USA v. Sepulveda et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA :
:
v. : CR 95-75-04 S
:
GEORGE PERRY :
REPORT AND RECOMMENDATION
David L. Martin, United States Magistrate Judge
Before the Court is Defendant’s Motion for Payment Schedule
(“Motion”) (Docket (“Dkt.”) #1136) which has been filed pro se by
Defendant George Perry (“Defendant” or “Perry”). Because the
Motion appears to seek either: (1) to alter the Judgment (Dkt.
#849) entered in 1997 by U.S. District (now Chief) Judge Mary M.
Lisi or (2) to have Judge Lisi establish a payment schedule, it is
addressed by way of this Report and Recommendation. See Chase
Manhattan Bank N.A. v. Stapleton, Civil No. 1993-29, 2008 WL
2235336, at *2 (D.V.I. 2008)(“the magistrate judge lacks the
authority to set aside prior decisions of a district judge”); Earl
v. Turnbull, No. A02-0224 CV (HRH), 2005 WL 3178164, at *1 (D.
Alaska 2005)(“The magistrate judge lacks authority to reconsider
the district judge’s order.”); Taylor v. Nat’l Grp. of Cos., Inc.,
765 F.Supp. at 413 (“It is simply not the case that a magistrate’s
jurisdiction is, by fiat, somehow merged with that of the district
court to an extent sufficient to vest the magistrate with the
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authority to reconsider and set aside or alter prior decisions of
the district judge.”); cf. Scott v. United States, No. 03-80815,
2011 WL 1044240, at *1 (E.D. Mich. Mar. 23, 2011)(adopting
magistrate judge’s report and recommendation and denying
petitioner’s motion to vacate, set aside, or amend his sentence);
White v. United States, No. 2:10-CV-111, 2011 WL 913246, at *8
(N.D. Tex. Feb. 24, 2011)(recommending that prisoner’s petition to
correct sentence be denied).
I. Background
In 1997, after a lengthy jury trial which resulted in
Defendant being found guilty of multiple felonies, Defendant was
sentenced to concurrent life sentences for the offenses of:
racketeering, 18 U.S.C. § 1962(c); conspiracy to commit
racketeering, id. § 1962(d); violent crime in aid of racketeering
(including two murders), id. § 1959(a)(1); and car jacking, id. §
2119(3). See Judgment at 1-3. He was sentenced to ten years
imprisonment (concurrent with the life sentences) for two
additional counts of violent crime in aid of racketeering. See id.
at 2-3. For two counts of using and carrying a firearm during and
in relation to a crime of violence, 18 U.S.C. § 924(c), Defendant
received sentences of life imprisonment which were consecutive to
each other and consecutive to the life sentences imposed for the
earlier counts. See Judgment at 2-3.
Pertinent to the instant Motion, the Court ordered Defendant
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The prayer for relief contains an apparent typographical error as	1
it states that Defendant seeks an order setting a payment schedule “in
the amount of $5 every 90 days until such time the restitution is
satisfied.” Motion at 5.
18 U.S.C. § 3664(k) states:	2
(k) A restitution order shall provide that the defendant shall
notify the court and the Attorney General of any material
change in the defendant’s economic circumstances that might
affect the defendant’s ability to pay restitution. The court
may also accept notification of a material change in the
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to make restitution to the families of the murder victims in the
total amount of $274,090.00. See id. at 5. The Judgment reflects
that payment of the restitution was due “in full immediately ...,”
id. at 6, and further reflects that payment of the restitution
“shall be due during the period of imprisonment,” id. The Court
waived imposition of a fine “because of inability to pay.” Id. at
7.
II. Discussion
By the Motion, Defendant seeks to have the Court enter an
order setting a payment schedule as to the restitution order
contained in the October 2, 1997, Judgment. See Motion at 5.
Specifically, Defendant requests “that the Court set a reasonable
schedule of payments such as the partial payment by Defendant of
$25 every 90 days.” Id. at 2. Defendant appears to make three	1
arguments in support of the Motion.
A. 18 U.S.C. § 3664(k)
Defendant initially indicates that he is notifying the Court
and the Attorney General pursuant to 18 U.S.C. § 3664(k) that he	2
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defendant’s economic circumstances from the United States or
from the victim. The Attorney General shall certify to the
court that the victim or victims owed restitution by the
defendant have been notified of the change in circumstances.
Upon receipt of the notification, the court may, on its own
motion, or the motion of any party, including the victim,
adjust the payment schedule, or require immediate payment in
full, as the interests of justice require.
18 U.S.C. § 3664(k).
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“is unable to meet restitution in full or the Federal Bureau of
Prisons’ demands for arbitrary set amounts of partial periodic
payments and is therefore respectfully requesting that the Court
set a reasonable schedule of payments such as the partial payment
by Defendant of $25 every 90 days.” Motion at 2. The prerequisite
for any action pursuant to § 3664(k) is 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).
