                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 27, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-5021
          v.                                            N.D. Oklahoma
 KEN NETH ALA N LO W E,                            (D.C. No. 93-CR-186-TCK)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

                                       I. Background

      Kenneth Alan Low e was convicted on robbery and conspiracy charges and

sentenced to 228 months imprisonment, three years of supervised release, $10,000


      *
        This order and judgment is not binding precedent except under the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.
restitution and a $100 special assessment. On December 12, 2005, Lowe,

proceeding pro se, 1 filed a “M otion to Revise Restitution Payment Schedule” and

on January 05, 2006, the district court entered an “Order M odifying Payment

Schedule.” (Doc. No. 79, 80.) Lowe appeals from the district court’s order

claiming it implicitly delegates to the Bureau of Prisons the task of creating the

payment schedule in violation of 18 U.S.C. § 3664(f) and as prohibited by United

States v. Overholt, 307 F.3d 1231 (10th Cir. 2002). 2 W e AFFIRM .

                                    II. Discussion

      In Overholt, we disapproved of a district court’s restitution order which

stated:

      Restitution shall be paid in full immediately. Any amount not paid
      immediately shall be paid while in custody through the Bureau of
      Prisons' Inmate Financial Responsibility Program. Upon release
      from custody, any unpaid balance shall be paid as a condition of
      supervised release . . . .

Id. at 1255. W e determined the order improperly delegated the court’s duty to

provide for an appropriate payment schedule to the Bureau of Prisons pursuant to

18 U .S.C . § 3664. 3 M indful of the split in our sister circuits on this issue, we


      1
       Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, 318
F.3d 1183, 1187 (10th Cir. 2003).
      2
          Lowe’s motion to proceed in form a pauperis is granted.
      3
        18 U.S.C. § 3664, entitled “Procedure for issuance and enforcement of
order of restitution” requires the district court to set a payment schedule based on
the defendant's financial resources. It states:


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concluded “[t]he governing statute, . . . particularly as amended by the

Anti-terrorism and Effective Death Penalty Act (AEDPA) in 1996, clearly

contemplates judicial control of restitution payment schedules.” Id. Although

“[t]he court is granted considerable discretion in structuring a payment

schedule,” 4 it must be the judicial authority which sets a reasonable payment


      Upon determination of the amount of restitution owed to each victim,
      the court shall, pursuant to section 3572, specify in the restitution
      order the manner in which, and the schedule according to which, the
      restitution is to be paid, in consideration of-

              (A) the financial resources and other assets of the
              defendant, including whether any of these assets are
              jointly controlled;

              (B) projected earnings and other income of the
              defendant; and

              (C) any financial obligations of the defendant; including
              obligations to dependents.

18 U.S.C. § 3664(f)(2).
      4
          Section 3664(f)(3) provides:

              (A) A restitution order may direct the defendant to make
              a single, lump-sum payment, partial payments at
              specified intervals, in-kind payments, or a combination
              of payments at specified intervals and in-kind payments.

              (B) A restitution order may direct the defendant to make
              nominal periodic payments if the court finds from facts
              on the record that the economic circumstances of the
              defendant do not allow the payment of any amount of a
              restitution order, and do not allow for the payment of the
              full amount of a restitution order in the foreseeable
              future under any reasonable schedule of payments.

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schedule. Id. at 1256.

      Lowe’s motion to revise his restitution payment schedule claimed “[o]n

several occasions the [B]ureau of Prisons has taken personal funds from my

account that my family has sent and raised my payment schedule based on those

unscheduled gifts.” (Doc. 79 at 2.) He argued the ability of the Bureau of Prisons

to change his payment schedule based upon the receipt of gifts from his family

violated our ruling in Overholt.

      The district court granted his request for modification and ordered in

relevant part:

      Special M onetary Assessments totaling $100, and restitution in the
      amount of $9,963.85 as to Count One and $36.15 as to Count Three
      are due in full immediately, but payable on a schedule of the greater
      of $25 quarterly or 50% in income pursuant to the Federal Bureau of
      Prisons’ Inmate Financial Responsibility Program while in prison. If
      restitution and fine balances remain, payment is to commence no
      later than 60 days following release from imprisonment to a term of
      supervised release in equal monthly payments of at least $25 or 10%
      of net income (take home pay), whichever is greater, over the
      duration of the term of supervised release and thereafter as
      prescribed by law for as long as some debt remains. Notwithstanding
      establishment of a payment schedule, nothing shall prohibit the
      United States from executing or levying upon property of the
      defendant discovered before or after the date of this Judgment. The
      Court orders that interest shall be waived.

(D oc. 80, Attach. 1.) Lowe contends this modification “can be interpreted in

several different ways in which the Bureau is still able to raise the payment at

will.” (Appellant’s Reply Br. at 2.) Lowe does not provide an example of such

interpretation. Rather, his only complaint is that the court’s order allows the

                                         -4-
Bureau of Prisons to continue to apply 50% of any gift Lowe receives toward his

restitution payments.

      The Financial Responsibility Program requires unit staff to assist an inmate

in preparing a financial plan and monitoring the inmates’ progress in meeting

payment. Id. at §545.11(a). Payments are to be made from “institution resources

or non-institution (community) resources.” 28 CFR § 545.11(b). Unlike Overholt,

the district court’s order does not delegate to the Bureau discretion to change the

payment schedule by changing its regulations. Lowe fails to cite any case or law

that excludes gifts from income or limits the court’s discretion to include

unexpected monetary contributions.

                                     Conclusion

      Overholt requires a payment schedule w hich must be adhered to by both

Lowe and the Bureau of Prisons. The order in this case requires the Bureau of

Prisons to collect “the greater of $25 quarterly or 50% in income,” in compliance

with Overholt’s requirement. A FFIRMED.



                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




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