United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2015 Decided May 22, 2015

No. 13-3098

UNITED STATES OF AMERICA,

APPELLEE

v.

RICARDO HUNTER,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cr-00039-1)

Jeremy C. Marwell, appointed by the court, argued the 

cause for appellant. With him on the briefs was John P. 

Elwood.

Ricardo Hunter, pro se, filed the briefs for appellant.

Stephen F. Rickard, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Ronald C. 

Machen, Jr., U.S. Attorney at the time the briefs were filed, 

and Elizabeth Trosman and Suzanne Grealy Curt, Assistant 

U.S. Attorneys.

Before: TATEL, Circuit Judge, EDWARDS, Senior Circuit 

Judge, and RANDOLPH, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge HARRY T.

EDWARDS.

EDWARDS, Senior Circuit Judge: The Appellant in this 

case, Ricardo Hunter, pled guilty to federal charges stemming 

from a series of armed robberies. He was sentenced to fifteen 

years in prison and ordered to pay $35,157.27 in restitution, 

along with a “special assessment” of $400.00. Under the 

District Court’s order, both amounts were payable 

immediately. The sentencing order further provided that, 

during his incarceration, Appellant was to participate in the 

Bureau of Prisons Inmate Financial Responsibility Program 

(“IFRP”) through which he would make payments to satisfy 

the restitution obligation. The timing and amounts of the 

payments to be made by Appellant were left to be determined 

by IFRP. Appellant’s claim on appeal is that the District 

Court’s delegation to IFRP violated 18 U.S.C. § 3664(f)(2), 

which mandates that “the court shall . . . specify in the 

restitution order the manner in which, and the schedule 

according to which, the restitution is to be paid . . . .”

Appellant’s attorney did not raise this statutory argument 

during the sentencing proceedings before the District Court. 

About two months after the District Court imposed sentence, 

Appellant filed a motion pro se seeking to suspend the 

restitution order. In his initial brief to the District Court in 

support of this belated motion, Appellant did not raise the 

statutory argument regarding the District Court’s alleged 

unlawful delegation to IFRP. The argument was first raised in 

Appellant’s reply brief in support of his motion. The 

Government did not respond to the reply brief. The District 

Court denied the motion, United States v. Hunter, No. 11-39-

1 (RWR), 2013 WL 4083311, at *1 (D.D.C. Aug. 13, 2013),

and Appellant appealed. 
3

An order was issued by this court appointing amicus 

counsel (“Amicus”) to brief and argue the case on behalf of 

Appellant. Amicus has directly and clearly raised the statutory 

argument resting on 18 U.S.C. § 3664(f)(2). In particular, 

Amicus argues that the District Court erred in failing to fulfill 

its statutory duty to assess Appellant’s ability to pay 

restitution, and to establish an appropriate schedule for 

payments. In response to the Government’s argument that 

Appellant’s appeal to this court should be dismissed as 

untimely, Amicus contends that the filing requirements of 

Federal Rule of Appellate Procedure 4(b) are nonjurisdictional and presumptively subject to equitable tolling. 

Amicus thus urges the court not to “dismiss[] a criminal 

appeal as untimely where a defendant [acting pro se], through 

no fault of his own or lack of diligence, did not know the 

clock had begun to run.” Amicus Br. 4.

The Government asserts that the appeal should be 

dismissed on any one of four grounds: first, the appeal was

not timely filed; second, at sentencing, Appellant expressly 

waived his right to appeal his plea agreement; third, Appellant 

forfeited his statutory claim by failing to raise it with the 

District Court during the sentencing proceedings; and, finally, 

Appellant’s challenge to the District Court’s sentencing order 

is without merit.

Because the filing requirement under Federal Rule of 

Appellate Procedure 4(b) is a non-jurisdictional, claimprocessing rule, see United States v. Byfield, 522 F.3d 400, 

403 n.2 (D.C. Cir. 2008), we may proceed to the merits. We 

therefore leave for another day the challenging questions 

raised by Amicus and the Government regarding the

timeliness of this appeal. The record in this case makes it 

clear that Appellant’s “counsel did not object to the restitution 

order at the sentencing hearing, so our review is for plain 
4

error.” United States v. Baldwin, 563 F.3d 490, 491 (D.C. Cir. 

