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


4-19-2005

Henry v. Apker
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3740




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Recommended Citation
"Henry v. Apker" (2005). 2005 Decisions. Paper 1333.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1333


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                                           NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                   No. 04-3740
                ________________

                  JOHN HENRY,

                         Appellant

                           v.

           CRAIG APKER, Warden,
           Low Security Correctional
             Institution-Allenwood
    ____________________________________

   On Appeal From the United States District Court
       For the Middle District of Pennsylvania
              (D.C. Civ. No. 04-cv-00161)
     District Judge: Honorable William J. Nealon
   _______________________________________


     Submitted Under Third Circuit LAR 34.1(a)
                  April 15, 2005

Before: ALITO, SMITH and BECKER, Circuit Judges

               (Filed April 19, 2005)


            _______________________

                   OPINION
            _______________________
PER CURIAM

       John Henry, pro se, appeals an order of the United States District Court for the

Middle District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. §

2241. We will affirm.

       In 1994, Henry pleaded guilty to possession with intent to distribute cocaine and

use of a firearm during a drug trafficking crime in violation of 21 U.S.C. §§ 841(a)(1) and

924(c). He was originally sentenced to 384 months’ imprisonment and a $35,000 fine in

1994. At that time, the sentencing judge did not specify when the fine was due. In 1997,

following a renewed guilty plea to the possession, an amended judgment was entered

sentencing Henry to 230 months’ imprisonment and a $35,000 fine due “in full

immediately.” In 1999, the judgment was again amended to 262 months’ imprisonment

with a $35,000 fine due “in full immediately.” In 2003, Henry entered the Inmate

Financial Responsibility Program (“IFRP”). 28 C.F.R. §§ 545.10 and 545.11.

       Henry filed the instant § 2241 habeas petition in which he claimed that the Bureau

of Prisons (“BOP”) impermissibly set his schedule of payment for his fine in violation of

the Mandatory Victim Restitution Act of 1996 (“MVRA”). He further argued that such

action was an improper delegation of judicial authority over scheduling payments in

violation of United States v. Coates, 178 F.3d 681, 683 (3d Cir. 1999).

       The District Court first concluded that, because Henry was convicted and

sentenced in 1994, the MVRA does not apply to him. See Coates, 178 F.3d at 683.



                                             2
Instead, the District Court found that the Victim and Witness Protection Act governed

Henry’s payment of fines. See United States v. Holmes, 193 F.3d 200, 205 (3d Cir.

1999). The District Court, therefore, concluded that, to the extent that Henry asserted a

claim on an alleged violation of the MVRA, his claim was meritless.

       With regard to Henry’s claim of improper delegation, the District Court

acknowledged that under Coates, a sentencing court may not delegate the scheduling of

restitution to the BOP. The District Court, however, went on to conclude that the

sentencing court’s order that Henry’s fine was due “in full immediately” was not an

improper delegation of judicial authority. See McGhee v. Clark, 166 F.3d 884, 886 (7th

Cir. 1998). The District Court further noted that such an order does not preclude the BOP

from ensuring that Henry proceed with payment of his fine through the IFRP. Based on

this reasoning, the District Court denied Henry’s § 2241 petition.

       Henry appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review

is plenary. See Bakhtriger v. Elwood, 360 F.3d 414, 417 (3d Cir. 2004). We agree with

the District Court’s disposition of Henry’s § 2241 petition. For essentially the reasons

given by the District Court, as summarized above, we will affirm.
