                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
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                               Nos. 02-3687/03-2852
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United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeals from the United States
      v.                                   *      District Court for the
                                           *      Eastern District of Arkansas.
Randy Lee Vanhorn,                         *
                                           *            [PUBLISHED]
             Appellant.                    *

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                                Submitted: April 15, 2003
                                    Filed: October 1, 2003
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Before BYE, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                         ________________

HANSEN, Circuit Judge.

       Randy Lee Vanhorn was convicted and sentenced on charges of mail fraud and
money laundering. We affirmed his convictions and sentence but remanded for the
district court to consider Vanhorn's request to modify the mandatory restitution order.
United States v. Vanhorn, 296 F.3d 713 (8th Cir. 2002), cert. denied, 123 S. Ct. 981
(2003). We remanded for reconsideration of the restitution order because the district
court's judgment had not set a schedule of payments for restitution during Vanhorn's
incarceration, contrary to law. Id. at 720-21 (citing 18 U.S.C. §§ 3663A(c)(1)(A)(ii)
(mandatory restitution for a crime committed by fraud or deceit); 3664(f)(1)(B)(2)
(requiring the court to specify the schedule for payment of restitution)).

       On remand, the district court1 held an evidentiary hearing to determine a
restitution payment schedule. Vanhorn waived his appearance and presented no
evidence. The district court ordered that proceeds in an existing account be paid
immediately to the victim, the Arkansas Employment Security Department. The
district court ordered that the remaining restitution owed "will be paid by defendant
on an installment basis in the way the Bureau of Prisons handles this through its
Inmate Financial Responsibility Program at the rate of no less than 50% of the funds
available to defendant during incarceration." (Appellant's Add. at 2 (Dist. Ct. Order
Oct. 28, 2002).) Vanhorn appealed.

       Subsequently, Vanhorn complained to the district court that the Bureau of
Prisons was violating the restitution order by requiring him to pay $25 per quarter
toward his restitution when his current prison income is zero. The district court
denied the challenge, stating that the court's order did not direct payment of 50% of
his prison income, but 50% of the funds "available to defendant." (Dist. Ct. Order
July 8, 2003.) Vanhorn then appealed this order, and the two appeals have been
combined for our consideration.

       In this case, where restitution is mandatory, Vanhorn, 249 F.3d at 721, the
district court nevertheless has substantial discretion in determining how that
mandatory restitution is to be paid, United States v. McGlothlin, 249 F.3d 783, 784
(8th Cir. 2001). "This court reviews challenges to restitution orders for clear error."
United States v. Moyer, 313 F.3d 1082, 1087 (8th Cir. 2002).




      1
       The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
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       Vanhorn argues in this appeal that the district court abdicated its judicial
function under the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3664, by
setting the restitution schedule in accordance with Bureau of Prison policies. We
disagree. The district court ordered that throughout Vanhorn's period of
incarceration, he should pay no less than 50% of the funds available to him, handled
in an installment basis the way the Bureau of Prisons handles its Inmate Financial
Responsibility Program. Thereafter, the district court directed that if the defendant
is placed in community confinement or on supervised release, payments will be
reduced to 10% of the defendant's gross monthly income. (Appellant's Add. at 2.)
Nothing prohibits the district court from choosing a manner of payment that is based
upon a policy already in use by the Bureau of Prisons, as long as the district court
articulates the schedule. Because the district court in this case set the length of time
over which the payments will be made and the manner of payment, we cannot say that
the district court abdicated its judicial function. See McGlothlin, 249 F.3d at 785
(stating district court must set the manner of payments and length of time over which
payments shall be made).

       Vanhorn also argues that the law of the case prohibits the currently set
restitution payment schedule. We disagree. After his original sentencing, Vanhorn
moved the district court to clarify the judgment because the district court had not set
forth a schedule for payment of restitution. The district court granted the motion,
modifying the judgment to provide a restitution payment schedule of $25 per quarter
while Vanhorn is in prison or 10% of his gross prison income, whichever is greater.
Vanhorn then moved a second time to modify the judgment. The government
resisted, asserting that the court lacked jurisdiction to modify the order because
Vanhorn had already appealed the judgment and more than seven days had passed
since the imposition of sentence. The district court denied the second motion to
modify on the ground that it lacked jurisdiction due to the pending appeal and also
vacated the previous order modifying the judgment, concluding that it too had been
entered while the appeal was pending and therefore without jurisdiction. This left the

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original judgment in effect, with no restitution payment schedule specified. Vanhorn,
296 F.3d at 721.

       In Vanhorn's direct appeal, we reversed the district court's decision that it
lacked jurisdiction to consider his second motion to modify the restitution order, and
we remanded for the district court to set a restitution payment schedule. Id. at 720-
21. Contrary to Vanhorn's contention in this appeal, the previously vacated payment
schedule is not the law of this case because we did not reinstate that order or consider
its merits, and only issues decided by an appellate court become the law of the case.
See Jones v. United States, 255 F.3d 507, 510 (8th Cir. 2001). We simply remanded
for further consideration of the judgment, which as originally entered provided no
schedule of payment for the order of restitution. The district court followed our
instructions by reconsidering the restitution order and setting a schedule for
installment payments.

       We find no error in the district court's order modifying the judgment of
restitution. Accordingly, we affirm in Case No. 02-3687. We summarily affirm the
judgment appealed in Case No. 03-3852 for the reasons stated by the district court.
See 8th Cir. R. 47B.

BYE, Circuit Judge, dissenting.

       I disagree with the majority on one point: whether the district court abdicated
its responsibility under the Mandatory Victims Restitution Act to set a payment
schedule for restitution during Vanhorn’s incarceration. United States v. McGlothlin,
249 F.3d 783 (8th Cir. 2001), required the district court to “fashion a payment
schedule that designated a specific percentage of [the defendant’s] monthly earnings
while incarcerated toward his restitution obligation.” Id. at 784-85 (emphasis added);
see also 18 U.S.C. § 3664(f)(2).



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        The district court set the defendant’s restitution for the period he is incarcerated
“at the rate of no less than 50% of the funds available to the defendant.” Because the
district court did not say otherwise, we know the payments must be equal monthly
payments. 18 U.S.C. § 3572(d). We do not, however, know the amount the
defendant must pay each month. The district court only set a floor of 50% of the
money available to the defendant. It is entirely up to the Bureau of Prisons to choose
an amount between 50% and 100% of the funds available to Vanhorn. In my view,
this is not the “detailed payment schedule” the district court is responsible for setting.
McGlothlin, 249 F.3d at 785. A floor is not a schedule, and it cedes too much
authority to the Bureau of Prisons. For this reason, I believe the order of the district
court should be reversed. I therefore respectfully dissent.
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