At the sentencing, Judge Lisi determined that Defendant “does
not presently have the finances to begin even making any
restitution to either of those families ....” Sentencing
Transcript (“Tr.”) at 46. Thus, to the extent that Defendant
claims that his present inability to make restitution in full is a
material change in his economic circumstances, such contention is
rejected because this condition existed at the time of sentencing,
and Judge Lisi was aware of it as demonstrated by the transcript.
To the extent that Defendant may be indicating that he now has
the ability to make $25 payments every ninety days, this could be
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a material change in his economic circumstances as it appears he
did not have this ability when he was sentenced. See id. However,
Defendant has provided no information about his present income and
assets which would enable the Court to determine whether the amount
of payment he requests is reasonable.
Moreover, § 3664(k) requires that the Attorney General certify
to the Court that the victim or victims owed restitution have been
notified of the change in circumstances. See 28 U.S.C. § 3664(k).
Defendant has not provided sufficient information about his
economic circumstances to enable the Attorney General to perform
this statutory requirement. Simply notifying the victims that
Defendant has requested that he be allowed to pay $25 every 90 days
towards the amount owed for restitution would not, in the view of
this Magistrate Judge, be sufficient. The victims, like the Court,
would almost certainly want to know:
(1) what percentage of Defendant’s total quarterly income
is represented by the proposed quarterly payments of $25, and
(2) what Defendant’s total quarterly income would be if
he availed himself of every employment opportunity available
within the Bureau of Prisons (“BOP”) and exerted himself to
the maximum degree possible.
The victims (as well as the Court) also would likely want
further information about the BOP’s alleged demands for “arbitrary
set amounts of partial periodic payments ....” Motion at 2.
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While Defendant may not be able to explain fully the BOP’s	3
rationale (as his ability to do so depends on the BOP having explained
its rationale to Defendant), presumably he knows the amount of the
“partial periodic payments ...,” Motion at 2, which the BOP has demanded
and can at least provide that figure. It is also possible (if not
probable) that the BOP has provided Defendant with some explanation of
how it determined the amount of the “partial periodic payments ...,” id.,
which it has demanded he make.
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Specifically, both the victims and the Court would want to know why
the BOP believes that Defendant has the ability to make such
payments.3
In sum, Defendant has not supplied sufficient information
about the change in his economic circumstances to enable the Court
and the Attorney General to take action pursuant to § 3664(k).
Accordingly, to the extent that the Motion seeks to have the Court
order the requested payment schedule pursuant to § 3664(k), I
recommend that the Motion be denied without prejudice and that
Defendant be allowed to re-file it, supported by a sworn affidavit
which details his income and assets and which would enable the
Court to determine the information labeled as (1) and (2) in the
preceding paragraph. The affidavit should also explain what
“demands for arbitrary set amounts of partial periodic payments
...,” Motion at 2, have been made on Defendant by the BOP and why
those demands are unreasonable.
B. Unlawful Delegation
Defendant next appears to argue that the Court has unlawfully
delegated the preparation of a payment schedule to the BOP. See
Motion at 3 (“The Court is well aware that Defendant cannot
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immediately pay the full amount of restitution ordered. Thus, this
Court essentially delegated the preparation of a payment schedule
to the [BOP].”). Defendant notes that although there is a split
among the circuits as to whether such delegation is lawful, a
majority forbid it. See id.; see also Ward v. Chavez, No. 09-
17016, ___ F.3d ___, 2012 WL 1592171, at *6 (9 Cir. May 8,	th
2012)(“the majority of our sister circuits to have considered the
issue have concluded that where the defendant lacks the financial
resources to make immediate payment, a sentencing court may not
order immediate payment because it implicitly delegates to the BOP
or the probation office the district court’s obligation to schedule
payment”) (citing, among other cases, United States v. Corley, 500
F.3d 210, 225-27 (3 Cir. 2007), vacated and remanded on other	rd
grounds by 556 U.S. 303, 129 S.Ct. 1558 (2009); United States v.
