                                       PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
             ________________

                    No. 19-1308
                 ________________

         UNITED STATES OF AMERICA

                          v.

KABONI SAVAGE, ALSO KNOWN AS YUSEF BILLA,
ALSO KNOWN AS JOSEPH AMILL, AGENT BONNIE,
                 BON, B,

                                               Appellant
                 ________________

     Appeal from the United States District Court
       for the Eastern District of Pennsylvania
            (D.C. No. 2-04-cr-00269-001)
     District Judge: Honorable Mark A. Kearney
                 ________________

    Submitted Under Third Circuit L.A.R. 34.1(a)
                 October 1, 2019

 Before: SHWARTZ, FUENTES, and FISHER, Circuit
                    Judges

          (Opinion filed: March 31, 2020)
Barry J. Fisher
Office of the Federal Public Defender
39 North Pearl Street
5th Floor
Albany, NY 12207

Avram D. Frey
Weir & Partners LLP
215 Fries Mill Road
Turnersville, NJ 08012


                           Counsel for Appellant

William M. McSwain
Robert A. Zauzmer
David E. Troyer
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

                           Counsel for Appellee

                    ________________

                        OPINION
                    ________________


FUENTES, Circuit Judge




                             2
        Appellant, Kaboni Savage, was convicted of drug
offenses, money laundering, and witness tampering in 2005.
For those crimes, he was sentenced to 30 years’ imprisonment,
a special assessment of $1,400, and a fine of $5,000. The fine
has been periodically collected from Savage’s prison trust
account by the Federal Bureau of Prisons under the Inmate
Financial Responsibility Program. Pursuant to 18 U.S.C.
§ 3572(d)(3), Savage asked the District Court to modify his
judgment and provide that installment payments be made
directly to the court on a fixed schedule, based on a material
change in his economic circumstances. The issue before us is
whether the District Court properly denied Savage’s motion to
modify his fine payment schedule for a lack of jurisdiction
under § 3572(d)(3). For the reasons that follow, we conclude
that the District Court properly denied Savage’s request based
on a lack of jurisdiction.

                             I.

      At Savage’s sentencing hearing for his 2005
convictions, the sentencing judge stated that the $5,000 fine
was “due immediately,” but “recommended” that the
defendant participate in the Bureau of Prisons Inmate Financial
Responsibility Program.1       Under the Inmate Financial

1
  A64-65. Although the written Judgment states “[f]ine is to
be paid through the federal Bureau of Prisons’ Inmate
Financial Responsibility Program due during imprisonment,”
A31, the sentencing transcript clarifies that the judge
specifically ordered the fine “due immediately” and merely
“recommended” participation in the Inmate Financial
Responsibility Program, A64-65. See United States v. Faulks,
201 F.3d 208, 211 (3d Cir. 2000) (“A long line of cases




                              3
Responsibility Program, the Bureau periodically takes money
from an inmate’s prison trust account for the payment of fines,
restitution, or other financial obligations, and forwards it to the
Court on the inmate’s behalf. Additionally, the Court stated
“[i]n the event the fine is not paid prior to the commencement
of [supervised release], the defendant shall satisfy the amount
due in monthly installments of not less than $100 . . . .”2
        Savage’s probation officer advised that Savage would
be able to contribute half of his monthly prison work earnings
toward any fine that might be imposed. However, after
Savage’s sentencing, his conditions of confinement changed.
Specifically, after Savage was charged with directing several
killings from the Federal Detention Center of Philadelphia, he
was transferred to a federal super-maximum-security prison in
Florence, Colorado.3 At the maximum-security prison, Savage
is not permitted to work and earn money. Thus, Savage claims
that the restrictions placed on him in the maximum-security
prison have created obstacles to his ability to pay his fine and
purchase stamps and supplies needed to correspond with
counsel in his ongoing capital appeal.
        In connection with his claims, Savage filed a motion in
the District Court to modify the payment schedule of his
$5,000 fine, pursuant to 18 U.S.C. § 3572(d)(3). Section
3572(d)(3) provides that a court can modify a judgment which
“permits payments in installments” based on a “material


provides that when the two sentences are in conflict, the oral
pronouncement prevails over the written judgment.”).
2
  A65.
3
  Savage was convicted of these murders, among other crimes,
in a separate case in 2013. As a result of that conviction,
Savage was sentenced to death on 13 capital counts. The case
is currently on direct appeal before this Court (No. 14-9003).




