United States of America v. Michael E. Sawyer

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1275
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M ICHAEL E. S AWYER ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 770—Ronald A. Guzmán, Judge.
____________
No. 06-1614
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
P ATRICK D UNCAN ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:05-CR-30025-001-MJR—Michael J. Reagan, Judge.
____________

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2 Nos. 06-1275, 06-1614 & 06-4030
No. 06-4030
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
T ERRELL R OGERS ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 758—Blanche M. Manning, Judge.
____________
A RGUED O CTOBER 2, 2007—D ECIDED A PRIL 9, 2008
____________
Before E ASTERBROOK , Chief Judge, and M ANION and
W ILLIAMS , Circuit Judges.
E ASTERBROOK , Chief Judge. In each of these appeals,
the sole argument is that the district court committed
plain error by not specifying an installment plan for the
payment of restitution. In one of the three cases the dis-
trict judge set a plan (which we call a “schedule” fol-
lowing the statutory usage) to begin after release from
custody; this defendant maintains that doing so del-
egated schedule-setting during imprisonment to the
Bureau of Prisons. In the other cases the district judge
ordered all restitution to be paid immediately. The
judges in these two cases announced schedules orally
but failed to incorporate them into the judgments, which
state unconditionally that all restitution is due “immedi-
ately”; a judge’s oral statements are not enforceable

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Nos. 06-1275, 06-1614 & 06-4030 3
when an unambiguous judgment provides otherwise.
None of the three defendants protested in the district
court. We conclude that the first decision is correct and
that the oversight in the others need not be corrected on
appeal under the plain-error doctrine. See Fed. R. Crim. P.
52(b).
All three defendants pleaded guilty, and for current
purposes their crimes don’t matter. Michael Sawyer
was sentenced to 51 months’ imprisonment and ordered
to pay $1,386,082 as restitution. The judgment provides
that the full sum is due immediately. Patrick Duncan
was sentenced to 96 months’ imprisonment plus $177,727
as restitution. The judgment provides that “[p]ayments are
due immediately” but does not deal with time in prison
other than to say that money “may be paid from prison
earnings in compliance with the Inmate Financial Re-
sponsibility Program.” After release, Duncan must pay
$100 per month or 10% of his net earnings, whichever is
greater. Terrell Rogers was sentenced to 51 months’
imprisonment plus $1,837 as restitution. The judgment
provides that the full sum is due immediately. All three
defendants assert that they are unable to pay the whole
award now, and that 18 U.S.C. §3664(f)(2) therefore re-
quired the district judges to set a schedule of payments.
See United States v. Day, 418 F.3d 746, 751–57 (7th Cir.
2005). The prosecutors concede the point for all three
defendants; we accept that concession.
Duncan maintains that the district judge should have
specified how much he must pay each of his 96 months
in prison. To require some payment, while leaving the
amount open, is to delegate a judicial task to the Bureau
of Prisons, Duncan insists. Yet where’s the “delegation”?
In civil litigation, a judgment creditor chooses how soon

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4 Nos. 06-1275, 06-1614 & 06-4030
(if at all) to collect; no one thinks of this as a delegation of
judicial power to a private litigant. State law may estab-
lish exemptions and limit the extent of attachment or
garnishment to collect a judgment, but no power has been
delegated from the federal judge to the state. As for the
Bureau of Prisons: it does not need judicial permission to
remit money from a prisoner’s account, with or without
the prisoner’s assent. It has ample authority to set the
terms on which inmates are held. Whether inmates make
any money during their captivity, and, if they do, how
much must be paid to creditors, are subjects well within
the authority of the Executive Branch. See 28 C.F.R.
§545.11 and Program Statement P5380.08 (amended
Aug. 15, 2005), which set out the details of the Inmate
Financial Responsibility Program.
Courts are not authorized to override the Bureau’s
discretion about such matters, any more than a judge
could dictate particulars about a prisoner’s meal schedule
or recreation (all constitutional problems to the side).
Prisoners dissatisfied with a warden’s administration of
the Inmate Financial Responsibility Program may appeal
within the Bureau of Prisons, see 28 C.F.R. §545.11(d),
and may be able to obtain judicial review of the Bureau’s
final decision under the Administrative Procedure Act. 5
U.S.C. §702. Review under the APA is not plenary; it is
limited to a search for legal errors and arbitrary applica-
tion. 5 U.S.C. §706(2). Limits created by the APA cannot
be evaded by issuing a peremptory direction to the
Bureau of Prisons as part of the judgment of conviction.
What a court is not entitled to do it is certainly not re-
quired to do.
The authority of the Executive Branch of the federal
government does not depend on, or represent, any