Prouty, 303 F.3d 1249, 1254-55 (11 Cir. 2002); United States v.	th
McGlothlin, 249 F.3d 783, 785 (8 Cir. 2001); United States v.	th
Kinlock, 174 F.3d 297, 301 (2 Cir. 1999)). The First Circuit held	nd
that a district judge cannot empower the probation officer to make
a final decision as to the installment schedule for payments of a
fine. United States v. Merric, 166 F.3d 406, 409 (1 Cir. 1999).	st
Defendant, however, is barred from raising this argument in
the instant Motion since this claim could have been raised on his
direct appeal, but it was not. See Stone v. Powell, 428 U.S. 465,
477 n.10, 96 S.Ct. 3037 (1976); Marshall v. Hendricks, 307 F.3d 36,
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81 n.33 (3 Cir. 2002)(“The premise that nonconstitutional claims	rd
are waived if not raised on direct appeal is, of course,
unremarkable and well settled law.”); Knight v. United States, 37
F.3d 769, 772 (1 Cir. 1994)(“A nonconstitutional claim that could	st
have been, but was not, raised on appeal, may not be asserted by
collateral attack ... absent exceptional circumstances.”)(citing
Stone); see also id. at 773 (finding claim that district court
abused its discretion in imposing a $15,000 fine notwithstanding
defendant’s inability to pay to be an “ordinary error[] that could
and should have been raised by [defendant] on direct appeal. And
even assuming the error was committed, the error would not amount
to a ‘complete miscarriage of justice.’”)(footnote omitted); Lucas
v. United States, No. 1:00CV00848, 1:99CR233-2, 2001 WL 34545873,
at *3 (M.D.N.C. Apr. 26, 2001)(“Any non-constitutional claims as to
sentencing errors were waved by failing to raise them on appeal
where petitioner would have had the opportunity to raise the
issues.”).
Accordingly, to the extent that the Motion attempts to raise
a claim that Judge Lisi unlawfully delegated to the BOP the
preparation of a payment schedule, such argument should be rejected
because Defendant failed to raise it in his direct appeal, see
United States v. Lara, 181 F.3d 183, 191-200 (1 Cir. 1999)	st
(discussing issues raised on appeal by Perry), and it is therefore
waived.
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18 U.S.C. § 3664(f)(2) states:	4
(2) Upon determination of the amount of restitution owed to
each victim, the court shall, pursuant to section 3572,
specify in the restitution order the manner in which, and the
schedule according to which, the restitution is to be paid, in
consideration of--
(A) the financial resources and other assets of the
defendant, including whether any of these assets are
jointly controlled;
(B) projected earnings and other income of the
defendant; and
(C) any financial obligations of the defendant;
including obligations to dependents.
18 U.S.C. § 3664(f)(2).
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C. Consideration of 3664(f)(2) Factors
Lastly, Defendant asserts that the Court “never considered the
factors set forth in Section 3664(f)(2) when it entered the	[4]
restitution order at issue.” Motion at 3. Like the preceding
argument, this claim is barred because Defendant could have raised
it on direct appeal, but he did not.
Moreover, the Court considered Defendant’s economic
circumstances at sentencing as the Government persuasively argues
in its memorandum. See Government’s Response to Defendant’s Motion
for Payment Schedule (Dkt. #1138) (“Response”) at 3-5. The
Presentence Investigation Report (“PSI”) included Defendant’s
Personal Financial Statement (“PFS”) and Defendant’s declaration
that the PFS:
fully describes my financial resources, including a
complete listing of all assets owned or controlled by me
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as of the date of my arrest. The Personal Financial
Statement also includes my financial needs and earning
ability and the financial needs and earning ability of my
dependants.
Response, Exhibit A at 2 (PSI, Declaration of Defendant Personal
Financial Statement). With this information in hand, Judge Lisi
waived all fines and interest and imposed only the mandatory
special assessment. See Judgment.
Judge Lisi’s remarks at sentencing also reflect that she
considered the factors set forth in § 3664(f). Judge Lisi stated
in part:
I impose no fine. I have reviewed the financial
information provided by this Defendant as well as the
submissions of the Vandergroen family and the Mendez
family. And although I acknowledge that this Defendant
does not presently have the finances to begin even making
any restitution to either of these families, it is my
intention by imposing restitution that any money he comes
into, whether it’s a nickel or a million dollars, that a
portion of it go to the families of those two young men
whose lives he took.
Tr. at 46.
Accordingly, to the extent that Defendant argues Judge Lisi
failed to consider the factors identified in § 3664(f)(2), such
argument is barred because it could have been raised on direct
appeal but was not. In addition, the record demonstrates that
Judge Lisi considered these factors.
III. Conclusion
For the reasons stated above, I recommend that to the extent
the Motion seeks to have the Court enter an order setting a payment
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schedule pursuant to 18 U.S.C. § 3664(k), the Motion should be
denied without prejudice. I further recommend that, to the extent
the Motion seeks to argue that the Court unlawfully delegated the
preparation of a payment schedule to the BOP and that the Court
failed to consider the factors set forth in Section 3664(f)(2),
such arguments should be rejected as they have been waived and, as
to the latter argument, the record contradicts Defendant’s claim.
Any objections to this Report and Recommendation must be
specific and must be filed with the Clerk of Court within fourteen
(14) days of its receipt. See Fed. R. Civ. P. 72(b); DRI LR Cv
72(d). Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the district court and
of the right to appeal the district court’s decision. See United
States v. Valencia-Copete, 792 F.2d 4, 6 (1 Cir. 1986); Park Motor	st
Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1 Cir. 1980).	st
/s/ David L. Martin
DAVID L. MARTIN
United States Magistrate Judge
May 16, 2012
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