UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

UNITED STATES OF AMERICA, )

)

v. ) Criminal Action No. 12-55 (RWR)

)

LATARSHA SMALL, )

)

Defendant. )

______________________________)

MEMORANDUM OPINION AND ORDER

Defendant LaTarsha Small was sentenced to 42 months in 

prison after she pled guilty to two counts of theft concerning 

programs that receive federal funds, and was ordered to pay 

restitution. Small now moves to change the balance of her 

incarceration to in-home confinement, and to amend the court’s 

restitution order.1 Small is entitled to have the portion of her 

restitution order mandating payment through the Bureau of 

Prisons amended. However, because Small has not demonstrated 

that she is entitled to have her prison term changed or her 

restitution schedule recalculated, Small’s motions will

otherwise be denied. 

 1 She has also moved for leave to proceed in forma pauperis 

because she cannot afford to pay a docketing fee. An inmate 

filing to modify her sentence is not assessed a docketing fee. 

The in forma pauperis motion will be denied as moot. 
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BACKGROUND

For several years, Small was the grants and accounting 

manager for My Sister’s Place, a non-profit corporation that 

aids female victims of domestic violence and their children. 

Thereafter, Small was the accountant and payroll specialist for 

the International Crisis Group, an international non-profit 

organization that is involved with preventing and resolving 

conflicts around the world. During her time at both My Sister’s 

Place and the International Crisis Group, Small embezzled funds 

from the companies for her personal use.

Small pled guilty to two counts of theft concerning 

programs receiving federal funds, in violation of 18 U.S.C. 

§ 666(a)(1)(A). On November 9, 2012, Small was sentenced to 42 

months on Count One and a concurrent sentence of 42 months on 

Count Two. Small’s final judgment assessed against her

$164,146.23 in restitution payable immediately, and directed: 

“You shall make payments on the special assessment and 

restitution through your participation in the Bureau of Prisons’ 

Inmate Financial Responsibility Program [(“IFRP”)].” Judgment 

at 4. The judgment ordered Small to pay the balance of any 

restitution owed at a rate of no less than $100 per month. Id.

at 5. Small did not appeal the sentence. 

Small now moves to change her remaining term of 

incarceration to home confinement, contending that there are 
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“mitigating circumstances of a kind and to a degree” that 

justify changing her sentence. Mot. to Change Method by Which 

Balance of Sentence is to be Served (“Mot. to Amend Sentence”) 

at 2. The government opposes, arguing that as Small’s motion 

should be construed as a motion to reduce her sentence, none of 

the bases for reducing a sentence under 18 U.S.C. § 3582(c) is

applicable. Govt.’s Consolidated Oppn. to Def.’s Pro Se Mots. 

to Change Method by Which Balance of Sentence is Served and for 

Amended Restitution Order (“Govt.’s Oppn.”) at 1. 

Small also moves to amend her restitution order, alleging 

that the court impermissibly delegated to the Bureau of Prisons 

the responsibility of determining a payment schedule. Motion 

for Amended Restitution Order (“Mot. to Amend Rest.”). Small 

requests that the court order that she pay $25 per quarter for 

restitution. Id. at 3. The government argues that the 

restitution order was proper and that the court cannot intervene

in the payment schedule set by the IFRP. Govt.’s Supplemental 

Mem. in Oppn. to Def.’s Mot. for Amended Restitution Order at 7. 

DISCUSSION

I. MOTION TO CHANGE SENTENCE TO HOME CONFINEMENT

Small asks that the court “chang[e] the method by which the 

balance of her sentence is served by allowing her to serve the 

remaining sentence on home confinement.” Mot. to Amend Sentence 

at 1. Small, however, cites no authority to support her 
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request. The government contends that her motion must be 

considered as “one seeking to reduce her sentence,” and is 

therefore governed by 18 U.S.C. § 3582(c). Govt.’s Oppn. at 4. 

Small does not contest this argument.

