Chen v. Lake
Filing
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ORDER that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed on February 23, 2015, by Yi Qing Chen is DENIED. (Doc. 1 .) The Clerk is directed to prepare a judgment and close the case. Signed by Magistrate Judge Leslie A Bowman on 11/18/2015. (MFR)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Yi Qing Chen,
Petitioner,
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vs.
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S. Lake, Warden,
Respondent.
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No. CV-15-072-TUC-LAB
ORDER
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On February 23, 2015, the petitioner, an inmate confined in the Federal Correctional
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Institution in Safford, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28,
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United States Code, Section 2241. (Doc. 1) The petitioner claims the Bureau of Prisons (BOP)
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improperly raised his restitution payments.
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Magistrate Judge Bowman presides over this action pursuant to 28 U.S.C. § 636(c).
(Doc. 13)
The petition will be denied. The BOP’s actions are permitted by law.
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Background
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Chen was convicted in the U.S. District Court for the Central District of California of
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drug trafficking, trafficking in counterfeit goods, trafficking in contraband cigarettes, and
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conspiracy to import missile systems designed to destroy aircraft. (Doc. 9-2, p. 12) On May
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9, 2011, the trial court sentenced Chen to a 300-month term of imprisonment followed by 10
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years of supervised release. Id. In addition, the trial court imposed restitution in the amount
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of $520,000. Id. The sentencing order reads in pertinent part as follows:
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Restitution shall be due during the period of imprisonment, at the rate of not less
than $25 per quarter, and pursuant to the Bureau of Prisons’ Inmate Financial
Responsibility Program. . . .
Id., p. 13.
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Chen initially entered custody at the Federal Correctional Institution (FCI) Herlong, CA,
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in July of 2011. (Doc. 9-2, pp. 3-4) He agreed to make restitution payments at the rate of $25
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per month. Id. In August of 2013, he arrived at FCI Safford where his Unit Team initially set
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his restitution rate at $25 per quarter pending a full assessment of his financial resources. Id.
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In July of 2014, Chen’s Unit Team reassessed his financial resources and proposed a new
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restitution plan of $50 per month. (Doc. 9-2, p. 4) Chen was provided “with information
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regarding the potential consequences of a refusal.” Id. Chen signed the plan, but subsequently
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filed an administrative grievance complaining about the increased rate of payment. Id.
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On February 23, 2015, Chen filed the instant petition for writ of habeas corpus pursuant
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to 28 U.S.C. 2241. (Doc. 1) He claims “[t]he BOP is unlawfully forcing Chen to make
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restitution payments in excess of the existing court order.” Id. The respondent filed an answer
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arguing the petition should be denied on the merits. (Doc. 9) Chen filed a reply on June 22,
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2015. (Doc. 10) The court finds the petition should be denied on the merits.
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Discussion
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The Mandatory Victim Restitution Act (MVRA) requires the trial court to impose
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restitution when the defendant is convicted of certain specified offenses or when “an identifiable
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victim or victims has suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1)(B).
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The court must “specify in the restitution order the manner in which, and the schedule according
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to which, the restitution is to be paid. . . .” 18 U.S.C. § 3664(f)(2).
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Under its Inmate Financial Responsibility Program (IFRP), the BOP “encourages each
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sentenced inmate to meet his or her legitimate financial obligations.” 28 C.F.R. § 545.10. To
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this end, the BOP monitors each prisoner’s resources and financial obligations and “assist[s]
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the inmate in developing a financial plan for meeting those obligations. . . .” 28 C.F.R. §
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545.10. If an inmate refuses to participate in the IFRP, the BOP will impose sanctions including
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restrictions on commissary use and eligibility for community-based programs. 28 C.F.R. §
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545.11(d).
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In this case, the trial court properly set restitution and a schedule for repayment. The
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court stated that Chen owed restitution in the amount of $520,000, which “shall be due during
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the period of imprisonment, at the rate of not less than $25 per quarter.” (Doc. 9-2, p. 13) The
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BOP, in accordance with the IFRP, determined that Chen could increase his restitution
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payments from $25 per quarter to $50 per month. (Doc. 9-2, p. 4) Chen agreed to the increase
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presumably because he was informed that failure to agree would result in sanctions in
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accordance with 28 C.F.R. § 545.11(d). Id.
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Chen argues the BOP is unlawfully forcing him to make restitution payments in excess
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of the trial court’s order citing, among other things, U.S. v. Lemoine, 546 F.3d 1042 (9th Cir.
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2008). He concedes he signed the agreement to pay $50 per month, but he argues the BOP was
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not authorized to increase the payment schedule or threaten him with sanctions if he did not
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agree to the increase.
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In Lemoine, the Ninth Circuit addressed this issue holding that “the IFRP does not
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constitute an unlawful delegation of authority to schedule restitution repayments in violation
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of the MVRA.” U.S. v. Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008). The MVRA requires that
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the sentencing court set a restitution schedule. Id. It does not, however, prevent the inmate
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from voluntarily paying more than is required. Id. That is what the IFRP is supposed to do:
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encourage the inmate to pay as much as he can to address his financial obligations. Id. at 1046-
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47. And that is what the BOP did: encourage Chen to increase his payment to $50 per month.
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The BOP did not usurp the province of the trial court by concluding that Chen could and should
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increase his rate of payment to $50 per month.
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The BOP threatened Chen with sanctions if he did not agree to raise his rate of payment.
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This is permitted. The BOP may impose consequences on inmates who refuse to participate in
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the IFRP if those consequences are “reasonably related to the legitimate penological interest of
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rehabilitation.” Lemoine, 546 F.3d at 1046. Sanctions for non-participation are permitted
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provided those sanctions are “not so severe as to impose ‘an atypical and significant hardship’
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and therefore do not infringe on any constitutionally-protected liberty interest.” Id.
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Chen does not explain what sanctions he was threatened with, but assuming he was
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threatened with those sanctions listed at 28 C.F.R. § 545.11(d), the BOP acted lawfully.
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Lemoine, 546 F.3d at 1047-1050. Chen cannot decline participation in the IFRP without being
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subject to these sanctions.
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IT IS ORDERED that the petition for writ of habeas corpus pursuant to 28 U.S.C. §
2241, filed on February 23, 2015, by Yi Qing Chen is DENIED. (Doc. 1)
The Clerk is directed to prepare a judgment and close the case.
DATED this 18th day of November, 2015.
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