                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 5 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 CLAYTON BRUCE PHILLIPS; JIM
 CHAPPELL; JAMES RUDNICK;
 KYLE KILGORE,

             Plaintiffs - Appellants,

 and

 RANDY LANCASTER; DANIEL
 AGER; BLAKE WEAVER; JOSEPH
 BUCCI; DALTON LOYD                                    No. 02-1354
 WILLIAMS; MARCUS CLOUATRE;                      D.C. No. 01-B-259 (CBS)
 VINCENT DZIKOWSKI; GREGG                             (D. Colorado)
 STANGA; JAMES SORENSON;
 RICK JASPER; BYRON CORTEZ,

             Plaintiffs,

 v.

 JOHN W. SUTHERS, Executive
 Director of (C.D.O.C.); DENNIS P.
 DIAZ, Controller of Inmate Accounts
 for (C.D.O.C.),

             Defendants - Appellees.


                           ORDER AND JUDGMENT *



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Plaintiffs sought declaratory and injunctive relief from the implementation

of a Colorado law (1) providing that every order of conviction of a felony,

misdemeanor, petty offense, and certain traffic misdemeanors must consider

restitution, and (2) authorizing the executive director of the Colorado Department

of Corrections to deduct 20% of all deposits into an inmate’s bank account for

any outstanding order (including restitution) from a criminal case or for child

support. An Act Concerning Restitution in Criminal Cases, and Making an

Appropriation in Connection Therewith, 2000 Colo. Laws ch. 232, § 1, commonly

referred to as Colorado House Bill 1169 (“Restitution Act”); codified in part at

Colo. Rev. Stat. §§ 18-1.3-603(1) and 16-18.5-106(1) & (2).

      On summary judgment, the magistrate judge determined that the enactment

did not violate separation of powers, the ex post facto clause, due process, or any

right to a trial by jury. 1 II R. Doc. 145. The district court adopted the magistrate

judge’s recommendation. II R. Doc. 149. Subsequently, the Colorado Court of

      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      1
         We note that the magistrate judge determined that this last contention in
the form of an Apprendi challenge was not addressed by the state, however, the
state did address it. I R. Doc. 136 at 2-5.

                                         -2-
Appeals determined that the Restitution Act applies to sentences imposed prior to

its enactment, but does not violate the prohibitions on ex post facto laws because

it is merely a collection mechanism that “does not increase the face amount of

restitution, costs, or other charges that were part of the original sentence.” People

v. Lowe, 60 P.3d 753, 757 (Colo. Ct. App. 2002). We agree.

      Insofar as Plaintiff James Rudnick’s 2 claim that he “has already satisfied

his obligation of restitution and fine in full through a related civil proceeding

which was concluded after his criminal sentencing court had ordered restitution,”

Aplt. Br. (Rudnick) at 3.5, the procedural mechanism for the alleged satisfaction

lies with the state district court. See Colo. Rev. Stat. 16-18.5-103(3)(b)(II),

repealed as of Oct. 1, 2002, now at Colo. Rev. Stat. § 18-1.3-603(3)(b)(II); People

v. Carrillo, _ P.3d _, 2002 WL 31600994 at *2 (Nov. 21, 2002) (although Rule

35(c) motion could not be used to challenge the constitutionality of the

Restitution Act, implying that it might be available to seek relief from the

judgment and sentence of the trial court).




      2
       The district court granted Mr. Rudnick leave to proceed without
prepayment of the appellate filing fee.

                                         -3-
      With our observations, we affirm for substantially the reasons given by the

magistrate judge. The judgment of the district court is

      AFFIRMED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                        -4-
