USA v. Victor Baxter

Filing

Opinion issued by court as to Appellant Victor G. Baxter. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-15995

Date Filed: 08/03/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15995
Non-Argument Calendar
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D.C. Docket No. 0:02-cr-60200-UU-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR G. BAXTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 3, 2017)
Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 16-15995

Date Filed: 08/03/2017

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Victor Baxter appeals from the district court’s grant of the government’s
motion to apply funds from his Bureau of Prisons (“BOP”) trust account toward
the outstanding amount of his criminal fine judgment, which was imposed as a part
of his total sentence for distributing cocaine and crack cocaine, maintaining a place
for the purpose of distributing crack cocaine, possession of a firearm by a felon,
and possession of a firearm in furtherance of a drug trafficking crime. On appeal,
he argues that the court erred in granting the government’s motion, because he was
paying his fine according to an established payment schedule, and that it was
incorrect for the court to allow the government to seize money from his BOP trust
account when he had not defaulted on his scheduled payments.
Under 18 U.S.C. § 3613(a), “a judgment imposing a fine may be enforced
against all property or right to property of the person fined,” unless excepted by
statute. 18 U.S.C. § 3613(a). Subsection (c) of § 3613 provides that a fine “is a
lien in favor of the United States on all property of the person,” and “[t]he lien
arises on the entry of judgment and continues for 20 years or until the liability is
satisfied, remitted, set aside, or terminated under subsection (b).” 18 U.S.C. §
3613(c). Moreover, “a person sentenced to pay a fine or other monetary penalty,
including restitution, shall make such payment immediately, unless, in the interest
of justice, the court provides for payment on a date certain or in installments.” 18
U.S.C.

§ 3572(d)(1)
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When a district court orders a defendant to pay restitution in excess of
$2,500, the obligation that he pay interest is triggered by statute. See 18 U.S.C.
§ 3612(f)(1) (“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.”). There is no requirement that the judgment form express the
default requirement that the defendant pay interest on the restitution ordered. See
id. § 3612(b)(1).
Importantly, 18 U.S.C. § 3664, which provides the procedures for issuing
and enforcing restitution orders, states that “[i]f a person obligated to provide
restitution, or pay a fine, receives substantial resources from any source, including
inheritance, settlement, or other judgment, during a period of incarceration, such
person shall be required to apply the value of such resources to any restitution or
fine still owed.” 18 U.S.C. § 3664(n) (emphasis added).
Where there is any discrepancy between the orally imposed sentence and the
written order of judgment, the oral sentence controls. United States v. Khoury, 907
F.2d 975, 977 (11th Cir. 1990).
Here, the district court did not err in granting the government’s motion to
apply funds from Baxter’s BOP trust account to his outstanding criminal judgment
fine balance. Baxter admitted in the district court that he received the money in his
BOP trust account after his mother died, and 18 U.S.C. § 3664(n) expressly
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provides that when an incarcerated person receives money as an inheritance, that
money “shall be required to apply” to any fine still owed. 18 U.S.C. § 3664(n).
Further, Baxter’s argument against paying interest on his criminal judgment
fine fails. There is a statutory requirement that interest attach to any fine over
$2,500 that is not paid within 15 days from the entry of judgment. See 18 U.S.C.
§ 3612(f)(1). The district court fined Baxter $10,000, and Baxter did not pay the
full amount within 15 days from the entry of judgment. To the extent that Baxter
argues that his fine was not payable immediately because the written judgment
made reference to a payment schedule, and because he had reached a payment
schedule agreement with the BOP, that argument is misplaced, because an oral
pronouncement of sentence always controls. See Khoury, 907 F.2d at 977. The
district court clearly stated that the fine was “payable immediately.” While Baxter
correctly asserts that he had not defaulted as to his fine payments as scheduled with
the BOP, his total sentence nonetheless required that he pay the sum immediately,
if and when that was possible. Based on these considerations, we affirm.
AFFIRMED.

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