12-5115
United States v. Lochard

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 19th day of February, two thousand fourteen.

PRESENT:       DENNY CHIN,
               SUSAN L. CARNEY,
               CHRISTOPHER F. DRONEY,
                         Circuit Judges.
- - - - - - - - - - - - - - - - - - - - - - -x
UNITED STATES OF AMERICA,
                    Appellee,

                      -v.-                                    12-5115

JEFFREY LOCHARD,
                             Defendant-Appellant.

- - - - - - - - - - - - - - - - - - - - - - -x

FOR APPELLEE:                          MICHAEL P. CANTY, Assistant United
                                       States Attorney (Susan Corkery,
                                       Assistant United States Attorney,
                                       on the brief), for Loretta E.
                                       Lynch, United States Attorney for
                                       the Eastern District of New York,
                                       Brooklyn, New York.

FOR DEFENDANT-APPELLANT:               BRENDAN WHITE, White & White, New
                                       York, New York.
            Appeal from the United States District Court for the

Eastern District of New York (Feuerstein, J.).

            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the sentence of the district court is

VACATED and the case is REMANDED solely with respect to the

issue of restitution to the extent set forth below.

            Defendant-appellant Jeffrey Lochard appeals from the

district court's November 28, 2012 order denying his pro se

motion to amend or correct the judgment that was entered after

he pled guilty to one count of access device fraud, in violation

of 18 U.S.C. §§ 1029(a)(2), (c)(1)(A)(i).   On April 11, 2012,

the district court sentenced Lochard to thirty-six months'

imprisonment, two years' supervised release, and a $100 special

assessment.   Pursuant to the Mandatory Victims Restitution Act,

18 U.S.C. §§ 3663A, 3664 (the "MVRA"), the district court

ordered restitution in the amount of $108,268; the judgment did

not set forth a payment plan or provide for the waiver of

interest.   We assume the parties' familiarity with the facts,

procedural history, and issues on appeal.

            Lochard was serving his sentence at the Federal

Corrections Institution in Glenville, West Virginia, when he

received a letter from the government dated May 9, 2012,

informing him that payment in full of restitution was due

immediately and that interest would accrue on any unpaid

                                - 2 -
balance.   Lochard wrote to the district court on October 11,

2011 seeking a payment schedule; the government opposed this

request by letter dated October 24, 2012.   On November 19, 2012,

Lochard filed a pro se motion for modification of the judgment

under 18 U.S.C. § 3582(c)(1)(B).   He specified that the sole

modification sought was a payment schedule.   The district court

denied the motion by memorandum endorsement on November 28,

2012.

           Three issues are presented on appeal:   first, whether

the appeal is time-barred; second, whether the district court

had jurisdiction to consider Lochard's motion to modify; and

third, whether the district court abused its discretion in

denying Lochard's motion to modify the restitution award to set

forth a payment schedule for restitution.

  1.       Timeliness

           The government argues that the appeal is time-barred

because the judgment was filed on April 30, 2012 and Lochard did

not "file" his notice of appeal until December 11, 2012, when he

mailed the notice of appeal from prison.    See Fed. R. App. P.

4(b)(1)(A)(i), 4(c)(1) (requiring notice of appeal to be filed

within 14 days of final judgment, and providing that inmate's

notice of appeal is timely if deposited in institution's

internal mail system on or before last day for filing).    But

Lochard does not appeal the underlying April 30, 2012 judgment.

                               - 3 -
Rather, as set forth in the notice of appeal, Lochard is

appealing the district court's November 28, 2012 order that

denied Lochard's November 19, 2012 pro se motion for

modification of judgment pursuant to 18 U.S.C. § 3582(c)(1)(B).

Lochard's appeal was thus timely filed.

  2.         Jurisdiction

             The government next argues that the district court

lacked jurisdiction to entertain Lochard's pro se motion.       We

disagree.    While it is true, as the government notes, that "§

3582 provides for judgment modification only to the extent

'expressly permitted by statute' or by Rule 35," here Lochard is

not seeking modification of "an imposed term of imprisonment"

under § 3582, but rather, he is seeking modification of the

terms of his payment of restitution.     A modification of the

terms of payment of restitution is not a modification in

sentence.    See United States v. Kyles, 601 F.3d 78, 83-84 (2d

Cir. 2010) (holding that as long as amount of restitution

remains same, alteration in terms of repayment does not alter

sentence).

