### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-11090

JOYCE HICKMAN, Petitioner-Appellant
v. WARDEN JOE KEFFER Respondent-Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:11-CV-572

No. 11-30793

ZACK ZEMBLIEST SMITH, III, Petitioner-Appellant
v. MARINA MEDINA, Respondent-Appellee U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 22 , 20 12 Lyle W . Cayce Clerk Case: 11-30793 Document: 00512028577 Page: 1 Date Filed: 10/22/2012No. 11-11090 No. 11-30793

Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:11-CV-541

Before JONES, WIENER and GRAVES, Circuit Judges. EDITH H. JONES, Judge: * ** This opinion consolidates two similar cases. Petitioners-Appellants Joyce Hickman (“Hickman”) and Z a c k Z e mbliest Smith (“Smith”) are both currently

serving sentences in federal prison, and both were ordered to pay restitution. E ach argued in a § 2241 habeas petition that the Bureau of Prisons (“BOP” ) schedule governing their restituti o n payments via the Inmate Financial Responsibility Program (“IFRP”) conflicts with the district courts’ sentencing instructions in their judgm e nts. From the district courts’ judgments of dismissal, Hickman and Smith appealed. For the reasons below, we AFFIRM the decisions of the district courts. A. HICKMAN Hickman was convicted of 32 counts of health care fraud. United States

v. Hickman , 331 F.3d 439, 441 (5th Cir. 2003). She was sente n c e d to two concurrent 120-month terms of imprisonmen t and one consecutive 90-month term of impris o n m e n t. Id

. She was also ordered to pay restitution in the

Pur sua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedthat thi s opi nion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Jud ge Wienerc oncur s in the judgm ent only. * *
2 Case: 11-30793 Document: 00512028577 Page: 2 Date Filed: 10/22/2012No. 11-11090 No. 11-30793
amount of $9,348,654.49, “fo r each case, to run concurrently.” Id

. Following appeal and resentencing, Hickman receive d a t erm of 210 months of imprisonment and an order of restitution reduced to $9,048,654.49. In December 2010, Hickman filed the first in a series of petitions pursuant to 28 U.S.C. § 2241, born of her frustration with alleged bureaucratic bungling and inconsistency in handling her ongoing r e s t it ution payments. Hickman asserts that she made timely periodic payments under an IFRP for nine years before she realized they were not required during imprisonment by the court’s judgment. In August 2011, Hickman filed the procedurally c o rr e c t § 2241 petition under review here, contending that the sentencing c o urt’s judgment did not stipulate that her restitution was due immediately, but rather that it was payable 60 days following her release from prison, in monthly installments of $1,000. 1 The district court rejected Hickma n ’ s a rgument because nothing in the “special instructions” section of the judgment restricted her making restitution payments while incarcerated. B. SMITH In 1994, Smith was convicted of three counts of robbery and three counts of using and carrying a firearm during a crime of violence. See United States v. Smith , 66 F.3d 319, 1995 WL 534713 at *1 (5th Cir. 1995) (unpubli shed). He

was sentenced to 66 years and 10 mo nths of imprisonment and ordered to pay

Hi ck man plai nly st ated that she wa s not chall enging the cons tit utio nality of the IFRP 1 its elf, but shew as chall enging only howitw as app liedt o h er cas e s pec ifi cally. 3 Case: 11-30793 Document: 00512028577 Page: 3 Date Filed: 10/22/2012No. 11-11090 No. 11-30793 $22,937.12 in restitution. On direct appeal, this court affirmed his convictions and sentences. See Smith , 66 F.3d 319, 1995 WL 534 713 at *3. In 2007, Smith filed a pro se “Motion for Clarification of Restitution and Judgment,” which asked the district court to clarify its judgment and to inform the BOP that he was not re qu i r e d t o make restitution payments until his release. See Uni t e d S t a t e s v. Smith , 314 F. App’x 749 (5th Cir. 2009). This motion ultimately foundered for lack of a jurisdictional basis. See id

. In April 2011, Smith filed the instant § 2 2 41 petition and argued that, consistent with f

or m er 1 8 U.S.C. § 3663(g), when the sentencing court delegated 2 its authority to determine a restitution payment plan to the Probation Office, its decision effectively deferre d a ny restitution payments until after he is released from prison. Smith’s argument rested on the original judgment’s instruction to set a restitution paymen t s c h edule and the sentencing court’s statements that it intended for Smith to b e gi n p aying restitution upon his release from prison. Accordingly, Smith argued, BOP was not authorized to collect payments while he is incarcerated. 3 The magistrate judge responded in pertinent part by characterizing Smith’s c l a i m that he should not have to begin paying restitution until his release from prison as an “illogi c al interpretation” of the judgment, given that Smith will be 98 years old by the time of his expected release. Further, the magistrate judge observed, BOP has the authority to create financial plans for