2009) (citing Fed. R. Crim. P. 52(b)). In Baldwin, we

considered whether a restitution order that delegated to IFRP 

the responsibility for determining a defendant’s payment 

schedule during her incarceration constituted plain error. The 

court held that, “[g]iven the divergent views of the courts of 

appeals . . . we cannot say that the district court committed 

‘plain error’ in its restitution order.” Id. at 492. Baldwin

controls the disposition of this case. We are therefore 

constrained to deny Appellant’s appeal. Given this result, it is 

unnecessary to reach the other arguments raised by the 

Government.

I. BACKGROUND

A. The Mandatory Victim Restitution Act

The Mandatory Victim Restitution Act (“MVRA”) 

governs restitution orders that are issued against federal 

defendants. Pub. L. No. 104-132, §§ 201–11, 110 Stat. 1214 

(1996) (codified as amended in scattered sections of 18 

U.S.C.). When sentencing a defendant convicted of certain 

crimes (including any crime of violence), the MVRA requires 

the court to order the defendant to “make restitution to the 

victim of the offense.” 18 U.S.C. § 3663A(a)(1). The court 

must “order restitution to each victim in the full amount of 

each victim’s losses as determined by the court and without 

consideration of the economic circumstances of the 

defendant.” Id. § 3664(f)(1)(A). The statute provides, 

however, that:

(2) Upon determination of the amount of restitution 

owed to each victim, the court shall, pursuant to 

section 3572, specify in the restitution order the 

manner in which, and the schedule according to 
5

which, the restitution is to be paid, in consideration 

of –

(A) the financial resources and other assets of 

the defendant, including whether any of these 

assets are jointly controlled; 

(B) projected earnings and other income of the 

defendant; and 

(C) any financial obligations of the defendant; 

including obligations to dependents. 

(3)(A) A restitution order 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 inkind payments.

(B) A restitution order may direct the defendant to 

make nominal periodic payments if the court finds 

from facts on the record that the economic 

circumstances of the defendant do not allow the 

payment of any amount of a restitution order, and do 

not allow for the payment of the full amount of a 

restitution order in the foreseeable future under any 

reasonable schedule of payments.

Id. § 3664(f)(2), (f)(3).

The statute also allows for the adjustment of restitution 

orders after sentencing. On this point, the statute states:

A restitution order shall provide that the defendant 

shall notify the court and the Attorney General of any 

material change in the defendant's economic 

circumstances that might affect the defendant's ability 

to pay restitution. The court may also accept 

notification of a material change in the defendant’s 
6

economic circumstances from the United States or 

from the victim. The Attorney General shall certify to 

the court that the victim or victims owed restitution by 

the defendant have been notified of the change in 

circumstances. Upon receipt of the notification, the 

court may, on its own motion, or the motion of any 

party, including the victim, adjust the payment 

schedule, or require immediate payment in full, as the 

interests of justice require.

Id. § 3664(k).

B. Appellant’s Challenge to His Restitution Order

Appellant was charged in September 2011 after a spree of 

armed robberies. He pled guilty to two counts of armed 

robbery under the Hobbs Act, 18 U.S.C. § 1951, one count of 

attempted armed robbery of an armored car under 18 U.S.C. 

§ 2113, and one count of possession of a firearm during a 

crime of violence, 18 U.S.C. § 924(c)(1). As part of his plea 

agreement, Appellant agreed to forfeit $35,157.27, the total 

proceeds of his Hobbs Act robberies, and to pay restitution in 

the same amount. 

On March 1, 2013, the District Court orally sentenced 

Appellant to fifteen years in prison followed by three years of 

supervised release. The court also ordered Appellant to pay 

$35,157.27 in restitution (jointly and severally with his 

codefendant), as provided in the plea agreement, along with a 

“special assessment” of $400. The court made both amounts 

immediately payable. The District Court’s order further 

provided that, during his incarceration, Appellant should 

make payments by participating in IFRP, leaving the timing 

and amounts of his payments up to the Bureau of Prisons. 

Finally, the District Court ordered that, when he was out of 
7

prison on supervised release, Appellant would be required to 

pay down the balance of his restitution at a rate of no less than 

$50 each month. Appellant’s counsel did not object to the

restitution order. When Appellant entered prison, IFRP 

imposed a schedule of restitution payments of $25 every three 

months.