             While Lochard's pro se request was made under 18

U.S.C. § 3582(c)(1)(B), the authority to impose or modify a

restitution schedule post-sentence stems from 18 U.S.C. § 3664

and its antecedents.    See Kyles, 601 F.3d at 83, 86.   Because

pro se litigants are generally entitled to liberal construction

                                 - 4 -
of their pleadings, however, Lochard's motion should be analyzed

under 18 U.S.C. § 3664.   See Green v. United States, 260 F.3d

78, 83 (2d Cir. 2001) ("It is well settled that pro se litigants

generally are entitled to a liberal construction of their

pleadings, which should be read to raise the strongest arguments

that they suggest.") (internal quotation marks omitted).

          In Kyles, we held that 18 U.S.C. § 3663(f) permitted

the district court to modify an incarcerated defendant's

restitution payment schedule five years after the order of

restitution was filed, "identify[ing] no legitimate expectation

of finality in a particular payment schedule."   601 F.3d at 84.

Lochard's motion for a restitution payment schedule, filed seven

months after his judgment of sentence, was properly before the

district court.   We therefore reject the government's argument

that the district court lacked jurisdiction to consider a

request for a restitution payment schedule.

          From the record before us, we cannot discern whether

the district court denied Lochard's pro se motion because it

believed that it lacked jurisdiction.   That would have been

error, but we are unable to tell whether that is what happened.

On this basis alone, we would vacate the district court's denial

of Lochard's pro se request.   See United States v. Smith, 174

F.3d 52, 59 (2d Cir. 1999) (remanding district court's

sentencing determination for additional findings because if

                               - 5 -
could not "determine from the record the basis of the district

court's ruling") (citing United States v. Reed, 49 F.3d 895, 901

(2d Cir. 1995)).   But there is also uncertainty, even assuming

the district court reached the merits.

  3.        The Merits

            Kyles was decided under the Victim and Witness

Protection Act ("VWPA"), not the MVRA, which is at issue here.

The MVRA codified the district court's authority to modify

restitution payment schedules at 18 U.S.C. § 3664.   Unlike the

VWPA, however, the MVRA includes an express provision that if a

defendant experiences "a material change in [his] economic

circumstances," the district court may "adjust the payment

schedule" of a restitution order "as the interests of justice

require."   18 U.S.C. § 3664(k).

            Under the MVRA, therefore, a district court may adjust

a payment schedule when a defendant demonstrates that his

ability to pay restitution has changed.   See United States v.

Grant, 235 F.3d 95, 99-101 (2d Cir. 2000) (affirming district

court's order under § 3664(k) requiring defendant to make

restitution payments while in prison, upon discovery of

additional funds in defendant's inmate account).   Here, it is

unclear whether the district court denied Lochard's motion on

the ground that Lochard failed to demonstrate a change in

economic circumstances as provided for in § 3664(k) or whether

                                - 6 -
the district court even considered the question.    Lochard's pro

se motion for a payment schedule was denied simply with a check

mark next to the box "denied" in a rubber-stamped memorandum

endorsement.   Such a denial does not permit us to draw any

conclusions about the district court's rationale.

          Nor can we discern whether the district court denied

Lochard's application because it believed that § 3664(k)

precluded the imposition of a payment schedule absent a change

in economic circumstances.   This is an open question and we

leave it to the district court to resolve this issue in the

first instance if it determines it needs to reach the issue.

See, e.g., United States v. Bowles, No. 98 Cr. 1281 (DLC), 2003

WL 21396691, at *1 (S.D.N.Y. June 16, 2003) (granting

defendant's request to suspend restitution payments for duration

of defendant's prison term because his "physical and mental

health problems [which he suffered from at sentencing but failed

to disclose to the district court] prevented him from being able

to work while incarcerated"); see also United States v. Brennan,

650 F.3d 65, 135-36 (2d Cir. 2011) (noting "better practice" is

to remand case for district court to make factual determinations

that may "avoid[] unnecessary . . . adjudication").

          In light of Lochard's pro se status, on remand the

district court shall accord Lochard the opportunity to be heard

with respect to these issues.   We therefore vacate the district

                                - 7 -
court's denial of Lochard's motion and remand so that the

district court may consider (1) whether Lochard has demonstrated

or can demonstrate a change in economic circumstances as

contemplated by § 3664(k), and (2) whether the district court

can nonetheless impose a restitution schedule absent any such

showing.

           We have considered the government's remaining

arguments and find them to be without merit.   Accordingly, we

VACATE and REMAND for the district court to consider Lochard's

motion anew.

                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk




                               - 8 -