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Nos. 06-1275, 06-1614 & 06-4030 5
“delegation” of power by the Judicial Branch. A judge
who turns scheduling over to a probation officer does
delegate authority, because the probation officer’s only
power stems from the court. See United States v. Ahmad,
2 F.3d 245, 249 (7th Cir. 1993). But the Bureau of Prisons’
authority rests on statutes, and any delegation is from the
President and the Attorney General rather than a judge.
Cf. United States v. Gomez, 24 F.3d 924 (7th Cir. 1994)
(Bureau may apply prisoner’s income to satisfy his debts);
United States v. House, 808 F.2d 508 (7th Cir. 1986) (same).
Because a prisoner’s earnings while in custody depend
on the Bureau of Prisons, as well as the prisoner’s co-
operation with its programs, it is not clear what payment
schedule a court could set if it wanted. Only assets the
prisoner had at the time of his sentence would be avail-
able as a realistic matter—and any existing assets should
be seized promptly. If the restitution debt exceeds a
felon’s wealth, then the Mandatory Victim Restitution Act
of 1996, 18 U.S.C. §§ 3663A, 3664, demands that this
wealth be handed over immediately; a schedule of pay-
ments covers only how much the convict must pay from
earnings (and any lump sums such as inheritances) in the
future.
Prison earnings and other transactions concerning
prison trust accounts are so completely within the
Bureau of Prisons’ control that it would be pointless for
a judge to tell the convict how much to pay a month.
We therefore agree with United States v. Dawkins, 202
F.3d 711 (4th Cir. 2000), and United States v. Miller, 406
F.3d 323 (5th Cir. 2005), that a judgment of conviction
need not contain a schedule of restitution payments to be
made during incarceration. We recognize that six cir-
cuits have reached a contrary conclusion. See United States

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6 Nos. 06-1275, 06-1614 & 06-4030
v. Kinlock, 174 F.3d 297 (2d Cir. 1999); United States v.
Corley, 500 F.3d 210 (3d Cir. 2007); United States v. Davis,
306 F.3d 398 (6th Cir. 2002); United States v. McGlothlin,
249 F.3d 783 (8th Cir. 2001); United States v. Gunning,
401 F.3d 1145 (9th Cir. 2005); United States v. Overholt,
307 F.3d 1231 (10th Cir. 2002). But these decisions rest on
a view that a silent judgment “delegates” judicial au-
thority to the Bureau of Prisons, and we have explained
why this is not so.
On occasion district judges have tried express delega-
tion to the Bureau of Prisons. United States v. Pandiello,
184 F.3d 682, 688 (7th Cir. 1999), was such a case, and
we held that a court may not transfer judicial authority
to the Bureau. (In Pandiello the district judge had directed
the defendant to make equal monthly payments while
in prison, then left it to the Bureau to set the amount of
those level payments. See 184 F.3d at 688.) But when the
judicial silence allows the Bureau to decide how much,
if anything, to remit through the Inmate Financial Re-
sponsibility Program, there is no problem. So we held in
McGhee v. Clark, 166 F.3d 884 (7th Cir. 1999), with respect
to collection of a fine through a prison trust account.
McGhee remarked that “[c]ases in which a district court
expressly has delegated to the [Bureau] its discretion to
schedule . . . payments have no application” when the
judgment leaves all decisions to the Bureau, to be made
on the Bureau’s own authority. 166 F.3d at 886. Whether
Pandiello is sound in treating the district court’s specifi-
cation of any details of payment during prison as a form
of “delegation” is a subject that we need not consider
further today.
Thus we hold that leaving payment during imprison-
ment to the Inmate Financial Responsibility Program is not

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Nos. 06-1275, 06-1614 & 06-4030 7
an error at all, let alone a plain error. The statute requires
the judge to set a schedule if the defendant cannot pay
in full at once, see 18 U.S.C. §3664(f)(2), but it does not
say when the schedule must begin. We hold today that
it need not, and as a rule should not, begin until after
the defendant’s release from prison. Payments until re-
lease should be handled through the Inmate Financial
Responsibility Program rather than the court’s auspices.
With respect to Sawyer and Rogers, however, the dis-
trict judges erred. Neither has the ability to pay immedi-
ately, and §3664(f)(2) therefore required the judges to
set schedules for repayment from future earnings and
other income once they leave prison. Several decisions in
this circuit hold that omissions of any schedule at all
meets the requirements of “plain error” under Fed. R.
Crim. P. 52(b). See, e.g., United States v. Thigpen, 456
F.3d 766, 771 (7th Cir. 2006); United States v. Mohammad,
53 F.3d 1426, 1438–39 (7th Cir. 1995); see also Pandiello,
184 F.3d at 688. Recently we held that a judge’s improper
failure to set schedules for drug testing of persons on
supervised release is not plain error. See United States v.
Tejeda, 476 F.3d 471, 475–76 (7th Cir. 2007). That opinion,
which was reviewed by the full court under Circuit
Rule 40(e), observes that plain-error review is not de-
signed to produce “expensive, technical, but essentially
meaningless do-overs”. 476 F.3d at 475. That’s a fair
description of what Sawyer and Rogers want. The
United States has asked us to overrule Thigpen and its
predecessors in light of Tejeda.
Plain-error review has three requirements and one
discretionary component. The requirements are (1) error
that (2) is plain and (3) affects substantial rights. See
United States v. Olano, 507 U.S. 725 (1993). If the defendant

