Dozier v. Lake et al

Filing 17

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order Denying the 1 Petition on the merits. Pursuant to 28 U.S.C. §636(b), any party may serve and file wr itten objections within 14 days of being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection, but do not permit a reply to a response absent approval from the District Court. Signed by Magistrate Judge Leslie A Bowman on 4/28/16.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cornelius Dozier, IV,

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Petitioner,

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vs.

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S. Lake,

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Respondent.

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No. CV-15-477-TUC-JAS (LAB)
REPORT AND
RECOMMENDATION

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On October 7, 2015, the petitioner, an inmate confined in the Federal Correctional
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Institution in Safford, AZ, filed the pending Petition for Writ of Habeas Corpus pursuant to Title
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28, United States Code, Section 2241. (Doc. 1) The petitioner claims the Bureau of Prisons
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(BOP) is usurping the trial court’s authority by setting a restitution payment schedule pursuant
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to the Inmate Financial Responsibility Program (IFRP).
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Pursuant to the Rules of Practice of this Court, this matter was referred to the Magistrate
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Judge for a Report and Recommendation.
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The petition should be denied on the merits. The BOP’s actions are lawful.
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Background
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On October 6, 2014, Dozier was sentenced in U.S. District Court for the District of
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Arizona to 70 months’ imprisonment for armed robbery. (Doc. 13-2, p. 2) The trial court
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further ordered Dozier to pay a $400 special assessment and $34,917.43 in restitution. (Doc.
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13-2, p. 3) The court stated, “The defendant shall pay a total of $35,317.43 in criminal

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monetary penalties, due immediately.” (Doc. 13-3, p. 3) The court continued, “If incarcerated,

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payment of criminal monetary penalties are [sic] due during imprisonment at a rate of not less

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than $25 per quarter and payment shall be made through the Bureau of Prisons’ Inmate

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Financial Responsibility Program [IFRP].” Id.

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In September of 2015, Dozier was placed on IFRP refuse status when he failed to make

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a scheduled $25 payment. (Doc. 13-2, p. 4) Dozier subsequently paid $50 to the court in

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October and $25 in December. Id. BOP staff reassessed Dozier’s financial situation and

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proposed a new IFRP payment schedule of $30 per month, which Dozier accepted. Id.

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Previously, on October 7, 2015, Dozier filed the pending Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. 2241. (Doc. 1) He argues the BOP usurped the trial court’s

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authority by setting a $30 per month restitution payment schedule pursuant to the IFRP. (Doc.

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14, p. 2)

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The respondent, Warden S. Lake, filed an answer on January 26, 2016. (Doc. 13) He

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argues the petition should be dismissed as moot, should be dismissed for failure to exhaust

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administrative remedies, or should be denied on the merits. Id. Dozier filed a reply to the

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respondent’s answer on February 8, 2016. (Doc. 14) The court finds the petition should be

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denied on the merits. The court does not reach the respondent’s alternative arguments.

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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).

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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” after considering the defendant’s financial circumstances.

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18 U.S.C. § 3664(f)(2). The trial court may not delegate its statutory duty to set a restitution

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schedule. U.S. v. Gunning, 401 F.3d 1145, 1149 (9th Cir. 2005).

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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 may impose sanctions such as

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restricting the inmate’s access to the commissary or precluding the inmate from participating

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in community-based programs. 28 C.F.R. § 545.11(d).

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In this case, the trial court properly set restitution and a schedule for repayment under

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the MVRA. The court stated that Dozier owed restitution in the amount of $35,317.43, which

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shall be paid during a period of imprisonment “at the rate of not less than $25 per quarter and

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payment shall be made through the Bureau of Prisons’ Inmate Financial Responsibility Program

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[IFRP].” (Doc. 13-3, p. 3) The BOP, in accordance with the IFRP, determined that Dozier

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could increase his restitution payments from $25 per quarter to $30 per month. (Doc. 13-2, p.

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4) Dozier agreed to the increase presumably because he was informed that failure to agree

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would result in sanctions in accordance with 28 C.F.R. § 545.11(d). Contrary to Dozier’s

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argument, the BOP has not unlawfully usurped the trial court’s authority by setting a $30 per

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month payment schedule.

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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

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1046-47. And that is what the BOP did here – encourage Dozier to increase his payment to $30

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per month. The BOP did not usurp the province of the trial court by concluding that Dozier

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could and should increase his rate of payment to $30 per month.

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Dozier also argues that the trial court failed to consider his financial condition when

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making its restitution order. (Doc. 14, pp. 3-4) The trial court, however, explicitly stated that
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it formulated its restitution order after “[h]aving assessed the defendant’s ability to pay.” (Doc.

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13-3, p. 1) And, Dozier presents no evidence to the contrary.

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RECOMMENDATION

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The Magistrate Judge recommends that the District Court, after its independent review

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of the record, enter an order Denying the petition on the merits. (Doc. 1)

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Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within

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14 days of being served with a copy of this Report and Recommendation. If objections are not

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timely filed, they may be deemed waived. The Local Rules permit a response to an objection

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but do not permit a reply to a response absent approval from the District Court.

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DATED this 28th day of April, 2016.

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