                                4
change in the defendant’s economic circumstances.” The
District Court denied Savage’s motion, concluding that it
lacked jurisdiction to modify the Bureau of Prisons’ payment
schedule because the fine was “due immediately” and “no
court-ordered payment schedule currently governs [Savage’s]
payment of his criminal fine.”4 Therefore, the District Court
held that the sentencing judgment imposing the fine was not
modifiable under § 3572(d)(3).
       Savage subsequently filed a motion for reconsideration,
which was also denied by the District Court. However, the
District Court relied on a different rationale in denying
Savage’s motion for reconsideration. Specifically, the District
Court put aside the question of whether Savage’s sentencing
order “permit[ted] payments in installments” and, instead,
concluded that Savage’s motion is beyond the scope of §
3572(d)(3) because challenges to the Inmate Financial
Responsibility Program collection mechanism concern the
execution of a sentence and, thus, are properly framed as
habeas challenges under 28 U.S.C. § 2241.5 The issue of
whether the District Court had jurisdiction to grant Savage’s
requested relief under § 3572(d)(3) is now before us on
appeal.6
                             II.


4
  See A4.
5
  A6.
6
   The District Court had subject matter jurisdiction over
Savage’s prosecution pursuant to 18 U.S.C. § 3231. This Court
has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291,
and this appeal presents a pure question of law over which this
Court exercises plenary review. T-Mobile Ne. LLC v. City of
Wilmington, 913 F.3d 311, 318 n.5 (3d Cir. 2019).




                              5
        Savage argues that (A) Third Circuit case law supports
his position that a judgment recommending the scheduling of
payments through the Inmate Financial Responsibility
Program is modifiable under § 3572(d)(3) as an order
“permit[ting] payments in installments,” and (B) the District
Court mischaracterized his request when it ruled that he was
challenging the Bureau of Prisons’ collection mechanism, and
thus, that his challenge must be brought as a habeas petition.
We address each argument in turn.

                                A.

         Section 3572(d)(3) states:

         A judgment for a fine which permits payments in
         installments shall include a requirement that the
         defendant will notify the court of any material
         change in the defendant’s economic
         circumstances that might affect the defendant’s
         ability to pay the fine. Upon receipt of such
         notice the court may, on its own motion or the
         motion of any party, adjust the payment
         schedule, or require immediate payment in full,
         as the interests of justice require.7

The critical question here is whether the District Court’s
sentencing order permitted payment in installments when it
ordered the fine “due immediately” and recommended that the
Bureau of Prisons collect the fine through its Inmate Financial
Responsibility Program.


7
    18 U.S.C. § 3572(d)(3) (emphasis added).




                                6
        Savage cannot move for a modification of payment
under § 3572(d)(3) because the sentencing court never
permitted payment in installments. Instead, the court required
immediate payment. The sentencing court stated that “[t]he
fine is due immediately,”8 and thus never “provide[d] for
payment . . . in installments.”9 Section 3572(d)(3) by its plain
language does not apply where the fine is due immediately.
While the sentencing court “recommended” that Savage
“participate in” the Inmate Financial Responsibility Program,10
nothing in § 3572(d)’s language precludes the Bureau of
Prisons under its Inmate Financial Responsibility Program
regulations from setting a payment schedule to satisfy a fine
that was due to be paid immediately. Accordingly, the
sentencing court’s recommendation that Savage participate in
the Inmate Financial Responsibility Program did not transform
his fine payable immediately into one subject to installments.11
Put simply the Inmate Financial Responsibility Program
provides a means to make good faith payments but is not an
installment order.12 As a result, § 3572(d)(3) does not apply to

8
  A64.
9
  18 U.S.C. § 3572(d)(1).
10
   A64–65.
11
   See United States v. Ellis, 522 F.3d 737, 738 (7th Cir. 2008)
(“If a fine is ordered payable immediately, ‘immediate
payment’ does not mean ‘immediate payment in full;’ rather it
means ‘payment to the extent that the defendant can make it in
good faith, beginning immediately.’” (internal quotation marks
and citation omitted)).
12
    Id. at 738–39 (concluding that “a payment schedule
established by the [Bureau of Prisons] does not conflict with
[a] sentencing court’s immediate payment order” because “the
court has no equivalent responsibility [to set a payment




