Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion *

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-11169

Summary Calendar

RUSSELL KAEMMERLING,

Plaintiff-Appellant

v.

DAVID BERKEBILE,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:08-CV-714

Before REAVLEY, JOLLY, and OWEN, Circuit Judges.

PER CURIAM:*

Russell Kaemmerling, federal prisoner # 04899-017, was convicted in 2000

on 19 counts stemming from a wire fraud conspiracy. He was ordered to pay

over five million dollars in restitution. 

Kaemmerling sought relief in the district court under 28 U.S.C. § 2241,

arguing that the Bureau of Prisons (BOP), through the Inmate Financial

Responsibility Program (IFRP), violates 18 U.S.C. §§ 3572 and 3664 by usurping

United States Court of Appeals

Fifth Circuit

F I L E D

January 7, 2010

Charles R. Fulbruge III

Clerk

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No. 08-11169

2

the core judicial function of setting the amount and schedule of restitution

payments for the period of incarceration. He asked the district court to enjoin

the respondent from sanctioning him for nonparticipation in the IFRP and to

invalidate 28 C.F.R. §§ 545.10, 545.11, and BOP Program Statement 5308.08,

which he argued impermissibly usurped the statutory duties of the district court

under the Mandatory Victims’ Restitution Act in favor of the BOP.

Kaemmerling repeats his arguments on appeal, contending that only the district

court may establish a schedule of payments for restitution. He argues that the

district court here ordered restitution in the form of monthly installments of

$150 that were not to begin until three months after Kaemmerling’s

commencement of supervised release, and that the court did not establish any

schedule for payments during the course of his incarceration. Kaemmerling

reasons that the BOP’s collection of funds from him through the IFRP is an

impermissible exercise of judicial authority. 

We find no merit in Kaemmerling’s arguments. Payment of restitution is

ordinarily required to be made “immediately” unless the district court orders

otherwise. 18 U.S.C. § 3572(d)(1). Here, the district court, after determining the

amount to be paid as restitution, ordered Kaemmerling to make restitution

while incarcerated pursuant to the prison’s IFRP. It then ordered, as a condition

of supervised release, that Kaemmerling continue his restitution in a specific

amount on a monthly basis. The district court did not expressly delegate

anything to the BOP. Instead, the district court’s judgment determined the

amount of restitution and ordered immediate payment; this action was not an

unconstitutional delegation of judicial authority. See McGhee v. Clark, 166 F.3d

884, 886 (7th Cir. 1999); see also Bloch v. Lake, 183 F. App’x 471 (5th Cir. 2006);

Schmidt v. U.S. Dep’t of Justice, 34 F. App’x 151 (5th Cir. 2002). Because

Kaemmerling fails to show a constitutional deprivation, the district court did not

err by denying his § 2241 petition.

AFFIRMED.

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