2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-14-2011

Roger Duronio v. Robert Werlinger

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1719

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Recommended Citation

"Roger Duronio v. Robert Werlinger" (2011). 2011 Decisions. Paper 72.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1719

___________

ROGER F. DURONIO,

Appellant

v.

ROBERT WERLINGER, Warden, F.C.I. Loretto

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 3-09-cv-00289)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 17, 2011

Before: JORDAN, HARDIMAN and ROTH, Circuit Judges

(Opinion filed: December 14, 2011)

_________

OPINION

_________

PER CURIAM

Roger F. Duronio, a prisoner in the custody of the Federal Bureau of Prisons 

(BOP), appeals an order of the District Court denying his 28 U.S.C. § 2241 habeas corpus 

petition. Having carefully reviewed the record, we are in full accord with the District 

Court and will affirm its order.
2

Following a 2006 jury trial, Duronio was found guilty of securities fraud and 

computer fraud, and was sentenced to 97 months of confinement followed by three years 

of supervised release.

1

 Other penalties included a $200.00 special assessment, ―which 

shall be due immediately,‖ and a restitution order. Duronio owed a total of $3,162,376 to 

UBS Financial Services, and the restitution order instructed:

The restitution is due immediately. It is recommended that the defendant 

participate in the Bureau of Prisons Inmate Financial Responsibility 

Program [(IFRP, 28 C.F.R. §§ 545.10–.11)]. In the event the entire 

restitution is not paid prior to the commencement of supervision, the

defendant shall satisfy the amount due in monthly installments of no less 

than $200.00, to commence 30 days after release from confinement. The 

Court waived the interest requirement on the restitution payment.

The order made no mention of Duronio’s payment schedule during the period of 

incarceration. 

Before briefs were filed in Duronio’s direct appeal, he commenced a pro se civilrights action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of 

Narcotics, 403 U.S. 388 (1971).

2

In that suit, Duronio maintained that the BOP had 

―deprived him of his constitutional right to due process of law under the Fifth 

Amendment . . . by setting [his] restitution schedule of payments and then coercing him 

to meet that schedule of payments under the [IFRP].‖ He claimed that this violated the 

 

1

See Judgment, United States v. Duronio, D.N.J. Crim. No. 2:02-cr-00933, ECF No. 135 

(entered Dec. 20, 2006). 

2

See Compl., Duronio v. Gonzalez, W.D. Pa. Civ. No. 3:07-cv-00169, ECF No. 1 

(entered July 6, 2007).
3

strictures of the Mandatory Victims Restitution Act (MVRA, 18 U.S.C. § 3664(f)). 

Duronio relied on our opinion in United States v. Coates, 178 F.3d 681 (3d Cir. 1999), in 

which we emphasized that ―the fixing of restitution payments is a judicial act that may 

not be delegated to a probation officer.‖ Id. at 685.

The District Court denied relief in April 2008, and we affirmed. First, we stressed 

that a direct appeal was the proper path for a challenge of the actual District Court 

restitution plan, as a Bivens remedy would violate the favorable-termination rule of Heck 

v. Humphrey, 512 U.S. 477, 486–87 (1994). Duronio v. Gonzales, 293 F. App’x 155, 

157 (3d Cir. 2008). Second, ―[t]o the extent that Duronio challenge[d] the execution of 

his sentence, he should ordinarily proceed under 28 U.S.C. § 2241.‖ Id. We also 

explained to Duronio that, under the facts adduced, his claim of ―coercion‖ lacked a 

proper legal foundation under Bivens: the privileges lost by failing to participate in the 

IFRP program would not ―trigger a constitutionally protected interest.‖ Id. Five months 

later, we affirmed Duronio’s conviction and sentence. See generally United States v. 

Duronio, No. 06-5116, 2009 WL 294377 (3d Cir. Feb. 9, 2009). 

Since that time, Duronio has commenced two further actions in the District Court: 

1) the present case, a 28 U.S.C. § 2241 petition attacking the BOP’s ―unlawful 

modification‖ of Duronio’s restitution schedule, see generally Duronio v. Yost, W.D. Pa. 