“Under 18 U.S.C. § 3582(c) a court may modify a sentence 

only in three circumstances: (1) on motion of the Bureau of 

Prisons, (2) ‘to the extent otherwise expressly permitted by 

statute or by Rule 35 of the Federal Rules of Criminal 

Procedure,’ and (3) to reflect a post-sentence reduction in the 

applicable sentencing guidelines.” United States v. Morris, 116 

F.3d 501, 504 (D.C. Cir. 1997) (quoting 18 U.S.C. § 3582(c)). 

In turn, Rule 35 of the Federal Rules of Criminal Procedure 

permits modification to correct an “arithmetical, technical, or 

other clear error” within 14 days, or, upon motion from the 

government, for “substantial assistance in investigating or 

prosecuting another person.” Fed. R. Crim. P. 35. There are no 

other grounds for modification of a sentence. See Morris, 116 

F.3d at 504; see also United States v. Apple, No. 3:10-CR-322-L, 

2012 WL 4835059, at *2 (N.D. Tex. Oct. 11, 2012) (finding that 

the Federal Rules of Criminal Procedure “do not allow for” 

modification of a sentence “based upon substantive grounds . . . 

[such as the defendant’s] health conditions, which were already 

in existence and known to the court at the time he was 

sentenced”). 
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None of the conditions in § 3582(c) applies here. The 

Bureau of Prisons has not made a motion to modify Small’s 

sentence, nor has the government moved under Rule 35 to reduce 

Small’s sentence for substantial assistance. Small’s motion 

comes more than 14 days after the sentence, and does not allege 

an arithmetical, technical, or other clear error. Small also 

does not allege that there has been a change in the applicable 

sentencing guidelines that would justify reducing her sentence, 

nor does she point to any other statutory basis for 

modification. Accordingly, there is no legal basis for 

modifying Small’s sentence, and her motion will be denied.2

II. MOTION TO AMEND RESTITUTION ORDER

According to Small, 18 U.S.C. § 3664(f)(2) requires that a 

court set a payment schedule for the defendant to discharge her 

restitution obligation, including a payment schedule for the 

defendant’s incarceration period. Mot. to Amend Rest. at 1. 

Small alleges that “[a]s a result” of “the Court[’s] fail[ure] 

 2 In addition to her request to change her sentence to one 

of home confinement, Small briefly discusses her “opinion that 

the Bureau of Prisons is failing to provide me with adequate 

care.” Mot. to Amend Sentence at 2. To the extent Small is 

challenging the conditions of her confinement, the Prison 

Litigation Reform Act requires that she first exhaust her 

administrative remedies. 42 U.S.C. § 1997e(a). Small has not 

alleged that she has exhausted any administrative remedies. 

Small also “contends that she was not sentenced to a medical 

facility[,]” Mot. to Amend Sentence at 2, but makes no request

with respect to this statement. Accordingly, no request for 

relief will be inferred. 
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to set a payment schedule,” she “has been required to pay under 

the Inmate Financial Responsibility Program, instead of paying 

restitution after release from prison.” Id. at 1. 

Inasmuch as Small is challenging the requirement in her 

judgment that she participate in the IFRP, her motion to amend 

her restitution order will be granted to reflect the fact that 

participation in the IFRP is voluntary. See United States v. 

Godoy, 706 F.3d 493, 499 (D.C. Cir. 2013); see also 28 C.F.R. § 

545.10. While her non-participation may result in losing 

privileges, see 28 C.F.R. § 545.11(d), the court cannot order 

her to participate in the IFRP.

