     Case: 11-11090   Document: 00512028553   Page: 1   Date Filed: 10/22/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                              October 22, 2012

                                 No. 11-11090                    Lyle W. Cayce
                                                                      Clerk

JOYCE HICKMAN,

                                          Petitioner-Appellant
v.

WARDEN JOE KEFFER

                                          Respondent-Appellee



                  Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:11-CV-572




                                 No. 11-30793



ZACK ZEMBLIEST SMITH, III,

                                          Petitioner-Appellant
v.

MARINA MEDINA,

                                          Respondent-Appellee
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                                       No. 11-30793



                     Appeal from the United States District Court
                        for the Western District of Louisiana
                               USDC No. 1:11-CV-541


Before JONES, WIENER and GRAVES, Circuit Judges.
EDITH H. JONES, Judge:* **
       This opinion consolidates two similar cases. Petitioners-Appellants Joyce
Hickman (“Hickman”) and Zack Zembliest Smith (“Smith”) are both currently
serving sentences in federal prison, and both were ordered to pay restitution.
Each argued in a § 2241 habeas petition that the Bureau of Prisons (“BOP”)
schedule governing their restitution payments via the Inmate Financial
Responsibility Program (“IFRP”) conflicts with the district courts’ sentencing
instructions in their judgments.            From the district courts’ judgments of
dismissal, Hickman and Smith appealed. For the reasons below, we AFFIRM
the decisions of the district courts.
A. HICKMAN
       Hickman was convicted of 32 counts of health care fraud. United States
v. Hickman, 331 F.3d 439, 441 (5th Cir. 2003). She was sentenced to two
concurrent 120-month terms of imprisonment and one consecutive 90-month
term of imprisonment. Id.            She was also ordered to pay restitution in the



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       **
            Judge Wiener concurs in the judgment only.

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amount of $9,348,654.49, “for each case, to run concurrently.” Id. Following
appeal and resentencing, Hickman received a term of 210 months of
imprisonment and an order of restitution reduced to $9,048,654.49.
       In December 2010, Hickman filed the first in a series of petitions pursuant
to 28 U.S.C. § 2241, born of her frustration with alleged bureaucratic bungling
and inconsistency in handling her ongoing restitution payments. Hickman
asserts that she made timely periodic payments under an IFRP for nine years
before she realized they were not required during imprisonment by the court’s
judgment.
       In August 2011, Hickman filed the procedurally correct § 2241 petition
under review here, contending that the sentencing court’s judgment did not
stipulate that her restitution was due immediately, but rather that it was
payable 60 days following her release from prison, in monthly installments of
$1,000.1
           The district court rejected Hickman’s argument because nothing in the
“special instructions” section of the judgment restricted her making restitution
payments while incarcerated.
B. SMITH
       In 1994, Smith was convicted of three counts of robbery and three counts
of using and carrying a firearm during a crime of violence. See United States v.
Smith, 66 F.3d 319, 1995 WL 534713 at *1 (5th Cir. 1995) (unpublished). He
was sentenced to 66 years and 10 months of imprisonment and ordered to pay




       1
          Hickman plainly stated that she was not challenging the constitutionality of the IFRP
itself, but she was challenging only how it was applied to her case specifically.

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$22,937.12 in restitution. On direct appeal, this court affirmed his convictions
and sentences. See Smith, 66 F.3d 319, 1995 WL 534713 at *3.
       In 2007, Smith filed a pro se “Motion for Clarification of Restitution and
Judgment,” which asked the district court to clarify its judgment and to inform
the BOP that he was not required to make restitution payments until his
release. See United States v. Smith, 314 F. App’x 749 (5th Cir. 2009). This
motion ultimately foundered for lack of a jurisdictional basis. See id.
       In April 2011, Smith filed the instant § 2241 petition and argued that,
consistent with former 18 U.S.C. § 3663(g),2 when the sentencing court delegated
its authority to determine a restitution payment plan to the Probation Office,
its decision effectively deferred any restitution payments until after he is
released from prison. Smith’s argument rested on the original judgment’s
instruction to set a restitution payment schedule and the sentencing court’s
statements that it intended for Smith to begin paying restitution upon his
release from prison. Accordingly, Smith argued, BOP was not authorized to
collect payments while he is incarcerated.3
       The magistrate judge responded in pertinent part by characterizing
Smith’s claim that he should not have to begin paying restitution until his
release from prison as an “illogical interpretation” of the judgment, given that
Smith will be 98 years old by the time of his expected release. Further, the
magistrate judge observed, BOP has the authority to create financial plans for

       2
      Subsection (g) was struck as part of a 1996 amendment of § 3663. See § 3663
(Amendments).
       3
          Like Hickman, Smith emphasized that he was relying on the original judgment of the
district court, not challenging it; he was not challenging the legality or constitutionality of the
IFRP itself, but the way in which BOP was applying it to him.