On May 17, 2013, Appellant filed a pro se motion asking 

the District Court to suspend his restitution payments. He did 

not claim that the restitution order should be suspended due to 

changed circumstances. Rather, he argued that the District 

Court had failed to inquire into his economic situation when 

determining his payment schedule, and that the payments 

required by IFRP imposed a significant hardship on him. In 

an affidavit accompanying the motion, Appellant explained 

that he could not make his restitution payments because there 

were few jobs available in the prison offering sufficient 

wages, his poor health made it hard to work, and he needed 

the small amounts of money sent by his sister for himself.

The Government responded that the amount of 

Appellant’s restitution was mandated by the MVRA, that the 

judgment was immediately enforceable, and that district 

courts cannot set the terms of payments made through IFRP.

In a reply brief, Appellant argued for the first time that the 

District Court does not have the authority to delegate its 

scheduling duties to the Bureau of Prisons. Appellant 

acknowledged that if the matter had been properly raised by 

his counsel during the sentencing hearing, “the problem 

would have been resolve[d].” Appendix for Appellee 76. 

Appellant also asserted that it “would be futile” for him to 

seek administrative relief from the Bureau of Prisons. Id.

The District Court rejected Appellant’s motion, holding 

that restitution was mandated by the MVRA, and that the 
8

court had no authority to order IFRP to alter what it requires 

Appellant to pay. The court noted further that: 

a defendant may seek judicial review of his IFRP

restitution payment amount after exhausting his 

administrative remedies. Here, Hunter has not shown that 

he exhausted all available administrative remedies before 

filing his motion.

Hunter, 2013 WL 4083311, at *2 (citation omitted).

Appellant now appeals the District Court’s ruling.

II. ANALYSIS

A. Standard of Review

Under normal circumstances, the court reviews “issues of 

law related to sentencing” de novo. United States v. Watson, 

476 F.3d 1020, 1023 (D.C. Cir. 2007). However, if the 

defendant’s counsel fails to raise an objection at sentencing, 

we review the sentencing claim only for plain error. Id.; see 

Fed. R. Crim. P. 51(b), 52(b). Appellant does not contend that 

the statutory delegation issue that he raises in this appeal was 

raised with the District Court during his sentencing hearing. 

Therefore, plain error review applies in this case.

“To overturn a district court’s decision under plain error 

review, we must find that there is (1) error, (2) that is plain, 

and (3) that affects substantial rights. If all three conditions 

are satisfied, we have discretion to remedy the error only if 

(4) it seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” Baldwin, 563 F.3d at 491

(citations, brackets, and internal quotation marks omitted). As 

noted above and explained below, the District Court did not 

commit plain error.
9

Amicus presents two arguments for why we should 

nonetheless eschew plain error review, but both are without 

merit. Amicus’s first contention is that the Government 

should have raised forfeiture with the District Court in 

response to Appellant’s post-sentencing pro se motion. 

Amicus Br. 41–43. By failing to do so, Amicus claims, the 

Government “forfeited [its] forfeiture argument.” Solomon v. 

Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014).

Amicus’s argument on Appellant’s behalf is clever, and it 

is appealing at first blush. However, it is premised on an 

inaccurate view of the record. We simply cannot find that the 

Government “forfeited” its objection to Appellant’s belated 

attempt to raise the statutory delegation argument. As noted 

above, Appellant’s counsel raised no objection to the 

restitution order during the sentencing hearing. When

Appellant filed his pro se motion more than two months after 

the sentencing order had issued, his initial brief to the court 

seeking to suspend the restitution order did not raise the 

statutory argument regarding the District Court’s alleged 

unlawful delegation to IFRP. And there was no reason for the 

Government to assume that Appellant meant to raise the 

statutory argument because Appellant’s motion and 

accompanying affidavit focused on the financial hardship he 

was experiencing inside prison. 

The non-delegation argument that Amicus now presses 

on appeal did not appear until Appellant’s reply to the 

Government’s opposition to his initial brief in support of his 

motion. It is generally understood that arguments first raised 

in a reply brief are untimely. See, e.g., United States v. 

Berkeley, 567 F.3d 703, 711 n.4 (D.C. Cir. 2009); United 

States v. Johnson, 216 F.3d 1162, 1168 (D.C. Cir. 2000). The 

Government never had an opportunity to argue forfeiture or 
10

say anything else in response to Appellant’s belated attempt 

to raise the statutory issue in his reply brief. The Government 

argued that Appellant had forfeited this claim at the first 

appropriate opportunity: in its brief to this court. Therefore, 

the Government did not forfeit its forfeiture argument.

