1 

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, ) Case No. 03-CR-0855-4

)

v. )

) Judge Joan B. Gottschall

GARY ROBERSON, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

In 2012, Gary Roberson completed serving a 120-month sentence for bank robbery and a 

related offense. As part of his sentence, he was also ordered to pay approximately $82,000 in 

restitution. (Am. J. 6, ECF No. 240.) That amount has ballooned to over $100,000 since his 

sentence was imposed. Roberson, who represents he has recently opened his own small business

refurbishing bathtubs and tile, has asked the court to limit or waive the interest. The government 

argues that no statute gives the court the power, that is, the jurisdiction, to waive or limit interest 

on restitution once a criminal judgment has been entered. Applying the Seventh Circuit’s 

decision in United States v. Goode, 342 F.3d 741(7th Cir. 2003), the court determines that 18 

U.S.C. § 3664(k) grants it that power when a defendant experiences a “material change in . . . 

economic circumstances.”

I. Background

Roberson pleaded guilty to a two-count superseding indictment charging him with bank 

robbery, see 18 U.S.C. § 2113(a) and (d), and brandishing a firearm in connection with that 

crime, see id. § 924(c)(1)(A). The court ultimately imposed consecutive sentences on the two 

counts totaling 120 months; two concurrent, five-year terms of supervised release; and $82,908 
2 

in restitution to be paid in a lump sum. (Am. J. 6, 7, ECF No. 240.) A note in the “special 

instructions” section of Roberson’s amended judgment provides that “restitution and special 

assessment obligation shall be made payable with 10% of defendant’s net monthly income.” (Id.

at 7.) Roberson was released from prison on September 3, 2012, and began serving his term of 

supervised release.

Roberson filed a motion on August 29, 2016, asking the court to terminate his supervised 

release early. In that motion, he cites 18 U.S.C. § 3664(k), and asks the court to limit his 

restitution to 10% of his net income and “no interest payments accruing on the restitution 

amount.” (ECF No. 267 at 5.) At a hearing on the motion held September 7, 2016, the court 

granted Roberson’s request for early termination of his supervised release. The government 

asserted that this court lacked jurisdiction to limit Roberson’s interest payments, and the court set 

a schedule to brief the question. After considering the parties’ memoranda, the court concludes

that it has jurisdiction under 18 U.S.C. § 3664(k) to adjust a defendant’s interest payments 

prospectively after entry of judgment.

II. This Court has Jurisdiction to Relieve a Defendant Prospectively of Interest on 

Restitution under 18 U.S.C. § 3664(k)

Roberson repeatedly asserts that the interest that has accrued on the amount of restitution 

he owes is “unauthorized.” (Mot. Early Termination & Limit Restitution 5, ECF. No. 267.) But, 

as it did when Roberson was sentenced, 18 U.S.C. § 3162(f)(1) makes payment of interest 

mandatory when the fine or restitution amount exceeds $2,500. 18 U.S.C. § 3612(f)(1) (2006) 

(“The defendant shall pay interest on any fine or restitution of more than $2,500, unless the fine 

is paid in full before the fifteenth day after the date of the judgment.”); see id. § 3612(f)(2) 

(prescribing method for computing interest). The parties devote the bulk of their briefing to the 
3 

question of whether § 3612(f)(3), which permits the court to waive or limit interest “[i]f the court 

determines that the defendant does not have the ability to pay interest,” gives this court 

jurisdiction to adjust the interest on restitution postjudgment. Courts have divided on this 

question and the proper interpretation of the Seventh Circuit’s decision in United States v. 

Goode, 342 F.3d 741(7th Cir. 2003). Compare, e.g., United States v. Brumfield, 125 F. Supp. 3d

648, 651–52 (W.D. Mich. 2015) (collecting and discussing cases and concluding that the 

majority of district courts have held that § 3612(f)(3) confers no postjudgment jurisdiction), with

United States v. Perez, No. 90–CR–546, 2008 WL 4865992 (N.D. Ill. July 1, 2008), (“Some nonbinding opinions and Seventh Circuit dicta notwithstanding, this Court sees no language that 

precludes post-sentencing reconsideration of interest under the authority of § 3612.”). While the 

parties have collected an impressive array of cases addressing § 3612(f)(3), this court’s reading 

of Goode leads it to conclude that it has jurisdiction to modify Roberson’s interest payments 

postjudgment under 18 U.S.C. § 3664(k), which Roberson cites in his motion.1 See infra at 4-5

(setting forth full text of subsection). The cases on which the parties rely construing § 3612(f)(3) 

do not discuss § 3664(k). See, e.g., Brumfield, 125 F. Supp. 3d at 651–52; United States v. 

Benjamin, Criminal No. DKC 96–0217, 2011 WL 3821534, at *2–3 (D. Md. Aug. 26, 2011).

In Goode, the Seventh Circuit considered a district court’s postjudgment jurisdiction to 

adjust interest on a fine. 342 F.3d 741 (7th Cir. 2003). The district court sentenced the 

defendant to pay three $5,000 fines and to serve a total of 327 months in prison. Id. at 742. 

