                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2005

USA v. Walker
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1904




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DPS-252                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 05-1904
                                  ________________

                          UNITED STATES OF AMERICA

                                            v.

                                  KEITH WALKER,
                                         Appellant
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Crim. No. 01-CR-00146)
                                (Criminal treated as civil)
                    District Judge: Honorable William W. Caldwell
                    _______________________________________


 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  May 26, 2005

                 Before: ROTH, BARRY and SMITH, Circuit Judges

                               (Filed: August 22, 2005 )


                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

      Keith Walker pled guilty on November 16, 2001 to destroying a business and

adjacent apartment building by fire. His written plea agreement contained an agreement
to voluntarily enter the United States Bureau of Prisons administered Inmate Financial

Responsibility Program [IFRP] and acknowledged that the Bureau of Prisons [BOP]

would collect up to 50% of his prison salary to be applied to payment of any outstanding

fine and restitution orders. On May 13, 2002, Walker was sentenced to 120 months

imprisonment and 3 years supervised release, and was ordered to pay restitution in the

amount of $1,318,645. The judgment and commitment order provided that the amount

was due in full immediately, that payment was to begin immediately, and was payable

during incarceration. The judgment also provided for payment of any remaining balance

during supervised release. Walker did not file any direct appeal or motion pursuant to 28

U.S.C. § 2255.

       In November 2004, Walker filed a motion titled, “Motion for Definitive

Determination of Amount and Timing of Restitution Payments During Incarceration,” in

which he claimed that the Court had neglected to set forth the amount and timing of his

restitution payments during his incarceration, contrary to the provisions of 18 U.S.C.

§§ 3663 and 3664 of the Mandatory Victims Restitution Act (MVRA). Walker alleged

that “Failure by Judge Caldwell to set the amount and timing of restitution payments does

implicitly and impermissibly delegate that judicial function to the Bureau of Prisons.”

       The District Court determined that Walker’s claim was in fact an attack upon the

terms of the sentencing court’s restitution order insofar as that court had failed to set a

payment schedule. Because the District Court viewed Walker’s claim as an attack upon



                                              2
the terms of his sentence, it implied that his remedy lay solely in a 28 U.S.C. § 2255

motion filed in the sentencing court. The District Court dismissed Walker’s motion for

lack of jurisdiction, but noted that in any event, its sentencing order did comply with the

provisions of the MVRA.

       We do not agree that the District Court lacked jurisdiction to consider Walker’s

motion. His challenge goes directly to execution of the sentence– namely, whether the

BOP has authority to set the terms of the restitution payments while he is incarcerated.

As such, the claim falls squarely within those properly raised in a petition for habeas

corpus under § 2241. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).          See

Mujahid v. Crabtree, 999 F. Supp. 1398, 1401 (D. Or. 1998), aff'd, 172 F.3d 57 (9th Cir.

1999). Furthermore, numerous courts have recognized that “§ 2255's language clearly

and unambiguously limits its applicability to defendants seeking release from custody. It

is not available to those, like the defendant, who challenge only fines or restitution

orders.” United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999) (citing cases).

Thus, even if Walker were challenging the terms of the restitution order per se (which he

clearly is not doing), he could not raise that claim in the sentencing court by § 2255

motion. For these reasons, we conclude that the District Court should have construed

Walker’s motion as a petition filed pursuant to 28 U.S.C. § 2241, and erred insofar as it

dismissed the motion for lack of jurisdiction.

       Nevertheless, the District Court’s judgment should be affirmed on the ground that



                                              3
Walker was not entitled to relief under § 2241. It is true that the MVRA requires that the

sentencing court “specify in the restitution order the manner in which, and the schedule

according to which, the restitution is to be paid.” 18 U.S.C. § 3664(f)(2). The sentencing

court cannot delegate the scheduling of restitution to a probation officer or to the BOP, as

we have held that the fixing of restitution payments is an exclusively judicial act. United

States v. Coates, 178 F.3d 681, 685 (3d Cir. 1999). However, while a sentencing court

may not impose restitution and then delegate the scheduling of payment to the BOP, that

is not what occurred here. The sentencing court here stated in its restitution order that

Walker’s payment of $1,318,645 was “due in full immediately.” The court did not order

payment of the fine in installments, and it did not delegate its authority to the BOP to

schedule payments. Indeed, nowhere in the restitution order did the sentencing court

delegate a judicial function to the BOP. Instead, the court merely exercised its authority

to require immediate payment.

       Because such an order for immediate payment does not impermissibly delegate

judicial authority, it is permissible for the BOP to administer collection through the IFRP.

See McGhee v. Clark, 166 F.3d 884, 886 (7th Cir. 1999); United States v. Trigg, 119

F.3d 493, 500 (7th Cir. 1997). As the Court of Appeals found in McGhee, there is

simply no conflict between a restitution order directing immediate payment and the BOP

initiating an IFRP payment plan. McGhee, 166 F.3d at 886. Walker’s agreement to

participate in the IFRP did not somehow transform his restitution order into one that



                                              4
permits installment payments, and thus did not require a court-ordered payment schedule.

       In sum, we hold that the District Court had authority to entertain Walker’s

challenge to the execution of his sentence under § 2241. Walker’s petition, however, is

without merit because the BOP has not exceeded its authority in setting the terms of

Walker’s restitution through the IFRP. Accordingly, we will affirm the District Court’s

judgment, but we modify that judgment to reflect that Walker’s motion is construed as a

§ 2241 petition and is denied with prejudice on the merits.




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