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8 Nos. 06-1275, 06-1614 & 06-4030
shows these three things, then the court of appeals
must decide whether to exercise discretion in his favor. A
court should do so if the error “seriously affected the
fairness, integrity or public reputation of judicial pro-
ceedings.” Id. at 736. See also United States v. Cotton,
535 U.S. 625, 631–33 (2002); Jones v. United States, 527
U.S. 373, 389 (1999). Failure to set schedules for Sawyer
and Rogers is error and, after Day, that error is “plain.”
But the error does not affect their substantial rights.
In what way would a schedule—which is to say, “pay
at least $x every y days”—be more favorable than an open-
ended approach that leaves timing to the defendants’
discretion? Slow payment does not return a person
to prison. Only a deliberate failure to use available re-
sources could have that effect, and then only during
the term of supervised release (one condition of which is
paying restitution). If a victim or probation officer con-
cludes that a person obliged to make restitution is paying
less than he is able, all that happens is that the shortfall
will be reported to the judge—and the remedy will be a
schedule of minimum payments. See 18 U.S.C. §3664(k)
and §3583(e)(2) (schedules may be set or changed at any
time in light of the convict’s current resources).
Sawyer and Rogers owe the full amount. 18 U.S.C.
§3663A, §3664(f)(1). A statement along the lines of “fulfil
your legal obligations” does not undermine anyone’s
rights; instead it honors legal entitlements—including
the victims’ entitlement to restitution. All that a “due
immediately” statement in a judgment does is com-
mand the defendant to discharge his obligations as
quickly as possible. We often say that restitution in a
criminal case is fundamentally a civil remedy, adminis-
tered through the criminal process only for convenience.

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Nos. 06-1275, 06-1614 & 06-4030 9
See, e.g., United States v. George, 403 F.3d 470, 473 (7th Cir.
2005).
Victims could obtain the same monetary judgment
through civil litigation, and civil judgments are payable
in full immediately. Judgment creditors may seize assets
and garnish wages. A criminal judgment providing no
more than is available from a civil suit cannot be
thought to jeopardize anyone’s “substantial rights.” In-
deed, under §3664(m)(1)(B) a person to whom restitu-
tion is due may register the criminal judgment and collect
it through the civil process. Alternatively a victim could
initiate a separate civil suit, and the wrongdoer’s liabil-
ity would be incontestable as a result of §3664(l); this
approach is attractive to a victim who thinks that the
court has set restitution too low and who wants damages
to be established under standard rules of tort or con-
tract law.
Even if “pay immediately” could be thought to delegate
power to the probation office during the period of super-
vised release—though this is not what the judgment
says; “pay in full” does not delegate any power to anyone,
and a “power to alert the judge if the defendant doesn’t
pay” is a permissible form of delegation—neither Sawyer
nor Rogers has any reason to think that the probation
office’s ideas about an appropriate rate of payment will be
more onerous than the schedule a judge would have
adopted. If the probation office is a tough taskmaster,
the defendant may obtain a judicial decision under
§3583(e)(2). Thus, just as in Tejeda, it is impossible to see
how a defendant’s substantial rights have been compro-
mised.
Quite apart from the question whether a statement that
restitution is due immediately affects defendants’ sub-

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10 Nos. 06-1275, 06-1614 & 06-4030
stantial rights, it is difficult to understand how a judicial
order that does no more than require a defendant to pay
what he owes could undermine the fairness, integrity,
or public reputation of judicial proceedings. To the con-
trary, a schedule that lets the defendant profit from
crime diminishes the public reputation of judicial pro-
ceedings. Let’s not kid ourselves: One reason defendants
want judges to set schedules is to avoid paying what
they owe. It is hard, perhaps impossible, for a judge to
know how much a given defendant will be able to pay
years later. Schedules are guesswork. If the judge sets one
that turns out to be too high, the defendant won’t pay (you
can’t get blood from a stone); but if the judge errs on the
low side, the defendant keeps the money and the victim
loses out.
Duncan’s schedule, which takes effect as soon as he
leaves prison, shows the risk. He has been ordered to pay
$177,827 in restitution. He owes that amount plus interest,
which by statute is set at 4.77% (a rate based on what
the United States pays on federal debt, much lower than
what Duncan would pay for unsecured credit on his own
account). See 18 U.S.C. §3612(f)(1). After eight years in
prison, Duncan will owe $260,297 (less to the extent of
his payments under the Inmate Financial Responsibility
Program). To amortize the debt over 20 years, the maxi-
mum allowed by §§ 3664(m), 3613(b), (c), Duncan would
have to pay $19,549 a year, or $1,629 a month. That is
substantially more than the $100 monthly minimum set
by his schedule, and likely more than 10% of his gross
income after release. The district court’s actual schedule
directs him to pay 10% of net income—“net of what?”,
one may ask, but net must be less than gross. So his
scheduled payments are unlikely to satisfy his debt.

