                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,
                v.                                         Criminal No. 09-259
 LISA LOCKE aka
 LISA DAVIS-LOCKE and LISA DAVIS,

         Defendant.


                           MEMORANDUM OPINION AND ORDER

       Currently before this Court are two motions filed by defendant Lisa Locke -- [95] a motion

for an order to exempt the defendant from making payments toward her restitution until she is

released from incarceration and [99] a motion to modify the restitution order, relying on 18 U.S.C.

§§ 3664(k) and 3572(d)(3). For the reasons discussed below, these motions are DENIED.

       In April 2010, Locke pled guilty to one count of possession of stolen mail matters and one

count of aggravated identify theft. In September 2010, she was sentenced to a total of sixty months

incarceration on both counts. The Court also ordered her to pay a $200 assessment and

$120,530.08 in restitution due immediately. See Judgment, ECF No. 70 (Sept. 27, 2010); see also

Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A (requiring restitution for

certain crimes, including those committed by Locke). The Court indicated that restitution

payments would be made through the Bureau of Prisons' Inmate Financial Responsibility Program

("IFRP") and that, upon release, Locke would pay the balance of restitution through monthly

payments of no less than $100.00. See Tr. 54:1-15, ECF No. 92 (Sept. 23, 2010). No parties

objected to any aspect of the restitution order. See Tr. 56:12 & 15-17. Locke appealed her

sentence, and the D.C. Circuit affirmed the judgment of this Court. See United States v. Locke,

664 F.3d 353 (D.C. Cir. 2011).

       The motion to exempt Locke from making restitution payments during her incarceration

and the motion to modify the restitution order seek the same relief -- to suspend her restitution
payments until she is released.1 In cursory fashion, Locke states that she is unable to satisfy her

restitution payments because her earnings through the IFRP are insufficient. Mot. to Exempt ¶ 2;

Mot. to Modify ¶ 6. The motion to exempt is silent on the statutory basis for Locke's request, but

the motion for modification recites and relies on 18 U.S.C. §§ 3664(k) and 3572(d)(3). Both

provisions allow the Court to adjust the payment schedule when the court is notified of a material

change in a defendant's economic circumstances that may affect his or her ability to pay. However,

§ 3572(d)(3) is relevant only where there is "[a] judgment for a fine which permits payments in

installments." Here, Locke requests modification of restitution payable "immediately," not a fine

payable in installments.2 See, e.g., United States v. Tovar-Valencia, 372 Fed App'x 459, 461 (5th

Cir. 2010) (distinguishing between § 3572(d)(3), which applies to fines, and § 3664(k), which

applies to restitution, and further finding § 3572(d)(3) inapplicable to fines "due immediately" as

opposed to fines payable in installments). Indeed, Locke's reply abandons any reference to

§ 3572(d)(3) and refers only to § 3664(k). Accordingly, the Court will consider Locke's request

with respect to the latter provision only.


        1
          Locke has mailed several letters and "motions to amend" to this Court. These letters and self-
styled "motions to amend" have been forwarded to Locke's counsel and seek the same relief requested in
the filed motions; they need not be addressed further.
        2
           Many circuits have found that a sentencing court unlawfully delegated its responsibility to set
up a restitution payment plan, when the order stated that a payment was due "immediately" but where,
"informally," the Probation Office or the Bureau of Prisons determined the payments to be made. See,
e.g., United States v. Prouty, 303 F.3d 1249, 1255 (11th Cir. 2002) (rejecting a restitution order requiring
"immediate" payment with an informal understanding that the probation office will set a payment
schedule); United States v. Coates, 178 F.3d 681, 685 (3d Cir. 1999) (holding, "[l]ike most other federal
appellate courts that have addressed the issue," that the fixing of restitution payments cannot be
delegated to probation officer and indicating that same analysis applies with respect to the Bureau of
Prisons). The D.C. Circuit has not decided the issue. However, it has observed that at least one other
circuit distinguished between the Probation Office's authority to set the schedule of payments, and the
Bureau of Prisons' authority to administer restitution payments made through the IFRP, which stemmed
from executive rather than judicial authority. See United States v. Baldwin, 563 F.3d 490, 492 (D.C. Cir.
2009) (describing Seventh Circuit's decision in United States v. Sawyer, 521 F.3d 792, 794-96 (7th Cir.
2008)). Acknowledging a circuit split on the issue, the D.C. Circuit concluded that the district court did
not commit "plain error" in its restitution order by allowing the Bureau of Prisons to schedule the
payment of restitution during the defendant's incarceration. Id. at 491-92.