However, the court here did determine a payment schedule as 

a condition of Small’s supervision after incarceration. See

Judgment at 5 (requiring the Small to “pay the balance of any 

restitution owed at a rate of no less that $100 each month” as 

an additional standard condition of supervision). Further, 

Small’s argument seems to focus on the “undue financial stress” 

that the current payment schedule imposes on her family, and her 

requested relief is for the court to reduce her payment 

obligation to $25 per quarter. Mot. to Amend Rest. at 1-2. As 

such, Small appears to be requesting that the court determine 

the restitution payment amounts that Small is required to pay 

during her incarceration under the IFRP, rather than challenging 

the court’s failure to determine a schedule of payment. 
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In any event, while some circuits have held that a court 

must determine the schedule of payment during incarceration,

see, e.g., Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012), the 

D.C. Circuit has not. The D.C. Circuit has held that it is not

plain error for a district court to have failed to determine the 

payment schedule for a defendant who participates in the IFRP. 

United States v. Baldwin, 563 F.3d 490, 492 (D.C. Cir. 2009) 

(citing United States v. Sawyer, 521 F.3d 792, 794-86 (7th Cir. 

2008)). In fact, a district court may be barred from imposing 

such a payment plan for defendants that participate in the IFRP. 

See id. at 492 (explaining that the Seventh Circuit’s holding in 

Sawyer indicates that a district court cannot impose terms of 

restitution payments made through the IFRP). 

The IFRP “operates ‘under the exclusive control and 

authority of the Executive Branch.’” United States v. AyersZander, Criminal Action No. 11-280 (RWR), 2013 WL 2468300, at *1 

(D.D.C. June 7, 2013) (quoting Baldwin, 563 F.3d at 492). Small 

has not shown that she has exhausted BOP administrative remedies 

to challenge her IFRP restitution payment amount before seeking 

judicial relief. See United States v. Rush, 853 F. Supp. 2d 

159, 162 (D.D.C. 2012) (citing 28 C.F.R. § 542.10(a)). Further, 

even if she had exhausted all administrative remedies, “the 

proper method for challenging how BOP is administering the IFRP 

in her case may not be a motion to the sentencing court, but 
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rather a petition under 28 U.S.C. § 2241 in the district where 

[the defendant] is serving her sentence.” Ayers-Zander, 2013 WL 

2468300, at *1 (citing United States v. Diggs, 578 F.3d 318, 

319, 319 n.1 (5th Cir. 2009); Rush, 853 F. Supp. 2d at 162; 

United States v. Locke, Criminal Action No. 09-259 (JDB), 2012 

WL 1154084, at *3 n.5 (D.D.C. Apr. 9, 2012)); see also Diggs, 

578 F.3d at 319, 319 n.1 (“All other circuits to look at this 

issue agree that prisoners challenging their IFRP payment plans 

must do so under § 2241.”). 

Lastly, Small has not alleged a “material change” in her 

economic circumstances that justifies modifying a restitution 

order under 18 U.S.C. § 3664(k). Accordingly, Small has not 

shown that she is entitled to the court reducing her restitution 

payment obligation under the IFRP, and her motion to amend the 

restitution order in that way will be denied. 

CONCLUSION

Small is entitled to have her restitution order modified by 

deleting the sentence requiring her to make restitution payments 

through the IFRP. However, Small has failed to demonstrate that 

she is entitled to have her prison term changed or her

restitution payments recalculated. Accordingly, it is hereby

ORDERED that Small’s motion [22] to change the method by 

which the balance of her sentence is served be, and hereby is, 

DENIED. It is further 
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ORDERED that Small’s motion [22] for leave to proceed in 

forma pauperis be, and hereby is, DENIED as moot. It is further

ORDERED that Small’s motion [23] to amend her restitution 

order be, and hereby is, GRANTED IN PART and DENIED IN PART. 

The sentence in the judgment requiring Small to make restitution 

payments through her participation in the Bureau of Prisons’ 

Inmate Financial Responsibility Program is hereby stricken. The 

motion is otherwise denied. It is further

ORDERED that the government’s motion [28] for leave to late 

file a consolidated response to Small’s motions be, and hereby

is, GRANTED nunc pro tunc. 

SIGNED this 13th day of January, 2014.

__________/s/________________ 

RICHARD W. ROBERTS

Chief Judge