

Regardless of how his motions are construed, because he is bringing them seven

years after his initial sentence, it is clear the one-year statute of limitations

imposed by the AEDPA would bar his motions under either statute. See 18

U.S.C. §§ 2241, 2244, and 2255. Extending every benefit to Mr. Bowen, we will

address this issue as a motion for adjustment of the initial restitution order

pursuant to 18 U.S.C. § 3664(k) and (o), over which we have jurisdiction under

18 U.S.C. § 3742. We note, however, he has not shown any “material change” in

his “economic circumstances,” as required by statute.

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when ordering him to pay the entire restitution amount immediately or, if not paid

in full at the time of his release from confinement, in $100-per-month payments

beginning no later than thirty days from his release; and 2) violated his due 2

process rights when it denied him the opportunity to file a reply to the

government’s response to his motion for modification. The government opposes

Mr. Bowen’s appeal on grounds: 1) the district court did not delegate to the

Bureau of Prisons the responsibility for setting a restitution payment schedule;

and 2) restitution was mandatory under 18 U.S.C. § 3663A(c)(1)(A)(i) because

Mr. Bowen was convicted of committing a crime of violence. 

Turning to Mr. Bowen’s appeal, we construe his pleadings liberally as he is

proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, it

is clear his appeal lacks merit, and for the purpose of judicial economy we decline
 “An appeal of a district court’s denial of a motion to reconsider raises for 3

review only the district court’s order of denial and not the underlying judgment

itself,” so that “we review a denial of a motion to reconsider only for an abuse of

discretion.” United States v. Castillo-Garcia, 117 F.3d 1179, 1197 (10th Cir.

1997) (quotation marks and citations omitted). 

 “[T]he court shall order restitution ... in the full amount of each victim’s 4

losses as determined by the court and without consideration of the economic

(continued...)

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to fully address Mr. Bowen’s assertions in support of his appeal, other than as

follows.

First, we note that only his claim of improper delegation was brought

before the district court. As to the other claims, we generally do not consider 3

claims raised for the first time on appeal, except, for instance, when the issue is a

question of law, the proper resolution of which is beyond reasonable doubt, and

the failure to address the issue would result in a miscarriage of justice. See

Shoels v. Klebold, 375 F.3d 1054, 1062 (10th Cir. 2004) (relying on Petrini v.

Howard, 918 F.2d 1482, 1483 n.4 (10th Cir. 1990)). None of those criteria are

presented here. 

Even if we considered Mr. Bowen’s claims, they must fail. First, the

Mandatory Victims Restitution Act of 1996 (MVRA) requires the court to order

full restitution in any case involving a conviction, like here, for a crime of

violence. See 18 U.S.C. §§ 3663A(c)(1)(A)(i) and 3664(f)(1)(A); United States 4
(...continued) 4

circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). However, the

defendant’s economic circumstances are relevant in fixing a payment schedule. 

See United States v. Wilson, 416 F.3d 1164, 1170 (10th Cir. 2005) (relying on 18

U.S.C. § 3664(f)(2)). Nothing in the record indicates the district court in any way

abused its discretion in fixing the payment schedule or otherwise failed to

properly take into account Mr. Bowen’s economic circumstances. 

-6-

v. Zunie, 444 F.3d 1230, 1238 (10th Cir. 2006). Generally, “[d]istrict courts have

substantial discretion in determining how restitution is to be paid.” Wilson, 416

F.3d at 1170 (quotation marks and citation omitted). Pursuant to statute, the

district court sets the manner and schedule for restitution repayment, see 18

U.S.C. § 3664(f)(2), and may “‘direct the defendant to make a single, lump-sum

payment, partial payments at specified intervals, in-kind payments, or a

combination of payments at specified intervals and in-kind payments.’” Wilson,

416 F.3d at 1170 (quoting 18 U.S.C. § 3664(f)(3)(A)). However, as Mr. Bowen

suggests, the sentencing court is prohibited from delegating to the Bureau of

Prisons the responsibility for setting the payment schedule for court-ordered

restitution. See United States v. Overholt, 307 F.3d 1231, 1255-56 (10th Cir.

2002) (generally relying on 18 U.S.C. § 3664). Nevertheless, inmates

participating in the IFRP under 28 C.F.R. §§ 545.10 and 545.11 may commit a

percentage of their prison employment earnings toward the payment of courtordered restitution. See United States v. Williams, 996 F.2d 231, 234 (10th Cir.

1993) (supporting purpose of IFRP). 
-7-

Applying these legal principles, the district court did not abuse its

discretion when it ordered Mr. Bowen to pay the restitution amount in full

immediately or, if not paid in full at the time of release from confinement, by

monthly payments. Moreover, a reading of the order establishes the district court

did not improperly delegate to the Bureau of Prisons the responsibility for the

manner of payment, payment schedule, or collection of restitution. Thus, Mr.

Bowen’s arguments to the contrary are wholly without merit and he has not

otherwise shown a “material change” in his “economic circumstances,” as

required by 18 U.S.C. § 3664(k) for an adjustment in his restitution judgment. 

Finally, regarding Mr. Bowen’s request to file a reply brief to the government’s

response to his motion for modification of restitution, we note such a reply would

have been pointless, given the order on restitution patently did not delegate any

responsibility to the Bureau of Prisons. Therefore, the district court did not err in

denying him the opportunity to file a reply brief. 
-8-

III. Conclusion

For the foregoing reasons, we grant Mr. Bowen’s motion to proceed on

appeal in forma pauperis and AFFIRM the district court’s denial of Mr. Bowen’s

motions on the issue of restitution.

Entered by the Court:

WADE BRORBY

United States Circuit Judge