While still in custody, the defendant petitioned to clarify, remit, or suspend his obligations to pay 

 

1 In its brief, the government cites United States v. Bania, 787 F.3d 1168, 1172 & n.4 (7th Cir. 2015) for the 

proposition that 18 U.S.C. § 3664(o) contains an exhaustive, and exclusive, list of statutes allowing postjudgment 

correction of a restitution order. It then asserts that Roberson cites no statute on that list. (ECF No. 274 at 3.) 

Roberson, however, relies on 18 U.S.C. § 3664(k) in his opening motion. (ECF No. 267 at 5-6.) See 18 U.S.C. § 

3664(o)(1)(D) (listing § 3664(k)).
4 

interest on the fines, arguing that he made installment payments on the fines and that paying 

interest saddled him with an unfair financial burden. See id. at 742–43.

The Goode court began its analysis by determining whether the district court had subjectmatter jurisdiction. Id. at 743. “Once a court sentences a criminal defendant, it has jurisdiction 

to continue hearing related issues only when authorized by statute or rule.” Id. (citing Carlisle 

v. United States, 517 U.S. 416, (1996)). The Goode court rejected several possible grounds for 

jurisdiction. See id. The defendant filed his petition too late to correct a judgment under Federal 

Rule of Criminal Procedure 35(a), and he sought substantive relief, not to correct a clerical error 

within the meaning of Rule 36. Id. (citations omitted). Because he challenged his fine, as 

contrasted with the fact or duration of his custody, he could not proceed under the federal habeas 

corpus substitute, 28 U.S.C. § 2255. Id. (citing Barnickel v. United States, 113 F.3d 704, 706 (7th 

Cir. 1997)). Finally, because “only the Government may petition for remission [of a fine] under 

18 U.S.C. § 3573,” that statute did not vest the district court with the power to consider the 

defendant’s request. Id. (citing United States v. Linker, 920 F.2d 1, 1-2 (7th Cir.1990)). Finally, 

the Goode court opined that the “interest obligation could not be disturbed because the court 

made no determination at sentencing under § 3612(f)(3) that he was unable to pay.” Id. at 744.

The Goode court nevertheless held that 18 U.S.C. § 3572(d)(3), which “allows criminal 

defendants to seek relief from fines based on economic hardship,” gave the district court 

jurisdiction to consider the defendant’s petition. Id. That statute provides:

A judgment for a fine which permits payments in installments shall include a 

requirement that the defendant will notify the court of any material change in 

the defendant’s economic circumstances that might affect the defendant’s 

ability to pay the fine. Upon receipt of such notice the court may, on its own 

motion or the motion of any party, adjust the payment schedule, or require 

immediate payment in full, as the interests of justice require.

18 U.S.C. § 3572(d)(3).
5 

When it enacted § 3572(d)(3), Congress also passed 18 U.S.C. § 3664(k). See

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 §§ 

206(a), 207(b). Section 3464(k) contains language nearly identical to § 3572(d)(3):

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 

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.

18 U.S.C. § 3664(k).

As the government acknowledges, another provision in the same section recognizes that 

§ 3664(k) authorizes postjudgment adjustment of a restitution order. See 18 U.S.C. § 

3664(o)(1)(D) (providing that a sentence is final even though “a sentence can subsequently be . . 

. adjusted under section 3664(k) . . .”). Accordingly, Goode’s construction of the nearly identical 

language of § 3572(d)(3) compels the conclusion that § 3664(k) also confers postjudmgent

jurisdiction to adjust a restitution payment schedule. The question thus becomes in what 

circumstances that jurisdiction exists. 

No language in § 3664(k) limits its applicability to cases in which the judgment provides 

that restitution will be paid in an installment plan. In at least one unpublished case, the Seventh 

Circuit has held that § 3572(d)(3) allows a district court to adjust a fine’s repayment schedule 

only when the judgment “permits payments in installments,” not when the fine must be paid in a 

lump sum. U.S. v. Dawson, 547 F. App’x 783, 785 (7th Cir. 2013) (per curiam order) (citing In 

re Buddhi, 658 F.3d 740, 741–42 (7th Cir. 2011) and Goode, 342 F.3d at 743). That decision 

rested expressly on § 3572(d)(3)’s “judgment . . . that permits payments in installments” 
6 

language. See id.; see also Perez, 2008 WL 4865992, at *1-3 (considering applicability of § 

3612(f)(3) where defendant had to pay imposed fine rather than restitution). Section 3664(k) 

contains no comparable limiting language. It instead applies by its terms to “restitution orders.” 

§ 3664(k). Generally, “Congress's use of certain language in one part of the statute and different 

language in another can indicate that different meanings were intended.” Sebelius v. Auburn 

Reg'l Med. Ctr., 133 S. Ct. 817, 825, 184 L. Ed. 2d 627 (2013) (quoting Sosa v. AlvarezMachain, 542 U.S. 692, 711, n. 9 (2004)). Nothing rebuts this presumption here, and assuming 

arguendo that this court ordered payment in a lump sum, (but see J. 7, ECF No. 240 (stating 

payments to be made in lump sum but limiting to 10% of net income).) § 3664(k) gives the court 

postjudgment authority to adjust Roberson’s payment schedule.

