2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-11-2011 

# U S A v . F r ede r ick B a nk s

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-2107

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w . v i l l a no v a . e du/thir dc ir c uit_2011/1462NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 2107

___________ UNITED STATES OF AMERICA

v. FREDERICK H. BANKS,

Appellant

____________________________________ On Appeal from the United S tates District Court for the Western District of Pennsylvania (D.C. C riminal Action No. 04

- cr - 00176

- 001 ) District Judge: Honorable Joy Flowers Conti

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

April 1, 2011
Bef ore: AMBRO, CHAGARES and STAPLETON, Circuit Judges

(Opinion filed : April 11, 2011 )

___________ OPINION

___________2

PER CURIAM Frederick H. Banks appeals from an order 1 of the United States District Court for the Western District of Pennsylvania, which denied his “Motion to Modify Special Assessment and Restitution for Changed Circumstances” for lack of jurisdiction. For the reasons that follow, we will affirm. In 2007, the District Court entered an amended judgment in Banks‟ criminal case. The judgment ordered , inter alia, that B anks pay an $800 assessment and $15,100 in restitution. Docket #508, page 5. The page of the judgment entitled “Schedule of Payments ” indicates: Defendant shall participate in the Bureau of Prisons‟ Inmate Financial Responsibility Pro gram, whereb [sic] 50 percent of his prison salary shall be applied to the restitution which shall be paid to the victims in proportion to their losses. Following his release from the Bureau of Prisons‟ custody, the balance of the restitution shall be pai d as a condition of supervised release. Docket #508, page 6 of 6. Banks‟ motion stated that he “cannot meet his obligation to pay the special assessment or restitution while he is imprisoned.” The motion state d that he “does not make any money from his current prison job,” and that he is “not paid at

1 The Notice of Appeal filed by Banks lists two orders: the one denying his motion to modify his restitution order; and another denying his “ Motion for Conditions of Confinement Relief.” Banks did not contest the latter order at all in his brief on appeal. Any challenge to that order would ordinarily be waived. F.D.I.C. v. Deglau , 207 F.3d 153, 169

- 70 (3d Cir. 2000) . However, in case Banks was misled by our order directing the parties to address certain issues in their briefs, we note that we would in any event affirm the District Court‟s order denying his Motion for Conditions of Confinement Relief. We agree with the District Court that a motion filed in his criminal case was not the proper vehicle for raising the claims about prison conditions contained in that motion. References in the remainder of this opinion to Banks‟ “motion” pertain to his “Motion to3

all.” The motion argued first that the restitution order improperly delegated authority to
the Bureau of Prisons (“ BOP ”) to set a payment schedule, and note d that the BOP requires him to pay $ 25.00 per quar ter. The motion also asked the District Court to modify the schedule pursuant to 18 U.S.C. § 3572(d)(3) , so that Banks would pay $0.00 per month while he is incarcerated.
The District Court held that it lacked jurisdiction to consider the motion to modif y restitution, as i t was a challenge to payments Banks was required to make under the Bureau of Prisons‟ Inmate Financial Responsibility Program (“IFRP”). The Court stated that Banks needed to exhaust administrative remedies and then file a petition pursu ant to 28 U.S.C. § 2241 in the district of his confinement. 2 The District Court declined to entertain Banks‟ claim that it had impermissibly delegated its authority to the BOP in
violation of United States v. Corley , 500 F.3d 210 (3d Cir. 2007), vacated o n other grounds , 129 S. Ct. 1558 (2009) , as Banks had failed to develop the argument

. 3 Banks timely appealed. We asked the parties to address in their briefs whether the District Court erred in dismissing Banks‟ motion for lack of jurisdiction.

Modify Special Assessment and Re stitution for Changed Circumstances.”

2 Banks was incarcerated in Missouri at the time of the order.

3 In Corley , this Court held that a judgment that stated, “The defendant shall make restitution and fine payments from any wages he may earn in prison in accordance with the Bureau of Prisons Inmate Financial Responsibil ity Program,” and stated “[t]he r estitution and fine shall be due immediately,” impermissibly delegated to the BOP the District Court‟s statutory responsibility under 18 U.S.C. § 3664(f)(2) to set a payment schedule if the defendant cannot afford to immediately pay restitution in full. Corley , 500 F.3d at 227

.4

We hav e jurisdiction pursuant to 28 U.S.C. § 1291 . We may affirm the District
C ourt on grounds other than those relied on by the District C ourt. Kabakjian v. United
States , 267 F.3d 208, 213 (3d Cir.2001)

. We discern three possible aspects to Banks‟
motion: (1) an attempt to challenge the restitution payment schedule ordered by the Court; (2) an attempt to challenge the overall validity of the court

- imposed restitution
order ; and (3) an attempt to challenge the payments requi red by the IFRP program

. To the e xtent Banks attempted to challenge the restitution payment schedule imposed by the Distric t Court, the Court had jurisdiction to modify t he payment schedule
if there had been “any material change in the defendant‟s economic circumstances that might affect the defendant‟s ability to pay restitution.” 18 U.S.C. § 3664(k) ; United
States v. Jaffe , 417 F.3d 259, 267 (2d Cir. 2005) ( district court retains juri sdiction to amend or adjust restitution order if there is any material change in defendant‟ s economic
ci rcumstances)

. 4 Although the District Court may have erred by failing to recognize that it potentially had jurisdiction, any error is without consequence, as Banks failed to show that there had been a “material change” in his “economic circumstances.” Ban ks‟

4 Banks cited 18 U.S.C. § 3572(d)(3) as authority for allowing the court to adjust the payment schedule. While, as Appellees po int out, that provision refers to a “fine,” and Banks wa s seeking modification for payment of restitution, “the [Mandatory Victims Restitution Act] provides that „all provisions of [ § 3664(m)(1)(A) ] are available to the United States for the enforcement of an order of restituti on,‟ 18 U.S.C. § 3613(f), and § 3664(m)(1)(A) provides that an order of restitution may be enforced in the same manner as a fine.” United States v. Hyde , 497 F.3d 103, 108 n.9 ( 1st Cir. 2007 ). However, as section 3664(k) refers spec ifically to modification of a restitution order, the District Court could have construed Banks‟ motion as seeking relief pursuant to that5

incarceration and inability to earn much money in prison was certainly contemplated by the District Court when it crafted its payment schedule. Indeed, the provision that Banks will pay “50 percent of his prison salary” takes into consideration possib le fluctuations in prison salary. Banks has not shown that his economic circumstances have materially changed from those that the District Court anticipated at sentencing. 5 To the extent Banks attempted to challenge the overall validity of the District
Co urt‟s restitution order, such a challenge should have been made on direct appeal. The limited jurisdiction conferred by s ection 3664(k ) does not encompass an attack on the overall validity of a restitution order.
To the extent that Banks attempted to ch allenge the payments he is required to make through the IFRP, we agree with the District Court that the proper vehicle for such a challenge is a petition under 28 U.S.C. § 2241 filed in the district where his sentence is being carried out. McGee v. Martin ez , 627 F.3d 933, 937 (3d Cir. 2010)

. For the foregoing reasons, we will affirm the District Court‟s judgment.

section.

5 Some simple arithmetic reinforces the District Court‟s conclusion that Banks was in fact challenging the pa yments he is required to make under the IFRP, rather than the payment schedule set by District Court‟s restitution order. Under the District Court‟s schedule, Banks is required to pay 50% of any prison salary. If Banks is currently “not paid at all,” hi s required 50% payment would be zero. It thus appears that Banks is in reality challenging the payments required under the IFRP.