                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   April 25, 2008
                                                                  Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                      Clerk of Court


    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                     No. 07-5162
                                              (D.C. No. 4:91-CR-158-HDC-1)
    v.                                                 (N.D. Okla.)

    JERRY CRAIG COLEMAN,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         In December 1991, Jerry Craig Coleman and an accomplice robbed the

Stillwater National Bank of Tulsa, Oklahoma (Bank). In 1992, after a jury trial,

Mr. Coleman was sentenced to serve a total of 322 months in prison for armed

robbery and possession of a firearm during a crime of violence. He was also

ordered to pay $5,528 in restitution to the Bank.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      His restitution order provided that

      any amount not paid immediately shall be paid during the term of
      confinement, with any unpaid balance payable at the discretion of the
      United States Probation Office during the term of supervised release.

Judgment & Sentence, at 4 (attached to Aplee. Br.).

      Mr. Coleman has been continuously incarcerated since the restitution order

was entered. During the past fifteen years, he has made a number of payments

toward the restitution order from his prison account, leaving a remaining balance,

at the time he filed this proceeding, of $3,667.79.

      Over the years, Mr. Coleman has made a number of attempts to have his

restitution order dismissed or vacated. See, e.g., United States v. Coleman,

No. 97-5079, 1997 WL 758872 (10th Cir. Dec. 9, 1997); United States v.

Coleman, 9 F.3d 1480, 1486-87 (10th Cir. 1993). In the present proceeding, filed

pursuant to 18 U.S.C. § 3664(k), he seeks to suspend his obligation to make

further payments toward restitution during the remainder of his incarceration. He

alleges that kidney disease has left him unable to earn money to make any further

payments so long as he is incarcerated.

      The district court denied his motion to suspend the restitution order, finding

that Mr. Coleman had not experienced the sort of change of circumstances that

would call for a modification of his restitution order under § 3664(k). It further

found that it lacked authority in any event to grant an eight-year suspension of all

payments toward the restitution order under § 3664(k). Mr. Coleman appeals

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from the denial of his motion. We have jurisdiction, see 18 U.S.C. § 3742, and

affirm.

         Section 3664(k) provides that a defendant who owes restitution “shall

notify the court and the Attorney General of any material change in the

defendant’s economic circumstances that might affect [his] ability to pay

restitution.” Once so notified, the district court may “adjust the payment

schedule, or require immediate payment in full, as the interests of justice

require.” Id. “[A]bsent an error of law or clearly erroneous fact-finding, a

district court’s exercise of this authority should be reviewed under the abuse of

discretion standard.” United States v. Vanhorn, 399 F.3d 884, 886 (8th Cir.

2005).

         The district court did not abuse its discretion in declining to relieve

Mr. Coleman of any obligation to make restitution payments during the remainder

of his incarceration. Although he may be unable to work at the present time, it is

purely speculative that he will have no resources with which to pay restitution

during the remaining period of incarceration.

         Mr. Coleman’s restitution order does not itself establish a schedule for

payment. During his incarceration, he has made quarterly restitution payments

pursuant to his agreement with the Bureau of Prisons (BOP) under the Inmate

Financial Responsibility Program (IFRP). The IFRP encourages inmates to

develop a plan to meet various financial obligations, including orders of

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restitution. See 28 C.F.R. §§ 545.10-545.11. Non-participation in the program

can lead to the loss of privileges, including, inter alia, limitations on inmate pay,

work and housing restrictions, and eligibility for community-based programs. See

id. § 545.11(d).

      Mr. Coleman’s principal concern appears to be that unless he is judicially

relieved of responsibility for making restitution payments as part of his IFRP

plan, the BOP will place him on “refusal status” and he will suffer the loss of

privileges. See “Petitioner’s Reply to Government’s Response to Motion to

Suspend Restitution,” R. doc. 134, at 2 (“[T]he reason for this Motion is that

Petitioner will get the ORDER from the Court acknowledging [that he cannot

work, and] will not be penalized for not participating in [the IFRP]. . . .”). But

such a concern is premature and speculative in his case.

      The BOP regulations only require inmates to work who are “physically and

mentally able” to do so. See 28 C.F.R. § 545.23. In addition, the regulations

require the BOP to make reasonable accommodation for inmates with disabilities.

See id. § 545.21(a). Mr. Coleman has not established that a prisoner who is

unable to work will be placed in “refusal status” merely because he is incapable

of making restitution payments from work income. Until he can show that he has

raised these concerns to the BOP and received an unfavorable response, his

concerns will remain within the realm of speculation and the district court’s

failure to grant him relief does not represent an abuse of discretion.

                                          -4-
      He also complains that the BOP has continued to deduct funds from his

prison account received from outside sources or saved by him over the years to

make the quarterly IFRP payments. He has failed to establish that the BOP lacks

authority to make these deductions. See id. § 545.11(b) (“[IFRP] [p]ayments may

be made from institution resources or non-institution (community) resources.”).

See also McGhee v. Clark, 166 F.3d 884, 887 (7th Cir. 1999) (“The unit team’s

unilateral decisions to accelerate [the petitioner’s] payments and to count as

available resources funds that [he] obtained from outside sources are both

expressly permitted by IFRP regulations.”). Nor has he provided any record such

as grievance forms to show that he has raised his concerns with the BOP about

continued application of the IFRP deductions to non-wage income, or what the

BOP’s response to such a concern might be. See id. §§ 542.10-542.19 (providing

administrative remedy procedure for BOP inmates).

      Mr. Coleman also raises two issues (his issues two and three) that were not

presented to the district court. We decline to address such issues, presented for

the first time on appeal. See United States v. Jarvis, 499 F.3d 1196, 1201-02

(10th Cir. 2007). We also cannot consider his issue four. Although this issue was

mentioned in his reply brief in district court, his assertion that he is entitled to a

downward departure and a reduction in his sentence is not properly part of this

§ 3664(k) proceeding.




                                           -5-
      The judgment of the district court is AFFIRMED. Mr. Coleman’s motion

for appointment of counsel is DENIED.


                                               Entered for the Court


                                               Paul J. Kelly, Jr.
                                               Circuit Judge




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