                                                  2
        Section 3664(k) states:

        A restitution order shall provide that the defendant shall notify the court and the
        Attorney General of any material change in the defendant's economic circumstances
        that might affect the defendant's ability to pay restitution. The court may also accept
        notification of a material change in the defendant's economic circumstances from
        the United States or from the victim. The Attorney General shall certify to the court
        that the victim or victims owed restitution by the defendant have been notified of
        the change in circumstances. Upon receipt of the notification, the court may, on its
        own motion, or the motion of any party, including the victim, adjust the payment
        schedule, or require immediate payment in full, as the interests of justice require.3

        Locke claims that the Bureau of Prisons has required her to pay $139.00 a month toward

her restitution, and that her "monthly institution income" amounts to $23.00 a month. See Mot. to

Modify ¶¶ 2-3. She contends that she only makes $5.25 a month while incarcerated and has

"limited financial resources in that she does not have enough institutional earnings to pay

restitution payments." Id. ¶ 6; Locke's Reply at 1. She further argues that monies deposited into

her account by family members should not be used for restitution, because they were deposited for

her use and "basic needs." Locke's Reply at 2.

        These assertions are not persuasive. Locke has not provided any evidence or indication that

there has been a change -- much less a material change -- in her economic circumstances that

would impact her ability to pay restitution. Though Locke originally claimed in her motion to

exempt that her family would no longer provide any financial support, her other submissions

indicate that her mother has continued to deposit funds into Locke's prison account. Mot. to

Modify at 2; Locke's Reply at 2.4 And Locke does not contend that she is unable to pay her


        3
           The Government represented in its opposition to Locke's motion to modify the restitution order
that it has notified the victims who are owed restitution pursuant to 18 U.S.C. § 3664(k). See Gov't
Opp'n at 1 n 1.
        4
          Even if Locke were subsequently to argue that her family was unable to continue making
deposits into her prison account, it is not clear that this information, standing alone, would be enough to
constitute a material change. See, e.g., United States v. Vanhorn, 399 F.3d 884, 886 (8th Cir. 2005)
(affirming district court's denial of modification under § 3664(k) to defendant who was diagnosed HIV-
positive while incarcerated and rejecting defendant's argument that he needed to "save money" for
medical treatments as a material change in his economic circumstances).

                                                      3
restitution. Rather, she only argues that her institutional earnings are insufficient and that funds

provided by her family should be solely for her own use, not to repay victims of her crimes. These

reasons are not sufficiently compelling to deprive the victims of the timely monetary obligations

owed to them. See Hinton v. United States, 99-211, 2003 WL 21854935, at * 5 (D.D.C. Aug. 5,

2003) (rejecting request under § 3664(k) to modify restitution by observing that defendant's prison

account may have "very few assets" but that "does not address the existence of any assets . . . in

other accounts or locations"); United States v. Smith, 297 F. Supp. 2d 69, 71-72 (D.D.C. 2003)

("The purpose of the MVRA is, 'to the extent possible, to make victims whole, to fully compensate

victims for their losses, and to restore victims to their original state of well-being.'") (citing United

States v. Simmonds, 235 F.3d 826, 831 (3d Cir. 2000)). The Court's decision today does not

preclude Locke from making a future request for modification under § 3664(k), provided that she

can sufficiently demonstrate a viable reason for the modification. However, the reasons provided

by Locke are unavailing at this time. Accordingly, given Locke's failure to demonstrate a material

change as required by § 3664(k), it is hereby

         ORDERED that [95, 99] the motions requesting suspension of Locke's restitution

payments are DENIED.5

         SO ORDERED.

                                                              /s
                                                         JOHN D. BATES
                                                     United States District Judge
Dated:       April 9, 2012

         5
           To the extent that Locke challenges her participation in the IFRP, or the payments she must
make through that program, this court lacks jurisdiction to hear that claim because Locke is incarcerated
at Federal Prison Camp Alderson in West Virginia. Courts have regularly found that the proper method
for raising such a claim is through a petition brought under 28 U.S.C. § 2241, filed in the district where a
defendant's sentence is being served. See, e.g., United States v. Savage, 11-2809, 2012 WL 666207, at *
2 (3d Cir. Mar. 1, 2012) (citing cases and stating that proper forum for reviewing petition brought under
§ 2241 was where defendant was incarcerated); McGee v. Martinez, 627 F.3d 933, 937 (3d Cir. 2010)
(same); United States v. Diggs, 578 F.3d 318, 319-20 (5th Cir. 2009) ("All other circuits to look at this
issue agree that prisoners challenging their IFRP payment plans must do so under § 2241."); Foster v.
United States, 290 F. Supp. 2d 5, 9 n. 3 (D.D.C. 2010).

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