Amicus’s second argument is that plain error review 

should not apply because the statutory delegation issue was 

presented to the District Court and that court had an 

opportunity to rule on it. Amicus Br. 45–46. This claim is 

contrary to the text and purpose of Federal Rule of Criminal 

Procedure 51(b). Rule 51(b) is quite clear that “[a] party may 

preserve a claim of error by informing the court – when the 

court ruling or order is made or sought – of the action the 

party wishes the court to take, or the party’s objection to the 

court’s action and the grounds for that objection.” Fed. R. 

Crim. P. 51(b) (emphasis added). The proper time for 

Appellant to have raised his statutory argument was during 

the sentencing hearing. Because his claim was not so 

preserved, it is reviewed only for plain error. Id. at 52(b);

Baldwin, 563 F.3d at 491.

The purpose of this “contemporaneous-objection rule” is 

to allow the District Court to “correct or avoid the mistake so 

that it cannot possibly affect the ultimate outcome.” Puckett v. 

United States, 556 U.S. 129, 134 (2009). This goal is not 

served when a defendant raises an objection after proceedings 

are complete and a ruling has been handed down. If raising an 

issue in a post-judgment motion were sufficient to preserve an 

objection, then any and all objections could be preserved in 

this manner. The law does not condone this. See United States 

v. Bentley, 489 F.3d 360, 364 (D.C. Cir. 2007) (“[W]hen a 

defendant has failed to timely object to an error at trial, we 

apply plain error review even if he subsequently raised the 

issue in a motion for a new trial[.]”).
11

As noted above, Appellant’s statutory argument appeared

for the first time in the reply brief that he submitted in support 

of his motion to suspend the restitution order. The 

Government had no opportunity to brief the issue. And the 

District Court did not discuss or rule on the argument when it 

denied Appellant’s motion. The appropriate standard for 

appellate review under such circumstances is plain error.

B. Plain Error Review

The District Court did not commit plain error in this case. 

The legality of restitution orders that leave a prisoner’s 

payments up to IFRP has split the courts of appeals. A 

majority of the circuits that have considered the problem 

agree with Appellant that “the district court simply does not 

have the authority to delegate its own scheduling duties – not 

to the probation office, not to the [Bureau of Prisons], not to 

anyone else.” United States v. Gunning, 401 F.3d 1145, 1150 

(9th Cir. 2005); see also United States v. Overholt, 307 F.3d 

1231, 1254–56 (10th Cir. 2002); United States v. Davis, 306 

F.3d 398, 425–26 (6th Cir. 2002); United States v. 

McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001); United States 

v. Kinlock, 174 F.3d 297, 300 (2d Cir. 1999); United States v. 

Corley, 500 F.3d 210, 225 (3d Cir. 2007), vacated and 

remanded on other grounds, 556 U.S. 303 (2009); United 

States v. Dupree, 590 F. App’x 857, 860 (11th Cir. 2014) (per 

curiam); United States v. Short, 25 F. App’x 100, 103 (4th 

Cir. 2001) (per curiam). But see United States v. Sawyer, 521 

F.3d 792, 794–95 (7th Cir. 2008) (holding that there had been 

no impermissible delegation in a similar case); Kaemmerling 

v. Berkebile, 359 F. App’x 545, 546–47 (5th Cir. 2010) (per 

curiam) (same); Bramson v. Winn, 136 F. App’x 380, 381 (1st 

Cir. 2005) (per curiam) (same). This circuit has not ruled on 

the permissibility of such orders, and we do not do so today. 
12

In United States v. Baldwin, 563 F.3d 490 (D.C. Cir. 2009), 

however, we determined that restitution arrangements like the 

one at issue here do not constitute plain error. Baldwin 

controls the disposition of this case.

Venus Baldwin was convicted of health care fraud and 

ordered to pay restitution. The District Court set a restitution 

schedule for after she was released from prison, but during the 

term of her incarceration provided that she “may make 

payment of [her] special assessment and restitution through 

[IFRP].” Id. at 491 (internal quotation marks omitted). 

