          Case: 13-12033   Date Filed: 10/24/2014   Page: 1 of 8


                                                       [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-12033
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:10-cr-00094-JOF-LTW-2



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus

BRIAN ALDRICH DUPREE,

                                                        Defendant-Appellant.


                     ________________________

                           No. 13-14607
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:10-cr-00094-JOF-LTW-2



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus
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BRIAN ALDRICH DUPREE,

                                                                  Defendant-Appellant.

                             ________________________

                    Appeals from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                  (October 24, 2014)

Before WILSON, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      In these consolidated appeals, Brian Aldrich Dupree challenges pro se two

orders modifying an order of restitution that had been entered in his criminal case

following his conviction for conspiring to defraud the United States. Dupree argues

that the district court lacked jurisdiction to adjust the order of restitution; the

adjusted order impermissibly delegated to the Bureau of Prisons authority to

establish a payment schedule; and the district court lacked jurisdiction to amend

the adjusted order. Although the district court lacked jurisdiction to amend the

adjusted order after it had been appealed by Dupree, see Shewchun v. United

States, 797 F.2d 941, 942 (11th Cir. 1986), the district court had jurisdiction to

enter the adjusted order, 18 U.S.C. § 3664(k). But we vacate that order because the

district court delegated to the Bureau the judicial function of establishing a

payment schedule. See United States v. Prouty, 303 F.3d 1249, 1255 (11th Cir.

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2002). We vacate the amended and adjusted orders of restitution, and we remand

for the district court to enter an order “specifying . . . the manner in which, and the

schedule according to which, [his] restitution is to be paid,” 18 U.S.C.

§ 3664(f)(2).

      Dupree received inconsistent information about when to commence paying

his restitution. Dupree’s written plea agreement provided that “[f]ull restitution[]

[would be] due and payable immediately[] to all victims of the offense(s) and

relevant conduct.” But during the change of plea hearing, the district court told

Dupree that restitution “[would] be set up as a condition of your supervised

release.” Later, during the sentencing hearing, the district court said that “the

probation office will set reasonable amounts so that [Dupree] will owe 25 percent

of any gross income that [he] will have in excess of $15,000 a year computed

monthly and payable monthly.”

      The order of restitution provided that the probation office would establish

Dupree’s payment schedule. In its final judgment, the district court ordered the

“U.S. Probation Office [to] set a reasonable repayment plan for restitution which

shall include twenty-five percent (25%) of defendant’s gross income in excess of

$15,000.00 per year which shall be computed and paid in monthly installments.”

Dupree appealed, and this Court affirmed after granting his attorney’s motion to




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withdraw, Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). United States

v. Dupree, 457 Fed. App’x 867 (11th Cir. 2012).

      Dupree twice moved to modify the order of restitution. While his direct

appeal was pending, Dupree moved for an “order [stating] that [he is] allowed to

pay restitution directly, freely and voluntarily” by submitting “NOT LESS THAN

$25.00 per cal[e]ndar quarter[,] paid directly to the United States District Court.”

And Dupree submitted an affidavit stating that he had entered prison depleted of

assets, but he had since participated in a work detail for which he was paid “not in

excess of $15.00 per month.” Later, Dupree filed a motion for clarification in

which he complained that prison officials were collecting restitution payments

from his prison account. The district court denied Dupree’s two motions.

      On April 18, 2013, the district court adjusted Dupree’s order of restitution.

See 18 U.S.C. § 3664(k). The adjusted order provided that restitution was due “in

full immediately” and that Dupree had to “make restitution payments from any

wages he may earn in prison in accordance with the Bureau of Prisons Financial

Responsibility Program.” The adjusted order also provided that “[a]ny portion of

the restitution that is not paid in full at the time of [Dupree’s] release from

imprisonment shall become a condition of supervision and be paid at the monthly

rate of $150 plus 25% of [his] gross income in excess of $1,250 per month.”




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      Dupree filed a notice of appeal challenging the adjusted order. The district

court treated the filing as a motion for reconsideration and granted relief in part.