                               7
Savage, and the District Court properly denied his motion
brought pursuant to that section.
        Moreover, although the sentencing judge in this case
recommended that the Bureau of Prisons enroll Savage in the
Inmate Financial Responsibility Program, she did not direct the
Bureau to take such action or implicitly delegate any statutorily
prescribed authority. Instead, she explicitly used her authority
to order that Savage’s fine be paid immediately. Furthermore,
interpreting the sentencing order as one “permit[ing] payments
in installments” under § 3572(d)(3) would not only go against
the specific language used at sentencing, it would also mean
that the sentencing judge failed to comply with § 3572(d)(2)
by inappropriately delegating her authority to set a payment
schedule.13 For those reasons, Savage’s argument that the


schedule] when it orders a fine payable immediately” (internal
quotation marks and citation omitted)).
13
   Compare United States v. Foote, 413 F.3d 1240, 1253 (10th
Cir. 2005) (holding that the district court erred in delegating
the creation of a payment schedule to the probation office
because “[w]hen a district court provides that a criminal fine
be paid in installments, 18 U.S.C. § 3572 requires the court to
specify the period of time over which the payments must be
made”); United States v. Workman, 110 F.3d 915, 919 (2d Cir.
1997) (vacating a sentence requiring the Bureau of Prisons to
fix a schedule for a defendant’s fine payments because “§
3572(d) does not allow courts to delegate the scheduling of
installment payments for fines”); United States v. Miller, 77
F.3d 71, 77-78 (4th Cir. 1996) (holding that “a district court
may not delegate its authority to set the amount and timing of
fine payments to the Bureau of Prisons or the probation
officer”). In each of these cases courts held that a sentencing
court impermissibly delegated its authority where that court




                               8
sentencing order permitted “payments in installments” is
unpersuasive.
       Savage’s reliance on United States v. Wynn14 does not
change the outcome. As a non-precedential opinion, Wynn
does not bind our Court. In spite of that limitation, Savage
points to dicta in Wynn stating that although a district court
may have ordered a fine to be paid immediately, “an informal
understanding that the [Bureau of Prisons] would set a payment
schedule” could call into question whether the district court
simply delegated setting a payment schedule, thus permitting
payments in installments.15 Notably, such a delegation is
proscribed by § 3572(d)(2). That is not the issue that we
decided in Wynn, however, and Savage’s reliance on this case
is misplaced.16
       Because Savage’s fine was ordered “due immediately,”
and no court-ordered payment schedule currently exists, we
conclude that the District Court did not have jurisdiction over
Savage’s motion to modify under § 3572(d)(3).



ordered the defendant to pay the fine in installments and then
delegated the task of establishing installment payment
schedules to a probation officer or the Bureau of Prisons.
14
   328 F. App’x 826 (3d Cir. 2009).
15
   Id. at 828.
16
   In Wynn, we determined that if Wynn’s “true aim” in filing
his motion was to object to “the manner in which the [Bureau
of Prisons] is encouraging him to pay the money he owes” his
complaint is beyond the scope of § 3572(d)(3) and would
properly be framed as a habeas petition. 328 F. App’x at 829.
On that basis, the case was remanded to the District Court
without determining whether Wynn’s sentence permitted
payments in installments or constituted a delegation.




                              9
                              B.

        Next, Savage argues that the District Court
mischaracterized his request when it ruled that he was
challenging the method and means of collecting his fine and
such a challenge must be brought under 28 U.S.C. § 2241 in
the jurisdiction of his confinement.
        Savage claims that he is not challenging the Bureau of
Prisons’ collection mechanism, but instead is asking the Court
to remove the collection process from the Bureau of Prisons’
control altogether. Specifically, Savage’s motion asked the
Court to modify the judgment by adjusting the payment
schedule, from one delegated to the Bureau of Prisons to one
set by the court, with fixed payments to be made directly to the
court.
        However, even if we were to accept Savage’s argument
that he is not challenging the Bureau of Prisons’ collection
mechanism, his sentencing judgment cannot be modified by
the District Court under § 3572(d)(3) for the reasons discussed
supra in Section II(A). As a result, the District Court lacks
jurisdiction to grant Savage’s motion to modify.
        However, as discussed by the District Court, after
exhausting his administrative remedies, Savage may object to
the Bureau of Prisons’ collection mechanism for his fine and
seek an alternate payment schedule from the Bureau by filing
a petition under 28 U.S.C. § 2241 in the district where he is
incarcerated.




                              10
                            III.

       For the foregoing reasons, we will affirm the order of
the District Court denying Savage’s motion to modify the
District Court’s fine and schedule for fines.




                             11
