     Case: 08-11169   Document: 0051998118     Page: 1   Date Filed: 01/07/2010




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

                                                 FILED
                                                                   January 7, 2010
                                 No. 08-11169
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

RUSSELL KAEMMERLING,

                                             Plaintiff-Appellant

v.

DAVID BERKEBILE,

                                             Defendant-Appellee


                  Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:08-CV-714


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
       Russell Kaemmerling, federal prisoner # 04899-017, was convicted in 2000
on 19 counts stemming from a wire fraud conspiracy. He was ordered to pay
over five million dollars in restitution.
       Kaemmerling sought relief in the district court under 28 U.S.C. § 2241,
arguing that the Bureau of Prisons (BOP), through the Inmate Financial
Responsibility Program (IFRP), violates 18 U.S.C. §§ 3572 and 3664 by usurping



       *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
   Case: 08-11169    Document: 0051998118 Page: 2        Date Filed: 01/07/2010
                                 No. 08-11169

the core judicial function of setting the amount and schedule of restitution
payments for the period of incarceration. He asked the district court to enjoin
the respondent from sanctioning him for nonparticipation in the IFRP and to
invalidate 28 C.F.R. §§ 545.10, 545.11, and BOP Program Statement 5308.08,
which he argued impermissibly usurped the statutory duties of the district court
under the Mandatory Victims’ Restitution Act in favor of the BOP.
Kaemmerling repeats his arguments on appeal, contending that only the district
court may establish a schedule of payments for restitution. He argues that the
district court here ordered restitution in the form of monthly installments of
$150 that were not to begin until three months after Kaemmerling’s
commencement of supervised release, and that the court did not establish any
schedule for payments during the course of his incarceration. Kaemmerling
reasons that the BOP’s collection of funds from him through the IFRP is an
impermissible exercise of judicial authority.
      We find no merit in Kaemmerling’s arguments. Payment of restitution is
ordinarily required to be made “immediately” unless the district court orders
otherwise. 18 U.S.C. § 3572(d)(1). Here, the district court, after determining the
amount to be paid as restitution, ordered Kaemmerling to make restitution
while incarcerated pursuant to the prison’s IFRP. It then ordered, as a condition
of supervised release, that Kaemmerling continue his restitution in a specific
amount on a monthly basis.       The district court did not expressly delegate
anything to the BOP. Instead, the district court’s judgment determined the
amount of restitution and ordered immediate payment; this action was not an
unconstitutional delegation of judicial authority. See McGhee v. Clark, 166 F.3d
884, 886 (7th Cir. 1999); see also Bloch v. Lake, 183 F. App’x 471 (5th Cir. 2006);
Schmidt v. U.S. Dep’t of Justice, 34 F. App’x 151 (5th Cir. 2002). Because
Kaemmerling fails to show a constitutional deprivation, the district court did not
err by denying his § 2241 petition.
      AFFIRMED.

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