                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-7566


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

MOADIAN ELAM BRATTON-BEY, a/k/a Boaz Bratton-Bey, a/k/a
Modian Elam, a/k/a Jason Smith, a/k/a Joshua Builder, a/k/a
Yarachmiel Messing, a/k/a Malik Jones,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:10-cr-00580-GLR-1)


Submitted:   March 26, 2014                 Decided:   April 1, 2014


Before WILKINSON, MOTZ, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Moadian Elam Bratton-Bey, Appellant Pro Se. Allen F. Loucks,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Moadian Elam Bratton-Bey pled guilty, without benefit

of a plea agreement, to conspiracy to commit bank fraud and

related      offenses.      In       addition     to     terms      of    imprisonment         and

supervised      release,       the    district      court       imposed        $1,213,347       in

restitution,          deferred       during       the     period         of     Bratton-Bey’s

incarceration and payable in monthly installments of $25 during

his term of supervised release.

               Following       his     sentencing,            Bratton-Bey         moved       the

district court for return of property, including cash, seized

from    him    during     arrests      related      to    his       federal      prosecution.

After the parties subsequently learned that the cash was being

held    by     Maryland    state      officials,         the       Government         filed   two

motions in the district court seeking an order directing the

state to disburse these funds directly to the district court

clerk     so    that    they     could    be       applied         toward       Bratton-Bey’s

restitution       obligation.            The       Government            argued       that     the

existence of the cash created a material change to Bratton-Bey’s

financial       circumstances          warranting         a      modification           of     the

restitution payment schedule, pursuant to 18 U.S.C. § 3664(k).

               Over    Bratton-Bey’s          objection,           the        district       court

granted these motions.                But the court did not agree with the

Government that there had been a material change in Bratton-

Bey’s     financial       circumstances           under       18     U.S.C.       §    3664(k).

                                              2
Rather,      the   court      concluded       that       the     Government       could      seek

immediate satisfaction of the restitution obligation because the

newly     discovered         funds    constituted           a     windfall       received       by

Bratton-Bay        during     his     period       of    incarceration.               The    court

concluded that it possessed authority under 18 U.S.C. § 3664(n)

to    order    immediate        payment    of       these       funds     even    though       the

payment schedule did not begin until Bratton-Bay’s release from

prison.        For the reasons that follow, we vacate the court’s

order and remand.



                                              I.

               A sentencing court is required to impose restitution

“in    the    full     amount    of    each        victim’s       losses”       and    “without

consideration of the economic circumstances of the defendant.”

18 U.S.C. § 3664(f)(1)(A) (2012).                       The court must determine the

manner and schedule of payment by considering the defendant’s

assets       and   other     financial     resources,             his     income,      and    his

obligations.          Id. § 3664(f)(2).            A restitution obligation is due

immediately        unless       the     court       specifies            otherwise.            Id.

§ 3572(d)(1).

               A sentence imposing a restitution order is a final

judgment       that    may     not    be   modified             absent    one     of    several

enumerated statutory exceptions.                        Id. § 3664(o); United States



                                               3
v. Grant, 715 F.3d 552, 557 (4th Cir. 2013) (Grant 4). 1                                         As

relevant    here,       a    court    may       “adjust      the    payment        schedule,     or

require     immediate        payment        in      full”    if     it    finds    a     “material

change     in    the    defendant’s          economic        circumstances          that     might

affect the defendant’s ability to pay restitution.”                                      18 U.S.C.

§ 3664(k).           Additionally, a defendant’s receipt of a windfall

during imprisonment triggers an automatic payment requirement.

See   id.        §    3664(n)        (“If       a       person     obligated        to     provide

restitution, or pay a fine, receives substantial resources from

any source . . . during a period of incarceration, such person

shall be required to apply the value of such resources to any

restitution or fine still owed.”).                           To trigger this automatic

payment     requirement,            the    defendant         must    be     under      a   current

obligation to satisfy the judgment.                         See United States v. Roush,

452   F.    Supp.       2d    676,        682       (N.D.    Tex.        2006)    (barring       the

Government from garnishing the defendant’s bank account before

any restitution was due on the ground that “there is presently

nothing for the government to enforce”).

                We review for abuse of discretion a district court’s

decision        to   modify     a    defendant’s            restitution          order,    but   we

      1
       Two relevant but unrelated cases concerning modification
of a restitution order happen to be captioned United States v.
Grant. In an effort to minimize confusion, we will refer to the
Fourth Circuit’s Grant decision as Grant 4, and the Second
Circuit’s decision, 235 F.3d 95 (2d Cir. 2000), as Grant 2.