Civ. No. 3:09-cv-00289; and 2) a 28 U.S.C. § 2255 motion, see generally Mot. to Vacate, 

Duronio v. United States, D.N.J. Civ. No. 2:10-cv-01574, ECF No. 1 (entered Apr. 6, 
4

2010), which is still pending at this time. After the District Court denied his § 2241

petition, Duronio took a timely appeal.

We have appellate jurisdiction under 28 U.S.C. § 1291, and to the extent that 

Duronio challenges the execution of his sentence with regard to the BOP’s modification 

of a payment schedule, the claim falls within the purview of a § 2241 petition.3 See

McGee v. Martinez, 627 F.3d 933, 937 (3d Cir. 2010); Coady v. Vaughn, 251 F.3d 480, 

485 (3d Cir. 2001). We ―exercise plenary review over the District Court’s legal 

conclusions and apply a clearly erroneous standard to its findings of fact.‖ O’Donald v. 

Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam); see also United States v. 

Friedland, 83 F.3d 1531, 1542 (3d Cir. 1996) (―Our review of the district court’s order 

denying . . . relief under 28 U.S.C. § 2241 is plenary.‖).

We agree with the Appellee that by ―voluntarily4entering into the IFRP,‖ Duronio 

―personally provided the BOP the authority to collect‖ restitution funds. We are aware of

 

3

To the extent that Duronio wished to contest the validity of the restitution order itself, 

such a challenge should have been made on direct appeal. Section 2241 ―cannot be used 

to challenge just the restitution part of a sentence when the custody supporting . . .

jurisdiction is actual imprisonment.‖ Arnaiz v. Warden, 594 F.3d 1326, 1330 (11th Cir. 

2010); see also United States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007) (―Restitution 

orders that sweep too much conduct into their calculations are issues that must be raised 

on direct appeal . . . .‖).

4

Throughout, Duronio has maintained that he was functionally ―coerced‖ into entering 

the IFRP program. As we have explained, however, the penalties associated with ―IFRP 

refuse‖ status are ―reasonably related to legitimate penological interests.‖ See James v. 

Quinlan, 866 F.2d 627, 630 (3d Cir. 1989); see also Duronio, 293 F. App’x at 157. 

Further, Duronio ―ha[s] no entitlement, constitutional or otherwise, to any of the benefits 

agreeing to participate in the IFRP would provide, such as a work detail outside the 
5

no holding that would suggest that an inmate is prohibited from contributing additional 

monies to restitution he owes, especially when doing so—and being placed on IFRP 

status—confers benefits that would otherwise be lost. If we were to adopt instead 

Duronio’s arguments about the IFRP’s unconstitutionality, we would embrace the absurd 

result of an inmate being unable to gain program benefits because of an allegedly faulty

(and potentially immutable) District Court order. We are not confronted with a situation 

in which a restitution program is being imposed upon Duronio against his will. ―The 

IFRP can be an important part of a prisoner’s efforts toward rehabilitation, but strictly 

speaking, participation in the program is voluntary[;] . . . an inmate in the Bureau of 

Prisons’ custody may lose certain privileges by not participating in the IFRP, but the 

inmate’s participation cannot be compelled.‖ United States v. Boyd, 608 F.3d 331, 334 

(7th Cir. 2010) (emphasis added). As we hold that Duronio’s voluntary participation is 

determinative and necessarily defeats his claim, we do not need to reach the Appellee’s 

alternative argument that the BOP may act to obtain restitution payments even under the 

improper delegation of authority we identified in United States v. Corley, 500 F.3d 210 

(3d Cir. 2007), rev’d on other grounds, 556 U.S. 303 (2009).

Thus, for the foregoing reasons, we will affirm the judgment of the District Court.

 

prison perimeter, a higher commissary spending limit, a release gratuity, or pay beyond 

the maintenance pay level.‖ United States v. Lemoine, 546 F.3d 1042, 1049 (9th Cir. 

2008). To that end, we cannot find that he was coerced into IFRP compliance.