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inmates through the IFRP and to impose penalties for noncompliance, without
violating 18 U.S.C. § 3572 or 18 U.S.C. § 3664.             The magistrate judge
recommended that Smith’s petition be denied and dismissed with prejudice. The
district court adopted the magistrate judge’s report and dismissed the petition
with prejudice.
                                  DISCUSSION
      A challenge to a restitution payment schedule set by BOP is properly
raised in a § 2241 habeas petition because it is a challenge to a BOP
administrative program and not to any action by the district court. See United
States v. Diggs, 578 F.3d 318, 319-20 (5th Cir. 2009). In an appeal from the
denial of habeas relief, this court reviews the district court’s factual findings for
clear error and issues of law de novo. Jeffers v. Chandler, 253 F.3e 827, 830 (5th
Cir. 2001).
      Although the principal issue in each of these cases is the same, their
differing facts require slightly different analyses. Our objective is to determine
whether the appellants’ payment plans under the IFRP comport with the
judgments of the sentencing courts.
      Hickman’s judgment includes a “Schedule of Payments” page and form,
line A of which (payable “immediately”) reflects an amount that corresponds to
her special assessment, and line D of which ordered monthly $1,000 installment
payments for 34 months, commencing 60 days after her release from prison.
There follows a paragraph stating:
      Unless the court has expressly ordered otherwise,...if this judgment
      imposes a period of imprisonment, payment of criminal monetary
      penalties shall be due during the period of imprisonment. All
      monetary payments, except those payments made through the


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      Federal Bureau of Prisons' Inmate Financial Responsibility
      Program, are made to the clerk of the court . . . .

      On its face, there is no necessary inconsistency between line D, the
payment schedule following Hickman’s release, and the apparently standard
paragraph requiring payments to be made during imprisonment “unless
expressly ordered otherwise.”     Nothing in the Schedule orders otherwise,
certainly not expressly. Further, the reference to the IFRP contemplates a
payment program during incarceration. A reasonable interpretation of these
provisions as mandating payments during Hickman’s term in prison is
reinforced by the fact that she cannot repay the ordered sum of restitution solely
from the post-imprisonment scheduled payments. Finally, this interpretation
is consistent with 18 U.S.C. § 3572(d)(1), which requires restitution payments
to be made “immediately” unless “in the interest of justice, the court provides for
payment on a date certain or in installments.” “Immediate” payment orders
have been construed to authorize BOP to place inmates in the IFRP to facilitate
payment, notwithstanding that their judgments also provided for post-
imprisonment installments. See, e.g., Matheny v. Morrison, 307 F.3d 709, 711-12
(8th Cir. 2002); McGhee v. Clark, 166 F.3d 884, 886 (7th Cir. 1999). The BOP
did not run afoul of the district court’s sentencing order by placing Hickman in
the IFRP.
      Smith’s restitution order provides for installment payments “to be
determined by the Probation Office.” Smith interprets this instruction as
tantamount to an order deferring any restitution payments until after his
release from prison. The judgment does not require payments to be made
“immediately”, nor does it require payments during his incarceration.

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Nevertheless, the background rule, 18 U.S.C. § 3572(d)(1), requires “immediate”
payment of fines and monetary penalties unless, “in the interest of justice, the
court provides for payment . . . in installments.” Although installment payments
are authorized here, there is no indication that they were ordered “in the
interest of justice,” to begin only following the end of Smith’s prison term--in
2060 A.D. Because it would be the opposite of “justice” so to construe the
judgment, we cannot conclude that the district court intended to defer Smith’s
restitution obligation while he serves his lengthy term. Thus, pursuant to the
above-cited authorities, the BOP had the authority to foster payment of Smith's
restitution through the IFRP.
      For these reasons, the judgments of the district courts denying § 2241
relief are AFFIRMED.




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