                                                    4
review de novo questions of statutory interpretation.                           Grant 4,

715 F.3d at 556-57.                Where the district court’s decision is

based      on    the    legal   question     of    what   constitutes      a   “material

change          in     the   defendant’s      economic        circumstances”         under

§ 3664(k), our review is de novo.                  Grant 2, 235 F.3d at 99.



                                             II.

                 The district court granted the Government’s motions on

the ground that Bratton-Bay “receive[d] substantial resources”

while incarcerated, triggering the automatic payment provision

of Section 3664(n).              But a court may accelerate a restitution

order under Section 3664(n) only if the defendant is under a

current obligation to satisfy the order.                      In this case, Bratton-

Bey was under no obligation to pay restitution until his release

from       imprisonment. 2         Both      Bratton-Bey       and   the       Government

therefore agree that the district court erred by granting the

Government’s motions on the basis of Section 3664(n).                           Bratton-

Bey’s       restitution         obligation        was   not    presently       due   and,

therefore, there was “nothing for the government to enforce.”


       2
        As the Government recognizes, the written criminal
judgment omits this information, defaulting to an immediate
obligation.   Where, as here, there is a conflict between a
district court’s written judgment and its oral pronouncement of
the sentence, the oral sentence controls.       United States v.
Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003).



                                              5
Roush, 452 F. Supp. 2d at 682.         Given the arguments presented by

the   parties   and    the   Government’s     concession,   we    decline   to

affirm on the rationale of the district court.

           In order to alter the payment schedule to make the

deferred restitution obligation due immediately, the court was

required to find Bratton-Bey’s economic circumstances materially

changed under § 3664(k).         The Government argues that the record

clearly establishes such changed circumstances and urges us to

adopt the Second Circuit’s rationale in Grant 2.            The Government

did not rely on this authority in the district court.                 Rather,

it argued that the fact that the district court learned of the

funds   only    after     imposing     the    initial   restitution    award

constituted     a     material   change      in   Bratton-Bey’s    financial

circumstances -- an argument specifically rejected by the Second

Circuit in Grant 2.      See Grant 2, 235 F.3d at 99-100.

           Normally, we will not entertain arguments raised for

the first time on appeal.            See Muth v. United States, 1 F.3d

246, 250 (4th Cir. 1993).          But, even assuming the Government’s

argument is properly before us, we find that Grant 2 refutes,

rather than supports, the Government’s position.                 In Grant 2,

the Second Circuit concluded that a finding of a material change

in economic circumstances under § 3664(k) requires “an objective

comparison of a defendant’s financial condition before and after

a sentence is imposed.”          235 F.3d at 100.       The Second Circuit

                                       6
upheld a modification of the defendant’s restitution schedule

after concluding that the recent “unfreezing” of the defendant’s

inmate account rendered the account funds newly available to him

and,    thus,      a    material        improvement       in       his   finances     for    the

purposes of § 3664(k).              Id.

              Here, Bratton-Bey’s cash is in the custody of Maryland

authorities and is therefore not an asset newly available to

him.     Bratton-Bey has precisely the same interest in those funds

that    he   had       at   the    time    of    his   sentencing.              We   therefore

conclude the funds do not presently represent a material change

in     Bratton-Bey’s        finances       warranting          a    modification       of    the

payment schedule.            Cf. Grant 4, 715 F.3d at 557-60 (concluding

that defendant experienced no material economic change adequate

to     justify         acceleration        of       restitution          obligation      under

§ 3664(k) where she received tax refund in amount comparable to

refunds      received        prior        to    her    sentencing,             and   therefore

experienced no objective improvement in her finances).

              We have reviewed Bratton-Bey’s remaining arguments on

appeal    and    find       them    to    be    without    merit.             Accordingly,    we

vacate the district court’s order and remand to the district

court for entry of an order denying the Government’s motions.

Because      Bratton-Bey          may    ultimately     succeed          in   recovering     his

funds from state authorities, however, we express no opinion as

to the propriety of a modification of the restitution schedule

                                                7
should Bratton-Bey actually obtain the funds, and we direct that

the   Government’s    motions     be   denied   without      prejudice.      We

dispense   with     oral   argument     because      the    facts   and   legal

contentions   are    adequately    presented    in    the   materials     before

this court and argument would not aid the decisional process.


                                                       VACATED AND REMANDED




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