Subs ect ion (g) wa s st ruc k as part of a 1996 ame ndm ent of § 3663. See § 3663 2 (Am endm ents ).
Lik e Hi ck man , Sm ith em phas ized that he wa s relyi ng on the origi nal judgm ent of the 3 dis tri ct cour t, not chall enging it; he wa s not chall enging the legalit y or cons tit utio nality of the IFRP its elf, but the way in wh ich BOP wa s app lying it to him

. 4 Case: 11-30793 Document: 00512028577 Page: 4 Date Filed: 10/22/2012No. 11-11090 No. 11-30793 inmates through the IFRP and to impose penalties for noncompliance, without

vi o l a ti ng 18 U.S.C. § 3572 or 18 U.S.C. § 3664. The magistrate j u d g e recommended that Smith’s p etition be denied and dismissed with prejudice. The district court adopted the magistrate judge’s report and dismissed the petition with prejudice. DISCUSSION A challenge to a restitution payment s c hedule set by BOP is properly raised in a § 2241 habeas petition because it is a challenge to a BOP administrative program and not to any action by the district court. See United States v. Diggs , 578 F

. 3 d 3 1 8 , 319-20 (5th Cir. 2009). In an appeal from the denial of habeas relief, this court reviews the district court’s factual findings for clear error and issues of law de novo . Jeffers v. Chandler , 253 F.3e 827, 830 (5th Cir. 2001). Although the principal issue in each of these cases is th e s ame, their differing facts require slightly different analyses. Our objective is to determine whether the appell a nts’ payment plans under the IFRP comport with the judgments of the sentencing courts. H i c k man’s judgment includes a “Schedule of Payments” page and form, line A of which (payable “immediately”) reflects an amount that corresponds to her special assessment, and line D of which ordered monthly $1,000 installment payments for 34 months, commencing 60 days after her release from prison. There follows a paragraph stating: Unless the court has expressly ordered otherwise,...if this judgment imposes a period of imprisonmen t , p ayment of criminal monetary penalties shall be due during the pe ri o d of imprisonment. All
m o n e t a ry payments, except those payments made through the

5 Case: 11-30793 Document: 00512028577 Page: 5 Date Filed: 10/22/2012No. 11-11090 No. 11-30793 Federal Bureau of Prisons' Inmate Financial Respons ibility Program, are made to the clerk of the court . . . .

On its f a c e , th e re is no necessary inconsistency between line D, the payment schedule following Hickman’s release, a n d the apparently standard paragraph requiring paym e n t s to be made during imprisonment “unless expressly ordered otherwise.” No thi n g in the Schedule orders otherwise, certainly not expressly. Further, the r e f e r ence to the IFRP contemplates a payment p r o gr a m during incarceration. A reasonable interpretation of these
p rovisions as mandating payments during Hickman’s term in pri s o n i s reinforced by the fact that she cannot repay the ordered sum of restitution solely from the post-imprisonment scheduled payments. Finally, this interpretation is consistent with 18 U.S.C. § 3572( d) ( 1 ) , which requires restitution payments to be made “immediately” unless “in the interest of justice, the court provides for payment on a date certain o r in installments.” “Immediate” payment orders have been construed to authorize BOP to place inmates in the IFRP to facilitate payment, n o t withstanding that their judgments also provided for postimprisonment installments. See, e . g
. , Matheny v. Morrison , 307 F.3d 709, 711-12 (8th Cir. 2002); McGhee v. Clark , 166 F.3d 884, 886 (7th Cir. 1999). The BOP did not run afoul of the district court’s sentencing order by placing Hickman in the IFRP. Smith’s restitution order provides for installment payment s “to be determined by the Probat i o n O ffice.” Smith interprets this instruction as tan t amount to an order deferring any restitution payments until after his releas e f

r o m prison. The judgment does not require payments to be made “immediately”, nor does it r e qu i r e payments during his incarceration.
6 Case: 11-30793 Document: 00512028577 Page: 6 Date Filed: 10/22/2012No. 11-11090 No. 11-30793 Nevertheless, the background rule, 18 U.S.C. § 3572(d)(1), requires “immediate” payment of fines and monetary penalties unless, “in the interest of justice, the court provides for payment

. . . in installments.” Although installment payments

are authorized here, there is no indication that they were ordered “in the interest of justice,” to begin only fol l o w i n g the end of Smith’s prison term--in 2060 A. D

. Because it would be the opposite of “justice” so to construe the judgment, we cannot conclude that the district court intended to defer Smith’s restitution obligation while he serves his lengthy term. Thus, pursuant to the above-cited authorities, the BOP had the authority to foster payment of Smith's restitution through the IFRP. For these reasons, the judgmen t s o f the district courts denying § 2241 relief areAFFIRMED

.

7 Case: 11-30793 Document: 00512028577 Page: 7 Date Filed: 10/22/2012