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Nos. 06-1275, 06-1614 & 06-4030 11
What’s more, the district court relieved Duncan of the
need to pay interest, as 18 U.S.C. §3612(f)(3)(A) allows. This
means that Duncan could amortize the debt after release
by paying $741 a month. Even this—which effectively
forces the victims to bear more than half of the
loss—considerably exceeds the $100 monthly minimum
payment. No wonder defendants like schedules; they
are a great way to escape paying what’s owed. (The
United States has not filed a cross-appeal to maintain
that Duncan’s schedule is too low.)
Sawyer defrauded his victims out of almost $1.4 million.
He owes that amount plus interest; the judge in
Sawyer’s case did not use the option conferred by
§3612(f)(3)(A) to relieve the wrongdoer of interest. If, as
is likely, Sawyer pays little or nothing during his incar-
ceration, he will owe $1,685,342 on the day he is re-
leased. To amortize that debt over 20 years, Sawyer
would have to pay $124,940 annually or $10,412 a month.
His ability to pay such a sum is doubtful; he must be
hoping that the judge would set a substantially lower
schedule, as the court did for Duncan. But any lower
payment would be equivalent to excusing non-payment,
which would be incompatible with the fundamental
command of the Mandatory Victim Restitution Act—that
the wrongdoer make good the harm done.
Rogers owes only $1,837 in restitution. By the time of
his release interest will have increased the debt to $2,275
(less if he makes payments under the Inmate Financial
Responsibility Program). As with Duncan, the district
judge excused Rogers from paying interest, so he could
retire the whole debt by paying $1,837 after release.
That’s within the reach of even a person whose earning
capacity had been diminished by a conviction that

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12 Nos. 06-1275, 06-1614 & 06-4030
makes some jobs unobtainable. A schedule spreading
repayment over an extended period would injure the
victims for no good reason (the longer the schedule, the
more the value of the repayment is eroded by the non-
accrual of interest). An obligation that Rogers pay “imme-
diately” (which is to say, as soon as possible) after re-
lease is not a miscarriage of justice.
Thigpen, Pandiello, and Mohammad find plain error but
do not discuss the issues we have canvassed in this opin-
ion. Similarly, other circuits have held that lack of a
schedule is plain error without discussing how an order
that does no more than require payment of one’s just
debts undermines substantial rights or calls the legal
system into disrepute. See United States v. Kinlock, 174
F.3d 297 (2d Cir. 1999); United States v. Coates, 178 F.3d
681 (3d Cir. 1999); United States v. Lee, 213 F.3d 633 (4th
Cir. 2000); United States v. Davis, 306 F.3d 398 (6th Cir.
2002); United States v. Overholt, 307 F.3d 1231 (10th Cir.
2002); United States v. Heath, 419 F.3d 1312 (11th Cir. 2005).
Contra, United States v. Miller, 406 F.3d 323 (5th Cir. 2005)
(lack of a schedule not necessarily plain error). Now
that Tejeda has reopened the subject in this circuit, we
think it preferable to have a unified approach than to
maintain inconsistent lines of precedent—one for drug
testing and another for restitution. For the reasons we
have canvassed, Tejeda’s approach is the preferable one.
See also United States v. Padilla, 415 F.3d 211 (1st Cir.
2005) (en banc) (taking same approach as Tejeda to drug-
testing issues).
A judgment requiring defendants to pay restitution
immediately after release, while erroneous (if the defen-
dant lacks the wealth to pay at once), does not jeop-
ardize substantial rights, and the uncorrected error does

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Nos. 06-1275, 06-1614 & 06-4030 13
not imperil the fairness, integrity, or public reputation of
judicial proceedings. We therefore overrule Thigpen,
Pandiello, Mohammad, and any other decision in this
circuit treating an immediate-payment requirement as
plain error that the court of appeals must correct. This
opinion was circulated before release to all active judges
under Circuit Rule 40(e). No judge requested a hearing
en banc.
A FFIRMED
USCA-02-C-0072—4-9-08

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