Baldwin did not challenge the order during sentencing. On 

appeal, she argued that the lower court “impermissibly 

delegated its authority to determine her restitution obligations 

to the Bureau of Prisons during her incarceration.” Id. The 

Government did not contest Baldwin’s claim. To the contrary, 

it agreed with Baldwin that the District Court had erred. This 

court nonetheless upheld the decision below. “Given the 

divergent views of the courts of appeals,” we wrote, “we 

cannot say that the district court committed ‘plain error’ in its 

restitution order.” Id. at 492.

Amicus attempts to distinguish Baldwin, but his 

arguments are not persuasive. Amicus notes that Appellant

raised his claim in a reply brief submitted to the District 

Court, while Baldwin first raised her claim on appeal. Amicus 

Br. 52. This distinction is germane only to the question of 

whether plain error review applies to Appellant’s case, and we 

have already determined that it does. He also points to a 

textual difference between the restitution orders in the two 

cases. Id. Appellant’s order requires him to participate in 

IFRP, while Baldwin’s stated only that she “may” do so. This 

has no bearing on the statutory argument in both cases, which 

is that the District Court failed to fulfill its obligation to set a 

restitution payment schedule under 18 U.S.C. § 3664(f)(2). 
13

Next, Amicus claims that Baldwin is bad law. We reject 

this contention as well. He first argues that Baldwin conflicts 

with United States v. Braxtonbrown-Smith, 278 F.3d 1348 

(D.C. Cir. 2002). Amicus Br. at 52–53. However, the portion 

of Braxtonbrown-Smith on which Amicus relies establishes

only that a District Court cannot give probation officers the 

authority to increase a defendant’s restitution payments after 

she is released from prison. Braxtonbrown-Smith, 278 F.3d at 

1356. The case contains no holding on anything directly at 

issue in Baldwin. Nor does Braxtonbrown-Smith contain any 

reasoning that could be extrapolated to cover Baldwin’s

circumstances. The closest Braxtonbrown-Smith comes to 

weighing in on the question of whether the District Court can 

leave restitution scheduling up to IFRP is a citation to United 

States v. Pandiello, 184 F.3d 682 (7th Cir. 1999), a case that 

rejected such orders. Id. at 688. By the time Baldwin was 

decided, however, Pandiello had been overruled. Baldwin, 

563 F.3d at 492. This is far too thin a reed to support a claim 

that Braxtonbrown-Smith and Baldwin are fundamentally 

incompatible. 

Amicus also argues that the Baldwin panel improperly 

held that there was no plain error simply because of the 

existence of a circuit split on the issue. Amicus Br. 53. 

Amicus cites In re Sealed Case ̧ 573 F.3d 844, 851 (D.C. Cir. 

2009), for the proposition that an error can be plain despite a 

circuit split if the statute “speaks with absolute clarity.” He

claims that 18 U.S.C. § 3664(f)(2) meets this standard. This 

cannot be so, however, because Sealed Case specifically cites 

Baldwin as an example of a case in which the statutory 

language is unclear (and therefore a circuit split is sufficient 

to preclude a finding of plain error). Id. at 851–52.
14

Despite Amicus’s protestations, Baldwin is the law of the 

Circuit and it controls this case. We can understand Amicus’s

frustration on behalf of Appellant over this court’s inability to 

address an important statutory question because it has yet to 

be properly raised and preserved for appellate review. But the 

concern raised is beyond our control. We are bound by the 

applicable standards of review, and in this case plain error 

applies. 

* * * *

It is worth noting, as the District Court made clear, that

Appellant has administrative remedies available to address 

any concerns about his restitution payments. Appendix for 

Appellee 82. His motion to the District Court suggested that 

this would be “futile,” but he offered nothing to support this 

assertion.

Appellant also may be able to seek redress under 18 

U.S.C. § 3664(k), which allows for an adjustment of 

restitution orders if there has been a “material change” in 

Appellant’s “economic circumstances.” Appellant’s motion to 

the District Court to suspend the restitution order did not 

purport to invoke Section 3664(k). The District Court did not 

address Section 3664(k), and Appellant’s appeal to this court 

does not rest on this provision. Therefore, we have no

occasion to comment on the scope of Section 3664(k).

* * * *

We express our appreciation to Amicus for the 

outstanding representation he has afforded Appellant in this 

difficult case.
15

CONCLUSION

For the reasons discussed above, Appellant’s appeal is 

hereby denied.

So ordered.