Brown v. United States of America

Filing 30

ORDER, Petitioner's Motion to Vacate or modify his restitution order or to modify his restitution payment schedule 29 is DENIED. The Clerk of Court is respectfully DIRECTED to mail a copy of this order by certified mail, return receipt requested, to pro se Petitioner at his address of record. So Ordered by Judge Nicholas G. Garaufis on 5/10/2018. (c/m as directed, certified mail receipt no. 7018 0360 0000 7907 8525) (Lee, Tiffeny)

II-F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

WILLIAM BROWN,

Petitioner,
ORDER

-againstll-CV-4235(NGG)
UNITED STATES OF AMERICA,

Respondent.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Petitioner William G. Brown was convicted of securities fraud, money laundering, and

related conspiracy charges arising out of his role in a Staten Island "boiler room" operation.
(Jury Verdict(Dkt. 345, United States v. Brown, No.04-CR-159-7("Crim. Dkt.")).) This court
sentenced him to a total offifteen years' imprisonment and three years' supervised release, and

ordered him to pay $14,563,848.30 in restitution. (J.(Crim. Dkt. 401).) Petitioner'sjudgment
and sentence were affirmed on appeal. (USCA Mandate(Crim. Dkt. 447).) Proceeding pro se.
Petitioner subsequently filed a letter challenging his conviction, which the court, with his assent,
construed as a 28 U.S.C. § 2255 petition and denied as time-barred. (Apr. 17,2015, Order
(Dkt. 25) at 2-3, 17.)

Still proceeding pro se. Petitioner now moves for the court to vacate the order of
restitution, asserting that his financial situation has worsened since his sentencing and that the
restitution order interferes with his ability to provide for his son. (Dec. 19,2017, Letter("Mot.")
(Dkt. 29).)

As the Second Circuit has explained, an order of restitution forms part of a defendant's
sentence, which may not be modified except in "narrow circumstances not present" in this case.
1

United States v. Kvles. 601 F.3d 78, 83(2d Cir. 2010); see also 18 U.S.C. § 3664(o). Thus, to
the extent Petitioner seeks to modity the amount of restitution he owes,the court lacks authority
to grant him that relief, and his motion is denied.

The court may, however, construe Petitioner's motion as requesting modification ofthe
payment schedule for his restitution. See, e.g.. McLeod v. Jewish Guild for the Blind. 864 F.3d

154,156-57(2d Cir. 2017)(per curiam)(stating that pro se submissions should be construed

liberally). The court has authority to modify a restitution payment schedule, even ifit cannot
modify the restitution amount.^18 U.S.C. § 3664(k); Kvles.601 F.3d at 83 n.7. To warrant a
modification, Petitioner or another party must show the court that there has been a "material

change in [Petitioner's] economic circumstances that might affect [his] ability to pay restitution."
18 U.S.C. § 3664(k). Whether a modification is appropriate depends on an "objective
comparison of[his] financial condition before and after a sentence is imposed." United States v.
Grant. 235 F.3d 95, 100(2d Cir. 2000).

The court concludes that no modification is appropriate because Petitioner has not
demonstrated a "material change" in his fmancial circumstances. Petitioner states that his

restitution payments make it difficult for him to support one ofhis children. (Mot. at 2.) The

court notes that Petitioner's difficulty in providing for his family would appear to stem Ifrom the
fact that he is incarcerated, not from the fact that, according to the judgment against him, he is

required to pay $25 per quarter in restitution while he is incarcerated. (J. at 6.) More to the
point, because Petitioner has not explained why his financial situation has deteriorated since his

sentencing, he has not demonstrated "changed circumstances" that might support a modification
of his restitution payment schedule.

Grant. 235 F.3d at 100-01. Even if he had, it is far from

certain that, in light ofthe fact that he is only required to pay $25 per quarter in restitution, the
"interests ofjustice" would require modification of his payment schedule.
For the reasons stated above. Petitioner's motion to vacate or modify his restitution order

or to modify his restitution payment schedule (Dkt. 29)is DENIED. The Clerk of Court is
respectfully DIRECTED to mail a copy ofthis order by certified mail, return receipt requested,
to pro se Petitioner at his address ofrecord.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn,New York

NICHOLAS G. GARApFIS

MaylP,2018

United States District Judge