Further, the power to adjust a payment schedule under § 3664(k) “includ[es] the interest 

component of a restitution judgment, prospectively (but not retroactively) if a defendant can 

show that his economic circumstances have changed since imposition of the sentence.” United 

States v. Fromm, No. 98 CR 755, 2014 WL 2864710, at *2 (N.D. Ill. June 18, 2014) (citations 

omitted). Indeed, the Goode court characterized the defendant’s request “to excuse him from 

having to make interest payments because they were financially burdensome, [as] the exact type 

of grievance contemplated by § 3572(d)(3).”2 Goode, 342 F.3d at 743; see United States v. 

 

2 The Fourth Circuit stated in United States v. Coleman that “§ 3612(f)(3) permits the court, post-judgment, to waive 

or limit the payment of interest upon a finding that the defendant is unable to pay interest.” 319 F. App’x 228, 231 

(4th Cir. 2009) (per curiam). The district court in Brumfield, cited in the text supra, found Coleman unpersuasive, 

stating that “[t]he Coleman court’s reliance on Goode is inexplicable . . . because Goode says nothing about §

3612(f)(3) authorizing a district court to modify an interest obligation post-judgment.” Brumfield, 125 F. Supp. 3d 

at 651. The observation that Goode does not cite or discuss § 3612(f)(3) is correct, but Coleman does not cite 

Goode in support of its reading of § 3612(f)(3), see Coleman, 319 F. App’x at 230. Instead, the Coleman court 

discussed Goode in the paragraph following the sentence construing § 3612(f)(3) just quoted. See id. In that 

paragraph, the Coleman court quoted Goode’s holding that § 3572(d)(3) gives a district court the power to adjust the 

payment schedule for a fine after entry of judgment rather than as authority for a construction of § 3612(f)(3). See 

Coleman, 319 F. App’x at 230. The Coleman opinion then concludes that “[u]nder Goode, Coleman is correct that 

the district court had jurisdiction to consider his petition” to waive interest payments on the restitution he was 
7 

Coleman, 319 F. App’x 228, 230 (4th Cir. 2009) (per curiam) (citing Goode to hold that district 

court had postjudgment jurisdiction to consider application to waive interest on restitution). 

Again, the operative language of § 3664(k) does not differ as to the remedy. Reading § 3664(k) 

this way allows the court to address the defendant’s changed economic circumstances using the 

full range of remedies that would have been available if the defendant had faced those 

circumstances at sentencing. See § 3612(f)(3)(A). A court would otherwise be powerless to 

staunch prospectively the effects of interest accruing faster than a defendant can pay, making §

3664(k) an incomplete remedy. Cf. Fromm, 2014 WL 2864710, at *2 (noting that, even without 

interest, paying back restitution on payment schedule would take 158 years). Conversely, should 

the economic fortunes of a defendant who the court determined could not pay interest change 

after sentencing, the court would be unable to impose interest. See § 3664(k) (allowing court to 

accept notice of change in circumstances from the government or a victim). Thus, § 3664(k) 

vests the court with the power to relieve a defendant of the prospective obligation to pay interest 

on restitution. See Goode, 342 F.3d at 742.

United States v. Bania, 787 F.3d 1168 (7th Cir. 2015), on which the government relies, does 

not, therefore, control here. Unlike Goode and this case, Bania involved a challenge on legal 

grounds to the district court’s imposition of restitution imposed at the time of sentencing. See

787 F.3d at 1171 (characterizing defendant’s argument as follows: “the district court ordered 

restitution without determining whether Local 743 suffered any actual loss as a result of the 

illegal voting scheme”). The Seventh Circuit held that the district court had no jurisdiction to 

consider his postjudgment motion because, among other things, the deadline to move to correct 

 

ordered to pay. Id. Although Coleman does not cite § 3664(k), its reliance on Goode can, in this court’s view, be 

most plausibly explained as extending Goode’s holding under § 3572(d)(3) (fines) to § 3664(k) (restitution) under 

an analysis like the one set forth in the text.
8 

the judgment based on a clear error under Rule 35 had passed. Id. at 1172. Roberson, in 

contrast, claims that adjusting his interest payment is warranted because his economic 

circumstances have changed, a ground cognizable under § 3664(k).

II. Conclusion

Having determined that it has jurisdiction under § 3664(k), the court will afford the 

parties an opportunity to offer evidence and argument on whether Roberson is entitled to relief 

under that subsection. The court has before it Roberson’s affidavit in support of his request for 

appointed counsel, and Roberson has made representations in the instant motion about his 

current income, family circumstances, financial obligations, and employment status and history. 

Nonetheless, at the hearing on the instant motion, the parties did not address whether Roberson’s 

economic circumstances have changed, within the meaning of § 3664(k), and, if so, what remedy 

is appropriate; their arguments on this issue were confined to jurisdictional matters. This case is 

therefore set for a hearing on those questions on November 16, 2016, at 9:30 a.m. Each party 

shall have 10 minutes for its presentation. 

Date: October 28, 2016 /s/

Joan B. Gottschall

United States District Judge