The district court ruled that it would amend its adjusted order in two ways: to

specify a payment schedule because the adjusted order failed to “set forth the

timing and amount of [Dupree’s] restitution payments, instead leaving that to the

Bureau of Prisons’ discretion”; and to specify that Dupree should “begin making

restitution payments immediately” because the original order of restitution “was

silent as to when Dupree was to begin making restitution payments” and there was

a statutory presumption that payments were due “immediately . . . unless . . . the

court provide[d] for payment on a date certain or in installments,” 18 U.S.C.

§ 3572(d)(1).

      After this Court docketed Dupree’s notice of appeal, the district court

amended its adjusted order of restitution. The amended order provided that

“restitution shall be paid immediately,” but if Dupree was unable to comply, he

was required to “begin making payments amounting to 30% of any wages he may

earn in prison” effective “immediately.” The amended order also provided that,

“[a]ny portion of the restitution that . . . [remained] at the time of [Dupree’s]

release from imprisonment shall become a condition of supervision and be paid at

the monthly rate of $150 plus 25% of [his] gross income in excess of $1,250 per

month ($15,000 per year).” Dupree appealed that order.


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      The district court lacked jurisdiction to amend its adjusted order of

restitution. “Subject to exceptions not relevant here, ‘the filing of a notice of appeal

is an event of jurisdictional significance—it confers jurisdiction on the court of

appeals and divests the district court of its control over the aspects of the case

involved in the appeal.’” United States v. Diveroli, 729 F.3d 1339, 1341 (11th Cir.

2013) (alteration omitted) (quoting United States v. Tovar–Rico, 61 F.3d 1529,

1532 (11th Cir. 1995)). After the district court entered its adjusted order, Dupree

filed a written notice of appeal. Although the district court treated Dupree’s filing

as a motion for reconsideration, it was plainly a notice of appeal, and we docketed

it accordingly. The filing is captioned as a “notice of appeal,” and it states

unambiguously that Dupree is “tender[ing] his notice to appeal to the Court of

Appeals of the Eleventh Circuit the . . . Judgment . . . dated April 18, 2013,” under

Rule 4 of the Federal Rules of Appellate Procedure. Dupree’s written notice of

appeal divested the district court of jurisdiction to amend the adjusted order.

      The district court had jurisdiction to adjust the order of restitution. Section

3664(k) provides that, if a defendant submits notice “of [a] material change in [his]

economic circumstances that might affect [his] ability to pay restitution,” the

district court “may, on its own motion, . . . adjust the payment schedule, or require

immediate payment in full, as the interests of justice require.” 18 U.S.C. § 3664(k).

The district court adjusted the order of restitution after receiving notice from


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Dupree that his financial situation had changed. Although the adjusted order does

not mention the change in Dupree’s economic circumstances, his motion and

accompanying affidavit state that he had been penniless when he entered prison,

but he had since joined a work detail and wanted to use his earnings to make

restitution payments while he was incarcerated. In the light of that information, the

district court had authority to adjust the order of restitution to reflect the “bona fide

change in [Dupree’s] financial condition.” See Cani v. United States, 331 F.3d

1210, 1215 (11th Cir. 2003).

      We nonetheless are required to vacate the adjusted order. The Mandatory

Victims Restitution Act states that “the court shall . . . specify in the restitution

order the manner in which, and the schedule according to which, the restitution is

to be paid,” 18 U.S.C. § 3664(f)(2), and we have held that this judicial duty is

nondelegable, Prouty, 303 F.3d at 1255. Dupree argues, and we agree, that the

district court delegated its duty to establish a payment schedule by adopting the

payment schedule devised by the Bureau. The district court later acknowledged

that its adjusted order was invalid because it “[did] not set forth the timing and

amount of [Dupree’s] restitution payments, instead leaving that to the Bureau of

Prisons’ discretion.” And we notice that the record does not reflect that Dupree

complied with his duty to notify the Attorney General of the change in his

economic circumstances or that the Attorney General complied with its duty to


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certify to the district court that Dupree’s victims were notified of the change in his

economic circumstances. 18 U.S.C. § 3664(k).

      We VACATE the amended and adjusted orders of restitution, and we

REMAND for the district court to consider Dupree’s ability to make installment

payments and to enter an order that establishes an amount of and schedule for his

restitution payments.




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